As filed with the Securities and Exchange Commission on November 27, 2013
(Exact name of registrants as specified in charter)
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Maryland | 6798 | 45-2482685 | ||
(State or other jurisdiction of incorporation or organization) |
(Primary Standard Industrial Classification Code Number) |
(I.R.S. Employer Identification Number) |
(Address, Including Zip Code, and Telephone Number, Including Area Code, of Registrants Principal Executive Offices)
(Name, Address, Including Zip Code, and Telephone Number, Including Area Code, of Agent for Service)
With copies to:
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Peter M. Fass, Esq. Steven L. Lichtenfeld, Esq. Proskauer Rose LLP Eleven Times Square New York, New York 10036 (212) 969-3000 |
Michael J. Aiello, Esq. Matthew J. Gilroy, Esq. Weil, Gotshal & Manges LLP 767 Fifth Avenue New York, New York 10153 (212) 310-8000 |
Richard A. Silfen, Esq. Darrick M. Mix, Esq. Duane Morris LLP 30 South 17th Street Philadelphia, PA 19103 (215) 979-1000 |
Approximate date of commencement of the proposed sale to the public: As soon as practicable after this Registration Statement becomes effective.
If the securities being registered on this Form are being offered in connection with the formation of a holding company and there is compliance with General Instruction G, check the following box. o
If this Form is filed to register additional securities for an offering pursuant to Rule 462(b) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
If this Form is post-effective amendment filed pursuant to Rule 462(d) under the Securities Act, check the following box and list the Securities Act registration statement number of the earlier effective registration statement for the same offering. o
Indicate by check mark whether the registrant is a large accelerated filer, an accelerated filer, a non-accelerated filer, or a smaller reporting company. See the definitions of large accelerated filer, accelerated filer and smaller reporting company in Rule 12b-2 of the Exchange Act. (Check one):
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Large accelerated filer x | Accelerated filer o | Non-accelerated filer o | Smaller reporting company o | |||
(Do not check if a smaller reporting company) |
If applicable, place an X in the box to designate the appropriate rule provision relied upon in conducting this transaction:
Exchange Act Rule 13e-4(i) (Cross-Border Issuer Tender Offer) o
Exchange Act Rule 14d-1(d) (Cross-Border Issuer Third Party Tender Offer) o
The Registrants hereby amend this Registration Statement on such date or dates as may be necessary to delay its effective date until the Registrants shall file a further amendment which specifically states that this Registration Statement shall thereafter become effective in accordance with Section 8(a) of the Securities Act or until the Registration Statement shall become effective on such date as the Securities and Exchange Commission, acting pursuant to said Section 8(a), may determine.
This Pre-Effective Amendment No. 6 (Amendment No. 6) to the Registration Statement on Form S-4 of American Realty Capital Properties, Inc. (the Registration Statement) is being filed solely to amend the Exhibit Index and to file Exhibits 4.2, 5.1, 8.1, 21.1, 23.1, 23.2 and 99.2 to the Registration Statement, as well as XBRL interactive data. No other changes have been made to the Registration Statement. Accordingly, this Amendment No. 6 consists solely of the facing page, this explanatory note, Part II and the Exhibit Index.
Maryland law permits a Maryland corporation to include in its charter a provision limiting the liability of its directors and officers to the corporation and its stockholders for money damages except for liability resulting from (1) actual receipt of an improper benefit or profit in money, property or services or (2) active and deliberate dishonesty that is established by a final judgment and is material to the cause of action. The charter of ARCP contains such a provision that limits such liability to the maximum extent permitted by Maryland law.
The MGCL requires a Maryland corporation (unless its charter provides otherwise, which ARCPs charter does not) to indemnify a director or officer who has been successful in the defense of any proceeding to which he or she is made or threatened to be made a party by reason of his or her service in that capacity. The MGCL permits a corporation to indemnify its present and former directors and officers, among others, against judgments, penalties, fines, settlements and reasonable expenses actually incurred by them in connection with any proceeding to which they may be made or threatened to be made a party by reason of their service in those or other capacities unless it is established that: (1) the act or omission of the director or officer was material to the matter giving rise to the proceeding and (A) was committed in bad faith or (B) was the result of active and deliberate dishonesty; (2) the director or officer actually received an improper personal benefit in money, property or services; or (3) in the case of any criminal proceeding, the director or officer had reasonable cause to believe that the act or omission was unlawful.
However, under the MGCL, a Maryland corporation may not indemnify a director or officer in a suit by or in the right of the corporation in which the director or officer was adjudged liable to the corporation or for a judgment of liability on the basis that a personal benefit was improperly received. A court may order indemnification if it determines that the director or officer is fairly and reasonably entitled to indemnification, even though the director or officer did not meet the prescribed standard of conduct, was adjudged liable to the corporation or was adjudged liable on the basis that personal benefit was improperly received. However, indemnification for an adverse judgment in a suit by ARCP or in ARCPs right, or for a judgment of liability on the basis that personal benefit was improperly received, is limited to expenses.
In addition, the MGCL permits a corporation to advance reasonable expenses to a director or officer upon the corporations receipt of: (1) a written affirmation by the director or officer of his or her good faith belief that he or she has met the standard of conduct necessary for indemnification by the corporation; and (2) a written undertaking by the director or officer or on the directors or officers behalf to repay the amount paid or reimbursed by the corporation if it is ultimately determined that the director or officer did not meet the standard of conduct.
ARCPs charter obligates ARCP, to the maximum extent permitted by Maryland law in effect from time to time, to indemnify and, without requiring a preliminary determination of the ultimate entitlement to indemnification, pay or reimburse reasonable expenses in advance of final disposition of a proceeding to (1) any present or former director or officer who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity; or (2) any individual who, while a director or officer of ARCP and at ARCPs request, serves or has served as a director, officer, partner, member, manager or trustee of another corporation, REIT, partnership, limited liability company, joint venture, trust, employee benefit plan or any other enterprise and who is made or threatened to be made a party to the proceeding by reason of his or her service in that capacity.
ARCPs charter also permits ARCP to indemnify and advance expenses to any person who served a predecessor of ARCPs in any of the capacities described above and to any employee or agent of ARCP or a predecessor of ARCP.
ARCP is party to indemnification agreements with each of its directors and executive officers that would provide for indemnification to the maximum extent permitted by Maryland law.
ARCP has purchased and maintains insurance on behalf of all of its directors and executive officers against liability asserted against or incurred by them in their official capacities.
II-1
Insofar as the foregoing provisions permit indemnification of directors, officers or persons controlling ARCP for liability arising under the Securities Act, ARCP has been informed that, in the opinion of the SEC, this indemnification is against public policy as expressed in the Securities Act and is therefore unenforceable.
Item 21. Exhibits
A list of the exhibits included as part of this registration statement is set forth in the Exhibit Index that immediately precedes such exhibits and is incorporated herein by reference.
