FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
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EX-10.1 2 edr-firstamendmenttothefou.htm EXHIBIT EDR-FirstAmendmenttotheFourthAmendedandRestatedCreditAgreement
Exhibit 10.1
FIRST AMENDMENT TO FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This First Amendment to Fourth Amended and Restated Credit Agreement (this “Amendment”) is dated as of October 24, 2013 and is entered into between Education Realty Operating Partnership, LP and various subsidiaries thereof (collectively referred to as “Borrower”), the Lenders, and KeyBank, National Association, as Administrative Agent on behalf of itself and the Lenders.
WHEREAS the Borrower, the Administrative Agent and the Lenders have entered into that certain Fourth Amended and Restated Credit Agreement dated as of January 14, 2013 (the “Credit Agreement”), where the Lenders have agreed to provide certain financial accommodations to the Borrower; and
WHEREAS, the Borrower has requested that the Lenders agree to increase the aggregate amount of the Lenders’ Commitments and amend certain other provisions of the Credit Agreement and the Lenders have agreed to so amend the terms and conditions of the Credit Agreement as set forth herein;
NOW THEREFORE, in consideration of the mutual promises and agreements herein contained, the parties hereto hereby agree as follows:
1.Incorporation of Terms and Conditions of Credit Agreement. Except as amended hereby, all of the terms and conditions of the Credit Agreement (including, without limitation, all definitions set forth therein) are specifically incorporated herein by reference. Except as amended hereby, all capitalized terms used (including in the preamble hereto) but not otherwise defined herein shall have the same meaning as in the Credit Agreement, as applicable.
2. Representations and Warranties. Each Credit Party hereby represents and warrants that, as of the First Amendment Effective Date, (i) no Default or Event of Default exists under the Credit Agreement or under any other Loan Document and (ii) all representations and warranties of such Credit Party set forth in the Credit Agreement or in any other Loan Documents are true and correct on and as of the date hereof, except to the extent such representations and warranties expressly relate to an earlier date, in which event they were true and correct as of such earlier date.
3. Ratification of Loan Documents and Guaranties. The Credit Agreement, as hereby amended, and each other Loan Document, are hereby ratified, confirmed and re-affirmed in all respects and shall continue in full force and effect. Each Guarantor hereby acknowledges, confirms and agrees that its “Obligations” as a Guarantor under, and as defined in, the applicable Guaranty to which it is a party include, without limitation, all Obligations of the Credit Parties at any time and from time to time outstanding under the Credit Agreement, as amended hereby, and each other Loan Document.
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4. Joinder. Upon the execution hereof, each of EDR Lexington I LLC, Retreat at State College, LLC, Cottages W. Lafayette IN LLC, EDR Austin LLC, EDR Syracuse, LLC, Carrollton Place, LLC, and EDR Statesboro, LLC hereby (a) becomes a party to the Loan Documents as a Borrower thereunder with the same force and effect as if originally named therein as a Borrower and, without limiting the generality of the foregoing, hereby irrevocably, absolutely, and unconditionally assumes and agrees to timely and faithfully pay and perform all of the obligations of the Borrower under the Loan Documents, and (b) represents and warrants that each of the representations and warranties contained in Article III of the Credit Agreement are also made by it and are true and correct in all material respects on and as the date hereof (after giving effect to this Amendment) as if made on and as of such date.
5. Lender Joinder. By their execution below, each of Fifth Third Bank and JPMorgan Chase Bank, N.A. hereby agree that they have become Lenders under the Credit Agreement and have issued Commitments to the Borrower under the Credit Agreement in the respective amounts set forth on revised Schedule 2.01 set forth on Annex A to this Amendment. Each of Fifth Third Bank and JPMorgan Chase Bank, N.A. represent and warrant on its own behalf that it has full power and authority, and has taken all action necessary, to execute and deliver this Amendment and to consummate the transactions contemplated hereby and to issue its Commitment under the Credit Agreement.
6. Amendments to Credit Agreement. Subject to the satisfaction or waiver of the conditions precedent set forth in Section 5 hereof:
a. Article 1 of the Credit Agreement is hereby amended as follows:
i. the definition of “Applicable Rate” is hereby amended by:
(A) deleting the table in clause (a) thereof in its entirety and substituting the following in its stead:
Total Leverage Ratio | ABR Spread | Eurodollar Spread |
Category 1 <40% | 0.30% | 1.30% |
Category 2 >40% but <45% | 0.40% | 1.40% |
Category 3 >45% but <50% | 0.55% | 1.55% |
Category 4 >50% but <55% | 0.75% | 1.75% |
Category 5 > 55% | 1.00% | 2.00% |
(B) deleting the reference to “Category 4” in the last sentence of clause (a) thereof and substituting “Category 5” in its stead;
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(C) deleting the table in clause (b) thereof in its entirety and substituting the following in its stead:
Investment Grade Rating | ABR Spread | Eurodollar Spread | Facility Fee |
Category 1 At least A- or A3 | 0.00% | 0.95% | 0.10% |
Category 2 At least BBB+ or Baa1 | 0.00% | 1.00% | 0.15% |
Category 3 At least BBB or Baa2 | 0.10% | 1.10% | 0.20% |
Category 4 At least BBB- or Baa3 | 0.30% | 1.30% | 0.25% |
Category 5 Below BBB-, Baa3 or unrated | 0.70% | 1.70% | 0.30% |
ii. by deleting the last two sentences in the definition of “Commitment” in their entirety, and substituting the following in their stead:
The amount of each Lender's Commitment as of the First Amendment Effective Date is set forth on Schedule 2.01, or in the Assignment and Acceptance pursuant to which such Lender shall have assumed its Commitment, as applicable. From and after the First Amendment Effective Date, the aggregate amount of the Lenders’ Commitments is $500,000,000.00.
