EX-10.1






Residence at Kings Landing Apartments




ASSUMPTION AND RELEASE AGREEMENT

(Guarantor Transfer)




This ASSUMPTION AND RELEASE AGREEMENT (“Agreement”) is dated as of March 31, 2014 by and among
JOHN C. PORTA and STAN R. MCCURDY (together, “Original Guarantor”), INDEPENDENCE REALTY OPERATING
PARTNERSHIP, LP, a Delaware limited partnership (“New Guarantor”), KING’S LANDING LLC, a Delaware
limited liability company (“Borrower”), and FANNIE MAE, the corporation duly organized under the
Federal National Mortgage Association Charter Act, as amended, 12 U.S.C. §1716 et seq. and
duly organized and existing under the laws of the United States (“Fannie Mae”).



RECITALS:





A. Pursuant to that certain Multifamily Loan and Security Agreement dated as of May 24, 2012,
executed by and between Borrower and CWCAPITAL LLC, a Massachusetts limited liability company, now
known as WALKER & DUNLOP, LLC, a Delaware limited liability company (“Original Lender”) (as
amended, restated, replaced, supplemented or otherwise modified from time to time, the “Loan
Agreement”), Original Lender made a loan to Borrower in the original principal amount of
Twenty-One Million Two Hundred Thousand and 00/100 Dollars ($21,200,000.00) (the “Mortgage Loan”),
as evidenced by, among other things, that certain Multifamily Note dated as of May 24, 2012,
executed by Borrower and made payable to Original Lender in the amount of the Mortgage Loan (as
amended, restated, replaced, supplemented or otherwise modified from time to time, the “Note”),
which Note has been assigned to Fannie Mae. The current servicer of the Mortgage Loan is WALKER &
DUNLOP, LLC, a Delaware limited liability company (“Loan Servicer”).




B. In addition to the Loan Agreement, the Mortgage Loan and the Note are secured by, among
other things, (i) a Multifamily Deed of Trust, Assignment of Leases and Rents, Security Agreement
and Fixture Filing dated as of May 24, 2012 and recorded at deed book 20004 and page number 1928
in the land records of St. Louis County, Missouri (as amended, restated, replaced, supplemented or
otherwise modified from time to time, the “Security Instrument”) encumbering the land as more
particularly described in Exhibit A attached hereto (the “Mortgaged Property”); and
(ii) an Environmental Indemnity Agreement by Borrower for the benefit of Original Lender dated as
of the date of the Loan Agreement (the “Environmental Indemnity”).




C. The Security Instrument has been assigned to Fannie Mae pursuant to that certain
Assignment of Security Instrument dated as of May 24, 2012 and recorded at deed book 20004 and
page number 2217 in the land records of St. Louis County, Missouri.



D. The Loan Agreement, the Note, the Security Instrument, the Environmental Indemnity and any
other documents executed in connection with the Mortgage Loan, including but not limited to those
listed on Exhibit B to this Agreement, are referred to collectively as the “Loan
Documents.” Borrower is liable for the payment and performance of all of Borrower’s obligations
under the Loan Documents.



E. Original Guarantor is liable under the Guaranty of Non-Recourse Obligations dated as of May
24, 2012 (the “Guaranty”).



F. Each of the Loan Documents has been duly assigned or endorsed to Fannie Mae.



G. Fannie Mae has been asked to consent to (a) a transfer of an ownership interest in Borrower
(the “Transfer”), and (b) the assumption by New Guarantor of the obligations of Original Guarantor
under the Guaranty (the “Guarantor Assumption“ and together with the Transfer, the “Transaction”).



H. Fannie Mae has agreed to consent to the Transaction subject to the terms and conditions
stated below.



AGREEMENTS:




NOW, THEREFORE, in consideration of the mutual covenants in this Agreement and other good and
valuable consideration, the receipt and sufficiency of which are hereby acknowledged, the parties
agree as follows:



1. Recitals.



The recitals set forth above are incorporated herein by reference.