Item 22. Undertakings
The undersigned registrant hereby undertakes as follows:
(1) | To file, during any period in which offers or sales are being made, a post-effective amendment to this registration statement: |
(i) | To include any prospectus required by Section 10(a)(3) of the Securities Act of 1933, as amended; |
(ii) | To reflect in the prospectus any facts or events arising after the effective date of the registration statement (or the most recent post-effective amendment thereof) which, individually or in the aggregate, represent a fundamental change in the information set forth in the registration statement. Notwithstanding the foregoing, any increase or decrease in volume of securities offered (if the total dollar value of securities offered would not exceed that which was registered) and any deviation from the low or high end of the estimated maximum offering range may be reflected in the form of prospectus filed with the Commission pursuant to Rule 424(b) if, in the aggregate, the changes in volume and price represent no more than a 20 percent change in the maximum aggregate offering price set forth in the Calculation of Registration Fee table in the effective registration statement; and |
(iii) | To include any material information with respect to the plan of distribution not previously disclosed in the registration statement or any material change to such information in the registration statement. |
(2) | That, for the purpose of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof. |
(3) | To remove from registration by means of a post-effective amendment any of the securities being registered which remain unsold at the termination of the offering. |
(4) | That, for the purpose of determining liability under the Securities Act of 1933, as amended, to any purchaser: if the registrant is subject to Rule 430C, each prospectus filed pursuant to Rule 424(b) as part of a registration statement relating to an offering, other than registration statements relying on Rule 430B or other than prospectuses filed in reliance on Rule 430A, shall be deemed to be part of and included in the registration statement as of the date it is first used after effectiveness. Provided, however, that no statement made in a registration statement or prospectus that is part of the registration statement or made in a document incorporated or deemed incorporated by reference into the registration statement or prospectus that is part of the registration statement will, as to a purchaser with a time of contract of sale prior to such first use, supersede or modify any statement that was made in the registration statement or prospectus that was part of the registration statement or made in any such document immediately prior to such date of first use. |
(5) | That, for the purpose of determining liability of the registrant under the Securities Act of 1933, as amended, to any purchaser in the initial distribution of the securities, the undersigned registrant undertakes that in a primary offering of securities of the undersigned registrant pursuant to this registration statement, regardless of the underwriting method used to sell the securities to the purchaser, if the securities are offered or sold to such purchaser by means of any of the following |
II-2
communications, the undersigned registrant will be a seller to the purchaser and will be considered to offer or sell such securities to such purchaser: |
(i) | Any preliminary prospectus or prospectus of the undersigned registrant relating to the offering required to be filed pursuant to Rule 424; |
(ii) | Any free writing prospectus relating to the offering prepared by or on behalf of the undersigned registrant or used or referred to by the undersigned registrant; |
(iii) | The portion of any other free writing prospectus relating to the offering containing material information about the undersigned registrant or its securities provided by or on behalf of the undersigned registrant; and |
(iv) | Any other communication that is an offer in the offering made by the undersigned registrant to the purchaser. |
The undersigned registrant hereby undertakes that, for purposes of determining any liability under the Securities Act of 1933, as amended, each filing of the registrants annual report pursuant to Section 13(a) or Section 15(d) of the Securities Exchange Act of 1934, as amended, (and, where applicable, each filing of an employee benefit plans annual report pursuant to Section 15(d) of the Securities Exchange Act of 1934, as amended) that is incorporated by reference in the registration statement shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
The undersigned registrant hereby undertakes as follows: that prior to any public reoffering of the securities registered hereunder through use of a prospectus, which is a part of this Registration Statement, by any person or party who is deemed to be an underwriter within the meaning of Rule 145(c), the issuer undertakes that such reoffering prospectus will contain the information called for by the applicable registration form with respect to reofferings by persons who may be deemed underwriters, in addition to the information called for by the other items of the applicable form.
The registrant undertakes that every prospectus: (i) that is filed pursuant to the immediately preceding paragraph, or (ii) that purports to meet the requirements of Section 10(a)(3) of the Securities Act of 1933, as amended, and is used in connection with an offering of securities subject to Rule 415, will be filed as a part of an amendment to the registration statement and will not be used until such amendment is effective, and that, for purposes of determining any liability under the Securities Act of 1933, as amended, each such post-effective amendment shall be deemed to be a new registration statement relating to the securities offered therein, and the offering of such securities at that time shall be deemed to be the initial bona fide offering thereof.
Insofar as indemnification for liabilities arising under the Securities Act of 1933, as amended, may be permitted to directors, officers and controlling persons of the registrant pursuant to the foregoing provisions, or otherwise, the registrant has been advised that in the opinion of the Securities and Exchange Commission such indemnification is against public policy as expressed in the Act and is, therefore, unenforceable. In the event that a claim for indemnification against such liabilities (other than the payment by the registrant of expenses incurred or paid by a director, officer or controlling person of the registrant in the successful defense of any action, suit or proceeding) is asserted by such director, officer or controlling person in connection with the securities being registered, the registrant will, unless in the opinion of its counsel the matter has been settled by controlling precedent, submit to a court of appropriate jurisdiction the question whether such indemnification by it is against public policy as expressed in the Act and will be governed by the final adjudication of such issue.
The undersigned registrant hereby undertakes to respond to requests for information that is incorporated by reference into the prospectus pursuant to Items 4, 10(b), 11 or 13 of this Form, within one business day of receipt of such request, and to send the incorporated documents by first class mail or other equally prompt means. This includes information contained in documents filed subsequent to the effective date of the registration statement through the date of responding to the request.
The undersigned registrant hereby undertakes to supply by means of a post-effective amendment all information concerning a transaction, and the company being acquired involved therein, that was not the subject of and included in the registration statement when it became effective.
II-3
Pursuant to the requirements of the Securities Act of 1933, as amended, the Registrant certifies that it has reasonable grounds to believe that it meets all of the requirements for filing on Form S-4 and has duly caused this Pre-Effective Amendment No. 6 to the Registration Statement to be signed on its behalf by the undersigned, thereunto duly authorized, in the City of New York, State of New York, on this 27th day of November, 2013.
American Realty Capital Properties, Inc.
By: | /s/ Nicholas S. Schorsch![]() |
Pursuant to the requirements of the Securities Act of 1933, as amended, this Pre-Effective Amendment No. 4 to the Registration Statement has been signed below by the following persons in the capacities and on the date indicated.
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Signatures | Title | Date | ||
/s/ Nicholas S. Schorsch![]() |
Chairman and Chief Executive Officer (Principal Executive Officer) |
November 27, 2013 | ||
/s/ Edward M. Weil, Jr.![]() |
President, Treasurer, Secretary and Director |
November 27, 2013 | ||
/s/ Peter M. Budko![]() |
Executive Vice President and Chief Investment Officer | November 27, 2013 | ||
/s/ Brian S. Block![]() |
Executive Vice President and Chief Financial Officer (Principal Financial Officer and Principal Accounting Officer) | November 27, 2013 | ||
/s/ Lisa Beeson![]() |
Chief Operating Officer | November 27, 2013 | ||
/s/ William M. Kahane![]() |
Director | November 27, 2013 | ||
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Lead Independent Director | November 27, 2013 | ||
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Independent Director | November 27, 2013 | ||
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Independent Director | November 27, 2013 | ||
/s/ Nicholas S. Schorsch![]() Attorney-in-fact |
November 27, 2013 |
S-1
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Exhibit Index | Description of Document | |||
2.1 | Agreement and Plan of Merger, dated as of July 1, 2013, by and among American Realty Capital Properties, Inc., ARC Properties Operating Partnership, L.P., Thunder Acquisition, LLC, American Realty Capital Trust IV, Inc. and American Realty Capital Operating Partnership IV, L.P. (attached as Annex A to the joint proxy statement/prospectus that is part of this registration statement). | |||
2.2 | First Amendment to Agreement and Plan of Merger, dated as of October 6, 2013, by and among American Realty Capital Properties, Inc., ARC Properties Operating Partnership, L.P., Thunder Acquisition, LLC, American Realty Capital Trust IV, Inc. and American Realty Capital Operating Partnership IV, L.P. (attached as Annex D to the joint proxy statement/prospectus that is part of this registration statement). | |||
2.2 | Second Amendment to Agreement and Plan of Merger, dated as of October 11, 2013, by and among American Realty Capital Properties, Inc., ARC Properties Operating Partnership, L.P., Thunder Acquisition, LLC, American Realty Capital Trust IV, Inc. and American Realty Capital Operating Partnership IV, L.P. (attached as Annex E to the joint proxy statement/prospectus that is part of this registration statement). | |||
3.1 | Conformed Articles of Amendment and Restatement for American Realty Capital Properties, Inc., dated July 2, 2013.**(1) | |||
3.2 | Bylaws of American Realty Capital Properties, Inc. (filed as exhibit 3.2 to ARCPs Form S-11/A, filed on June 13, 2011 and incorporated herein by reference). | |||
3.3 | Articles Supplementary to the Articles of Incorporation of American Realty Capital Properties, Inc. classifying and designating the Series C Convertible Preferred Stock, dated June 6, 2013 (filed as exhibit 3.5 to ARCPs Form 8-K, filed on June 12, 2013 and incorporated herein by reference). | |||
4.1 | Second Amended and Restated Agreement of Limited Partnership of ARC Properties Operating Partnership, L.P., dated February 28, 2013 (filed as exhibit 4.1 to ARCPs Form 8-K, filed on March 6, 2013, and incorporated herein by reference). | |||
4.2 | Form of Amendment to Agreement of Limited Partnership of ARC Properties Operating Partnership, L.P.* | |||
4.3 | Form of Indenture (filed as exhibit 4.6 to ARCPs Form S-3/A, filed on August 15, 2012 and incorporated herein by reference). | |||
4.4 | Form of Indenture (filed as exhibit 4.7 to ARCPs Form S-3/A, filed on August 15, 2012 and incorporated herein by reference). | |||
5.1 | Opinion of Venable LLP as to the legality of the securities.* | |||
8.1 | Tax Opinion of Proskauer Rose LLP.* | |||
12.1 | Statements re computation of ratios.*** | |||
21.1 | Subsidiaries of American Realty Capital Properties, Inc. (filed as exhibit 21 to ARCPs Form 8-K, filed on November 26, 2013, and incorporated herein by reference). |
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23.1 | Consent of Venable LLP (included as part of the opinion filed as Exhibit 5.1 hereto and incorporated herein by reference).* | |||
23.2 | Consent of Proskauer Rose LLP (included as part of the opinion filed as Exhibit 8.1 hereto and incorporated herein by reference).* | |||
23.3 | Consent of Grant Thornton LLP, independent registered public accounting firm.** | |||
23.4 | Consent of Grant Thornton LLP, independent registered public accounting firm.** | |||
23.5 | Consent of Grant Thornton LLP, independent certified public accountants.** | |||
23.6 | Consent of Grant Thornton LLP, independent certified public accountants.** |
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Exhibit Index | Description of Document | |
23.7 | Consent of Grant Thornton LLP, independent certified public accountants.** | |
23.8 | Consent of Grant Thornton LLP, independent certified public accountants.** | |
23.9 | Consent of McGladrey LLP, independent registered public accounting firm.** | |
23.10 | Consent of Deloitte & Touche LLP, independent registered public accounting firm** | |
24.1 | Powers of Attorney.** | |
99.1 | Consent of Merrill Lynch, Pierce, Fenner & Smith Incorporated.** | |
99.2 | Form of Proxy of American Realty Capital Trust IV, Inc.* | |
101.INS | XBRL Instance Document.* | |
101.SCH | XBRL Taxonomy Extension Schema Document.* | |
101.CAL | XBRL Taxonomy Extension Calculation Linkbase Document.* | |
101.DEF | XBRL Taxonomy Extension Definition Linkbase Document.* | |
101.LAB | XBRL Taxonomy Extension Label Linkbase Document.* | |
101.PRE | XBRL Taxonomy Extension Presentation Linkbase Document.* |
* | Filed herewith. |
** | Previously filed. |
*** | To be filed by amendment. |
(1) | Conformed to reflect filing of Articles of Amendment with the Maryland State Department of Assessments and Taxation on July 2, 2013. |
FORM OF
AMENDMENT
to
amended and restated
agreement of limited partnership
of
ARC PROPERTIES OPERATING PARTNERSHIP, L.P.