iii. by deleting the reference to “January 14, 2017” in the definition of “Maturity Date” and substituting “January 14, 2018” in its stead;
iv. by deleting the definition of “Unencumbered Pool Value” in its entirety and substituting the following in its stead:
“Unencumbered Pool Value” means, as of any date of calculation, as to each Acceptable Unencumbered Property in the Unencumbered Pool, (a) for Acceptable Unencumbered Property that was acquired by the Borrower less than twelve (12) months prior to the date of calculation, the Historical Value of such Acceptable Unencumbered Property, (b) for Acceptable Unencumbered Property that has been owned by the Borrower for twelve (12) months or longer, the Adjusted Unencumbered NOI for the most recently ended four (4) quarters for such Acceptable Unencumbered Property, and then divided by six-and-three-quarters percent (6.75%), and (c) for Acceptable Unencumbered Property that was an Asset Under Development but has been open and operating for less than twelve (12) months, the Historical Value of such Acceptable Unencumbered Property or, at the Borrower’s election (which election shall be irrevocable with respect to such Acceptable Unencumbered Property once made until such time as such Acceptable Unencumbered Property has been open and operated by the
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Borrower for twelve (12) months or longer, at which time the provisions of subsection (b) above shall control), the Adjusted Unencumbered NOI for such Acceptable Unencumbered Property calculated for the period of operation instead of the period of ownership, annualized, and then divided by six-and-three-quarters percent (6.75%).
v. the definition of “Value” is hereby amended by:
(A) deleting the reference to “seven percent (7%)” in clause (a) thereof and substituting “six-and-three-quarters percent (6.75%)” in its stead;
(B) deleting clause (b) thereof in its entirety and substituting the following in its stead:
(b) for Real Property that was acquired by the Borrower or its Subsidiary less than twelve (12) months prior to the date of calculation, the Historical Value of such Real Property; plus
(C) renumbering clauses (d) and (e) thereof as clauses (e) and (f), respectively, and adding a new clause (d) therein as follows:
(d) for Real Property that was an Asset Under Development but has been open and operating for less than twelve (12) months, the Historical Value of such Real Property or, at the Borrower’s election (which election shall be irrevocable with respect to such Real Property once made until such time as such Acceptable Unencumbered Property has been open and operated by the Borrower for at least twelve (12) months or longer, at which time the provisions of subsection (a) above shall control), the Net Operating Income for such Real Property calculated for the period of operation instead of the period of ownership, annualized, and then divided by six-and-three-quarters percent (6.75%); plus
vi. by adding the following new definition in appropriate alphabetical order:
“First Amendment Effective Date” means October 24, 2013.
b. Section 2.04(a) of the Credit Agreement is hereby amended by deleting the reference to “$30,000,000” in subclause (i) thereof and substituting “$50,000,000” in its stead;
c. Section 2.05(b) of the Credit Agreement is hereby amended by deleting the reference to “$45,000,000” in subclause (i) thereof and substituting “$75,000,000” in its stead;
d. Section 2.08(d) of the Credit Agreement is hereby amended as follows:
i. by deleting the reference to “January 14, 2017” in the first sentence thereof and substituting “October 24, 2017” in its stead; and
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ii. by deleting the reference to “$500,000,000.00” in subclause (c) thereof and substituting “700,000,000.00” in its stead;
e. Section 5.02(d) of the Credit Agreement is hereby amended by deleting the following text in its entirety:
“provided that, Borrower shall remain in compliance if, for one (1) period of two consecutive fiscal quarters, such ratio shall exceed fifty percent (50%) but not exceed fifty-five percent (55%);”
f. Article V of the Credit Agreement is hereby amended by inserting new Section 5.18 as set forth below:
“5.18. OFAC. (a) No Credit Party or is, nor shall any Credit Party be at any time, a Person with whom the Lenders are restricted from doing business under the regulations of the Office of Foreign Asset Control (“OFAC”) of the Department of Treasury of the United States of America (including, those Persons named on OFAC’s Specially Designated and Blocked Persons list) or under any statute, executive order (including, the September 24, 2001 Executive Order Blocking Property and Prohibiting Transactions With Persons Who Commit, Threaten to Commit, or Support Terrorism), or other governmental action.
