EXHIBIT 10.17
REVOLVING LOAN AGREEMENT
THIS REVOLVING LOAN AGREEMENT (this "Agreement"), is made this ____ day
of __________, 200___, by and between Education Realty Operating Partnership,
LP, a Delaware limited partnership (together with its successors and assigns,
"Lender"), and JPI Multifamily Investments L.P., a Delaware limited partnership
(together with its successors and assigns, "Borrower").
FACTUAL BACKGROUND
In connection with the initial public offering of shares of Lender's
parent, Education Realty Trust, Inc. a Maryland corporation ("ERT") consummated
contemporaneously with the execution of this Agreement, Lender has agreed to
advance to Borrower certain sums, not to exceed $5,996,250 in the aggregate and
subject to other limitations as provided herein, secured by Borrower's limited
partnership interest in Lender.
AGREEMENT
In consideration of the foregoing Recitals and the respective
covenants, agreements, representations and warranties contained in this
Agreement, the parties agree as follows:
ARTICLE I
DEFINITIONS AND CONSTRUCTION
1.1 DEFINITIONS. As used in this Agreement, the following terms shall
have the following definitions:
"Advance" has the meaning set forth in Section 2.2.
"Applicable Interest Rate" means a rate per annum equal to the greater
of (i) the applicable federal rate (as that term is defined in Section 1274(d)
of the Internal Revenue Code of 1986, as amended) for short-term obligations as
published by the Internal Revenue Service for the month in which this Agreement
is executed and delivered or (ii) the annualized dividend rate payable by
Education Realty Trust, Inc., a Maryland corporation, as determined by reference
to the initial payment of dividends by such company. Such rate, once determined,
shall apply to each Advance made pursuant to this Agreement.
"Code" means the Uniform Commercial Code, as amended and as now in
effect in the State of Texas.
"Collateral" means each of the following:
(a) the Units, and
(b) the proceeds (other than those delivered to Borrower) and
products, whether tangible or intangible, of any of the foregoing,
including money, deposit accounts or other tangible or intangible
property resulting from the sale, exchange, collection or other
disposition of the Units, or any portion thereof or interest therein,
and the proceeds thereof.
"Person" means and includes natural persons, corporations, limited
liability companies, limited partnerships, general partnerships, limited
liability partnerships, joint ventures, trusts, land trusts, business trusts or
other organizations irrespective of whether they are legal entities, and
governments and agencies and political subdivisions thereof.
"Obligations" means the Revolving Note, the Collateral Assignment of
Partnership Interest and Security Agreement and this Revolving Loan Agreement
and all interest, principal, charges, expenses, fees or other sums chargeable to
Borrower under any of such agreements.
"Pledge Agreement" means that certain Collateral Assignment of
Partnership Interest and Security Agreement of even date made by Borrower in
favor of Lender substantially in the form of Exhibit "A" pursuant to which
Borrower has pledged its Units as such may be amended or modified from time to
time.
"Related Documents" means the Revolving Note, the Pledge Agreement, the
Supplemental Documents, and the UCC financing statements and all other documents
necessary to perfect the security interests in the Collateral granted to Lender,
as such documents may be amended or modified from time to time.
"Supplemental Documents" means all other agreements, instruments and
documents and other written matter necessary or reasonably requested (now or
hereafter) by Lender to perfect and keep perfected Lender's security interest in
the Collateral.
"Units" means all limited partnership units in Lender held by Borrower.
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ARTICLE II
REVOLVING LOAN
2.1 COMMITMENT. Upon the terms and subject to the conditions set forth
in this Agreement and in reliance upon the representations and warranties of
Borrower herein set forth, Lender hereby agrees to lend to Borrower and Borrower
may borrow and re-borrow from time to time during the period (the "Revolving
Commitment Period") commencing on the Closing Date and ending on the later of 30
days following the registration of the shares receivable upon conversion of the
Units or fourteen months after the date of this document (the "Revolving Loan
Maturity Date"), such amounts (the amounts borrowed under the Revolving Loan
being referred to, singly or collectively, as an "Advance" or as "Advances") as
Borrower may request up to the aggregate amount of $5,996,250 (the "Revolving
Loan"). Notwithstanding the foregoing, Lender shall only be required to make an
Advance if and to the extent that, after giving effect to such Advance, the
aggregate principal amount of all Advances outstanding after giving effect to
such Advance does not exceed the lesser of (i) $5,996,250 or (ii) Seventy Five
Percent (75%) of the value of Units on the date of such Advance with the value
of such Units being equal to the value of Shares of ERT into which such Units
would be converted if the Units were then convertible into Shares of ERT (the
"Revolving Commitment Limit.)