THIS AMENDMENT TO THE SECOND AMENDED AND RESTATED AGREEMENT OF LIMITED PARTNERSHIP OF ARC PROPERTIES OPERATING PARTNERSHIP, L.P. (this “Amendment”) is made as of [________], 2013 by and among American Realty Capital Properties, Inc., a Maryland corporation (the “REIT”), in its capacity as the General Partner and Special Limited Partner of ARC Properties Operating Partnership, L.P., a Delaware limited partnership (the “Partnership”). Capitalized terms used but not otherwise defined in this Amendment shall have the meanings given to such terms in the Second Amended and Restated Agreement of Limited Partnership of the Partnership, dated as of February 28, 2013, by and among the REIT and the other parties signatory thereto (the “Partnership Agreement”).
witnesseth:
WHEREAS, on the date hereof, the REIT has issued [_______] shares (the “Shares”) of the REIT’s Series F Cumulative Redeemable Preferred Stock, par value $.01 per share (the “Series F Preferred Stock”) pursuant to that certain Agreement and Plan of Merger, dated as of July 1, 2013, by and among the REIT, American Realty Capital Trust IV, Inc., a Maryland corporation, Thunder Acquisition, LLC, a Delaware limited liability company, ARC Properties Operating Partnership, L.P., a Delaware limited partnership and American Realty Capital Operating Partnership IV, L.P., a Delaware limited partnership, as amended on October 6, 2013 and October 11, 2013 (the “Merger Agreement”);
WHEREAS, pursuant to the Merger Agreement, in connection with the Partnership Merger (as defined in the Merger Agreement) certain preferred Partnership Interests represented by a newly designated preferred class of Partnership Units of the Partnership with the rights, privileges and preferences set forth on Exhibit A hereto (the “Series F Preferred Units”) will be issued; and
WHEREAS, in accordance with the authority granted to the General Partner in Section 11.01 of the Partnership Agreement, the General Partner desires to amend the Partnership Agreement to reflect the creation of the Series F Preferred Units and the rights, privileges and preferences thereof.
NOW THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties to this Agreement hereby agree as follows.
1. Pursuant to Section 4.02 of the Partnership Agreement, the Partnership Agreement is hereby amended (i) to create the Series F Preferred Units with the rights, privileges and preferences set forth on Exhibit A attached hereto and (ii) to issue [_____] Series F Preferred Units in connection with the Partnership Merger as provided in the Merger Agreement.
2. Section 5.01 of the Partnership Agreement is hereby amended to provide that, notwithstanding anything in the Partnership Agreement to the contrary, allocations of Profit and Loss to holders of Series F Preferred Units in any year shall be limited as provided in Section 4(F) of Exhibit A attached hereto.
3. Section 5.02 of the Partnership Agreement is hereby amended to provide that, notwithstanding anything in the Partnership Agreement to the contrary, distributions payable with respect to the Series F Preferred Units as provided in Section 4 of Exhibit A attached hereto shall have priority over all of the other distributions to Partners pursuant to Section 5.02 of the Partnership Agreement, other than distributions to Partners with respect to Series F Senior Units and Series F Parity Units.
4. Section 5.06 of the Partnership Agreement is hereby amended to provide that, notwithstanding anything in the Partnership Agreement to the contrary, distributions payable with respect to the Series F Preferred Units as provided in Section 5 of Exhibit A attached hereto shall have priority over all of the other distributions to Partners upon a Liquidation pursuant to Section 5.06 of the Partnership Agreement, other than distributions to Partners with respect to Series F Senior Units and Series F Parity Units.
5. The Partnership Agreement is hereby amended to the fullest extent necessary to effect all of the matters contemplated by this Amendment, including but not limited to the terms set forth on Exhibit A hereto, and including, without limitation, the voting rights of the holders of Series F Preferred Units and restrictions on the General Partner and the Partnership that are set forth in Section 8 of Exhibit A attached hereto. Except as specifically provided for in this Amendment, the provisions of the Partnership Agreement shall remain in full force and effect.
6. The execution, delivery and effectiveness of this Amendment shall not operate (a) as an amendment or modification of any provision, right or obligation of any Partner under the Partnership Agreement except as specifically set forth in this Amendment or (b) as a waiver or consent to any subsequent action or transaction.
7. This Amendment shall be construed and enforced in accordance with and governed by the laws of the State of Delaware, without regard to the principles of conflicts of laws thereof.
8. This Amendment contains the entire understanding among the parties with respect to the subject matter hereof and supersedes any other prior written or oral understanding or agreements among their with respect thereto.
9. This Amendment may be executed in one or more counterparts, each of which shall be an original and all of which, when taken together, shall constitute one and the same agreement.
10. This Amendment shall become effective when each party hereto shall have received a counterpart hereof signed by all of the other parties hereto.
[SIGNATURE PAGE TO FOLLOW]
IN WITNESS WHEREOF, each of the undersigned has caused this Amendment to be duly executed on its behalf as of the date first above written.
GENERAL PARTNER: | ||
AMERICAN REALTY CAPITAL PROPERTIES, INC. | ||
By: | ||
Name: | ||
Title: | ||
SPECIAL LIMITED PARTNER: | ||
AMERICAN REALTY CAPITAL PROPERTIES, INC. | ||
By: | ||
Name: | ||
Title |
[Signature Page to First Amendment to Amended and Restated Agreement of Limited Partnership]
exhibit A
Terms of Series F Preferred Units
In accordance with Section 4.02 of the Partnership Agreement, set forth below are the terms and conditions of the Series F Preferred Units established by the Partnership on the date hereof.
1. Definitions. For purposes of the Series F Preferred Units, the following terms shall have the meanings indicated in this Section 1. Capitalized terms used but not otherwise defined in this Exhibit A shall have the meanings set forth in Article I of the Partnership Agreement, as amended by the Amendment to which this Exhibit A is attached.
“Annual Distribution Rate” shall have the meaning set forth in Section 4(A) to this Exhibit A.
“Articles Supplementary” shall mean the Articles Supplementary classifying and designating the Series F Preferred Stock and fixing distribution and other preferences and rights of the Series F Preferred Stock as filed with the State Department of Assessments and Taxation of Maryland on [______], 2013.
“Business Day” shall mean any day other than Saturday, Sunday or a day on which state or federally chartered banking institutions in New York, New York are not required to be open.
“Common Units” shall mean any class or series of Partnership Interest that does not have a priority or preference in the payment of distributions in the distribution of assets upon any Liquidation.