(b) No Credit Party is, nor shall any Credit Party be at any time, knowingly engaged in any dealings or transactions or otherwise be associated with such Persons referenced in clause (a) above.”
g. Section 5.02(i) of the Credit Agreement is hereby amended by deleting the reference to “thirty percent (30%)” therein and substituting “thirty five percent (35%)” in its stead;
h. Schedule 3.05(f) of the Credit Agreement is hereby amended by deleting item number 2 on said Schedule.
i. Schedule 2.01 to the Credit Agreement is hereby restated in its entirety as set forth in Annex A hereto;
j. Schedule 3.15 to the Credit Agreement is hereby restated in its entirety as set forth in Annex B hereto;
k. Schedule 5.12 to the Credit Agreement is hereby restated in its entirety as set forth in Annex C hereto; and
l. Exhibit B to the Credit Agreement is hereby restated in its entirety as set forth in Annex D hereto.
7. Conditions to Effectiveness. This Amendment shall not be effective until each of the following conditions precedent has been satisfied to the satisfaction of, or waived in accordance with Section 9.02 of the Credit Agreement by, the Administrative Agent and the Lenders:
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a. This Amendment shall have been duly executed and delivered by the Borrower, the Guarantor, and the Lenders. The Administrative Agent shall have received a fully executed original or .pdf copy hereof.
b. Each Lender that so requests shall have received a Note duly executed and delivered by the Borrower in the full amount of such Lender’s Commitment after giving effect to this Amendment.
c. The Administrative Agent shall have received (i) a copy of all organization consents and resolutions on the part of each Credit Party necessary for the valid execution, delivery and performance by such Credit Party of this Amendment, (ii) current certificates of legal existence and good standing for each Credit Party, and (iii) a customary legal opinion from counsel to each Credit Party.
d. The Administrative Agent shall have received all fees and other amounts due and payable on or prior to the First Amendment Effective Date, including, to the extent invoiced, reimbursement or payment of all out-of-pocket expenses required to be reimbursed or paid by the Borrower hereunder.
e. There shall not have occurred a material adverse change in, or material adverse effect upon, the operations, business, properties, or condition (financial or otherwise) of the Loan Parties, taken as a whole, since June 30, 2013.
f. After giving effect to this Amendment, no Default or Event of Default shall have occurred and be continuing.
The Administrative Agent shall notify the Borrower and the Lenders of the First Amendment Effective Date, and such notice shall be conclusive and binding. Upon such effectiveness, each Lender shall, as applicable, fund a Borrowing or receive a prepayment to reflect the revised/new Commitments set forth on amended Schedule 2.01.
8. Loan Document. This Amendment shall constitute a Loan Document for all purposes.
9. Binding Effect. The terms and provisions hereof shall be binding upon the parties hereto and their successors and assigns and shall inure to the benefit of the Administrative Agent and each Lender and their respective successors and assigns.
10. Multiple Counterparts. This Amendment may be executed in multiple counterparts, each of which shall constitute an original and which together shall constitute but one and the same instrument. The delivery of an executed counterpart of a signature page of this Amendment by telecopier or other electronic transmission shall be as effective as delivery of a manually executed counterpart.
11. Severability. Any determination that any provision of this Amendment or any application thereof is invalid, illegal, or unenforceable in any respect in any instance shall not affect the validity,
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legality, or enforceability of such provision in any other instance, or the validity, legality, or enforceability of any other provision of this Amendment.
12. Headings. The headings at various places in this Amendment are intended for convenience only and shall not affect the interpretation of this Amendment.
13. Governing Law. THIS AMENDMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAW OF THE STATE OF NEW YORK WITHOUT REGARD TO CONFLICT OF LAWS PRINCIPLES THEREOF.
[Signature Pages Follow]
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IN WITNESS WHEREOF, this Amendment has been duly executed and delivered by each of the parties hereto as of the date first above written.
