SECOND AMENDMENT TO THE TERM LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
Exhibit 10.24
SECOND AMENDMENT TO THE
TERM LOAN AGREEMENT AND OTHER LOAN DOCUMENTS
Dated as of November 21, 2019
SECOND AMENDMENT TO THE TERM LOAN AGREEMENT AND OTHER LOAN DOCUMENTS (this “Amendment”) among INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership (“Parent Borrower”), the Subsidiary Borrowers listed on the signature pages hereto, KEYBANK NATIONAL ASSOCIATION, as administrative agent (“Agent”) for the Lenders, and the Lenders.
PRELIMINARY STATEMENTS:
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(1) |
Parent Borrower, the Subsidiary Borrowers, Agent, the Lenders and the other financial institutions party thereto entered into that certain Term Loan Agreement dated as of November 20, 2017, as amended by that certain First Amendment to the Term Loan Agreement and Other Loan Documents dated June 18, 2019 (the “2017 Term Loan Agreement”) and, in connection with the 2017 Term Loan Agreement, Parent Guarantor delivered the Guaranty of even date therewith (the “Guaranty”). Capitalized terms not otherwise defined in this Amendment have the same meanings as specified in the 2017 Term Loan Agreement, as amended hereby; |
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(2) |
Agent and Borrowers wish to amend the 2017 Term Loan Agreement to address certain changes to the terms thereof as set forth below; and |
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(3) |
Borrowers, Agent and the Lenders have agreed pursuant to §27 of the 2017 Term Loan Agreement to amend the 2017 Term Loan Agreement on the terms and subject to the conditions hereinafter set forth. |
Section 1. Amendments to 2017 Term Loan Agreement. The definition of “Applicable Margin” is hereby deleted in its entirety and shall be replaced effective as of the date hereof by the following:
“Applicable Margin”: (a) The Applicable Margin for LIBOR Rate Loans and Base Rate Loans shall, subject to the last sentence of this paragraph, be as set forth below based on the Consolidated Leverage Ratio as set forth in the most recent Compliance Certificate pursuant to §7.4(c):
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Pricing Level |
Consolidated Leverage Ratio |
LIBOR Rate Loans |
Base Rate Loans |
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Pricing Level 1 |
Less than 40% |
1.20% |
0.20% |
|
Pricing Level 2 |
Greater than or equal to 40% but less than 45% |
1.25% |
0.25% |
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Greater than or equal to 45% but less than 50% |
1.35% |
0.35% |
|
|
Pricing Level 4 |
Greater than or equal to 50% but less than 55% |
1.45% |
0.45% |
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Pricing Level 5 |
Greater than or equal to 55% but less than 60% |
1.70% |
0.70% |
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Pricing Level 6 |
Greater than 60% |
1.90% |
0.90% |
The Applicable Margin shall not be adjusted based upon such Consolidated Leverage Ratio, if at all, until (i) the first day of the next fiscal quarter following receipt of any updated Compliance Certificate or (ii) if any member of the Consolidated Group issues Equity Interests, the second Business Day following Agent’s receipt of a pro forma Compliance Certificate that takes into account such issuance of Equity Interests and any repayment of Indebtedness from the proceeds thereof. In the event that Parent Borrower shall fail to deliver to Agent a quarterly Compliance Certificate on or before the date required by §7.4(c), then without limiting any other rights of Agent and Lenders under this Agreement, the Applicable Margin for the Loan shall be at Pricing Level 6 commencing on the first (1st) Business Day following the date on which such Compliance Certificate was required to have been delivered and shall remain in effect until such failure is cured, in which event the Applicable Margin shall adjust, if necessary, on the first (1st) day of the first (1st) month following receipt of such Compliance Certificate. The Applicable Margin in effect from the Closing Date through the date of the next change in the Applicable Margin pursuant to the provisions hereof shall be determined based upon Pricing Level 2. The provisions of this definition shall be subject to §2.6(c).
(b)In the event that Parent Guarantor achieves an Investment Grade Rating, Parent Borrower may, upon written notice to Agent, make an irrevocable (subject to the provisions of the paragraph following the grid below) written election (setting forth the date such election shall be effective) to exclusively use the ratings-based pricing grid set forth below (a “Ratings Grid Election”), in which case the Applicable Margin for LIBOR Rate Loans and Base Rate Loans will be determined, as per the pricing grid below, on the basis of the Debt Rating of Parent Guarantor as set forth below:
|
Debt Rating |
LIBOR Rate Loans |
Base Rate Loans |
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>A-/A3 |
0.85% |
0.00% |
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BBB+/Baa1 |
0.90% |
0.00% |
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BBB/Baa2 |
1.00% |
0.00% |
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BBB-/Baa3 |
1.25% |
0.25% |
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<BBB-/Baa3 |
1.65% |
0.65% |
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If Parent Borrower has made the Ratings Grid Election as provided above but thereafter Parent Guarantor fails to maintain an Investment Grade Rating by at least one of S&P or Xxxxx’x, then the applicable interest rate margin shall be determined pursuant to clause (a) above during the period commencing on the date Parent Guarantor no longer has an Investment Grade Rating by at least one of S&P or Xxxxx’x and ending on the date Parent Borrower makes another Ratings Grid Election.”