“Liquidation” shall mean (A) a dissolution or winding up of the General Partner or the Partnership, whether voluntary or involuntary, (B) a consolidation or merger of the General Partner or the Partnership with and into one or more entities which are not affiliates of the General Partner or the Partnership which results in a Change in Control, or (C) a sale or transfer of all or substantially all of the Corporation’s or the Partnership’s assets other than to an affiliate of the Corporation or the Partnership.
“Series F Distribution Payment Date” shall mean the fifteenth (15th) calendar day of each month, commencing on the fifteenth (15th) day of the month following the date on which Series F Preferred Units are first issued and sold; provided, however, that if any Series F Distribution Payment Date falls on any day other than a Business Day, the distribution payment due on such Series F Distribution Payment Date shall be paid on the first Business Day immediately following such Series F Distribution Payment Date.
“Series F Distribution Period” shall mean monthly distribution periods commencing on the first day of each month and ending on and including the day preceding the first day of the next succeeding Series F Distribution Period (other than the initial Series F Distribution Period, which shall commence on the date Series F Preferred Units are first issued and sold).
“Series F Junior Units” shall mean Common Units and any class or series of Partnership Units hereafter issued and outstanding that are not Series F Senior Units, Series F Preferred Units or Series F Parity Units.
“Series F Liquidation Amount” shall have the meaning set forth in Section 5(A) of this Exhibit A.
“Series F Liquidation Preference” shall mean twenty-five dollars ($25.00) per Series F Preferred Unit.
“Series F Parity Units” shall mean any class or series of Partnership Units hereafter issued and outstanding, whether or not the distribution rates thereof shall be different from those of the Series F Preferred Units, if the holders of such class or series and the Series F Preferred Units shall be entitled to (i) the receipt of distributions in proportion to their respective amounts of accrued and unpaid distributions per unit and (ii) amounts distributable upon Liquidation in proportion to their respective liquidation preferences, in each case without preference or priority one over the other.
“Series F Senior Units” shall mean any class or series of Partnership Units hereafter issued and outstanding, if the holders of such class or series shall be entitled to the receipt of distributions prior to a Liquidation or of amounts distributable upon any event of Liquidation, in preference or priority to the holders of Series F Preferred Units.
2. Number of Preferred Units and Designation. This series of preferred Partnership Interests shall be designated as the Series F Preferred Partnership Units (the “Series F Preferred Units”). The number of units which shall initially constitute such series shall be [_____] units.
3. Ranking. The Series F Preferred Units shall, with respect to, allocations, the payment of distributions and the right to receive the Series F Liquidation Amount upon a Liquidation, rank junior to all Series F Senior Units; rank senior to all Series F Junior Units, and rank in parity with all Series F Parity Units.
4. Distributions and Allocations.
(A) Subject to the preferential rights of the holders of any Series F Senior Units, the holders of Series F Preferred Units shall be entitled to receive, when, as and if declared by the General Partner, distributions payable in cash at a per unit rate per annum equal to 6.70% of the Liquidation Preference (the “Annual Distribution Rate”). The distributions shall be cumulative from the day of issuance of any such Series F Preferred Units and shall be payable monthly, when, as and if declared by the General Partner, in arrears, on each Series F Distribution Payment Date. Each such distribution shall be payable to the holders of record of Series F Preferred Units as they appear in the records of the Partnership at the close of business on such record date, which shall not be more than 30 days preceding such Series F Distribution Payment Dates thereof, as shall be fixed by the General Partner. Any distribution payment made on Series F Preferred Units shall first be credited against the earliest accrued but unpaid distribution due with respect to Series F Preferred Units which remains payable.
(B) The amount of distributions payable for any Series F Distribution Period shall be computed by dividing the Annual Distribution Rate by twelve. The amount of distributions payable for the initial Series F Distribution Period, or any other period shorter or longer than a full Series F Distribution Period, on the Series F Preferred Units shall be computed on the basis of twelve 30-day months and a 360-day year. Holders of Series F Preferred Units shall not be entitled to any distributions, whether payable in cash, property or shares, in excess of cumulative distributions, as herein provided, on the Series F Preferred Units, plus any other amounts provided herein.
(C) Distributions of Cash Available for Distribution shall be made on the Series F Preferred Units pursuant to Section 5.02(a)(i) of the Partnership Agreement pro rata and pari passu with Series F Parity Units in proportion to their relative accrued but unpaid return. Distributions of Net Sales Proceeds shall be made on the Series F Preferred Units pursuant to Section 5.02(a)(i) of the Partnership Agreement pro rata and pari passu with Series F Parity Units in proportion to their relative accrued but unpaid return.
(D) So long as any Series F Preferred Units are outstanding, no distributions, except as described in the immediately following sentence, shall be declared or paid or set apart for payment on any class or series of Series F Parity Units for any period unless full cumulative distributions have been or contemporaneously are declared and paid or declared and a sum sufficient for the payment thereof set apart for such payment on the Series F Preferred Units for all Series F Distribution Periods terminating on or prior to the distribution payment date on such class or series of Series F Parity Units. When distributions are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all distributions authorized and declared upon Series F Preferred Units and all distributions authorized and declared upon any other series or class or classes of Series F Parity Units shall be authorized and declared ratably in proportion to the respective amounts of distributions accumulated and unpaid on the Series F Preferred Units and such class or classes or series of Series F Parity Units.
(E) So long as any Series F Preferred Units are outstanding, no distributions shall be declared and paid or set apart for payment on any class or series of Series F Junior Units for any period unless full cumulative distributions on all outstanding Series F Preferred Units and any other Series F Parity Units have been paid or set apart for payment for all past Series F Distribution Periods and sufficient funds have been paid or set apart for the payment of the distribution for the current Series F Distribution Period with respect to the Series F Preferred Units and any Series F Parity Units. When distributions are not paid in full or a sum sufficient for such payment is not set apart, as aforesaid, all distributions declared upon Series F Preferred Units and all distributions declared upon any other class or series of Series F Parity Units shall be declared ratably in proportion to the respective amounts of distributions accumulated and unpaid on the Series F Preferred Units and accumulated and unpaid on such Series F Parity Units.
(F) No distributions on Series F Preferred Units shall be declared by the General Partner or paid or set apart for payment by the Partnership at such time as the terms and provisions of any agreement of the Partnership, including any agreement relating to its indebtedness, prohibits such declaration, payment or setting apart for payment or provides that such declaration, payment or setting apart for payment would constitute a breach thereof or a default thereunder, or if such declaration or payment shall be restricted or prohibited by law.
(G) Subject to any special allocations referenced in Section 5.01(a) of the Partnership Agreement, if the Partnership has Net Income or Net Loss for any taxable year or portion thereof, Partners holding Series F Preferred Units shall be allocated Net Income, and to the extent necessary, individual items of Partnership income and gain, pursuant to Section 5.01(a)(i) of the Partnership Agreement, pro rata and pari passu with Series F Parity Units that are subject to allocations pursuant to Section 5.01(a)(i), to the extent of and until such Partners have received aggregate allocations pursuant to this Section 4(G) of Exhibit A equal to the aggregate amount actually distributed to such Partners in accordance with Section 4(C) of this Exhibit A as it relates to Section 5.02(a)(i) and Net Loss, and to the extent necessary, individual items of loss or deduction, pursuant to Section 5.01(a)(iii)(D) of the Partnership Agreement, pro rata and pari passu with Series F Parity Units subject to allocation pursuant to Section 5.01(a)(iii)(D) until the Capital Accounts of such Partners with respect to their Series F Preferred Units have been reduced to zero. Subject to any special allocations referenced in Section 5.01(b) of the Partnership Agreement, if the Partnership has Net Property Gain for any taxable year or portion thereof, Partners holding Series F Preferred Units shall be allocated, first, Net Property Gain pro rata and pari passu with Series F Parity Units that are subject to allocations pursuant to Section 5.01(b)(i), to the extent and until each such Partners’ Capital Accounts is equal to such Partner’s aggregate Series F Liquidation Amount, and second, Net Property Gain, and to the extent necessary, individual items of Partnership gain, pursuant to Section 5.01(b)(ii) of the Partnership Agreement, pro rata and pari passu with Series F Parity Units that are subject to allocations pursuant to Section 5.01(b)(ii), to the extent of and until such Partners have received aggregate allocations pursuant to this Section 4(G) of Exhibit A equal to the aggregate amount actually distributed to such Partners in accordance with Section 4(C) of this Exhibit A as it relates to Section 5.02(b)(ii).
(H) Notwithstanding anything in this Exhibit A to the contrary, the Partnership shall be permitted to make any distributions that are necessary in order to maintain the status of the REIT as a real estate investment trust as defined in Section 856 of the United States Internal Revenue Code of 1986, as amended.