BORROWER:
EDUCATION REALTY OPERATING PARTNERSHIP, LP, a Delaware limited partnership By: EDUCATION REALTY OP GP, INC., a Delaware corporation, its General Partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
EDR TALLAHASSEE I, LLC, a Delaware limited liability company By: Education Realty Trust, LLC, a Delaware limited liability company, its managing member By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc. a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR OXFORD, LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
EDR LAWRENCE LIMITED PARTNERSHIP, a Delaware limited partnership By: EDR Lawrence LLC, a Delaware limited liability company, its general partner By: EDR Lawrence, Inc., a Delaware corporation, its managing member By:_/s/ Randall H. Brown Randall H. Brown, Vice President |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR TALLAHASSEE LIMITED PARTNERSHIP, a Delaware limited partnership By: EDR Tallahassee, LLC, a Delaware limited liability company, its general partner By: EDR Tallahassee, Inc., a Delaware corporation, its managing member By:_/s/ Randall H. Brown Randall H. Brown, Vice President |
EDR TAMPA LIMITED PARTNERSHIP, a Delaware limited partnership By: EDR Tampa, LLC, a Delaware limited liability company, its general partner By: EDR Tampa, Inc., a Delaware corporation, its managing member By:_/s/ Randall H. Brown Randall H. Brown, Vice President |
EDR WESTERN MICHIGAN LIMITED PARTNERSHIP, a Delaware limited partnership By: EDR Western Michigan, LLC, a Delaware limited liability company, its general partner By: EDR Western Michigan, Inc., a Delaware corporation, its managing member By:_/s/ Randall H. Brown Randall H. Brown, Vice President |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR CHARLOTTESVILLE LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
EDR CHARLOTTESVILLE JEFFERSON LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR CHARLOTTESVILLE WERTLAND LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
EDR BERKELEY LP, a Delaware limited partnership By: EDR Berkeley LLC, a Delaware limited liability company, its general partner By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc. a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR ORLANDO LIMITED PARTNERSHIP, a Delaware limited partnership By: EDR Orlando LLC, a Delaware limited liability company, its general partner By: EDR Orlando, Inc., a Delaware corporation, its managing member By:_/s/ Randall H. Brown Randall H. Brown, Vice President |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR GAINESVILLE LIMITED PARTNERSHIP, a Florida limited partnership By: EDR Gainesville GP, LLC, a Delaware limited liability company, its general partner By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc. a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
EDR CARBONDALE, LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
DISTRICT ON 5TH TUCSON AZ LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
CV EAST LANSING MI LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
PROVINCE KENT OH LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
THE PROVINCE GREENVILLE NC LP, a Delaware limited partnership By: The Province Greenville NC GP LLC, a Delaware limited liability company, its general partner By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc. a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
UNIVERSITY VILLAGE TOWERS LP, a Delaware limited partnership By: University Village Towers LLC, a Delaware limited liability company, its general partner By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc. a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
3949 LINDELL LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR LEXINGTON I LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
RETREAT AT STATE COLLEGE, LLC, a Georgia limited liability company By: State College Housing LLC, a Delaware limited liability company, its sole member By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
COTTAGES W. LAFAYETTE IN LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
EDR AUSTIN LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR SYRACUSE, LLC, a Delaware limited liability company By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its managing member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
CARROLLTON PLACE, LLC, a Georgia limited liability company By: EDR Manager, LLC, a Delaware limited liability company, it managing member By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its manager member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
EDR STATESBORO, LLC, a Delaware limited liability company By: EDR Manager, LLC, a Delaware limited liability company, it managing member By: Education Realty Operating Partnership, LP, a Delaware limited partnership, its manager member By: Education Realty OP GP, Inc., a Delaware corporation, its general partner By:_/s/ Randall H. Brown Randall H. Brown, Executive Vice President/Treasurer |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
