SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
Exhibit 10.1
SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT
THIS SECOND AMENDMENT TO AMENDED AND RESTATED CREDIT AGREEMENT (the “Amendment”) is made and entered into as of July 29, 2022 (the “Effective Date”) by and between America First Multifamily Investors, L.P., a Delaware limited partnership (“Borrower”), and Bankers Trust Company (“Bank”).
RECITALS
A. Borrower and Bank entered into an Amended and Restated Credit Agreement dated August 23, 2021, as amended by a First Amendment to Amended and Restated Credit Agreement dated April 29, 2022 (as amended, the “Agreement”) (all capitalized terms not otherwise defined herein are as defined in the Agreement), pursuant to which Bank agreed to provide certain credit facilities to Borrower on the terms and conditions contained therein.
B. Borrower has requested that Bank consent to certain modifications to the terms and conditions of the Agreement. Bank is agreeable to such request on the terms and conditions hereinafter set forth.
NOW, THEREFORE, for valuable consideration, the receipt and sufficiency of which are hereby expressly acknowledged, Borrower and Bank agree as follows:
(f) Intentionally Omitted.
(s) Collateral means all property of Borrower or any other Person in which Bank has or is intended to have a security interest to secure the payment and performance of the Obligations, including without limitation, the property described in the Collateral Documents and including without limitation each Financed Asset acquired using an Advance.
(aa) Intentionally Omitted.
(oo) Loan Documents means this Agreement, the Note, the Collateral Documents, the Bank Product Agreements, and all other agreements, documents, and instruments now or hereafter contemplated by this Agreement or made with reference to this Agreement.
(pp) Adjusted Total Assets means total reported assets except for adjustments to include (i) total cost adjusted for paydowns for MRBs, GILs, property loans, taxable MRBs, and taxable GILs, (ii) initial cost of deferred financing costs, and (iii) initial cost of real estate assets as reported in Borrower’s most recent Form 10-K or Form 10-Q.
(ss) Intentionally Omitted.
(ggg) Intentionally Omitted.
(mmm) Revolving Loan Maturity Date: June 30, 2024, subject to potential extension in accordance with Section 2.1(m) of this Agreement.
(cccc) Joint Venture Equity Investment means an equity investment by Borrower in an individual multi-family housing or seniors housing project developed or under development by a third-party developer which is consistent with the “Vantage” design concept previously developed by Clermont, LLC.
(dddd) Term SOFR Rate means, as it changes from time to time, the 1-month forward looking term Secured Overnight Financing Rate as published by CME Group Benchmark Administration Limited (or any generally recognized successor method or means of publication) as of 12:00 p.m. on the first of the month which constitutes a U.S. Government Securities Business Day, provided that if such rate is ever less than 0.10%, the Term SOFR Rate shall be deemed to be 0.10%. If for any reason the Term SOFR Rate is not published on that day, the Term SOFR Rate will be the Term SOFR Rate as published by the Term SOFR Administrator on the first preceding Business Day for which such Term SOFR Rate was published by the Term SOFR Administrator.
(eeee) U.S. Government Securities Business Day means any day except for a Saturday, Sunday, or a day on which the Securities Industry and Financial Markets
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Association (or a successor) recommends that the fixed income departments of its members be closed for the entire day for the purpose of trading in U.S. government securities.
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(e) Limitation on Borrowings. With respect to any Financed Asset to be acquired by Borrower with an Advance, the amount of the corresponding Advance shall not exceed the lesser of: i) 100% of the cost of the Financed Asset; ii) 80% of the fair market value of the Financed Asset; or iii) $30,000,000. All of the foregoing advance limitations shall be reasonably confirmed by Bank upon receipt and review of all reports required under Section 2.1(d) of this Agreement.