2.2 ADVANCES. Each Advance shall be in an amount not less than $10,000.
Advances will be made only on Business Days. Borrower may request an Advance
under this Section 2.2 by written notice received by Lender at least five
Business Days before the date of the proposed Advance. Each Notice to Lender
shall further specify the date and the aggregate principal amount of the
proposed Advance and the bank and the account number to which the funds should
be transferred and shall be executed by Borrower.
2.3 REVOLVING COMMITMENT PERIOD. Lender agrees to make Advances to
Borrower, on the terms and subject to the limitations set forth herein, during
the Revolving Commitment Period. Lender's commitment to make the Revolving Loan
shall terminate on the Revolving Loan Maturity Date or the earlier occurrence of
any Event of Default.
2.4 REVOLVING NOTE. The Advances and Borrower's obligation to pay
interest thereon shall be evidenced by a promissory note (the "Revolving Note")
in the form of Exhibit "A" hereto. Upon making each Advance, and upon receipt of
each payment of principal of an Advance, Lender shall, and is hereby authorized
to, make a notation on a schedule attached to the Revolving Note of the amount
and date of the Advance or payment, and the aggregate unpaid principal balance
shown on the schedule shall be presumed to be correct in the absence of manifest
error. Lender's failure to make the correct notation with respect to an Advance
or with respect to any payment of principal shall not limit or otherwise affect
Borrower's obligations hereunder and under the Revolving Note to repay the
Advance actually outstanding.
2.5 ALL ADVANCES TO CONSTITUTE ONE LOAN. All Advances shall constitute
one loan and all Obligations shall constitute one general obligation secured by
Lender's security interest in all of the Collateral. All of the rights of Lender
in this Agreement or the Revolving Note shall apply to any modification of or
supplement to this Agreement.
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ARTICLE III
COLLATERAL
3.1 SECURITY INTEREST. To secure payment and performance of the
Obligations, Borrower hereby grants to Lender a continuing first priority
security interest in all Collateral pursuant to the Collateral Assignment of
Partnership Interest and Security Agreement of even date. From time to time, and
subject to Lender's prior approval, Borrower may substitute as collateral for
the Units property of equal or greater value acceptable to Lender. In addition,
Borrower may, at Borrower's election at any time and from time to time agree to
guarantee payment of up to twenty five percent (25%) of the aggregate amount of
Advances then outstanding under this Agreement. Until all of the Obligations
have been fully satisfied, the security interest in and against the Collateral
shall continue in full force and effect. Lender's security interest in the
Collateral shall attach to the Collateral without further action by Lender or
Borrower.
3.2 SUPPLEMENTAL DOCUMENTS; POWER OF ATTORNEY. At Lender's request,
Borrower shall execute or deliver to Lender, at any time or times hereafter,
such Supplemental Documents, or any substitute note, as Lender may reasonably
request, in form and substance reasonably acceptable to Lender and Borrower.
Borrower hereby irrevocably makes, constitutes and appoints Lender (and all
Persons designated by Lender for that purpose) as Borrower's true and lawful
attorney (and agent-in-fact) with power to, after the occurrence of a default,
(a) sign the name of Borrower on any of the Supplemental Documents to which it
is a party and to deliver those Supplemental Documents to such Persons as
Lender, in its sole discretion, may elect, (b) at any time that an Event of
Default has occurred and is continuing, endorse Borrower's name on any checks,
notes or other forms of payment or security, (c) at any time that an Event of
Default has occurred and is continuing, settle and adjust disputes and claims
respecting the Collateral directly with claimants, for amounts and upon terms
that Lender determines to be reasonable, and Lender may cause to be executed and
delivered any documents and releases that Lender determines to be necessary and
(d) do all things necessary or appropriate to carry out the terms of this
Agreement, all without notice to Borrower. Borrower ratifies and approves all
acts of any such attorney and agrees that neither Lender nor any such attorney
will be liable to Borrower for any acts, omissions, error of judgment or mistake
of fact or law, unless any of the foregoing are occasioned by the gross
negligence or willful misconduct of Lender or of any such attorney. The
foregoing power of attorney, being coupled with an interest, is irrevocable
until the Obligations have been fully satisfied.