GUARANTOR:
EDUCATION REALTY TRUST, INC.
By: /s/ Randall H. Brown
Randall H. Brown,
Executive Vice President,
Chief Financial Officer, Treasurer
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
KEYBANK, NATIONAL ASSOCIATION,
individually and as Administrative Agent,
By: /s/ Gregory W. Lane
Gregory W. Lane
Vice President
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
PNC BANK, NATIONAL ASSOCIATION
By: /s/ Andrew T. White
Name: Andrew T. White
Title: Senior Vice President
Address:
1600 Market Street, 30th Floor
Philadelphia, Pennsylvania 19103
Attention: Andrew T. White,
Senior Vice President
Telephone No.: (215) 585-6123
Telecopy No.: (215) 585-5806
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
REGIONS BANK
By: /s/ Vincent Hughes
Name: Vincent Hughes
Title: | Vice President Real Estate Corporate Banking |
Address:
1900 5th Avenue North, 15th Floor
Birmingham, Alabama 35203
Attention: Lee Surtees, Director
Telephone No.: (205) 264-4860
Telecopy No.: (205) 264-5456
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
ROYAL BANK OF CANADA
By: /s/ Brian Gross__________________
Name: Brian Gross
Title: Authorized Signatory
Address:
Three World Financial Center
200 Vesey Street
200 Vesey Street
New York, New York 10281-8098
Attention: Brian Gross
Telephone No.: (212) 266-4047
Telecopy No.: (212) 428-6460
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
BANK OF AMERICA, N.A. By: /s/ Asad A. Rafiq__________________ Name: Asad A. Rafiq Title: Vice President | |
Address: 135 S. LaSalle Street Mail Code: IL4-135-06-11 Chicago, Illinois 60603 Attention: Asad A. Rafiq Vice President Telephone No.: (312) 828-4416 Telecopy No.: (312) 992-9767 | |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
U.S. BANK NATIONAL ASSOCIATION By: /s/ Lori Y. Jensen_________________ Name: Lori Y. Jensen Title: Vice President | |
Address: 1100 Abernathy Road, N.E., Suite 1250 Atlanta, GA 30328 Attention: Lori Y. Jensen Vice President Telephone No.: (770) 512-3118 Telecopy No.: (770) 512-3130 | |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
FIRST TENNESSEE BANK, N.A. By: /s/ Elizabeth H. Vaughn____________ Name: Elizabeth H. Vaughn Title: Senior Vice President | |
Address: 165 Madison Avenue, 10th Floor Memphis, TN 38103 Attention: Elizabeth H. Vaughn Senior Vice President Telephone No.: (901) 523-4105 Telecopy No.: (901) 523-4032 | |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
METROPOLITAN BANK By: /s/ Joelle Rogin___________________ Name: Joelle Rogin Title: Senior Vice President | |
Address: 1661 Aaron Brenner Drive, Suite 100 Memphis, TN 38120 Attention: Joelle Rogin Senior Vice President Telephone No.: (901) 969-8004 Telecopy No.: (901) 969-8100 | |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
JPMORGAN CHASE BANK, N.A. By: /s/ Rita Lai Blumberg______________ Name: Rita Lai Blumberg Title: Authorized Officer | |
Address: 270 Park Ave., Floor 45 New York, NY 10017 Attention: Rita Lai Blumberg Authorized Officer Telephone No.: (212) 270-6254 Telecopy No.: (646) 534-6301 | |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
FIFTH THIRD BANK, an Ohio banking corporation By: /s/ Michael P. Perillo_______________ Name: Michael P. Perillo Title: Officer | |
Address: 222 S. Riverside Plaza Chicago, IL 60606 Attention: Michael P. Perillo Officer Telephone No.: (312) 704-6829 Telecopy No.: (312) 704-7364 | |
[Signature Page to First Amendment to Fourth A&R Credit Agreement]
ANNEX A
SCHEDULE 2.01
Lender | Revolving Loan Commitment | Applicable Percentage | |||
KEYBANK, NATIONAL ASSOCIATION | $72,500,000.00 | 14.5 | % | ||
PNC BANK, NATIONAL ASSOCIATION | $68,000,000.00 | 13.6 | % | ||
REGIONS BANK | $68,000,000.00 | 13.6 | % | ||
ROYAL BANK OF CANADA | $68,000,000.00 | 13.6 | % | ||
BANK OF AMERICA, N.A. | $50,000,000.00 | 10.0 | % | ||
U.S. BANK NATIONAL ASSOCIATION | $50,000,000.00 | 10.0 | % | ||
FIRST TENNESSEE BANK, N.A. | $30,000,000.00 | 6.0 | % | ||
METROPOLITAN BANK | $8,500,000.00 | 1.7 | % | ||
JPMORGAN CHASE BANK, N.A. | $50,000,000.00 | 10.0 | % | ||
FIFTH THIRD BANK | $35,000,000.00 | 7.0 | % | ||
TOTAL | $500,000,000.00 | 100.0 | % | ||
Annex - A
ANNEX B
SCHEDULE 3.15
LIST OF SUBSIDIARIES
LIST OF SUBSIDIARIES
28th and Aurora at Boulder LLC | EDR Phoenix, LLC |
3949 Lindell, LLC | EDR Riverside, LLC (Inactive) |
Anderson Road Lafayette LLC | EDR State College Limited Partnership |
Anderson Road Oxford LLC | EDR State College, Inc. |
AOD/Raleigh Residence Hall, LLC | EDR State College, LLC |
Blacksburg VA Housing LLC | EDR Statesboro, LLC |
Cape Place (DE), LLC | EDR Stillwater Limited Partnership |
