Exhibit 10.4
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THIRD AMENDMENT TO
REVOLVING CREDIT AGREEMENT
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THIS THIRD AMENDMENT TO THE REVOLVING CREDIT AGREEMENT
("Amendment") is made as of March 7, 1997, among Realty Income
Corporation, a Delaware corporation (the "Company"), each of the
banks identified on the signature pages hereof (each a "Bank"
and, collectively, the "Banks") and The Bank of New York, as
Agent and Swing Line Bank.
W I T N E S S E T H
- - - - - - - - - -
WHEREAS, the Company, the Banks, the Agent and the
Swing Line Bank entered into the Revolving Credit Agreement,
dated as of November 29, 1994, as amended by the First Amendment
to the Revolving Credit Agreement, dated January 26, 1995 and the
Second Amendment to the Revolving Credit Agreement, dated
December 4, 1995 (the "Credit Agreement"); and
WHEREAS, the signatories hereto desire to amend the
Credit Agreement as set forth herein;
NOW, THEREFORE, in consideration of the premises and of
the covenants and agreements contained herein and in the Credit
Agreement, the parties hereto agree that the Credit Agreement is
hereby amended as set forth herein:
1. Capitalized terms used herein which are not
otherwise defined herein but are defined in the Credit Agreement
shall have the meanings given to such terms in the Credit
Agreement.
2. The following definitions in Section 1.01 of the
Credit Agreement are amended in their entirety to read as
follows:
"APPLICABLE MARGIN" shall mean the margin set forth in
the following chart applicable to the Pricing Level then in
effect:
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Applicable Applicable
Pricing Level LIBOR Margin ABR Margin
---------------------------------------------
I 0.750% 0.000%
II 0.875% 0.000%
III 1.000% 0.000%
IV 1.125% 0.000%
V 1.250% 0.000%
VI 1.500% 0.250%
"Pricing Level I" shall be applicable for so long as the
Company's Debt Rating is better than or equal to A/A2;
"Pricing Level II" shall be applicable for so long as the
Company's Debt Rating is lower than A/A2 but better than or
equal to A-/A3; "Pricing Level III" shall be applicable for
so long as the Company's Debt Rating is lower than A-/A3 but
better than or equal to BBB+/Baa1; "Pricing Level IV" shall
be applicable for so long as the Company's Debt Rating is
lower than BBB+/Baa1 but better than or equal to BBB/Baa2;
"Pricing Level V" shall be applicable for so long as the
Company's Debt Rating is lower than BBB/Baa2 but better than
or equal to BBB-/Baa3; and "Pricing Level VI" shall be
applicable for so long as the Company's Debt Rating is lower
than BBB-/Baa3. Changes in the applicable Pricing Level
shall be effective as of the first day of the calendar
quarter following the receipt by the Agent of a letter or
letters from the applicable Rating Agencies evidencing a
change in the Company's Debt Rating.
"COMMITMENT FEE RATE" with respect to any Commitment
Fee payment shall mean the commitment fee rate set forth in
the following chart applicable to the Pricing Level
(determined as set forth under "Applicable Margin" above
including the receipt by the Agent of a letter or letters
evidencing the Company's Debt Rating) in effect on the date
on which such Commitment Fee payment is due:
Pricing Level Commitment Fee
---------------------------------------------
I 0.150%
II 0.150%
III 0.150%
IV 0.150%
V 0.150%
VI 0.250%
"KEY MANAGEMENT" shall mean William E. Clark, Thomas A.
Lewis, Richard J. VanDerhoff, Gary M. Malino, Michael R.
Pfeiffer and Richard G. Collins.
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"TERMINATION DATE" shall mean, with respect to any
Bank, the earliest to occur of (i) November 27, 1999 or such
later date as may be agreed to by such Bank pursuant to
SECTION 11.12, (ii) the date on which the obligations of the
Banks to make loans hereunder shall terminate pursuant to
SECTION 8.01 or the Commitments shall be reduced to zero
pursuant to SECTION 2.05, and (iii) the date specified as
such Bank's Termination Date pursuant to SECTION 11.12, or,
if in any case (other than clause (ii) above) such day is
not a Business Day, the next succeeding Business Day; in all
cases, subject to the provisions of SECTION 11.12 (d).
3. Section 1.01 is hereby further amended to add the
following definitions:
"DEBT RATING" shall mean the highest rating published
by at least two of the three Rating Agencies with respect to
the senior unsecured debt of the Company, PROVIDED, that if
no two Rating Agencies have published the same rating with
respect to the Company's senior unsecured debt, the Debt
Rating shall be the rating that is at the middle of the
three published ratings.