2. Defined Terms.



Capitalized terms used and not specifically defined herein have the meanings given to such
terms in the Loan Agreement. The following terms, when used in this Agreement, shall have the
following meanings:



“Amended Loan Agreement” means either (a) the Amendment to Multifamily Loan and Security Agreement
executed by Borrower and Fannie Mae dated as of even date herewith, together with the Loan
Agreement, or (b) the Amended and Restated Multifamily Loan and Security Agreement executed by
Borrower and Fannie Mae dated as of even date herewith.



“Claims” means any and all possible claims, demands, actions, costs, expenses and liabilities
whatsoever, known or unknown, at law or in equity, originating in whole or in part, on or before
the date of this Agreement, which Original Guarantor, or any of its partners, members, officers,
agents or employees, may now or hereafter have against the Indemnitees, if any and irrespective of
whether any such claims arise out of contract, tort, violation of laws, or regulations, or
otherwise in connection with any of the Loan Documents, including, without limitation, any
contracting for, charging, taking, reserving, collecting or receiving interest in excess of the
highest lawful rate applicable thereto and any loss, cost or damage, of any kind or character,
arising out of or in any way connected with or in any way resulting from the acts, actions or
omissions of the Indemnitees, including any requirement that the Loan Documents be modified as a
condition to the transactions contemplated by this Agreement, any charging, collecting or
contracting for prepayment premiums, transfer fees, or assumption fees, any breach of fiduciary
duty, breach of any duty of fair dealing, breach of confidence, breach of funding commitment, undue
influence, duress, economic coercion, violation of any federal or state securities or Blue Sky laws
or regulations, conflict of interest, negligence, bad faith, malpractice, violations of the
Racketeer Influenced and Corrupt Organizations Act, intentional or negligent infliction of mental
distress, tortious interference with contractual relations, tortious interference with corporate
governance or prospective business advantage, breach of contract, deceptive trade practices, libel,
slander, conspiracy or any claim for wrongfully accelerating the Note or wrongfully attempting to
foreclose on any collateral relating to the Mortgage Loan, but in each case only to the extent
permitted by applicable law.



“Indemnitees” means, collectively, Original Lender, Fannie Mae, Loan Servicer and their respective
successors, assigns, agents, directors, officers, employees and attorneys, and each current or
substitute trustee under the Security Instrument.



“Transfer Fee” means $212,000.00.



3. Assumption by New Guarantor; Release of Original Guarantor.



New Guarantor hereby assumes all liability of Original Guarantor under the provisions of the
Guaranty.



In reliance on Original Guarantor’s and New Guarantor’s representations and warranties in this
Agreement, Fannie Mae releases Original Guarantor from all of its obligations under the Guaranty
other than for liability pursuant to this Agreement or the provisions of the Guaranty relating to
the Environmental Indemnity for any liability that relates to the period prior to the date hereof,
regardless of when such environmental liability is discovered. If any material element of the
representations and warranties made by Original Guarantor contained herein is false as of the date
of this Agreement, then the release set forth in this Section 3 will be cancelled as of the date of
this Agreement and Original Guarantor will remain obligated under the Guaranty as though there had
been no such release.



4. Original Guarantor’s Representations and Warranties.



Original Guarantor represents and warrants to Fannie Mae as of the date of this Agreement
that:



(a) there are no defenses, offsets or counterclaims to the Guaranty;



(b) there are no defaults by Original Guarantor under the provisions of the Guaranty; and



(c) all provisions of the Guaranty are in full force and effect.



5. New Guarantor’s Representations and Warranties.



New Guarantor represents and warrants to Fannie Mae as of the date of this Agreement that New
Guarantor does not have any knowledge that any of the representations made by Original Guarantor in
Section 4 above are not true and correct.



6. Consent to Guarantor Assumption.



(a) Fannie Mae hereby consents to the Transaction, subject to the terms and conditions set
forth in this Agreement. Fannie Mae’s consent to the Transaction is not intended to be and shall
not be construed as a consent to any subsequent transfer which requires Lender’s consent pursuant
to the terms of the Loan Agreement.



(b) Original Guarantor and New Guarantor understand and intend that Fannie Mae will rely on
the representations and warranties contained herein.