Carrollton Place, LLC | EDR Stillwater, Inc. |
Centre Lubbock TX LLC | EDR Stillwater, LLC |
Chapel Hill Durham NC GP LLC | EDR Storrs LLC |
Chapel Hill Durham NC LP | EDR Storrs IC LLC |
Cottages W. Lafayette IN LLC | EDR Syracuse Campus West LLC |
CV East Lansing MI LLC | EDR Syracuse, LLC |
District on 5th Tucson AZ LLC | EDR Tallahassee I, LLC |
EDR Athens I, LLC | EDR Tallahassee Limited Partnership |
EDR Auburn, LLC | EDR Tallahassee, Inc. |
EDR Austin LLC | EDR Tallahassee, LLC |
EDR Berkeley LLC | EDR Tampa Limited Partnership |
EDR Berkeley LP | EDR Tampa, Inc. |
EDR C Station, LLC (inactive) | EDR Tampa, LLC |
EDR Carbondale, LLC | EDR Technology LLC |
EDR Cayce Manager, Inc. | East Edge Tuscaloosa LLC |
EDR Cayce, LLC | EDR Tucson I, LLC (Inactive) |
EDR Charlottesville LLC | EDR Tucson Phase II Limited Partnership (Inactive) |
EDR Charlottesville Jefferson LLC | EDR Tucson, Inc. (Inactive) |
EDR Charlottesville Wertland LLC | EDR Tucson, LLC (Inactive) |
EDR Columbia Limited Partnership | EDR Tuscaloosa LLC |
EDR Columbia, Inc.- | EDR Wabash Limited Partnership |
EDR Columbia, LLC | EDR Wabash, Inc. |
EDR Columbus Limited Partnership | EDR Wabash, LLC |
EDR Columbus, Inc. | EDR Western Michigan Limited Partnership |
EDR Columbus, LLC | EDR Western Michigan, Inc. |
EDR Development LLC | EDR Western Michigan, LLC |
EDR Employment Resources, LLC | Education Realty OP GP, Inc. |
EDR Fund GP, Inc. | Education Realty OP Limited Partner Trust |
EDR Gainesville GP, LLC | Education Realty Operating Partnership, LP |
EDR Gainesville Limited Partnership | Education Realty Trust, Inc. |
EDR Greensboro, LLC | Education Realty Trust, LLC |
EDR Investment Advisor Inc. | Fifth Street MN LLC |
EDR Investment Fund, LP | Fort Greene Brooklyn NY LLC |
EDR Knoxville Limited Partnership | GM Westberry LLC |
EDR Knoxville, Inc. | Irish Row at Vaness LLC |
EDR Knoxville, LLC | Lemon Street Tempe AZ LLC |
Annex - B
EDR Lawrence Limited Partnership | Province Kent Ohio LLC |
EDR Lawrence, Inc. | River Place (DE), LLC |
EDR Lawrence, LLC | State College Housing LLC |
EDR Lexington I LLC | Stinson at Norman, LLC |
EDR Lexington II LLC | Suites Lubbock TX LLC |
EDR Lexington III LLC | The Province Greenville NC LP |
EDR Lexington IV LLC | The Province Greenville NC GP LLC |
EDR Lexington V LLC | Retreat at State College, LLC |
EDR Lexington VI LLC | University Towers Building LLC |
EDR Limpar, LLC | University Towers OP GP, LLC |
EDR Lubbock Limited Partnership (Inactive) | University Towers Operating Partnership, LP |
EDR Lubbock, Inc. (Inactive) | University Towers Raleigh, LLC |
EDR Lubbock, LLC (Inactive) | University Towers Raleigh Services, LLC |
EDR Management Inc. | University Village - Greensboro, LLC |
EDR Manager, LLC | University Village Towers, LLC |
EDR Murfreesboro, LLC (Inactive) | University Village Towers, LP |
EDR Norman, LLC (Inactive) | Varsity Ann Arbor MI LLC |
EDR OP Development LLC | WEDR Riverside Investors V, LLC (Inactive) |
EDR Orlando Limited Partnership | WEDR Riverside Mezz Investor V, Inc. (Inactive) |
EDR Orlando, Inc. | WEDR Stinson Investor V, LLC (Inactive) |
EDR Orlando, LLC | West Clayton GA LLC |
EDR Oxford, LLC | |
EDR Phoenix/Summa West LLC | |
Annex - B
ANNEX C
SCHEDULE 5.12
UNENCUMBERED POOL
UNENCUMBERED POOL
1. Players Club Tallahassee – Tallahassee, Leon County, FL |
2. The Pointe at South Florida – Tampa, Hillsborough, FL |
3. The Commons at Tallahassee – Tallahassee, Leon County, FL |
4. The Pointe at Western – Kalamazoo, Kalamazoo County, MI |
5. The Reserve on West 31st – Lawrence, Douglas County, KS |
6. Campus Creek – Oxford, Lafayette County, MS |
7. Grandmarc at the Corner – Charlottesville, Albemarle County, VA* |
8. Wertland Square – Charlottesville, Albemarle County, VA |
9. Jefferson Commons – Charlottesville, Albemarle County, VA |
10. Central Hall – Lexington, Fayette County, KY** 11. The Lofts Orlando – Orlando, Orange County, FL 12. Campus Lodge – Gainesville, Alachua County, FL 13. Reserve at Saluki Pointe – Carbondale County, Jackson, IL 14. The District on 5th – Tucson, Pima County, AZ 15. Campus Village – East Lansing, Ingham County, MI* 16. Province at Kent State – Kent, Portage County, OH 17. The Province – Greenville, Pitt County, NC 18. The Berk – Berkeley, Alameda County, CA 19. University Village Tower – Riverside, Riverside County, CA 20. The Retreat at State College – State College, Centre County, PA 21. The Cottages on Lindberg – West Lafayette, Tippecanoe County, IN 22. 2400 Nueces – Austin, Travis County, TX 23. 3949 Lindell – St. Louis, Saint Louis City, MO 24. University Village on Colvin – Syracuse, Onondaga County, NY** 25. Carrollton Crossing – Carrollton, Carroll County, GA 26. The Avenue at Southern – Statesboro, Bulloch County, GA * denotes Eligible Off Campus Ground Lease ** denotes Eligible Property Lease |
