exhibit10_3.htm


EXHIBIT 10.3


 




 


FIRST AMENDMENT TO


TERM LOAN AGREEMENT


 


THIS FIRST AMENDMENT TO TERM LOAN AGREEMENT AGREEMENT (this “Amendment”) made as of the 26th day of February, 2013, by and among KITE REALTY GROUP, L.P., a Delaware limited partnership (“Borrower”), KITE REALTY GROUP TRUST, a real estate investment trust formed under the laws of the State of Maryland (“REIT”), the Subsidiaries executing below as Guarantors (the “Subsidiary Guarantors”; REIT and the Subsidiary Guarantors, collectively the “Guarantors”), KEYBANK NATIONAL ASSOCIATION, a national banking association (“KeyBank”), THE OTHER LENDERS WHICH ARE SIGNATORIES HERETO (KeyBank and the other lenders which are signatories hereto, collectively, the “Lenders”), and KEYBANK NATIONAL ASSOCIATION, a national banking association, as Administrative Agent for the Lenders (the “Agent”).


 


W I T N E S S E T H:


 


WHEREAS, Borrower, Agent, the Lenders and certain other parties entered into that certain Term Loan Agreement dated as of April 30, 2012 (the “Credit Agreement”); and


 


WHEREAS, Borrower has requested that the Agent and the Lenders make certain modifications to the terms of the Credit Agreement; and


 


WHEREAS, the Agent and the Lenders have agreed to make such modifications subject to the execution and delivery by Borrower and Guarantors of this Amendment.


 


NOW, THEREFORE, for and in consideration of the sum of TEN and NO/100 DOLLARS ($10.00), and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, the parties hereto do hereby covenant and agree as follows:


 


1. Definitions.  All the terms used herein which are not otherwise defined herein shall have the meanings set forth in the Credit Agreement.


 


2. Modification of the Credit Agreement.  Borrower, the Lenders and Agent do hereby modify and amend the Credit Agreement as follows:


 


(a) By deleting in their entirety the definitions of “Capitalization Rate”, “Development Properties” and “Revolving Credit Agreement”, appearing in Section 1.1. of the Credit Agreement, and inserting in lieu thereof the following:


 


               “Capitalization Rate” means seven and one-half percent (7.50%).


 


“Development Properties” means any ground-up developments, including consolidated or unconsolidated properties, which were not owned (in whole or in part) by Parent, Borrower or their Subsidiaries as of April 30, 2012. Notwithstanding the foregoing, any such property which achieves an Occupancy Rate of 85% shall no longer be a Development Property and, for purposes of clarity, any purchase by Parent, Borrower or their Subsidiaries of an interest of a joint venture partner in a ground-up development that was owned in part by Parent, Borrower or their Subsidiaries as of April 30, 2012, shall not be a Development Property as a result of such purchase.


 


 




  





  











  






 


“Revolving Credit Agreement” means, that certain Third Amended and Restated Credit Agreement dated as of February 26, 2013, among the Borrower, the Parent, KeyBank National Association, as administrative agent, and the lenders party thereto from time to time, as such agreement may be amended, supplemented and modified from time to time.


 


(b) By deleting in its entirety Section 10.1.(a).of the Credit Agreement, and inserting in lieu thereof the following:


 


“(a)           Maximum Leverage Ratio.  The Leverage Ratio to exceed the ratio of 0.60 to 1.0 at any time; provided, however, that for any one (1) period of up to two (2) consecutive fiscal quarters occurring during the term of this Agreement during which the Leverage Ratio set forth above is otherwise required to not exceed 0.60 to 1, the Leverage Ratio may be greater than 0.60 to 1, but may not be greater than 0.625 to 1.0 (the “Increased Leverage Period”).”


 


(c) By deleting in its entirety Section 10.1.(c).of the Credit Agreement, and inserting in lieu thereof the following:


 


“(c)           Minimum Tangible Net Worth.  Tangible Net Worth at any time to be less than (i) $350,000,000 plus (ii) 75.0% of the Net Proceeds of all Equity Issuances effected by the Parent or any Subsidiary after the Agreement Date (other than Equity Issuances to the Parent or any Subsidiary).”


 


3. References to Credit Agreement.  All references in the Loan Documents to the Credit Agreement shall be deemed a reference to the Credit Agreement, as modified and amended herein.