5. Liquidation Preference.
(A) In the event of any Liquidation, subject to the prior preferences and other rights of any Series F Senior Units, before any payment or distribution of the assets of the Partnership (whether capital or surplus) shall be made to or set apart for the holders of Series F Junior Units, the holders of the Series F Preferred Units shall be entitled to receive the greater of (i) (A) the Series F Liquidation Preference per Series F Preferred Unit plus an amount equal to all distributions (whether or not earned or declared) accrued and unpaid thereon to the date of final distribution to such holder or (ii) an amount per Series F Preferred Unit equal to the amount which would have been payable had each Series F Preferred Unit been converted into OP Units immediately prior to such Liquidation (the “Series F Liquidation Amount”); but such holders shall not be entitled to any further payment. If, upon any Liquidation, the assets of the Partnership, or proceeds thereof, distributable among the holders of the Series F Preferred Units shall be insufficient to pay in full the preferential amount aforesaid and liquidating payments on any other units of any class or series of Series F Parity Units, then such assets, or the proceeds thereof, shall be distributed among the holders of Series F Preferred Units and any such other Series F Parity Units ratably in accordance with the amounts that would be payable on such Series F Preferred Units and any such other Series F Parity Units if all amounts payable thereon were paid in full.
(B) Subject to the rights of the holders of any Series F Parity Units or Series F Senior Units, upon any Liquidation of the Partnership, after payment shall have been made in full to the holders of the Series F Preferred Units, as provided in this Section 5, the holders of Series F Preferred Units shall have no other claim to the remaining assets of the Partnership and any other series or class or classes of Series F Junior Units shall, subject to the respective terms and provisions (if any) applying thereto, be entitled to receive any and all assets remaining to be paid or distributed, and the holders of the Series F Preferred Units and Series F Parity Units shall not be entitled to share therein.
6. Conversion.
(A) In connection with Series F Preferred Units held by the General Partner, unless such Series F Preferred Units have previously been redeemed pursuant to Section 7(A) hereof, at such time as there occurs a conversion of Shares of Series F Preferred Stock for REIT Shares, a corresponding amount of Series F Preferred Units shall automatically convert into OP Units, on a one-to-one basis (subject to appropriate adjustment in the event of any dividend, split, combination or other similar recapitalization with respect to the OP Units) on terms substantially similar to the terms for conversion of Shares of Series F Preferred Stock for REIT Shares contained in the Articles Supplementary. Each automatic conversion of Series F Preferred Units for OP Units shall be deemed to have been effected at such time as the concurrent conversion of the corresponding Shares of Series F Preferred Stock for REIT Shares shall have been deemed effected in accordance with the Charter, and Exhibit A to the Partnership Agreement shall be amended by the General Partner to reflect such conversion.
(B) In connection with Series F Preferred Units held by Limited Partners other than the General Partner, unless such Series F Preferred Units have previously been redeemed pursuant to Section 7(B) hereof, such Limited Partner shall have the right to convert all or a portion of its Series F Preferred Units into OP Units upon the occurrence of a Change of Control (as defined in the Articles Supplementary) on terms substantially similar to the terms for conversion of Shares of Series F Preferred Stock contained in the Articles Supplementary.
7. Redemption.
(A) In connection with Series F Preferred Units held by the General Partner, if the General Partner redeems or otherwise purchases any Shares of Series F Preferred Stock, the Partnership shall automatically redeem a corresponding number of Series F Preferred Units, on the date of redemption or other purchase of Shares of Series F Preferred Stock by the General Partner (“Redemption Date”) on terms substantially similar to the terms for redemption of Shares of Series F Preferred Stock contained in the Articles Supplementary. Any automatic redemption of Series F Preferred Units shall be deemed to occur on the Redemption Date immediately prior to the related redemption or other purchase of Shares of Series F Preferred Stock, and Exhibit A to the Partnership Agreement shall be amended by the General Partner to reflect such redemption.
(B) In connection with Series F Preferred Units held by Limited Partners other than the General Partner, the Partnership shall not redeem such Series F Preferred Units prior to the fifth anniversary of the Original Issue Date (as defined in the Articles Supplementary) except upon the occurrence of a Change of Control (as defined in the Articles Supplementary). The redemption of Series F Preferred Units by the Partnership shall be on terms substantially similar to the terms for redemption of Shares of Series F Preferred Stock contained in the Articles Supplementary.
(C) Limited Partners holding Series F Preferred Units shall have the right to have the Partnership redeem all or a portion of such Series F Preferred Units on such terms and conditions as provided for the redemption of OP Units in Section 8.04 of the Partnership Agreement, which section will apply to such redemption as if all references to OP Units in such section were to Series F Preferred Units, including the requirement that such Series F Preferred Units be outstanding for at least one year prior to being redeemable by a Limited Partner.
8. Voting.
(A) (a) Except as otherwise set forth herein, the Series F Preferred Units shall not have any relative, participating, optional or other special voting rights and powers, and the consent of the holders thereof shall not be required for the taking of any Partnership action.
(B) So long as any Series F Preferred Units are outstanding, in addition to any other vote or consent of holders of Series F Preferred Units required by the Partnership Agreement, the affirmative vote of at least a majority of the votes entitled to be cast by the holders of Series F Preferred Units, and at the time outstanding, voting as a single class, given in person or by proxy, either in writing without a meeting or by vote at any meeting called for the purpose, shall be necessary for effecting or validating any amendment, alteration or repeal of any of the provisions of the Partnership Agreement, including the terms of the Series F Preferred Units, that materially and adversely affects the voting powers, rights or preferences of the Series F Preferred Units; provided, however, (A) with respect to the occurrence of any Liquidation, so long as the Series F Preferred Units remain outstanding with the terms thereof materially unchanged, or in the case in which the Partnership is not the surviving entity, so long as units into which the Series F Preferred Units have been converted in any successor entity to the Partnership remain outstanding with the terms thereof materially unchanged, the occurrence of such Liquidation shall not be deemed to materially and adversely affect such voting powers, rights or preferences of the Series F Preferred Units, and in such case such holders shall not have any voting rights with respect to the occurrence of a Liquidation; (B) the amendment of the provisions of the Partnership Agreement so as to authorize or create or to increase the number of the Series F Junior Units, Series F Parity Units or Series F Junior Units shall not be deemed to materially and adversely affect the voting powers, rights or preferences of the Series F Preferred Units and (C) any filing with the Secretary of State of the State of Delaware by the Partnership in connection with a merger, consolidation or sale of all or substantially all of the assets of the Partnership shall not be deemed to be an amendment, alteration or repeal of any of the provisions of the Partnership Agreement, including the terms of the Series F Preferred Units.
9. Transfers. Subject to the provisions of Section 9.02(b), (c) and (d) of the Partnership Agreement, no Series F Preferred Unit shall be transferred, sold, assigned, conveyed, gifted, pledged, encumbered, hypothecated, mortgaged, exchanged or otherwise disposed of by law or otherwise (collectively, a “Transfer”) without the prior written consent of the General Partner, which may be withheld or denied by the General Partner it is sole and absolute discretion. Notwithstanding anything in the Partnership Agreement to the contrary, any Transfer in contravention of the terms of this Exhibit A shall be void and ineffectual and shall not be binding upon, or recognized by the Partnership.
10. Reserved.
11. Miscellaneous.
(A) Series F Preferred Units will not have any designations, preferences, conversion or other rights, voting powers, restrictions, limitations as to distributions, qualifications or terms and conditions of redemption, other than those specifically set forth herein, in the Partnership Agreement, and as may be provided under applicable law.
(B) The headings of the various subdivisions herein are for convenience only and will not affect the meaning if interpretation of any of the provisions herein.
(C) The preferences, conversion and other rights, voting powers, restrictions, limitations as to distributions, qualifications and terms and conditions of redemption of the Series F Preferred Units may be waived, and any of such provisions of the Series F Preferred Units may be amended, with the approval of holders of at least sixty-six and two-thirds percent (66 and 2/3%) of the issued outstanding Series F Preferred Units (other than Series F Preferred Units held by the General Partner), voting as a single class in person or by proxy.
12. Severability of Provisions. Whenever possible, each provision hereof shall be interpreted in a manner as to be effective and valid under applicable law, but if any provision hereof is held to be prohibited by or invalid under applicable law, such provision shall be ineffective only to the extent of such prohibition or invalidity, without invalidating or otherwise adversely affecting the remaining provisions hereof. If a court of competent jurisdiction should determine that a provision hereof would be valid or enforceable if a period of time were extended or shortened or a particular percentage were increased or decreased, the such court may make such change as shall be necessary to render the provision in question effective and valid under applicable law.