7. Liability of Borrower.



Nothing set forth herein shall release or change the liability of Borrower or any other party
who may now be or after the date of this Agreement, become liable, primarily or secondarily, under
the Guaranty and the other Loan Documents.



8. Amendment and Modification of Loan Documents.



As additional consideration for Fannie Mae’s consent to the Transaction as provided herein,
Borrower, New Guarantor and Fannie Mae hereby agree to a modification and amendment of the Loan
Documents as set forth in the Amended Loan Agreement.



9. Consent to Key Principal Change.



The parties hereby agree that the party identified as the Key Principal in the Loan Agreement
is hereby changed to Independence Realty Operating Partnership, LP, a Delaware limited partnership.



10. Limitation of Amendment.



Except as expressly stated herein, all terms and conditions of the Loan Documents, including
the Loan Agreement, Note, Security Instrument and Guaranty, shall remain unchanged and in full
force and effect.



11. Further Assurances.



Borrower, Original Guarantor and New Guarantor agree at any time and from time to time upon
request by Fannie Mae to take, or cause to be taken, any action and to execute and deliver any
additional documents which, in the opinion of Fannie Mae, may be necessary in order to assure to
Fannie Mae the full benefits of the amendments contained in this Agreement.



12. Modification.



This Agreement embodies and constitutes the entire understanding among the parties with
respect to the transactions contemplated herein, and all prior or contemporaneous agreements,
understandings, representations, and statements, oral or written, are merged into this Agreement.
Neither this Agreement nor any provision hereof may be waived, modified, amended, discharged, or
terminated except by an instrument in writing signed by the party against which the enforcement of
such waiver, modification, amendment, discharge, or termination is sought, and then only to the
extent set forth in such instrument. Except as expressly modified by this Agreement, the Guaranty
shall remain in full force and effect and this Agreement shall have no effect on the priority or
validity of the liens set forth in the Security Instrument or the other Loan Documents, which are
incorporated herein by reference. New Guarantor hereby ratifies the agreements made by Original
Guarantor to Fannie Mae in connection with the Mortgage Loan and agrees that, except to the extent
modified hereby, all of such agreements remain in full force and effect.



13. Costs.



Borrower, New Guarantor and Original Guarantor agree to pay all fees and costs (including
attorneys’ fees) incurred by Fannie Mae and the Loan Servicer in connection with Fannie Mae’s
consent to and approval of the Transaction, and the Transfer Fee in consideration of the consent to
the Transaction.



14. Financial Information.



Borrower and New Guarantor represent and warrant to Fannie Mae that all financial information
and information regarding the management capability of New Guarantor provided to the Loan Servicer
or Fannie Mae was true and correct as of the date provided to the Loan Servicer or Fannie Mae and
remains materially true and correct as of the date of this Agreement.



15. Indemnification.



(a) Borrower, Original Guarantor and New Guarantor each unconditionally and irrevocably
releases and forever discharges the Indemnitees from all Claims, agrees to indemnify the
Indemnitees, and hold them harmless from any and all claims, losses, causes of action, costs and
expenses of every kind or character in connection with the Claims or the transfer of the Mortgaged
Property. Notwithstanding the foregoing, Original Guarantor shall not be responsible for any
Claims arising from the action or inaction of New Guarantor and New Guarantor shall not be
responsible for any Claims arising from the action or inaction of Original Guarantor.



(b) This release is accepted by Fannie Mae and Loan Servicer pursuant to this Agreement and
shall not be construed as an admission of liability on the part of any party.



(c) Original Guarantor and New Guarantor each hereby represents and warrants that it has not
assigned, pledged or contracted to assign or pledge any Claim to any other person.



16. Governing Law; Consent to Jurisdiction and Venue.



Section 15.01 (Governing Law; Consent to Jurisdiction and Venue) of the Loan Agreement is
hereby incorporated herein as if fully set forth in the body of this Agreement.



17. Notice.



(a) Process of Serving Notice.