Annex - D
ANNEX D
EXHIBIT B
FORM OF COMPLIANCE CERTIFICATE
Key Bank, National Association | ||||||||||||||||||||||
as Administrative Agent | ||||||||||||||||||||||
225 Franklin Street | ||||||||||||||||||||||
Boston, MA 02110 | ||||||||||||||||||||||
Attn: Mr. Gregory Lane | ||||||||||||||||||||||
RE: Education Realty Operating Partnership, LP | ||||||||||||||||||||||
Compliance Certificate for | ____________ | through | __________ | |||||||||||||||||||
Dear Ladies and Gentlemen: | ||||||||||||||||||||||
This Compliance Certificate is made with reference to that certain Fourth Amended and Restated Credit Agreement dated as of January 14, 2013 (as amended, supplemented or otherwise modified from time to time, the "Credit Agreement"), among Education Realty Operating Partnership, LP and certain of its Subsidiaries (collectively, the "Borrower"), the financial institutions party thereto, as lenders, and KeyBank, N.A., as Administrative Agent. All capitalized terms used in this Compliance Certificate (including any attachments hereto) and not otherwise defined in this Compliance Certificate shall have the meanings set forth for such terms in the Credit Agreement. All Section references herein shall refer to the Credit Agreement. | ||||||||||||||||||||||
I hereby certify that I am the Chief Accounting Officer of Education Realty Operating Partnership, LP, and that I make this Certificate on behalf of each Borrower. I further represent and certify on behalf of the Borrower as follows as of the date of this Compliance Certificate: | ||||||||||||||||||||||
I have reviewed the terms of the Loan Documents and have made, or have caused to be made under my supervision, a review in reasonable detail of the transactions and consolidated and consolidating financial condition of the Borrower and its Subsidiaries, during the accounting period (the "Reporting Period") covered by the financial reports delivered simultaneous herewith pursuant to Section 5.01[(a)][(b)], and that such review has not disclosed the existence during or at the end of such Reporting Period (and that I do not have knowledge of the existence as at the date hereof) of any condition or event which constitutes a Default or Event of Default. | ||||||||||||||||||||||
All referenced dollar amounts in this certificate are stated in thousands unless otherwise noted. | ||||||||||||||||||||||
Attached hereto as Schedule A-1 is a list of the Real Property that comprises the Unencumbered Pool and the Unencumbered Pool Value, and Schedule A-2 is a list of the Real Property assets that were identified as being in the Unencumbered Pool in the last Compliance Certificate and that are no longer qualified to be in the Unencumbered Pool as of the last day of the Reporting Period. | ||||||||||||||||||||||
Annex - D
Attached hereto as Schedule B-1 is a detailed calculation of Interest Expense for the Reporting Period and Schedule B-2 is a detailed calculation of Interest Expense, principal paid and due and payable on Indebtedness, and cash dividends payable on the Parent's preferred stock for the Reporting Period, which amounts aggregated: | ||||||||||||||||||||||
Schedule B-1 | $ | |||||||||||||||||||||
Schedule B-2 | $ | |||||||||||||||||||||
Attached hereto as Schedule C is a detailed calculation of EBITDA for the Reporting Period, which amount was: | ||||||||||||||||||||||
Schedule C EBITDA | $ | |||||||||||||||||||||
As of the last day of the Reporting Period: | ||||||||||||||||||||||
1. | Fixed Charge Coverage Ratio Calculation: | |||||||||||||||||||||
( a ) | EBITDA | $ | ||||||||||||||||||||
( b ) | Capital Expenditure Reserve | $ | ||||||||||||||||||||
( c ) | Adjusted EBITDA (a)-(b) | $ | ||||||||||||||||||||
( d ) | Principal paid and due and payable plus Interest | |||||||||||||||||||||
Expense plus cash dividends on preferred stock | $ | |||||||||||||||||||||
( d ) | Fixed Charge Coverage Ratio ((c) to ((d)) | |||||||||||||||||||||
Covenant: 1.50 :1.00 | ||||||||||||||||||||||
2. | Tangible Net Worth ("TNW"): | |||||||||||||||||||||
Total Tangible Net Worth at First Amendment Effective Date | $[750,000,000.00] | |||||||||||||||||||||
Required Tangible Net Worth | ||||||||||||||||||||||
Net Proceeds of Offerings after First Amendment Effective Date | $ | |||||||||||||||||||||
75 | % | |||||||||||||||||||||
$ | ||||||||||||||||||||||
Plus | $ | |||||||||||||||||||||
Total Required Tangible Net Worth | $ | |||||||||||||||||||||
Covenant: Current TNW must exceed required TNW | ||||||||||||||||||||||
3. | Total Leverage Ratio Calculation: | |||||||||||||||||||||
( a ) | Indebtedness | $ | ||||||||||||||||||||
Annex - D
( b ) | Total Asset Value | |||||||||||||||||||||
( c ) | Total Leverage Ratio | % | ||||||||||||||||||||
Covenant: less than sixty percent (60%) at all times | ||||||||||||||||||||||