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ARTICLE IV
EVENTS OF DEFAULT AND REMEDIES
4.1 EVENTS OF DEFAULT. The occurrence of any one of the following shall
constitute an "Event of Default" hereunder:
(a) the failure of Borrower to pay any part of the principal
of, or interest on the Revolving Note when due within ten (10) days from the
date delivery is made to Borrower of written notice of non-payment, whether at
quarterly payment, stated maturity, by acceleration, or otherwise;
(b) the continuance of a breach or default by Borrower in the
performance or observance of any other covenant, agreement or condition
contained in this Agreement or any Related Document fifteen (15) days the date
of delivery is made to the Borrower of written notice of such default or breach;
(c) Borrower (i) applies for or consents to the appointment
of, or the taking of possession by, a receiver, custodian, trustee or liquidator
of all or part of the Collateral, (ii) is generally unable to pay its debts as
they become due, (iii) makes a general assignment for the benefit of its
creditors, (iv) commences a voluntary case under the Bankruptcy Code (as now or
hereafter in effect), (v) files a petition seeking to take advantage of any
other law providing for the relief of debtors, (vi) fails to controvert in a
timely or appropriate manner, or acquiesces in writing to, any petition filed
against it in an involuntary case under the Bankruptcy Code, (vii) admits in
writing its inability to pay its debts generally as they become due, (viii)
takes any action under the laws of its jurisdiction of organization analogous to
any of the foregoing or (ix) takes any requisite action for the purpose of
effecting any of the foregoing;
(d) a proceeding or case is commenced, without the application
or consent of Borrower in any court of competent jurisdiction, seeking (i) the
reorganization or readjustment of its debts, (ii) the appointment of a trustee,
receiver, custodian, liquidator or the like of it or of all or any part of the
Collateral or (iii) similar relief in respect of it, under any law providing for
the relief of debtors, and the proceeding or case continues undismissed, or
unstayed and in effect, for a period of 90 days against Borrower; or
(e) the Collateral or any portion thereof, is attached,
seized, subject to a writ of distress warrant, or levied upon, or comes into the
possession of any receiver, trustee, custodian or assignee for the benefit of
creditors without being vacated, stayed, dismissed or set aside within 90 days
after the occurrence thereof.
4.2 REMEDIES UPON AN EVENT OF DEFAULT.
(a) Upon the occurrence of any Event of Default, the
Obligations shall automatically become immediately due and payable, without
presentment, demand, notice, declaration, protest or other requirements of any
kind, all of which are hereby expressly waived by Borrower, and Lender shall
have, in addition to all other rights
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provided herein including all rights and remedies of a secured party under the
Code, the right to do any one or more of the following, all of which are
authorized by Borrower:
(i) Exercise or pursue any right or remedy provided
for in this Agreement or any Related Document;
(ii) Cease advancing money or extending credit to or
for Borrower's benefit under this Agreement, under the Revolving Note, or under
any other agreement between Borrower and Lender;
(iii) Terminate this Agreement as to any future
liability or obligation of Lender, but without affecting Lender's rights and
security interests in the Collateral and without affecting the Obligations;
(iv) Without notice to or demand upon Borrower, make
such payments and do such acts as Lender considers necessary or reasonable to
protect its security interests in the Collateral;
(v) Sell the Collateral at either a public or private
sale, or both, by way of one or more contracts or transactions, for cash or on
terms, in a manner and at locations (including Borrower's premises) Lender
determines are commercially reasonable. It is not necessary that the Borrower or
the Collateral be present at any sale;
(vi) Lender shall give notice of the disposition of
the Collateral as follows:
(1) Lender shall give Borrower and each
holder of a security interest in the Collateral who has filed with Lender a
written request for notice, a notice in writing of the time and place of public
sale, or, if the sale is a private sale or any disposition other than a public
sale, then the time on or after which the private sale or other disposition is
to be made;
(2) The notice shall be personally delivered
or mailed, postage prepaid, to Borrower, at least 10 days before the date fixed
for the sale, or at least 10 days before the date on or after which the private
sale or other disposition is to be made; no notice needs to be given prior to
the disposition of any portion of the Collateral that is perishable or threatens
to decline speedily in value or that is of a type customarily sold on a
recognized market. Notice to Persons other than Borrower claiming an interest in
the Collateral shall be sent to such addresses as they have furnished to Lender;
and
(3) If the sale is to be a public sale,
Lender also shall give notice of the time and place by publishing a notice one
time at least 10 days before the date of the sale in a newspaper of general
circulation in the county in which the sale is to be held;
(xi) Lender may credit bid and purchase at any public
sale; and
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(xii) Any excess will be returned, without interest
and subject to the rights of third Persons, by Lender to Borrower.
(b) Lender's rights and remedies under this Agreement, the
Revolving Note and all other agreements shall be cumulative. Lender shall have
all other rights and remedies not inconsistent herewith as provided under the
Code, by law, or in equity. No exercise by Lender of one right or remedy shall
be deemed an election, and no waiver by Lender of any Event of Default shall be
deemed a continuing waiver unless so specified in writing by Lender in its sole
and absolute discretion. No delay by Lender shall constitute a waiver, election
or acquiescence by it.
ARTICLE V
TERM
This Agreement shall continue in full force and effect until all of the
Borrower's Obligations have been fully satisfied.
ARTICLE VI
MISCELLANEOUS
6.1 AMENDMENTS, ETC. No amendment or waiver of any provision of this
Agreement or the Revolving Note shall in any event be effective unless it shall
be in writing and signed by Lender (or, in the case of amendments, signed by
both Lender and Borrower) and then the waiver or consent shall be effective only
in the specific instance and for the specific purpose for which given.
