Attached files

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EX-32.2 - EXHIBIT 32.2 - AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.v365512_ex32-2.htm
EX-31.4 - EXHIBIT 31.4 - AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.v365512_ex31-4.htm
EX-31.2 - EXHIBIT 31.2 - AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.v365512_ex31-2.htm
EX-32.1 - EXHIBIT 32.1 - AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.v365512_ex32-1.htm
EX-31.3 - EXHIBIT 31.3 - AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.v365512_ex31-3.htm

 

UNITED STATES

SECURITIES AND EXCHANGE COMMISSION

Washington, D.C. 20549

 

FORM 10-K/A

(Amendment No. 1)

 

(Mark One)

x ANNUAL REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934  

For the fiscal year ended December 31, 2012

OR

o TRANSITION REPORT PURSUANT TO SECTION 13 OR 15(d) OF THE SECURITIES EXCHANGE ACT OF 1934  

For the transition period from _________ to __________

 

Commission file number: 333-169355

 

AMERICAN REALTY CAPITAL – RETAIL CENTERS OF AMERICA, INC.

(Exact name of registrant as specified in its charter) 

 

Maryland   27-3279039
(State or other  jurisdiction of incorporation or organization)   (I.R.S. Employer Identification No.)
     
405 Park Ave., 15th Floor New York, NY    10022
(Address of principal executive offices)   (Zip Code)

 

(212) 415-6500   
(Registrant's telephone number, including area code)

 

Securities registered pursuant to section 12(b) of the Act: None
Securities registered pursuant to section 12(g) of the Act: None

 

Indicate by check mark if the registrant is a well-known seasoned issuer, as defined in Rule 405 of the Securities Act.     Yes o No x 

 

Indicate by check mark if the registrant is not required to file reports pursuant to Section 13 or Section 15(d) of the Act.     Yes o No x

 

Indicate by check mark whether the registrant (1) has filed all reports required to be filed by Section 13 or 15(d) of the Securities Exchange Act of 1934 during the preceding 12 months (or for such shorter period that the registrant was required to file such reports), and (2) has been subject to such filing requirements for the past 90 days. Yes x No o

 

Indicate by check mark whether the registrant submitted electronically and posted on its corporate Web Site, if any, every Interactive Data File required to be submitted and posted pursuant to Rule 405 of Regulation S-T during the preceding 12 months (or for such shorter period that the registrant was required to submit and post such files). Yes x No o

 

Indicate by check mark if disclosure of delinquent filers pursuant to Item 405 of Regulation S-K is not contained herein, and will not be contained, to the best of registrant's knowledge, in definitive proxy or information statements incorporated by reference in Part III of this Form 10-K or any amendment to this Form 10-K.  x

 

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 definition of “large accelerated filer,” “accelerated filer,” and “smaller reporting company” in Rule 12b-2 of the Exchange Act.

 

Large accelerated filer o   Accelerated filer o
Non-accelerated filer x (Do not check if a smaller reporting company) Smaller reporting company o

 

Indicate by check mark whether the registrant is a shell company (as defined in Rule 12b-2 of the Exchange Act).   Yes o No x

 

There is no established public market for the registrant's shares of common stock. The registrant is currently conducting the ongoing initial public offering of its shares of common stock pursuant to its Registration Statement on Form S-11 (File No. 333-169355), which shares are being sold at $10.00 per share, with discounts available for certain categories of purchasers. The aggregate market value of the registrant's common stock held by non-affiliates of the registrant as of June 30, 2012, the last business day of the registrant's most recently completed second fiscal quarter, was $0.8 million based on a per share value of $10.00 (or $9.50 for shares issued under the distribution reinvestment plan).

 

The number of outstanding shares of the registrant's common stock on December 15, 2013 was 6,752,629 shares.

 

DOCUMENTS INCORPORATED BY REFERENCE

 

None.

 

 
 

 

EXPLANATORY NOTE

 

American Realty Capital - Retail Centers of America, Inc. (the “Company,” “we,” “our” or “us”) is filing this Amendment No. 1 on Form 10-K/A (this “Amendment”) to amend Item 15 of Part IV of its Annual Report on Form 10-K for the fiscal year ended December 31, 2012, as filed with the U.S. Securities and Exchange Commission (“SEC”) on March 11, 2013 (the “Original Filing”). The purpose of this Amendment is to re-file (i) the Certification of the Principal Financial Officer of the Company pursuant to Rule 13a-14(a) and 15d-14(a) under the Securities Exchange Act of 1934, as amended (the “Exchange Act”), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002 (the “Sarbanes-Oxley Act”) and (ii) the Written Statements of the Principal Executive Officer and Principal Financial Officer of the Company pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act (the “Original Certifications”). The Original Certifications erroneously referenced the wrong Exchange Act Form. In accordance with Rule 12b-15 of the Exchange Act, the Company has set forth the text of Item 15, as amended, in its entirety below. Except as set forth in Part IV below and in any exhibits attached hereto, no other changes are made to the Original Filing. The Original Filing continues to speak as of the date of the Original Filing. Unless expressly stated, this Amendment does not reflect events occurring after the filing date of the Original Filing, nor does it modify or update in any way the disclosures contained in the Original Filing. Additionally, in connection with the filing of this Amendment, the Company is including currently-dated certifications of the Company’s chief executive officer and chief financial officer.