Exhibit 5.1
November 27, 2013
American Realty Capital Properties, Inc.
405 Park Avenue
New York, New York 10022
Re: | Registration Statement on Form S-4 (File No. 333-190056) |
Ladies and Gentlemen:
We have served as Maryland counsel to American Realty Capital Properties, Inc., a Maryland corporation (the “Company”), in connection with certain matters of Maryland law arising out of the registration of up to 36,904,870 shares (the “Common Shares”) of common stock, par value $0.01 per share, of the Company (the “Common Stock”) and 42,216,611 shares (the “Preferred Shares” and, together with the Common Shares, the “Shares”) of 6.70% Series F Cumulative Redeemable Preferred Stock, par value $0.01 per share, of the Company (the “Preferred Stock”) to be issued by the Company in connection with the merger of American Realty Capital Trust IV, Inc., a Maryland corporation (“ARCT IV”), with and into Thunder Acquisition, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of the Company (“Merger Sub”), pursuant to the Agreement and Plan of Merger, dated as of July 1, 2013, as amended by the First Amendment to Agreement and Plan of Merger, dated as of October 6, 2013 (collectively, the “Merger Agreement”), by and among the Company, ARC Properties Operating Partnership, L.P., a Delaware limited partnership, Merger Sub, ARCT IV and American Realty Capital Operating Partnership IV, L.P., a Delaware limited partnership. The Shares are covered by the above-referenced Registration Statement, and all amendments thereto (the “Registration Statement”), filed by the Company with the United States Securities and Exchange Commission (the “Commission”) under the Securities Act of 1933, as amended (the “1933 Act”).
In connection with our representation of the Company, and as a basis for the opinion hereinafter set forth, we have examined originals, or copies certified or otherwise identified to our satisfaction, of the following documents (herein collectively referred to as the “Documents”):
1. The Registration Statement and the related form of Proxy Statement/Prospectus included therein in the form in which it was transmitted to the Commission under the 1933 Act;
American Realty Capital Properties, Inc.
November 27, 2013
Page 2
2. The charter of the Company (the “Charter”), certified by the State Department of Assessments and Taxation of Maryland (the “SDAT”);
3. The form of Articles Supplementary for the Preferred Stock (the “Articles Supplementary”), certified as of the date hereof by an officer of the Company;
4. The Bylaws of the Company, certified as of the date hereof by an officer of the Company;
5. A certificate of the SDAT as to the good standing of the Company, dated as of a recent date;
6. Resolutions adopted by the Board of Directors of the Company relating to, among other matters, the approval of the Merger Agreement and the issuance of the Shares (the “Resolutions”), certified as of the date hereof by an officer of the Company;
7. The Merger Agreement;
8. A certificate executed by an officer of the Company, dated as of the date hereof; and
9. Such other documents and matters as we have deemed necessary or appropriate to express the opinion set forth below, subject to the assumptions, limitations and qualifications stated herein.
In expressing the opinion set forth below, we have assumed the following:
1. Each individual executing any of the Documents, whether on behalf of such individual or another person, is legally competent to do so.
2. Each individual executing any of the Documents on behalf of a party (other than the Company) is duly authorized to do so.
3. Each of the parties (other than the Company) executing any of the Documents has duly and validly executed and delivered each of the Documents to which such party is a signatory, and such party’s obligations set forth therein are legal, valid and binding and are enforceable in accordance with all stated terms.
American Realty Capital Properties, Inc.
November 27, 2013
Page 3
4. All Documents submitted to us as originals are authentic. The form and content of all Documents submitted to us as unexecuted drafts do not differ in any respect relevant to this opinion from the form and content of such Documents as executed and delivered. All Documents submitted to us as certified or photostatic copies conform to the original documents. All signatures on all such Documents are genuine. All public records reviewed or relied upon by us or on our behalf are true and complete. All representations, warranties, statements and information contained in the Documents are true and complete. There has been no oral or written modification of or amendment to any of the Documents, and there has been no waiver of any provision of any of the Documents, by action or omission of the parties or otherwise.
5. Prior to the issuance of the Shares, the Articles Supplementary will be filed with and accepted for record by the SDAT.
6. The Shares will not be issued or transferred in violation of any restriction or limitation contained in Section 4.07 of Article 4 of the Charter.
7. Upon the issuance of any of the Shares, the total number of shares of Common Stock issued and outstanding will not exceed the total number of shares of Common Stock that the Company is then authorized to issue under the Charter and the total number of shares of Preferred Stock issued and outstanding will not exceed the total number of shares of Preferred Stock that the Company is then authorized to issue under the Charter. We note that, as of the date hereof, there are more than 36,904,870 shares shares of Common Stock available for issuance under the Charter.
Based upon the foregoing, and subject to the assumptions, limitations and qualifications stated herein, it is our opinion that:
1. The Company is a corporation duly incorporated and existing under and by virtue of the laws of the State of Maryland and is in good standing with the SDAT.
2. The issuance of the Shares has been duly authorized and, when and if issued and delivered against payment therefor in accordance with the Registration Statement, the Resolutions and the Merger Agreement, the Shares will be validly issued, fully paid and nonassessable.
American Realty Capital Properties, Inc.
November 27, 2013
Page 4
The foregoing opinion is limited to the laws of the State of Maryland and we do not express any opinion herein concerning any other law. We express no opinion as to compliance with any federal or state securities laws, including the securities laws of the State of Maryland, or as to federal or state laws regarding fraudulent transfers. To the extent that any matter as to which our opinion is expressed herein would be governed by any jurisdiction other than the State of Maryland, we do not express any opinion on such matter. The opinion expressed herein is subject to the effect of judicial decisions which may permit the introduction of parol evidence to modify the terms or the interpretation of agreements.
The opinion expressed herein is limited to the matters specifically set forth herein and no other opinion shall be inferred beyond the matters expressly stated. We assume no obligation to supplement this opinion if any applicable law changes after the date hereof or if we become aware of any fact that might change the opinion expressed herein after the date hereof.
This opinion is being furnished to you for submission to the Commission as an exhibit to the Registration Statement. We hereby consent to the filing of this opinion as an exhibit to the Registration Statement and to the use of the name of our firm therein. In giving this consent, we do not admit that we are within the category of persons whose consent is required by Section 7 of the 1933 Act.
Very truly yours, | |
/s/ Venable LLP |
Exhibit 8.1
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Proskauer Rose LLP Eleven Times Square New York, NY 10036-8299 |
November 27, 2013
American Realty Capital Properties, Inc.
405 Park Avenue
New York, New York 10022
Re: Opinion of Proskauer Rose LLP as to Tax Matters
Ladies and Gentlemen:
We have acted as counsel to American Realty Capital Properties, Inc., a Maryland corporation (the “Company”), with respect to certain tax matters in connection with the filing of a proxy statement/prospectus, dated November 27, 2013 (the “Proxy Statement/Prospectus”), as part of a registration statement on Form S-4, Registration No. 333-190056, initially filed with the Securities and Exchange Commission (the “Commission”) on November 18, 2013, as amended through the date hereof (the “Registration Statement)” which term includes the Proxy Statement/Prospectus), relating to the proposed merger of American Realty Capital Trust IV, Inc., a Maryland corporation, with and into a direct wholly owned subsidiary of ARC Properties Operating Partnership, L.P., a Delaware limited partnership (the “Operating Partnership”) and the proposed merger of American Realty Capital Operating Partnership IV, L.P, a Delaware limited partnership, with and into the Operating Partnership. In connection with the filing of the Registration Statement, we have been asked to provide an opinion regarding (i) the classification of the Company as a real estate investment trust (“REIT”) under the Internal Revenue Code of 1986, as amended (the “Code”)1; and (ii) the accuracy and fairness of the discussion in the Proxy Statement/Prospectus under the caption “Material U.S. Federal Income Tax Consequences—Material U.S. Federal Income Tax Consequences of Owning and Disposing of ARCP Common Stock and Series F Preferred Stock”; and (iii) the treatment of the Operating Partnership as a partnership for U.S. federal income tax purposes.
The opinions set forth in this letter are based on relevant provisions of the Code, Treasury Regulations issued thereunder (including Proposed and Temporary Regulations), and interpretations of the foregoing as expressed in court decisions, administrative determinations, and the legislative history as of the date hereof. These provisions and interpretations are subject to differing interpretations or change at any time, which may or may not be retroactive in effect, and which might result in modifications of our opinions. In this regard, an opinion of counsel with respect to an issue represents counsel’s best judgment as to the outcome on the merits with respect to such issue, is not binding on the Internal Revenue Service (“IRS”) or the courts, and is not a guarantee that the IRS will not assert a contrary position with respect to an issue, or that a court will not sustain such a position if asserted by the IRS.