 


4. Acknowledgment of Borrower and Guarantors.  Borrower and Guarantors hereby acknowledge, represent and agree that the Loan Documents, as modified and amended herein, remain in full force and effect and constitute the valid and legally binding obligation of Borrower and Guarantors, as applicable, enforceable against Borrower and Guarantors in accordance with their respective terms (except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and the effect of general principles of equity), and that the execution and delivery of this Amendment does not constitute, and shall not be deemed to constitute, a release, waiver or satisfaction of Borrower’s or any Guarantor’s obligations under the Loan Documents.


 


5. Representations and Warranties.  Borrower and Guarantors represent and warrant to Agent and the Lenders as follows:


 


(a) Authorization.  The execution, delivery and performance of this Amendment and the transactions contemplated hereby (i) are within the authority of Borrower and Guarantors, (ii) have been duly authorized by all necessary proceedings on the part of the Borrower and Guarantors, (iii) do not and will not conflict with or result in any breach or contravention of any provision of law, statute, rule or regulation to which any of the Borrower or Guarantors is subject or any judgment, order, writ, injunction, license or permit applicable to any of the Borrower or Guarantors, (iv) do not and will not conflict with or constitute a default (whether with the passage of time or the giving of notice, or both) under any provision of the partnership agreement or certificate, certificate of formation, operating agreement, articles of incorporation or other charter documents or bylaws of, or any mortgage, indenture, agreement, contract or other instrument binding upon, any of the Borrower or Guarantors or any of their respective properties or to which any of the Borrower or Guarantors is subject, and (v) do not and will not result in or require the imposition of any lien or other encumbrance on any of the properties, assets or rights of any of the Borrower or Guarantors.


 


 




  





  











  






 


(b) Enforceability.  The execution and delivery of this Amendment are valid and legally binding obligations of Borrower and Guarantors enforceable in accordance with the respective terms and provisions hereof, except as enforceability is limited by bankruptcy, insolvency, reorganization, moratorium or other laws relating to or affecting generally the enforcement of creditors’ rights and the effect of general principles of equity.


 


(c) Approvals.  The execution, delivery and performance of this Amendment and the transactions contemplated hereby do not require the approval or consent of any Person or the authorization, consent, approval of or any license or permit issued by, or any filing or registration with, or the giving of any notice to, any court, department, board, commission or other governmental agency or authority other than those already obtained and any disclosure filings with the SEC as may be required with respect to this Amendment.


 


(d) Reaffirmation.  Borrower and Guarantors reaffirm and restate as of the date hereof each and every representation and warranty made by the Borrower and Guarantors and their respective Subsidiaries in the Loan Documents or otherwise made by or on behalf of such Persons in connection therewith except for representations or warranties that expressly relate to an earlier date.


 


6. No Default.  By execution hereof, the Borrower and Guarantors certify that as of the date of this Amendment and immediately after giving effect to this Amendment, no Default or Event of Default has occurred and is continuing.


 


7. Waiver of Claims.  Borrower and Guarantors acknowledge, represent and agree that none of such Persons has any defenses, setoffs, claims, counterclaims or causes of action of any kind or nature whatsoever arising on or before the date hereof with respect to the Loan Documents, the administration or funding of the Loan or with respect to any acts or omissions of Agent or any Lender, or any past or present officers, agents or employees of Agent or any Lender pursuant to or relating to the Loan Documents, and each of such Persons does hereby expressly waive, release and relinquish any and all such defenses, setoffs, claims, counterclaims and causes of action arising on or before the date hereof, if any.


 


8. Ratification.  Except as hereinabove set forth, all terms, covenants and provisions of the Credit Agreement remain unaltered and in full force and effect, and the parties hereto do hereby expressly ratify and confirm the Loan Documents as modified and amended herein.  Guarantors hereby consent to the terms of this Amendment.  Nothing in this Amendment or any other document delivered in connection herewith shall be deemed or construed to constitute, and there has not otherwise occurred, a novation, cancellation, satisfaction, release, extinguishment or substitution of the indebtedness evidenced by the Notes or the other obligations of Borrower and Guarantors under the Loan Documents.