Section 2. Representations and Warranties. Each Loan Party hereby represents and warrants that:
(a)The representations and warranties contained in each of the Loan Documents (as amended or supplemented to date, including pursuant to this Amendment) to which it is a party are true and correct in all material respects on and as of the Amendment Effective Date, before and after giving effect to this Amendment, as though made on and as of such date (except for any such representation and warranty that, by its terms, refers to an earlier date, in which case as of such earlier date).
(b)The execution, delivery and performance of this Amendment and the transactions contemplated hereby (i) are within the corporate or other organizational authority of the Loan Parties, (ii) have been duly authorized by all necessary actions on the part of the Loan Parties, (iii) do not and will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any Loan Party is subject or any judgment, order, writ, injunction, license or permit applicable to any Loan Party, in each case except as would not be reasonably likely to have a Material Adverse Effect, (iv) do not and will not conflict with or constitute a default (whether with the passage of time or the giving of notice, or both) under any provision of the partnership agreement, limited liability company agreement, articles of incorporation or other charter documents or bylaws of any Loan Party, (v) do not and will not result in or require the imposition of any lien or other encumbrance on any of the properties, assets or rights of any Loan Party other than Permitted Liens, and (vi) do not require the approval or consent of any Governmental Authority to be obtained by any Loan Party or any Affiliate thereof other than those already obtained and delivered to Agent or except as would not reasonably be likely to have a Material Adverse Effect.
(c)The execution and delivery of this Amendment are valid and legally binding obligations of the Loan Parties enforceable in accordance with the terms and provisions hereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and general principles of equity.
(d)The execution, delivery and performance of this Amendment and the transactions contemplated hereby do not require the approval or consent of, or filing or registration with, or the giving of any notice to, any court, department, board, governmental agency or authority other than those already obtained, in each case, except as would not be reasonably likely to result in a Material Adverse Effect.
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Section 3. Conditions of Effectiveness. This Amendment shall become effective as of the date first written above on the first date (the “Amendment Effective Date”) on which, and only if, Agent shall have received on or before the date hereof, each dated such day, in form and substance satisfactory to Agent, counterparts of this Amendment executed by each of the Loan Parties and each Lender.
Section 4. Reference to and Effect on the 2017 Term Loan Agreement, the Notes and the Loan Documents.
(a)This Amendment is a Loan Document. On and after the effectiveness of this Amendment, each reference in the 2017 Term Loan Agreement to “this Agreement’’, “hereunder”, “hereof” or words of like import referring to the 2017 Term Loan Agreement, and each reference in the Notes and each of the other Loan Documents to “the Loan Agreement”, “thereunder”, “thereof”‘ or words of like import referring to the 2017 Term Loan Agreement, shall mean and be a reference to the 2017 Term Loan Agreement, as amended and modified by this Amendment to read in the form of the Amended Term Loan Agreement attached as Annex A.
(b)This Amendment shall not extinguish the obligations for the payment of money outstanding under the 2017 Term Loan Agreement or the Amended Term Loan Agreement. Nothing herein contained shall be construed as a substitution or novation of the obligations outstanding under the 2017 Term Loan Agreement, which shall remain in full force and effect, except to any extent modified hereby or as provided in the exhibits hereto. Nothing implied in this Amendment or in any other document contemplated hereby shall be construed as a release or other discharge of any of the Loan Parties from the Loan Documents.
Section 5. Ratification. The 2017 Term Loan Agreement (as amended by this Amendment), the Guaranty (as amended by this Amendment) and each of the other Loan Documents are and shall continue to be in full force and effect and are hereby in all respects ratified and confirmed by each Loan Party. Except as expressly provided in this Amendment, the execution, delivery and effectiveness of this Amendment shall not operate as a waiver of any right, power or remedy of any Lender or Agent under the 2017 Term Loan Agreement or any of the other Loan Documents, nor constitute a waiver of any provision of the 2017 Term Loan Agreement or any of the other Loan Documents.
Section 6. Costs and Expenses. Parent Borrower shall pay all reasonable and documented out-of-pocket costs and expenses of Agent to the extent provided in §15 of the 2017 Term Loan Agreement.
Section 7. Execution in Counterparts. This Amendment may be executed in any number of counterparts and by different parties hereto in separate counterparts, each of which when so executed shall be deemed to be an original and all of which taken together shall constitute but one and the same agreement. Delivery of an executed counterpart of a signature page to this Amendment by facsimile or as a .pdf, .jpeg, .TIF, .TIFF attachment to an electronic mail
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message or similar electronic format shall be effective as delivery of a manually executed counterpart of this Amendment.