 

 
 

 

PART IV

 

Item 15. Exhibits and Financial Statement Schedules

 

(a)Financial Statement Schedules

 

See the Index to Consolidated Financial Statements at page F-1 of the Original Filing.

 

The following financial statement schedule is included herein at page F-26 of the Original Filing:

 

Schedule III — Real Estate and Accumulated Depreciation

 

(b)Exhibits

 

Exhibit

No.

  Description
1.1 (1)   Dealer Manager Agreement among the Company, American Realty Capital Retail Operating Partnership, L.P. and Realty Capital Securities, LLC, dated March 17, 2011
1.1 (2)   Form of Soliciting Dealers Agreement between Realty Capital Securities, LLC and the Soliciting Dealers
3.1 (3)   Articles of Amendment and Restatement of the Company, dated June 27, 2012
3.1 (2)   Bylaws of the Company
4.1 (1)   Agreement of Limited Partnership of American Realty Capital Retail Operating Partnership, L.P., dated March 17, 2011
4.2 (1)   First Amendment to Agreement of Limited Partnership of American Realty Capital Retail Operating Partnership, L.P., dated August 1, 2011
4.3 (11)   Second Amendment to Agreement of Limited Partnership of American Realty Capital Retail Operating Partnership, L.P., dated December 28, 2012
10.1 (4)   Amended and Restated Escrow Agreement among the Company, UMB Bank, N.A. and Realty Capital Securities, LLC, dated July 30, 2012
10.2 (1)   Advisory Agreement, between the Company and American Realty Capital Retail Advisor, LLC, dated March 17, 2011
10.3 (1)   Property Management Agreement, between the Company and American Realty Capital Retail Advisor, LLC, dated March 17, 2011
10.4 (1)   Leasing Agreement, between the Company and American Realty Capital Retail Advisor, LLC, dated March 17, 2011
10.5 (5)   Company's Restricted Share Plan
10.6 (5)   Company's Stock Option Plan
10.7 (1)   First Amendment to Advisory Agreement, between the Company and American Realty Capital Retail Advisor, LLC, dated June 23, 2011
10.8 (6)   Second Amendment to Advisory Agreement, between the Company and American Realty Capital Retail Advisor, LLC, dated February 21, 2012
10.9 (7)   Purchase and Sale Agreement between American Realty Capital IV, LLC and NWC Liberty Grove & SH 66, Ltd., dated as of March 9, 2012
10.10 (7)   First Amendment to Purchase and Sale Agreement, between American Realty Capital IV, LLC and NWC Liberty Grove & SH 66, Ltd., dated as of April 23, 2012
10.11 (7)   Second Amendment to Purchase and Sale Agreement, between American Realty Capital IV, LLC and NWC Liberty Grove & SH 66, Ltd., dated as of April 27, 2012
10.12 (7)   Third Amendment to Purchase and Sale Agreement, between American Realty Capital IV, LLC and NWC Liberty Grove & SH 66, Ltd., dated as of May 1, 2012

 

 
 

 