(g) Collateral. The Obligations shall be secured by a first priority security interest in the Pledged Account, and all investment property, securities, financial assets, cash, cash equivalents, and other assets now or hereafter deposited in or credited to the Pledged Account, and on each Financed Asset acquired by Borrower with the use of an Advance, with each such Financed Asset being deposited or credited to, and thereafter continuously maintained in, the Pledged Account. Borrower shall execute and deliver the Security Agreement and the Control Agreement (and shall cause Securities Intermediary to execute and deliver the Control Agreement) for the purpose of granting a perfected first priority security interest in the Pledged Account and all Financed Assets and other property now or hereafter deposited or credited to the Pledged Account. In addition, as a condition precedent to Bank making any Advance for the acquisition of a Financed Asset, Borrower shall execute and deliver, and cause other Persons to execute and deliver, such other Collateral Documents as Bank, in its discretion, may require to obtain a perfected first priority security interest in the Financed Asset being acquired, including any security agreement, pledge agreement, control agreement, financing statement, or other agreement, document, instrument, or certificate. Notwithstanding the foregoing, provided there does not then exist any Event of Default or Unmatured Event of Default, any Lien on, a particular Financed Asset shall be released by Bank upon the delivery to Bank of a term sheet for a TOB Financing, a TEBS Transaction, or other financing related to the Financed Asset by a financial institution, together with such confirmation as Bank may reasonably require that the Advance made to acquire such Financed Asset will be promptly repaid in full upon closing of such transaction described in the term sheet and such other information regarding the transaction as Bank may reasonably require. Notwithstanding the release of any individual Financed Asset, the Lien on the Pledged Account and all other Financed Assets, shall remain effective.
(m) Extension Options. Borrower may elect to extend the Revolving Loan Maturity Date for a term of twelve (12) months up to two (2) times (each, an Extension Term”), subject to the following terms and conditions:
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(i) Borrower shall have given Bank written notice of Borrower’s exercise of the Extension Term option by delivering a Request for Extension Term in a form approved by Bank no earlier than ninety (90) days, and at least thirty (30) days, before the Revolving Loan Maturity Date, or the extended Revolving Loan Maturity Date, as applicable;
(ii) no Unmatured Event of Default or Event of Default shall exist as of the date of the notice required in subsection (i) herein, as of the Revolving Loan Maturity Date, or as of the extended Revolving Loan Maturity Date, as applicable;
(iii) all representations and warranties contained in Article 4 of this Agreement shall be true and accurate in all material respects at the Revolving Loan Maturity Date or the extended Revolving Loan Maturity Date, as applicable (except to the extent that any such representation or warranty (A) relates to a specific earlier date, in which case such representation or warranty shall be true and correct as of such earlier date, or (B) is already qualified by materiality or Material Adverse Effect, in which case such representation or warranty shall be true and correct in all respects);
(iv) Borrower shall have delivered to Bank an updated beneficial ownership certification, if there have been any changes in relation to Borrower since the date of delivery of the beneficial ownership certification previously delivered to Bank; and
(v) payment to Bank of an extension fee of $25,000.00 has been made by Borrower on or prior to the Revolving Loan Maturity Date or the extended Revolving Loan Maturity Date, as applicable.
If Bank determines in its reasonable discretion that the conditions to extension have been satisfied, Bank shall so notify Borrower and so long as no Unmatured Event of Default or Event of Default exists (as set forth in (ii) above), the term shall be extended as provided herein without further action by any party. In connection with any extension of the Revolving Loan Maturity Date, Borrower and Bank may make such amendments to this Agreement as Bank determines to be reasonably necessary to evidence the extension.
The initial Advance and all subsequent Advances under the Revolving Loan shall be subject to the further conditions precedent that: (i) if applicable, Borrower shall have provided confirmation reasonably satisfactory to Bank that the Financed Asset being acquired by the Advance is being deposited in or credited to the Pledged Account simultaneously with Borrower’s acquisition of the Financed Asset (and with confirmation from Securities Intermediary of the deposit or credit of such Financed Asset to the Pledged Account to be provided prior to the end of the Business Day on which the Advance is made), and (ii) Borrower shall have delivered such additional Collateral Documents, if any, as Bank may require with respect to the Financed Asset.