In rendering our opinions, we have made such factual and legal examinations, including an examination of such statutes, regulations, records, certificates and other documents as we have considered necessary or appropriate, including, but not limited to, the following: (1) the Registration Statement (including exhibits thereto); (2) the Articles of Amendment and Restatement of the Company, as amended through the date hereof; and (3) the Second Amended and Restated Agreement of Limited Partnership of the Operating Partnership, dated February 28, 2013, and any amendments thereto through the date hereof. The opinions set forth in this letter also are based on certain written factual representations and covenants made by an officer of the Company, in the Company’s own capacity and in its capacity as the general partner of the Operating Partnership, in a letter to us of even date herewith (the “Officer’s Certificate”) relating to, among other things, those factual matters as are germane to the determination that the Company and the Operating Partnership, and the entities in which they hold direct or indirect interests, have been and will be formed, owned and operated in such a manner that the Company has and will continue to satisfy the requirements for qualification as a REIT under the Code (collectively, the Officer’s Certificate, and the documents described in the immediately preceding sentence are referred to herein as the “Transaction Documents”).
1 Unless otherwise stated, all section references herein are to the Code.
Boca Raton | Boston | Chicago | Hong Kong | London | Los Angeles | New Orleans | New York | Newark | Paris | São Paulo | Washington, D.C.
American Realty Capital Properties, Inc.
November 27, 2013
Page 2
In our review, we have assumed, with your consent, that all of the factual representations, covenants and statements set forth in the Transaction Documents are true and correct, and all of the obligations imposed by any such documents on the parties thereto have been and will be performed or satisfied in accordance with their terms. Moreover, we have assumed that the Company and the Operating Partnership each will be operated in the manner described in the relevant Transaction Documents. We have, consequently, assumed and relied on your representations that the information presented in the Transaction Documents (including, without limitation, the Officer’s Certificate and the exhibits thereto) accurately and completely describe all material facts relevant to our opinion. We have not undertaken any independent inquiry into, or verification of, these facts for the purpose of rendering this opinion. While we have reviewed all representations made to us to determine their reasonableness, we have no assurance that they are or will ultimately prove to be accurate. No facts have come to our attention, however, that would cause us to question the accuracy or completeness of such facts or Transaction Documents in a material way. Our opinion is conditioned on the continuing accuracy and completeness of such representations, covenants and statements. Any material change or inaccuracy in the facts referred to, set forth, or assumed herein or in the Transaction Documents may affect our conclusions set forth herein.
We also have assumed the legal capacity of all natural persons, the genuineness of all signatures, the proper execution of all documents, the authenticity of all documents submitted to us as originals, the conformity to originals of documents submitted to us as copies, and the authenticity of the originals from which any copies were made. Where documents have been provided to us in draft form, we have assumed that the final executed versions of such documents will not differ materially from such drafts.
With respect to matters of Maryland law, we have relied upon the opinion of Venable LLP, counsel for the Company, dated November 27, 2013, that the Company is a validly organized and duly incorporated corporation under the laws of the State of Maryland.
Based upon, and subject to the foregoing and the discussion below, we are of the opinion that:
(i) | commencing with the Company’s taxable year ended on December 31, 2011, the Company has been organized in conformity with requirements for qualification as a REIT under the Code, and the Company’s actual method of operation through the date hereof has enabled and, assuming the Company’s election to be treated as a REIT is not either revoked or intentionally terminated, the Company’s proposed method of operation will enable it to continue to meet, the requirements for qualification and taxation as a REIT under the Code; |
(ii) | the discussion in the Proxy Statement/Prospectus under the caption “Material U.S. Federal Income Tax Consequences—Material U.S. Federal Income Tax Consequences of Owning and Disposing of ARCP Common Stock and Series F Preferred Stock,” to the extent it constitutes matters of law, summaries of legal matters or legal conclusions, is a fair and accurate summary of the U.S. federal income tax considerations that are likely to be material to a holder of the Company’s common stock; and |
American Realty Capital Properties, Inc.
November 27, 2013
Page 3
(iii) | the Operating Partnership has been and will be taxed as a partnership and not an association or publicly traded partnership (within the meaning of Section 7704) subject to tax as a corporation, for U.S. federal income tax purposes beginning with its first taxable year. |
We express no opinion on any issue relating to the Company, the Operating Partnership or the discussion in the Proxy Statement/Prospectus under the caption “Material U.S. Federal Income Tax Considerations” other than as expressly stated above.
The Company’s qualification and taxation as a REIT will depend upon the Company’s ability to meet on a continuing basis, through actual annual operating and other results, the various requirements under the Code as described in the Registration Statement with regard to, among other things, the sources of its gross income, the composition of its assets, the level of its distributions to stockholders, and the diversity of its stock ownership. Proskauer Rose LLP will not review the Company’s compliance with these requirements on a continuing basis. Accordingly, no assurance can be given that the actual results of the operations of the Company and the Operating Partnership, the sources of their income, the nature of their assets, the level of the Company’s distributions to stockholders and the diversity of its stock ownership for any given taxable year will satisfy the requirements under the Code for the Company’s qualification and taxation as a REIT.
This opinion letter is rendered to you for your use in connection with the Registration Statement and may be relied upon by you and your stockholders. Except as provided in the next paragraph, this opinion letter may not be distributed, quoted in whole or in part or otherwise reproduced in any document, filed with any governmental agency, or relied upon by any other person for any other purpose (other than as required by law) without our express written consent.
We consent to the use of our name under the captions “Material U.S. Federal Income Tax Considerations” and “Legal Matters” in the Proxy Statement/Prospectus and to the use of these opinions for filing as Exhibit 8.1 to the Registration Statement. In giving this consent, we do not hereby admit that we come within the category of persons whose consent is required under Section 7 of the Securities Act of 1933, or the rules and regulations of the Commission thereunder.
Sincerely yours,
/s/ Proskauer Rose LLP
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PO BOX 55046, BOSTON, MA 02205-5046 | |
Your Vote is Important! | |
Vote by Internet | |
Please go to the electronic voting site at www.eproxyvote.com/arc. Follow the on-line instructions. If you vote by internet, you do not have to return your proxy card. | |
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Please call us toll free at 1-866-977-7699, and follow the instructions provided. If you vote by telephone, you do not have to return your proxy card. | |
Vote by Mail | |
Complete, sign and date your proxy card and return it promptly in the enclosed envelope. |
If Voting by Mail Remember to sign and date the form below. Please ensure the address to the right shows through the window of the enclosed postage paid return envelope. |
Proxy Tabulator P.O. Box 55046 Boston, MA 02205-9836
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American Realty Capital Trust IV, Inc.
NOTICE OF SPECIAL MEETING OF STOCKHOLDERS TO BE HELD ON _________ __, ____
THIS PROXY IS SOLICITED ON BEHALF OF THE BOARD OF DIRECTORS
The undersigned stockholder of American Realty Capital Trust IV, Inc., a Maryland corporation (“ARCT IV”), hereby appoints Edward M. Weil, Jr. and Brian S. Block, and each of them as proxies, for the undersigned with full power of substitution in each of them, to attend the special meeting of stockholders of ARCT IV to be held at ____________, New York, New York _____, on _________ __, ____, at __:__ a.m./p.m., local time, and any and all adjournments and postponements thereof, to cast, on behalf of the undersigned, all votes that the undersigned is entitled to cast, and otherwise to represent the undersigned, at such meeting and all adjournments and postponements thereof, with all power possessed by the undersigned as if personally present and to vote in his or her discretion on such matters as may properly come before the meeting. The undersigned hereby acknowledges receipt of the Notice of Special Meeting of Stockholders and of the accompanying proxy statement/prospectus, which is hereby incorporated by reference, and revokes any proxy heretofore given with respect to such meeting.
When this proxy is properly executed, the votes entitled to be cast by the undersigned stockholder will be cast in the manner directed on the reverse side. If no direction is made, the votes entitled to be cast by the undersigned stockholder will be cast “FOR” the Proposals. At the present time, the Board of Directors knows of no other matters to be presented at the special meeting.
Please sign exactly as your name appears on this proxy card. When shares of common stock are held by joint tenants, both should sign. When signing as attorney, executor, administrator, trustee or guardian, please give full title as such. If a corporation, please sign in full corporate name by president or other authorized officer. If a partnership, please sign in partnership name by general partner or other authorized person. | ||
Stock Owner signature | Date | |
Co-Owner signature | Date |
YOUR VOTE IS IMPORTANT!