10.13 (7)   Fourth Amendment to Purchase and Sale Agreement, between American Realty Capital IV, LLC and NWC Liberty Grove & SH 66, Ltd., dated as of May 2, 2012
10.14 (4)   Loan Agreement, dated as of June 8, 2012 between ARC LCROWTX001, LLC and UBS Real Estate Securities Inc.
10.15 (4)   Loan Agreement, dated as of June 6, 2012, between CAMBR Company, Inc. and the Company
10.16 (4)   Promissory Note, dated as of June 6, 2012, given by the Company to CAMBR Company, Inc.
10.17 (8)   Purchase and Sale Agreement, dated as of September 10, 2012, by and between BB Fonds International 1 USA, L.P. and American Realty Capital IV, LLC
10.18 (8)   Third Amendment to the Advisory Agreement, between the Company and American Realty Capital Retail Advisor, LLC, dated November 13, 2012
14 (11)   Code of Ethics
21 (11)   List of Subsidiaries
24.1 (9)   Power of Attorney
24.2 (10)   Power of Attorney (Edward G. Rendell)
31.1 (11)   Certification of the Principal Executive Officer of the Company pursuant to Securities Exchange Act Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.2 *   Certification of the Principal Financial Officer of the Company pursuant to Securities Exchange Act Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.3 *   Certification of the Principal Executive Officer of the Company pursuant to Securities Exchange Act Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
31.4 *   Certification of the Principal Financial Officer of the Company pursuant to Securities Exchange Act Rule 13a-14(a) or 15d-14(a), as adopted pursuant to Section 302 of the Sarbanes-Oxley Act of 2002
32.1*   Written statements of the Principal Executive Officer and Principal Financial Officer of the Company pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
32.2*   Written statements of the Principal Executive Officer and Principal Financial Officer of the Company pursuant to 18 U.S.C. Section 1350, as adopted pursuant to Section 906 of the Sarbanes-Oxley Act of 2002
101 (11)   XBRL (eXtensible Business Reporting Language). The following materials from the Company's Annual Report on Form 10-K for the year ended December 31, 2012, formatted in XBRL: (i) the Consolidated Balance Sheets, (ii) the Consolidated Statements of Operations and Comprehensive Loss, (iii) the Consolidated Statement of Changes in Stockholders' Equity (Deficit), (iv) the Consolidated Statements of Cash Flows and (v) the Notes to the Consolidated Financial Statements. As provided in Rule 406T of Regulation S-T, this information in furnished and not filed for purpose of Sections 11 and 12 of the Securities Act of 1933 and Section 18 of the Securities Exchange Act of 1934

 

 

*Filed herewith
(1)Filed as an exhibit to Pre-Effective Amendment No. 1 to Post-Effective Amendment No. 1 to the Company's Registration Statement filed with the SEC on August 12, 2011
(2)Filed as an exhibit to the Company's Registration Statement on Form S-11 filed with the SEC on December 21, 2010
(3)Filed as an exhibit to the Company's Current Report on Form 8-K filed with the SEC on July 3, 2012
(4)Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended June 30, 2012 filed with the SEC on August 8, 2012
(5)Filed as an exhibit to Pre-Effective Amendment No. 4 to the Company's Registration Statement filed with the SEC on March 15, 2011
(6)Filed as an exhibit to Pre-Effective Amendment No. 3 to Post-Effective Amendment No. 2 to the Company's Registration Statement filed with the SEC on February 21, 2012
(7)Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended March 31, 2012 filed with the SEC on May 8, 2012
(8)Filed as an exhibit to the Company's Quarterly Report on Form 10-Q for the quarter ended September 30, 2012 filed with the SEC on November 14, 2012
(9)Filed as an exhibit to Pre-Effective Amendment No. 1 to Post-Effective Amendment No. 3 to the Company's Registration Statement on Form S-11 filed with the SEC on April 13, 2012
(10)Filed as an exhibit to Pre-Effective Amendment No. 1 to Post-Effective Amendment No. 6 to the Company's Registration Statement on Form S-11 filed with the SEC on December 18, 2012
(11)Filed as an exhibit to the Company’s Annual Report on Form 10-K for the fiscal year ended December 31, 2012 filed with the SEC on March 11, 2013.

 

 
 

 

SIGNATURES

 

Pursuant to the requirements of Section 13 or 15(d) of the Securities Exchange Act of 1934, the registrant has duly caused this Amendment No. 1 to its Annual Report on Form 10-K to be signed on its behalf by the undersigned, thereunto duly authorized this 16th day of January, 2014.

 

     
  AMERICAN REALTY CAPITAL - RETAIL CENTERS OF AMERICA, INC.
  By: /s/ NICHOLAS S. SCHORSCH
    NICHOLAS S. SCHORSCH
   

CHIEF EXECUTIVE OFFICER AND

CHAIRMAN OF THE BOARD OF DIRECTORS

 

Pursuant to the requirements of the Securities Exchange Act of 1934, as amended, this Amendment No. 1 to the registrant’s Annual Report on Form 10-K has been signed below by the following persons on behalf of the registrant and in the capacities and on the dates indicated.

 

Name   Capacity   Date
         
/s/ Nicholas S. Schorsch   Chief Executive Officer and   January 16, 2014
Nicholas S. Schorsch   Chairman of the Board of Directors    
    (Principal Executive Officer)    
         
/s/ Edward M. Weil, Jr.   President, Chief Operating Officer and Secretary   January 16, 2014
Edward M. Weil, Jr.        
         
/s/ Amy B. Boyle   Chief Financial Officer   January 16, 2014
Amy B. Boyle   (Principal Financial Officer and Principal Accounting Officer)    
         
/s/ William M. Kahane   Director   January 16, 2014
William M. Kahane         
         
/s/ David Gong   Independent Director   January 16, 2014
David Gong        
         
/s/ Edward G. Rendell   Independent Director   January 16, 2014
Edward G. Rendell        
         
/s/ William G. Stanley   Independent Director   January 16, 2014
William G. Stanley