6.2 NOTICES. Except as otherwise provided for herein, all notices and
other communications provided for hereunder shall be in writing and mailed or
delivered, if to Borrower, at:
if to Borrower JPI Multifamily Investments L.P.
000 Xxxx Xxx Xxxxxxx Xxxx., Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attn:
---------------------------------
---------------------------------
Fax No.: (000) 000-0000
with a copy to: Xxxxxx Xxxxx Xxxx & Xxxx, P.C.
0000 Xxxxxxxx Xxxxx
0000 Xxxx Xxxxxx
Xxxxxx, Xxxxx 00000-0000
Attn: Xxxxx Xxxxxxxxx
Fax No: (000) 000-0000
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and if to Lender, at Education Realty Operating Partnership, LP
000 Xxx Xxxxx Xxxxx, Xxxxx 000
Xxxxxxx, Xxxxxxxxx 00000
Attn: Xxxx X. Xxxxx
Fax No.: (000) 000-0000
with a copy to: Xxxxxx, Xxxxxxx & Xxxxxx, L.L.P.
1600 Atlanta Financial Center
0000 Xxxxxxxxx Xxxx, X.X.
Xxxxxxx, Xxxxxxx 00000
Fax No.: (000) 000-0000
or, as to each party, at such other address as designated by that party in a
written notice to the other party. All notices and communications shall be
deemed to have been validly served, given or delivered (i) three Business Days
following deposit in the United States mail via certified or registered mail,
return receipt requested, with proper postage prepaid; (ii) upon delivery if
delivered by hand to the party to be notified; or (iii) the following day if
sent by a nationally recognized overnight courier service.
6.3 NO WAIVER; REMEDIES. No failure on the part of Lender to exercise,
and no delay in exercising, any right hereunder shall operate as a waiver
thereof; nor shall any single or partial exercise of any right hereunder
preclude any other or further exercise thereof or the exercise of any other
right. The remedies herein provided are cumulative and not exclusive of any
remedies provided by law or in the Related Documents.
6.4 COSTS. In addition to the unpaid principal and accrued interest due
and payable hereunder and under the Revolving Note, Borrower shall pay Lender,
all reasonable costs and expenses, if any, including reasonable attorneys fees
in connection with the enforcement of the terms of this Agreement and the
Revolving Note.
6.5 BINDING EFFECT. This Agreement shall be binding upon and inure to
the benefit of Borrower and Lender and their respective successors and assigns.
6.6 SEVERABILITY. Wherever possible, each provision of this Agreement
shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this Agreement is prohibited by or
invalid under applicable law, that provision shall be ineffective to the extent
of the prohibition or invalidity, without invalidating the remainder of the
provision or the remaining provisions of this Agreement.
6.8 GOVERNING LAW. This Agreement shall be governed by, and construed
in accordance with, the internal laws (as opposed to conflicts of law
provisions) of the State of Texas.
6.9 VENUE. Borrower and Lender agree that any claim or suit between or
among the parties involving this Agreement or the Related Documents or any
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transactions contemplated hereby or thereby shall be brought in and decided by
the state or federal courts located in the County of Dallas, Texas.
6.10 SECTION TITLES. The section titles contained in this Agreement are
for convenience only and shall be without substantive meaning or content of any
kind whatsoever.
6.11 MULTIPLE COUNTERPARTS. This Agreement may be executed in
counterparts, each of which shall be deemed an original, but all of which will
constitute one and the same instrument.
6.12 CAPTIONS; GENDER. The descriptive headings of the Sections of this
Agreement are inserted for convenience only and shall not affect the meaning,
construction or interpretation of any of the provisions hereof. The use of the
neuter form of a pronoun shall be deemed, where appropriate, to include the
masculine and feminine forms of such pronoun.
6.13 ENTIRE AGREEMENT. The parties agree that this Agreement, together
with the exhibits and schedules attached hereto and all of the Related Documents
delivered as of the date hereof to Lender coincident with this Agreement,
represent the entire agreement and understanding of the parties with reference
to the transactions contemplated herein.
(THE REMAINDER OF THIS PAGE IS INTENTIONALLY LEFT BLANK.)
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IN WITNESS WHEREOF, this Loan Agreement has been duly executed as of
the day and year first written above.
LENDER:
EDUCATION REALTY OPERATING PARTNERSHIP, LP,
a Delaware limited partnership
By: EDUCATION REALTY OP GP, INC.
its General Partner
By:
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Name:
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Title:
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BORROWER:
JPI MULTIFAMILY INVESTMENTS L.P., a Delaware
limited partnership
By: New GP, LLC
its General Partner
By:
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Name:
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Title:
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