All notices under this Agreement shall be:




(1) in writing and shall be:




(A) delivered, in person;




(B) mailed, postage prepaid, either by registered or certified delivery, return
receipt requested;




(C) sent by overnight courier; or




(D) sent by electronic mail with originals to follow by overnight courier;




(2) addressed to the intended recipient at its respective address set forth at the end
of this Agreement; and




(3) deemed given on the earlier to occur of:




(A) the date when the notice is received by the addressee; or




(B) if the recipient refuses or rejects delivery, the date on which the notice
is so refused or rejected, as conclusively established by the records of the United
States Postal Service or any express courier service.



(b) Change of Address.



Any party to this Agreement may change the address to which notices intended for it are to be
directed by means of notice given to the other parties to this Agreement in accordance with this
Section 17.



(c) Default Method of Notice.



Any required notice under this Agreement which does not specify how notices are to be given
shall be given in accordance with this Section 17.



(d) Receipt of Notices.



No party to this Agreement shall refuse or reject delivery of any notice given in accordance
with this Agreement. Each party is required to acknowledge, in writing, the receipt of any notice
upon request by the other party.



18. Counterparts.



This Agreement may be executed in any number of counterparts, each of which shall be
considered an original for all purposes; provided, however, that all such counterparts shall
constitute one and the same instrument.



19. Severability; Entire Agreement; Amendments.



The invalidity or unenforceability of any provision of this Agreement or any other Loan
Document shall not affect the validity or enforceability of any other provision of this Agreement,
all of which shall remain in full force and effect. This Agreement contains the complete and
entire agreement among the parties as to the matters covered, rights granted and the obligations
assumed in this Agreement. This Agreement may not be amended or modified except by written
agreement signed by the parties hereto.



20. Construction.



(a) The captions and headings of the sections of this Agreement are for convenience only and
shall be disregarded in construing this Agreement.



(b) Any reference in this Agreement to an “Exhibit” or “Schedule” or a “Section” or an
“Article” shall, unless otherwise explicitly provided, be construed as referring, respectively, to
an exhibit or schedule attached to this Agreement or to a Section or Article of this Agreement.
All exhibits and schedules attached to or referred to in this Agreement, if any, are incorporated
by reference into this Agreement.



(c) Any reference in this Agreement to a statute or regulation shall be construed as referring
to that statute or regulation as amended from time to time.



(d) Use of the singular in this Agreement includes the plural and use of the plural includes
the singular.



(e) As used in this Agreement, the term “including” means “including, but not limited to” or
“including, without limitation,” and is for example only and not a limitation.



(f) Whenever a party’s knowledge is implicated in this Agreement or the phrase “to the
knowledge” of a party or a similar phrase is used in this Agreement, such party’s knowledge or such
phrase(s) shall be interpreted to mean to the best of such party’s knowledge after reasonable and
diligent inquiry and investigation.



(g) Unless otherwise provided in this Agreement, if Lender’s approval is required for any
matter hereunder, such approval may be granted or withheld in Lender’s sole and absolute
discretion.



(h) Unless otherwise provided in this Agreement, if Lender’s designation, determination,
selection, estimate, action or decision is required, permitted or contemplated hereunder, such
designation, determination, selection, estimate, action or decision shall be made in Lender’s sole
and absolute discretion.



(i) All references in this Agreement to a separate instrument or agreement shall include such
instrument or agreement as the same may be amended or supplemented from time to time pursuant to
the applicable provisions thereof.



(j) “Lender may” shall mean at Lender’s discretion, but shall not be an obligation.



21. WAIVER OF TRIAL BY JURY.



TO THE MAXIMUM EXTENT PERMITTED BY APPLICABLE LAW, EACH OF THE PARTIES HERETO (A) COVENANTS
AND AGREES NOT TO ELECT A TRIAL BY JURY WITH RESPECT TO ANY ISSUE ARISING OUT OF THIS AGREEMENT OR
ANY OTHER LOAN DOCUMENT, OR THE RELATIONSHIP BETWEEN THE PARTIES THAT IS TRIABLE OF RIGHT BY A JURY
AND (B) WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO SUCH ISSUE TO THE EXTENT THAT ANY SUCH
RIGHT EXISTS NOW OR IN THE FUTURE. THIS WAIVER OF RIGHT TO TRIAL BY JURY IS SEPARATELY GIVEN BY
EACH PARTY, KNOWINGLY AND VOLUNTARILY WITH THE BENEFIT OF COMPETENT LEGAL COUNSEL.