"RATING AGENCY" shall mean Moody's Investors Service,
Inc., Standard & Poors, a division of the McGraw Hill
Companies, Inc., or Duff & Phelps Credit Rating Co.
4. Section 7.01(b) is hereby amended by replacing the
word "and" immediately prior to clause (iv) of the first sentence
with a comma, and inserting the following clause after clause
(iv) of the first sentence:
"and (v) promptly, and in any event not later than five days
after the end of the calendar quarter in which the Company
receives notice of a change in the rating published by any
of the Rating Agencies with respect to the Company's senior
unsecured debt."
5. Section 7.02(c) of the Credit Agreement is hereby
amended by restating clause (ii) thereof as follows:
"(ii) enter into any merger or consolidation, or permit any
Subsidiary to do so, other than (a) a merger or
consolidation of a Wholly owned Subsidiary with one or more
other Wholly owned Subsidiaries or into the Company, (b) a
merger or consolidation of a Subsidiary or the Company with
an entity for the purpose of controlling the property of
that entity in the ordinary course of the Company's
business, provided that the aggregate purchase price paid by
the Company in all transactions under this clause (b) and
clause (i)(b) above shall not exceed $10,000,000, or (c) a
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merger of the Company into another corporation primarily for
the purpose of changing the jurisdiction of incorporation of
the Company, provided that the surviving entity shall assume
all obligations of the Company hereunder;"
6. Section 11.12(a) of the Credit Agreement is
restated hereby as follows:
"(a) No later than February 28, 1998, the Company may, at
its option, request all the Banks then party to this
Agreement to extend their scheduled Termination Dates by one
calendar year by means of a letter, addressed to each such
Bank and the Agent. Each Bank electing (in its sole
discretion) so to extend its scheduled Termination Date
shall execute and deliver within forty-five (45) days
following such request counterparts of such letter to the
Company and the Agent, whereupon (unless Banks with an
aggregate percentage of the Total Commitment in excess of
25% decline to extend their respective scheduled Termination
Dates, in which event the Agent shall notify all the Banks
thereof), such Bank's scheduled Termination Date shall be
extended to the anniversary date of the year immediately
succeeding such Bank's then-current scheduled Termination
Date. If no such election is received within such forty-
five day period from any Bank, such Bank shall be deemed to
have elected not to extend its scheduled Termination Date."
7. The Company agrees to pay on demand all reasonable
costs and expenses of the Agent (including all reasonable fees
and expenses of counsel to the Agent) in connection with the
preparation and execution of this Amendment.
8. THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED
IN ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK,
UNITED STATES OF AMERICA.
9. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate
counterparts and each such counterpart shall be deemed to be an
original, but all such counterparts shall together constitute but
one and the same instrument.
10. The Credit Agreement, as amended hereby, shall be
binding upon the Company, the Banks, the Agent and the Swing Line
Bank and their respective successors and assigns, and shall inure
to the benefit of the Company, the Banks, the Agent, the Swing
Line Bank and their respective successors and assigns.
11. Except as expressly provided in this Amendment,
all of the terms, covenants, conditions, restrictions and other
provisions contained in the Credit Agreement shall remain in full
force and effect.
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IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be executed as of the date first above written.
REALTY INCOME CORPORATION
By: /s/MICHAEL R. PFEIFFER
Name: Michael R. Pfeiffer
Title: Vice President, General
Counsel and Secretary
THE BANK OF NEW YORK
as Agent for the Banks
By: /s/LISA Y. BROWN
Name: Lisa Y. Brown
Title: Vice President
THE BANK OF NEW YORK
as a Bank and as the Swing Line Bank
By: /s/LISA Y. BROWN
Name: Lisa Y. Brown
Title: Vice President
SANWA BANK CALIFORNIA
By: /s/JOHN LINDER
Name: John Linder
Title: Vice President
SIGNET BANK VIRGINIA
By: /s/ERIC A. LAWRENCE
Name: Eric A. Lawrence
Title: Senior Vice President
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BANK HAPAOLIM, B.M.,
SAN FRANCISCO BRANCH
By: /s/PAUL WATSON
Name: Paul Watson
Title: Vice President
By: /s/JOHN RICE
Name: John Rice
Title: Vice President
DRESDNER BANK, A.G.,
NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By: /s/CHRISTOPHER E. SARISKY
Name: Christopher E. Sarisky
Title: Assistant Treasurer
By: /s/THOMAS J. NADRAMIA
Name: Thomas J. Nadramia
Title: Vice President
WELLS FARGO BANK
By: /s/CHERYL SALGADO
Name: Cheryl Salgado
Title: Vice President
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