 


9. Effective Date.  This Amendment shall be deemed effective and in full force and effect as of the date hereof upon the execution and delivery of this Amendment by Borrower, Guarantors, Agent and all of the Lenders and effectiveness of the Revolving Credit Agreement. The Borrower will pay the reasonable fees and expenses of Agent in connection with this Amendment in accordance with Section 13.2. of the Credit Agreement.  All interest and fees accrued prior to the date of this Amendment under provisions of the Credit Agreement modified by this Amendment shall remain payable at the due dates set forth in the Credit Agreement.


 


10. Amendment as Loan Document.  This Amendment shall constitute a Loan Document.


 


 




  





  











  






 


11. Counterparts.  This Amendment may be executed in any number of counterparts which shall together constitute but one and the same agreement.


 


12. MISCELLANEOUS.  THIS AMENDMENT SHALL BE GOVERNED BY AND CONSTRUED IN ACCORDANCE WITH THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.  This Amendment shall be binding upon and shall inure to the benefit of the parties hereto and their respective permitted successors, successors-in-title and assigns as provided in the Credit Agreement.


 







 


 




  





  











  













 


IN WITNESS WHEREOF, the parties hereto have hereto set their hands and affixed their seals as of the day and year first above written.


 


BORROWER:


 


KITE REALTY GROUP, L.P., a Delaware limited partnership


 



	
  

	
By:

	
Kite Realty Group Trust, its sole General Partner







 


By:   /s/ Daniel R. Sink                                                                                  


Daniel R. Sink, Executive Vice President and


Chief Financial Officer


 







 


REIT:


 


KITE REALTY GROUP TRUST


 


By:                 /s/ Daniel R. Sink                                                                               


Name:            Daniel R. Sink


Title:              Executive Vice President and Chief Financial Officer


 







 


SUBSIDIARY GUARANTORS:







EACH GUARANTOR WHICH IS A SUBSIDIARY AS LISTED ON SCHEDULE 1


 



	
  

	
By:

	
Kite Realty Group, L.P., the sole member of each such Guarantor







 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:           /s/ Daniel R. Sink                                                                  


Name:     Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


[Signatures Continued On Next Page]


 







 




  





  











  








KRG COURTHOUSE SHADOWS, LLC


 



	
  

	
By:

	
KRG Courthouse Shadows I, LLC, its sole member







 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 



	
  

	
By:

	                     /s/ Daniel R. Sink 






	
  

	
Name:

	
Daniel R. Sink








	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


CORNER ASSOCIATES, LP


 



	
  

	
By:

	
KRG Corner Associates, LLC, its sole general partner







 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:              /s/ Daniel R. Sink                                                   


Name:        Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


KITE REALTY EDDY STREET LAND, LLC


 


By:           Kite Realty Holding, LLC, its sole member







By:           Kite Realty Group, L.P., its sole member








	
  

	
By:

	
Kite Realty Group Trust, its sole general partner












By:          /s/ Daniel R. Sink                                                        


Name:     Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


[Signatures Continued On Next Page]


 







 




  





  











  








KITE REALTY NEW HILL PLACE, LLC


KITE REALTY PEAKWAY AT 55, LLC


 


By:           Kite Realty Development, LLC, their sole member


 


By:           Kite Realty Holding, LLC, its sole member


 



	
  

	
By:

	
Kite Realty Group, L.P., its sole member







 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner












By:          /s/ Daniel R. Sink                                              


Name:    Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 







 


KRG CEDAR HILL VILLAGE, LP


KRG PIPELINE POINTE, LP


KRG SUNLAND II, LP







By:           KRG Texas, LLC, their sole general partner







By:           KRG Capital, LLC, its sole member







By:           Kite Realty Group, L.P., its sole member








	
  

	
By:

	
Kite Realty Group Trust, its sole general partner












By:          /s/ Daniel R. Sink                                              


Name:    Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


[Signatures Continued On Next Page]


 







 







 




  





  











  








KRG MARKET STREET VILLAGE, LP


 


By:           KRG Market Street Village I, LLC, its sole general partner


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:             /s/ Daniel R. Sink                                                     


Name:        Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


KRG SAN ANTONIO, LP


 


By:           Kite San Antonio, LLC, its sole general partner


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:           /s/ Daniel R. Sink                                                       


Name:     Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


KRG EAGLE CREEK III, LLC


 


