AMENDMENT TO MEZZANINE NOTE AGREEMENT AND NOTES
Exhibit 10.2
AMENDMENT TO MEZZANINE NOTE AGREEMENT AND NOTES
THIS AMENDMENT TO MEZZANINE NOTE AGREEMENT AND NOTES (this “Amendment”), dated as of June 17, 2022, by and among AIMCO JO INTERMEDIATE HOLDINGS, LLC, a Delaware limited liability company (the “Company”), APARTMENT INCOME REIT, L.P. (f/k/a AIMCO Properties, L.P.), a Delaware limited partnership (“AIR OP”), and AIR/BETHESDA HOLDINGS, INC. (f/k/a AIMCO/Bethesda Holdings, Inc.), a Delaware corporation (“AIR/Bethesda”).
W I T N E S S E T H:
WHEREAS, the Company, AIR OP, AIR/Bethesda and Apartment Income REIT, L.P. (f/k/a AIMCO Properties, L.P.), as collateral agent (in such capacity, the “Collateral Agent”), are parties to that certain Mezzanine Note Agreement, dated as of December 14, 2020 (as the same has been amended, restated, supplemented or otherwise modified prior to the effectiveness of this Amendment, the “Agreement”);
WHEREAS, the Company executed and delivered to each of AIR OP and AIR/Bethesda a certain 5.2% Secured Mezzanine Note Due January 31, 2024, dated December 14, 2020 (as the same has been amended, restated, supplemented or otherwise modified prior to the effectiveness of this Amendment, each a “Note” and collectively, the “Notes”); and
WHEREAS, the Company, AIR OP and AIR/Bethesda desire to execute and deliver this Amendment in order to make certain modifications to the Agreement and the Notes as more particularly set forth below.
NOW, THEREFORE, in consideration of the agreements set forth herein below, and for other good and valuable consideration, the receipt, adequacy, and sufficiency of which are hereby acknowledged, the parties do hereby covenant and agree as follows:
“Such payment shall be accompanied by the Make-Whole Amount determined for the payment date with respect to such amount.”
“Section 7.3. Other Prepayments. Except as provided in Section 7.2 or Section 11.1, the Notes shall not be prepaid in whole or in part prior to June 1, 2022, and the Purchasers shall have no obligation to accept any such attempted prepayment prior to June 1, 2022. The Company expressly
acknowledges and agrees that (a) the prohibition on prepayments is reasonable and is the product of an arm’s length transaction between sophisticated business people, (b) it shall be estopped hereafter from claiming differently than as agreed to in this paragraph, (c) its agreement to a prohibition on prepayments as herein described is a material inducement to the Purchasers’ decision to enter into this Agreement and (d) upon a prepayment of the Notes prior to the Maturity Date (whether pursuant to Section 7.2, pursuant to this Section 7.3 on or after June 1, 2022, or in violation of this Section 7.3), the Purchasers would suffer substantial harm, and any prepayment received and accepted pursuant to Section 7.2, pursuant to this Section 7.3 on or after June 1, 2022, or in violation of this Section 7.3 shall be accompanied by the Make-Whole Amount. This Section 7.3 shall not prejudice the rights of the Purchasers to accelerate the Notes pursuant to Section 11 hereof.”
“Section 7.8. Make-Whole Amount.
The term ‘Make-Whole Amount’ means, with respect to any Note, an amount equal to the Discounted Interest Spread Payment with respect to the Called Principal of such Note. For the purposes of determining the Make-Whole Amount, the following terms have the following meanings:
‘Called Principal’ means, with respect to any Note, the principal of such Note that is to be repaid pursuant to Section 7.1(a), prepaid pursuant to Section 7.2 or Section 7.3 or has become or is declared to be immediately due and payable pursuant to Section 11.1, as the context requires.
‘Discounted Interest Spread Payment’ means, with respect to the Called Principal of any Note, the present discounted value (discounted in accordance with customary financial practice, using a discount rate equal to the Treasury Rate (as defined below)) of the difference between (i) the interest that would have accrued on such Called Principal for the period beginning on the Settlement Date and ending on the Original Maturity Date using an interest rate equal to 5.2% per annum and (ii) the interest that would have accrued on such Called Principal for the same period using a per annum interest rate equal to the Treasury Rate as of such Settlement Date, where ‘Treasury Rate’ means the yield per annum at the time of computation of U.S. Treasury securities with a constant maturity equal to the period from the Settlement Date to the Original Maturity Date as reported in the most recently available Federal Reserve Statistical Release H.15 (Selected Interest Rates) under the heading “U.S. government securities” (provided, however, that if such period is not equal to the constant maturity of U.S. Treasury securities for which a yield per annum is given, the Treasury Rate shall be obtained by linear
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interpolation from the yields per annum of U.S. Treasury securities having a constant maturity of the immediately shorter and longer periods); provided that if such Settlement Date is not a date on which interest payments are due to be made under the Notes, then the amount of the next succeeding scheduled interest payment will be reduced by the amount of interest accrued to such Settlement Date and required to be paid on such Settlement Date pursuant to Section 7.1(b), Section 7.2, Section 7.3 or Section 11.1.
‘Settlement Date’ means, with respect to the Called Principal of any Note, the date on which such Called Principal is to be repaid pursuant to Section 7.1(a), prepaid pursuant to Section 7.2 or Section 7.3 or has become or is declared to be immediately due and payable pursuant to Section 11.1, as the context requires.
The Company acknowledges, and the parties hereto agree, that each holder of a Note has the right to maintain its investment in the Notes free from repayment by the Company (except as herein specifically provided for), and had such right through the Original Maturity Date, and that the obligation to pay the Make-Whole Amount set forth herein is intended to provide compensation for the deprivation of such right under such circumstances. The right to receive the Make-Whole Amount upon any prepayment or acceleration is a material inducement to the Purchasers’ decision to enter into this Agreement.”
“‘Maturity Date’ is defined as August 1, 2022.”
“‘Original Maturity Date’ is defined as January 31, 2024.”
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IN WITNESS WHEREOF, the parties hereto, acting by and through their respective duly authorized officers and/or other representatives, have duly executed this Amendment as of the day and year first above written.
AIMCO JO INTERMEDIATE HOLDINGS, LLC,
a Delaware limited liability company
By: AIMCO REIT SUB, LLC, a Delaware
limited liability company, its sole member
By: /s/ ▇▇▇▇▇▇▇▇ Johnson________
Name: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
Title: Executive Vice President, Chief Administrative Officer and General Counsel
a Delaware limited partnership
By: AIR-GP, INC., a Delaware
corporation, its general partner
By: /s/ ▇▇▇▇ ▇. Cohn___________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President, General Counsel and Secretary
AIR/BETHESDA HOLDINGS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. Cohn___________
Name: ▇▇▇▇ ▇. ▇▇▇▇
Title: President, General Counsel and Secretary
[Signature Page to Amendment to Mezzanine Note Agreement and Notes]