[Remainder of Page Intentionally Blank]IN WITNESS WHEREOF, the parties have signed and
delivered this Agreement under seal (where applicable) or have caused this Agreement to be signed
and delivered under seal (where applicable) by its duly authorized representative. Where
applicable law so provides, the parties intend that this Agreement shall be deemed to be signed and
delivered as a sealed instrument.




ORIGINAL GUARANTOR:



	 	 	 
	/s/ John C. Porta

	 

	Name:

	 	John C. Porta
	Address:

	 	c/o MLP Management, LLC







	1242	 	Strassner Drive






Brentwood, Missouri 63144




Email address: JPorta@mlpllc.com



STATE OF MISSOURI



CITY/COUNTY OF ST. LOUIS, ss:



On this 27 day of March, 2014, before me, the undersigned, a Notary Public in and for the
City/County and State aforesaid, personally appeared Stan R. McCurdy, personally known to me, and
the same person who executed the foregoing instrument.



IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the day and year last
above written.




 /s/ Michaela D. Siress



Notary Public




My Commission Expires: March 16, 2017



1




ORIGINAL GUARANTOR:



	 	 	 
	/s/ Stan R. McCurdy

	 

	Name:

	 	Stan R. McCurdy
	Address:

	 	c/o MLP Management, LLC







	1242	 	Strassner Drive






Brentwood, Missouri 63144




Email address: SMCCurdy@mlpllc.com



STATE OF MISSOURI



CITY/COUNTY OF ST. LOUIS, ss:



On this 27 day of March, 2014, before me, the undersigned, a Notary Public in and for the
City/County and State aforesaid, personally appeared Stan R. McCurdy, personally known to me, and
the same person who executed the foregoing instrument.



IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the day and year last
above written.




 /s/ Michaela D. Siress



Notary Public




My Commission Expires: March 16, 2017



2




NEW GUARANTOR:




	 	 	 	INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, a
Delaware limited partnership






	 	 	 	By:
Independence Realty Trust, Inc., a Maryland
corporation, its general partner






	 	 	 	By:
Independence Realty Advisors, LLC, a
Delaware limited liability company, its
authorized agent






By: /s/ Scott Schaeffer

Name: Scott Schaeffer

Title: CEO





Notice Address:


c/o Independence Realty Advisors, LLC






Cira Centre


2929 Arch Street, 17th Floor


Philadelphia, Pennsylvania 19104


Attention: Farrell Ender, President



STATE OF PA



CITY/COUNTY OF PHILADLEHIA, ss:



On this 25th day of March, 2014, before me, the undersigned, a Notary Public in and for the
City/County and State aforesaid, personally appeared Scott Schaeffer, personally known to me and
known to me to be the CEO of Independence Realty Advisors, LLC, a Delaware limited liability
company, authorized agent of Independence Realty Trust, Inc., a Maryland corporation, general
partner of Independence Realty Operating Partnership, LP, a Delaware limited partnership, and the
same person who executed the foregoing instrument, and duly acknowledged said execution to be for
and on behalf of and as the act and deed of said limited partnership.



IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the day and year last
above written.




/s/ Renee D. Foster




	 	 	Notary Public





My Commission Expires:      1/20/2018



3




BORROWER:




	 	 	 	KING’S LANDING LLC, a Delaware limited liability company






	 	 	 	By: Independence
Realty Operating Partnership, LP, a Delaware limited
partnership, its sole member






	 	 	 	By:
Independence Realty Trust, Inc., a Maryland
corporation, its general partner






	 	 	 	By:
Independence Realty Advisors, LLC, a
Delaware limited liability company, its
authorized agent






By: /s/ Scott Schaeffer

Name: Scott Schaeffer

Title: CEO





Notice Address:


c/o Independence Realty Advisors, LLC






Cira Centre


2929 Arch Street, 17th Floor


Philadelphia, Pennsylvania 19104


Attention: Farrell Ender, President



STATE OF PA



CITY/COUNTY OF PHILADLEHIA, ss:



On this 25th day of March, 2014, before me, the undersigned, a Notary Public in and for the
City/County and State aforesaid, personally appeared Scott Schaeffer, personally known to me and
known to me to be the CEO of Independence Realty Advisors, LLC, a Delaware limited liability
company, authorized agent of Independence Realty Trust, Inc., a Maryland corporation, general
partner of Independence Realty Operating Partnership, LP, a Delaware limited partnership, and the
same person who executed the foregoing instrument, and duly acknowledged said execution to be for
and on behalf of and as the act and deed of said limited partnership.



IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the day and year last above
written.




/s/ Renee D. Foster




	 	 	Notary Public





My Commission Expires:      1/20/2018



4




FANNIE MAE:




	 	 	 	By:
Walker & Dunlop, LLC, a Delaware limited
	 
	 	 	 	liability company, its Servicer





By: /s/ Jenna Treible

Name: Jenna Treible

Title: Vice President




	 	 	 
	Notice Address:
	 	c/o Walker & Dunlop, LLC

7501 Wisconsin Avenue

Suite 1200E

Bethesda, Maryland 20814







STATE OF GEORGIA



CITY/COUNTY OF DEKALB, ss:



On this 21st day of March, 2014, before me, the undersigned, a Notary Public in and
for the City/County and State aforesaid, personally appeared Jenna Treible, personally known to me
and known to me to be the Vice President of Walker & Dunlop, LLC, a Delaware limited liability
company, as Servicer for Fannie Mae, and the same person who executed the foregoing instrument, and
duly acknowledged said execution to be for and on behalf of and as the act and deed of said limited
liability company.



IN WITNESS WHEREOF, I have hereunto set my hand and notarial seal on the day and year last
above written.




/s/ Holly S. Shonosky



Notary Public




My Commission Expires: September 5, 2016



EXHIBIT A to

ASSUMPTION AND RELEASE AGREEMENT

(Guarantor Transfer)




Adjusted Lot 1 of the Boundary Adjustment Plat of Lots 1-4 of Ballas Home Place and part of Lot 6
of Studt’s Home Place, according to the plat thereof recorded in Plat Book 352 page 605 of the St.
Louis County Records.





EXHIBIT B to

ASSUMPTION AND RELEASE AGREEMENT

(Guarantor Transfer)





	1.	 	Multifamily Loan and Security Agreement (including any amendments, riders, exhibits, addenda
or supplements, if any) dated as of May 24, 2012 by and between KING’S LANDING LLC, a Delaware
limited liability company, doing business in Missouri as Kings Landing, LLC, and CWCAPITAL
LLC, a Massachusetts limited liability company, now known as WALKER & DUNLOP, LLC, a Delaware
limited liability company.






	2.	 	Multifamily Note dated as of May 24, 2012, by KING’S LANDING LLC, a Delaware limited
liability company, doing business in Missouri as Kings Landing, LLC for the benefit of
CWCAPITAL LLC, a Massachusetts limited liability company, now known as WALKER & DUNLOP, LLC, a
Delaware limited liability company (including any amendments, riders, exhibits, addenda or
supplements, if any).






	3.	 	Multifamily Deed of Trust, Assignment of Leases and Rents, Security Agreement and Fixture
Filing, (including any amendments, riders, exhibits, addenda or supplements, if any) dated as
of May 24, 2012, by KING’S LANDING LLC, a Delaware limited liability company, doing business
in Missouri as Kings Landing, LLC, to Steven M. Leigh, as trustee, for the benefit of
CWCAPITAL LLC, a Massachusetts limited liability company, now known as WALKER & DUNLOP, LLC, a
Delaware limited liability company.






	4.	 	Assignment of Management Agreement dated as of the date hereof by and among Borrower, Lender
and Jupiter Communities, LLC d/b/a RAIT Residential.






	5.	 	Guaranty of Non-Recourse Obligations dated as of May 24, 2012 executed by John C. Porta and
Stan R. McCurdy to and for the benefit of Original Lender.






	6.	 	Environmental Indemnity Agreement dated as of May 24, 2012 executed by Borrower to and for
the benefit of Original Lender.






5