Important Notice Regarding the Availability of Proxy Materials
for the Special Meeting of Stockholders to Be Held on _________ __, ____.
The Proxy Statement/Prospectus is available at: www.eproxyvote.com/arc.
THE BOARD OF DIRECTORS RECOMMENDS A VOTE “FOR” THE FOLLOWING PROPOSALS. IF NO SPECIFICATIONS ARE MADE, SUCH PROXY WILL BE VOTED “FOR” ALL PROPOSALS.
FOR | AGAINST | ABSTAIN | |||
1. | Proposal to approve the merger of ARCT IV with and into Thunder Acquisition, LLC, a Delaware limited liability company and a direct wholly owned subsidiary of the ARCP OP (as defined below), pursuant to that certain Agreement and Plan of Merger, dated as of July 1, 2013, as amended on October 6, 2013 and October 11, 2013 and as it may be further amended from time to time, which we refer to as the merger agreement, by and among American Realty Capital Properties, Inc., a Maryland corporation, which we refer to as ARCP, ARC Properties Operating Partnership, L.P., a Delaware limited partnership and the operating partnership of ARCP, which we refer to as the ARCP OP, Thunder Acquisition, LLC, ARCT IV and American Realty Capital Operating Partnership IV, L.P., a Delaware limited partnership and the operating partnership of ARCT IV (a copy of the merger agreement is attached as Annex A, and copies of the amendments to the merger agreement are attached as Annex D and Annex E to the proxy statement/prospectus accompanying this proxy card), and the other transactions contemplated by the merger agreement; and | ¨ | ¨ | ¨ |
¨ | ¨ | ¨ |
2. | Proposal to adjourn the special meeting to a later date or dates, if necessary or appropriate, to solicit additional proxies in favor of the proposal to approve the merger and the other transactions contemplated by the merger agreement. |
YOUR VOTE IS IMPORTANT! PLEASE SIGN, DATE, AND RETURN YOUR PROXY CARD TODAY.
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Convertible Preferred Stock
|
9 Months Ended | 12 Months Ended | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
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Sep. 30, 2013
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Dec. 31, 2012
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Convertible Preferred Stock [Abstract] | ||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||||
Other Long Term Debt | Note 8 - Other Long Term DebtThe Company has the following class of convertible preferred stock outstanding at September 30, 2013:
Convertible Obligation to Series C Convertible Preferred StockholdersThe fair value of the convertible obligation to Series C convertible preferred stockholders ("Series C Stock") was determined to approximate the proceeds received at issuance of $445.0 million. Pursuant to the terms of Series C Stock purchase agreements, the Series C Stock is expected to be settled promptly following the Company's merger with CapLease or December 31, 2013, in a combination of common shares of the Company and cash consideration at the election of the Company. At September 30, 2013, the fair value of the obligation was remeasured and determined to be $449.8, which is based predominately on the estimated settlement value. The change in fair value is recorded as interest expense in the consolidated statement of operations and comprehensive loss. The settlement is expected to close promptly following the CapLease Merger, which, as discussed in Note 2 - Mergers and Acquisitions, consummated on November 5, 2013. On September 15, 2013, the Company entered into definitive purchase agreements pursuant to which it will issue Series D Preferred, par value $0.01 per share, at a 5.81% coupon and common stock, par value $0.01 per share, to institutional holders of Series C Convertible Preferred Stock promptly following the close of the Company's merger with CapLease, which consummated on November 5, 2013, via a private placement. In accordance with the terms of the purchase agreement relating to the Company's previously issued Series C Preferred, Series C Preferred will be redeemed for cash or common stock. Pursuant to the new definitive purchase agreements, the Company will issue approximately 21.7 million shares of Series D Preferred and 15.1 million shares of common stock to the holders of Series C Preferred. The shares of Series D Preferred will be convertible, in certain circumstances, into common stock or Series E Cumulative Preferred Stock or redeemable into cash, at the discretion of the Company. Convertible Senior Note OfferingOn July 29, 2013, the Company issued $300.0 million of Convertible Senior Notes and issued an additional $10.0 million of Convertible Senior Notes on August 1, 2013. The notes mature August 1, 2018 and are convertible to cash or shares of the Company's common stock at the Company's option in accordance with the agreement. The fair value of the notes was determined at issuance to be $300.6 million, resulting in a debt discount of $9.4 million with an offset recorded to additional paid-in capital representing the equity component of the notes for the conversion options. The discount is being amortized to interest expense over the expected life of the notes. As of September 30, 2013, the carrying value of the notes was $301.0 million. |
Note 10 - Convertible Preferred StockOn May 11, 2012, the Company entered into a securities purchase agreement with an unaffiliated third party that is an "accredited investor" (as defined in Rule 501 of Regulation D as promulgated under the Securities Act of 1933, as amended) pursuant to which the Company sold 545,454 shares of the Company's Series A convertible preferred stock for gross proceeds of $6.0 million and aggregate net proceeds of $5.8 million after offering-related fees and expenses. The Series A convertible preferred stock has a liquidation preference of $11.00 per share, plus accrued and unpaid dividends, and a redemption premium equal to one percent (1%). Commencing on May 31, 2012, the Company has been paying cumulative dividends on the Series A convertible preferred stock monthly in arrears at the annualized rate of $0.77 per share. The Series A convertible preferred stock is convertible into the Company's common stock, at the option of the holder of the Series A convertible preferred stock, at a conversion price equal to $11.00 per share, beginning one year after the date of issuance. The Company, at its option at any time, may redeem the Series A convertible preferred stock, in whole or in part, at $11.00 per share. On July 24, 2012, the Company entered into a securities purchase agreement with an unaffiliated third party that is an "accredited investor" (as defined in Rule 501 of Regulation D as promulgated under the Securities Act of 1933, as amended) pursuant to which the Company sold 283,018 shares of the Company's Series B convertible preferred stock for gross proceeds of approximately $3.0 million. After deducting offering-related fees and expenses, the aggregate net proceeds to the Company from the sale of the Series B convertible preferred stock were approximately $3.0 million. The Series B convertible preferred stock has a liquidation preference of $10.60 per share, plus accrued and unpaid dividends, and a redemption premium equal to one percent (1%). Commencing on August 15, 2012, the Company has been paying cumulative dividends on the Series B convertible preferred stock monthly in arrears at an annualized rate of $0.74 per share. The Series B convertible preferred stock is convertible into the Company's common stock, at the option of the holder of the Series B convertible preferred stock, at a conversion price equal to $10.60 per share, beginning one year after the date of issuance. The Company, at its option at any time, may redeem the Series B convertible preferred stock, in whole or in part, at $10.60 per share. The Series A convertible preferred stock and the Series B convertible preferred stock each ranks senior to the Company's common stock and on parity with each other, and junior to any other preferred stock the Company may issue other than additional series of the Series A convertible preferred stock or Series B convertible preferred stock. |
Mortgage Note Payable (Schedule of Mortgage Notes Payable) (Details) (USD $)
In Thousands, unless otherwise specified |
9 Months Ended | 12 Months Ended | ||||||||||||
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Sep. 30, 2013
property
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Dec. 31, 2012
property
|
Dec. 31, 2011
property
|
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Mortgage Loans on Real Estate [Line Items] | ||||||||||||||
Outstanding Loan Amount | $ 269,891 | $ 265,118 | $ 35,320 | |||||||||||
Effective interest rate | 3.11% | |||||||||||||
Mortgages [Member]
|
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Mortgage Loans on Real Estate [Line Items] | ||||||||||||||
Encumbered Properties | 165 | 164 | 29 | |||||||||||
Outstanding Loan Amount | $ 269,891 | $ 265,118 | $ 35,320 | |||||||||||
Debt, Weighted Average Interest Rate | 4.26% | [1] | 4.28% | [1],[2] | 4.45% | [2] | ||||||||
Debt, Weighted Average Maturity Term | 4 years 8 months 6 days | 5 years 6 months 3 days | [3],[4] | 4 years 4 months 24 days | [3] | |||||||||
Minimum [Member] | Mortgages [Member]
|
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Mortgage Loans on Real Estate [Line Items] | ||||||||||||||
Effective interest rate | 2.73% | 3.32% | 3.75% | |||||||||||
Maximum [Member] | Mortgages [Member]
|
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Mortgage Loans on Real Estate [Line Items] | ||||||||||||||
Effective interest rate | 6.13% | 6.13% | 5.32% | |||||||||||
|
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