4. | Varying Interest Rate Calculation: | |||||||||||||||||||||
( a ) | Indebtedness with a varying interest rate | $ | ||||||||||||||||||||
( b ) | Total Asset Value | |||||||||||||||||||||
( c ) | ( a ) to ( b ) | % | ||||||||||||||||||||
Covenant: <35% | ||||||||||||||||||||||
5. | Total Secured Debt Ratio: | |||||||||||||||||||||
( a ) | Secured Debt | $ | ||||||||||||||||||||
( b ) | Total Asset Value | $ | ||||||||||||||||||||
( c ) | Total Secured Debt Ratio | % | ||||||||||||||||||||
Covenant: no greater than 50% | ||||||||||||||||||||||
6. | Total Secured Recourse Debt Ratio: | |||||||||||||||||||||
( a ) | Total Secured Recourse Debt | $ | ||||||||||||||||||||
( b ) | Total Asset Value | $ | ||||||||||||||||||||
( c ) | Total Fund Recourse Debt Ratio | % | ||||||||||||||||||||
Covenant: no greater than 15% | ||||||||||||||||||||||
7. | Total Additional Unsecured Debt Ratio: | |||||||||||||||||||||
( a ) | Total Additional Unsecured Debt | $ | ||||||||||||||||||||
( b ) | Total Asset Value | $ | ||||||||||||||||||||
( c ) | Total Additional Unsecured Debt Ratio | % | ||||||||||||||||||||
Covenant: no greater than 15% | ||||||||||||||||||||||
8. | Total Unsecured Debt to Unsecured Pool Value | |||||||||||||||||||||
( a ) | Total Unsecured Debt | $ | ||||||||||||||||||||
( b ) | Unencumbered Pool Value | $ | ||||||||||||||||||||
Annex - D
Covenant: no greater than 60% | ||||||||||||||||||||||
9. | Unencumbered Assumed Debt Service Coverage | $ | ||||||||||||||||||||
( a ) | Adjusted Unencumbered NOI | $ | ||||||||||||||||||||
( b ) | Assumed Unsecured Debt Service | $ | ||||||||||||||||||||
Ratio: (a) ÷ (b) | ___% | |||||||||||||||||||||
Covenant: Not less than 1.40 to 1.0 | ||||||||||||||||||||||
10. | ( a ) | ( i ) | Investments in Unconsolidated Affiliates | $ | ||||||||||||||||||
( ii ) | Total Asset Value | $ | ||||||||||||||||||||
( iii ) | (i) / (ii), expressed as a percentage | |||||||||||||||||||||
Covenant: <15% | ||||||||||||||||||||||
( b ) | ( i ) | Investments in undeveloped land | $ | |||||||||||||||||||
( ii ) | Total Asset Value | $ | ||||||||||||||||||||
( iii ) | (i) / (ii), expressed as a percentage | ___% | ||||||||||||||||||||
Covenant: <10% | ||||||||||||||||||||||
( c ) | ( i ) | Investments in Assets Under Development | $ | |||||||||||||||||||
( ii ) | Total Asset Value | $ | ||||||||||||||||||||
( iii ) | (i) / (ii), expressed as a percentage | ___% | ||||||||||||||||||||
Covenant: <25% | ||||||||||||||||||||||
( d ) | ( i ) | Investments in Real Property not constituting | ||||||||||||||||||||
collegiate housing communities | $ | |||||||||||||||||||||
( ii ) | Total Asset Value | $ | ||||||||||||||||||||
( iii ) | (i) / (ii), expressed as a percentage | ___% | ||||||||||||||||||||
Covenant: <10% | ||||||||||||||||||||||
( e ) | ( i ) | Investments in undeveloped land, Unconsolidated | ||||||||||||||||||||
Affiliates, Assets Under Development and | ||||||||||||||||||||||
non-collegiate housing communities | $ | |||||||||||||||||||||
( ii ) | Total Asset Value | $ | ||||||||||||||||||||
( iii ) | (i) / (ii), expressed as a percentage | ___% | ||||||||||||||||||||
Covenant: <25% | ||||||||||||||||||||||
Annex - D
11. | Restricted Payments | |||||||||||||||||||||
(a) | Restricted Payments to be made on or after ______________ for reporting period | |||||||||||||||||||||
and restricted payments made preceding 3 quarters | ||||||||||||||||||||||
2Q 201_ Dividend per share Common Stock | $ | |||||||||||||||||||||
1Q 201_ Dividend per share Common Stock ______ | $ | |||||||||||||||||||||
4Q 201_ Dividend per share Common Stock ______ | $ | |||||||||||||||||||||
3Q 201_ Dividend per share Common Stock _______ | $ | |||||||||||||||||||||
12. | Maximum Outstandings | |||||||||||||||||||||
( a ) | Aggregate Commitment | $ | ||||||||||||||||||||
( b ) | Aggregate Borrowing Base Availability | |||||||||||||||||||||
(attach list reflecting amount for each Real Property in the Unencumbered Pool) | ||||||||||||||||||||||
( c ) | Maximum Loan Available Amount (lesser of (a) or (b)) | |||||||||||||||||||||
( d ) | Amount outstanding under Revolving Loans and Swingline Loans | |||||||||||||||||||||
( e ) | LC Exposure | |||||||||||||||||||||
( f ) | Revolving Credit Exposure (d) + (e); cannot exceed ( c ) | |||||||||||||||||||||
Covenant: <Maximum Loan Available Amount | ||||||||||||||||||||||
This Compliance Certificate has been executed and delivered as of the date set forth above. | ||||||||||||||||||||||
EDUCATION REALTY OPERATING PARTNERSHIP, LP | ||||||||||||||||||||||
By: | Education Realty OP GP, Inc., General Partner | |||||||||||||||||||||
By: | ||||||||||||||||||||||
Name: | J. Drew Koester | |||||||||||||||||||||
Title: | Senior Vice President and Chief Accounting Officer | |||||||||||||||||||||
Annex - D