Section 8. Governing Law. This Amendment shall be governed by, and construed in accordance with, the laws of the State of New York.
[Balance of page intentionally left blank.]
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IN WITNESS WHEREOF, each of the undersigned has caused this Agreement to be executed by its duly authorized representatives as of the date first set forth above.
BORROWERS:
INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP
By: Independence Realty Trust, Inc., its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
BAYVIEW CLUB APARTMENTS INDIANA, LLC, BRIDGEVIEW APARTMENTS, LLC, CHELSEA SQUARE APARTMENTS HOLDING COMPANY, LLC, CHERRY GROVE SOUTH CAROLINA, LLC, HAVERFORD PLACE APARTMENTS OWNER, LLC, HPI XXXXXXX PARK LLC, HPI KENSINGTON COMMONS LLC, HPI XXXXXX FARMS LLC HPI RIVER CHASE LLC, LAKES OF NORTHDALE APARTMENTS, LLC, LUCERNE APARTMENTS TAMPA, LLC, IRT LIVE OAK TRACE LOUISIANA, LLC, SOUTH TERRACE APARTMENTS NORTH CAROLINA, LLC, SPG AVALON APARTMENTS LLC TIDES AT CALLABASH NORTH CAROLINA, LLC ROCKY CREEK APARTMENTS OWNER, LLC XXXXXXXXX APARTMENTS OWNER, LLC, and NORTH PARK PROPERTY OWNER, LLC
By: Independence Realty Operating Partnership, LP, the sole member of each of the foregoing entities
By: Independence Realty Trust, Inc., its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
BSF LAKESHORE, LLC, BSF TRAILS, LLC, FOX PARTNERS, LLC, and MERCE PARTNERS, LLC
By: TS Manager, LLC, the manager of each of the foregoing entities
By: IR TS Op Co, LLC, its sole member
By: Independent Realty Operating Partnership, LP, its sole member
By: Independence Realty Trust, Inc., its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
TS GOOSE CREEK, LLC, XX XXXXXX CREEK, LLC, TS VINTAGE, LLC and TS WESTMONT, LLC
By: IR TS Op Co, LLC, the sole member of each of the
foregoing entities
By: Independent Realty Operating Partnership, LP, its
sole member
By: Independence Realty Trust, Inc., its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
By: JLC/BUSF Associates, LLC, its sole member
By: TS Manager, LLC, its manager
By: IR TS Op Co, LLC, its sole member
By: Independent Realty Operating Partnership, LP, its sole member
By: Independent Realty Trust, Inc., its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
IRT OKC PORTFOLIO OWNERS, LLC
By:IRT OKC Portfolio Member, LLC, its sole member
By:Independent Realty Operating Partnership, LP, its
sole member
By: Independence Realty Trust, Inc., its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
The undersigned hereby acknowledges and consents to the foregoing Second Amendment to Term Loan Agreement and Other Loan Documents and acknowledges and agrees that it remains obligated for the various obligations and liabilities of the Borrowers to the Agent and the Lenders under the 2017 Term Loan Agreement as provided for in, and subject to the provisions of, the Guaranty dated November 20, 2017 provided by the undersigned to the Agent on behalf of the Lenders.
GUARANTOR:
INDEPENDENCE REALTY TRUST, INC.,
a Maryland Corporation, its general partner
By:/s/Xxxxx Xxxxx
Name:Xxxxx Xxxxx
Title:Chief Financial Officer
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
KEYBANK NATIONAL ASSOCIATION
as a Lender and as Agent
By:/s/Xxxxxxx X. Xxxxx
Name:Xxxxxxx X. Xxxxx
Title:Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
ASSOCIATED BANK, NATIONAL ASSOCIATION, as a Lender
By:/s/Xxxxx Xxxx
Name:Xxxxx Xxxx
Title:Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
CAPITAL ONE, NATIONAL ASSOCIATION as a Lender
By:/s/Xxxxxxx Xxxxxxxx
Name:Xxxxxxx Xxxxxxxx
Title:Authorized Signatory
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
CITIZENS BANK, N.A., as a Lender
By:/s/Xxx X. Xxxxxxxx
Name:Xxx X. Xxxxxxxx
Title:Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
THE HUNTINGTON NATIONAL BANK, as a Lender
By:/s/Xxxxxxx Xxxxxxxxx
Name:Xxxxxxx Xxxxxxxxx
Title:Assistant Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
PNC BANK, NATIONAL ASSOCIATION, as a Lender
By:/s/Xxxxx X. Xxxxx-Xxxxxxx
Name:Xxxxx X. Xxxxx-Xxxxxxx
Title: Senior Vice President
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
REGIONS BANK, as a Lender
By:/s/C. Xxxxxxx Xxxxxx, Xx.
Name:C. Xxxxxxx Xxxxxx, Xx.
Title: Vice President