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(b) Not later than 45 days after the end of each Fiscal Quarter ending March 31, June 30, and September 30, and not later than 120 days after the end of each quarter ending December 31, Borrower’s Form 10-Q or Form 10-K form, as applicable, which Form 10-Q or Form 10-K shall contain a report regarding valuation of, and other information regarding, Borrower’s assets, including without limitation supporting information for the valuation of, and project details regarding, each Joint Venture Equity Investment, and detail regarding any asset that has been re-classified from one asset class to another;
(c) As promptly as practicable (but in any event not later than 5 calendar days) after Borrower obtains knowledge of the occurrence of any event which constitutes an Unmatured Event of Default or Event of Default under this Agreement or any other Loan Document, or the occurrence of any defined default or event of default under any agreement with any other creditor of Borrower (including without limitation Mizuho Capital Markets LLC or any of its affiliates and BankUnited, N.A. or any of its affiliates), or upon Borrower’s knowledge of an anticipated Event of Default or Unmatured Event of Default or default or event of default under any agreement with any other creditor, notice of such occurrence, together with a detailed statement by an officer of Borrower of the steps being taken by Borrower to cure the Unmatured Event of Default or Event of Default or default or event of default with another creditor, together with a detailed statement by an Authorized Officer of Borrower of the steps being taken by Borrower to cure the situation.
5.13 Pledged Account. Cause each Financed Asset to be duly deposited in, or credited to, the Pledged Account simultaneously with Borrower’s acquisition of each such Financed Asset, and thereafter cause each such Financed Asset to be continuously maintained in the Pledged Account until any release of such Financed Asset from Bank’s Lien as set forth in Section 2.1(g) hereof.
6.3 Intentionally Omitted.
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(i) Debt of Borrower (other than under this Agreement), including without limitation any Debt of Borrower to Mizuho Capital Markets LLC or any of its affiliates and any Debt of Borrower to BankUnited, N.A. or any of its affiliates, shall be accelerated, or Borrower shall fail to pay any such Debt when due (after the lapse of any applicable grace period) or, in the case of such Debt payable on demand, when demanded (after the lapse of any applicable grace period), or any defined event of default shall occur under any agreements related to such Debt, or any event shall occur or condition shall exist and shall continue for more than the period of grace, if any, applicable thereto and shall have the effect of causing, or permitting the holder of any such Debt or any trustee or other Person acting on behalf of such holder to cause, such Debt to become due prior to its stated maturity or to realize upon any collateral given as security therefor in excess of $2,000,000.
(m) Borrower’s Total Capital falls below $227,000,000 or 50% of the highest Total Capital from the date of this Agreement, with “Total Capital” being defined as the sum of the Partners Capital and Redeemable Preferred Units as reported on Borrower’s most recent Form 10-K or Form 10-Q filing with the Securities and Exchange Commission.
(n) Borrower’s publicly-traded Capital Interests are delisted or otherwise involuntarily removed from NASDAQ or another national securities exchange.
(o) Borrower fails to file with the Securities and Exchange Commission its Form 10-K within 90 days of the end of each Fiscal Year or fails to file its Form 10-Q within 45 days of the end of each Fiscal Quarter.
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[SIGNATURE PAGE FOLLOWS]
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IMPORTANT. READ BEFORE SIGNING, THE TERMS OF THIS AGREEMENT SHOULD BE READ CAREFULLY BECAUSE ONLY THOSE TERMS IN WRITING ARE ENFORCEABLE. NO OTHER TERMS OR ORAL PROMISES NOT CONTAINED IN THIS WRITTEN AGREEMENT MAY BE LEGALLY ENFORCED. YOU MAY CHANGE THE TERMS OF THIS AGREEMENT ONLY BY ANOTHER WRITTEN AGREEMENT.
IN WITNESS WHEREOF, this Amendment is executed by the parties effective as of the date first set forth above.
America First Multifamily Investors, L.P., a Delaware limited partnership
By: /s/ Xxxxx X. Xxxxx
Its: Chief Financial Officer
Bankers Trust Company
By: /s/ Xxxxx Xxxxxxxx
Its: Senior Vice President
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