KRG PANOLA II, LLC


 


By:           KRG Capital, LLC, their sole member


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:          /s/ Daniel R. Sink                                                        


Name:    Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












[Signatures Continued On Next Page]


 







 




  





  











  








KRG CEDAR HILL PLAZA, LP








	
  

	
By:

	
KRG CHP Management, LLC, its sole general partner







 


By:         /s/ Daniel R. Sink                                                                                  


Name:   Daniel R. Sink


Title:     Executive Vice President and Chief Financial Officer












 


KRG CREC/KS PEMBROKE PINES, LLC


 


By:           KRG Pembroke Pines, LLC, its sole member


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:           /s/ Daniel R. Sink                                                       


Name:     Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












[Signatures Continued On Next Page]


 







 




  





  











  


















KRG PLAZA GREEN, LLC


 


By:           Kite McCarty State, LLC, its member


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:          /s/ Daniel R. Sink                                                        


Name:    Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


By:           Preston Commons, LLP, its member


 


By:           Kite Realty Group, L.P., its managing partner


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:          /s/ Daniel R. Sink                                                       


Name:    Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












[Signatures Continued On Next Page]


 







 




  





  











  








KRG WOODRUFF GREENVILLE, LLC


 


By:           Kite McCarty State, LLC, its member


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:          /s/ Daniel R. Sink                                                        


Name:    Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


By:           Kite Pen, LLC, its member


 


By:           Kite Realty Group, L.P., its sole member


 



	
  

	
By:

	
Kite Realty Group Trust, its sole general partner







 


By:          /s/ Daniel R. Sink                                                       


Name:     Daniel R. Sink



	
  

	
Title:

	
Executive Vice President and Chief Financial Officer












 


[Signatures Continued On Next Page]


 







 







 




  





  











  








LENDERS:


 


KEYBANK NATIONAL ASSOCIATION, as Administrative Agent, and as a Lender


 


By:          /s/ James Komperda                                                                           


Name:    James Komperda                                                                                 


Title:     Vice President                                                                                




 


WELLS FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent and as a Lender


 


By:         /s/ Winita Lau                                                                            


Name:   Winita Lau                                                                                  


Title:      Vice President                                                                             




 


THE HUNTINGTON NATIONAL BANK, as Documentation Agent and as a Lender


 


By:         /s/ Arthur N. DePompei                                                                             


Name:   Arthur N. DePompei                                                                                  


Title:     Vice President                                                                                 




 


RAYMOND JAMES BANK, N.A. (f/k/a Raymond James Bank, FSB)


 


By:          /s/ James M. Armstrong                                                                           


Name:     James M. Armstrong                                                                               


Title:       Senior Vice President                                                                              




 


ASSOCIATED BANK NATIONAL ASSOCIATION


 


By:        /s/ Shawn S. Bullock                                                                            


Name:   Shawn S. Bullock                                                                                  


Title:    Senior Vice President                                                                                  


 







 




  





  











  













 


SCHEDULE 1


 



	  	
Name of Subsidiary

	
State of Formation


	
1. 

	
82 & Otty, LLC

	
Indiana


	
2. 

	
Brentwood Land Partners, LLC

	
Indiana


	
3. 

	
Eagle Plaza II, LLC

	
Indiana


	
4. 

	
Glendale Centre, L.L.C.

	
Indiana


	
5. 

	
Kite Eagle Creek, LLC

	
Indiana


	
6. 

	
Kite Greyhound III, LLC

	
Indiana


	
7. 

	
Kite Greyhound, LLC

	
Indiana


	
8. 

	
Kite King’s Lake, LLC

	
Indiana


	
9. 

	
Kite Washington Parking, LLC

	
Indiana


	
10. 

	
Kite West 86th Street II, LLC

	
Indiana


	
11. 

	
KRG Bolton Plaza, LLC

	
Indiana


	
12. 

	
KRG College I, LLC

	
Indiana


	
13. 

	
KRG College, LLC

	
Indiana


	
14. 

	
KRG Cool Creek Outlots, LLC

	
Indiana


	
15. 

	
KRG Cove Center, LLC

	
Indiana


	
16. 

	
KRG Eagle Creek IV, LLC

	
Indiana


	
17. 

	
KRG Eddy Street FS Hotel, LLC

	
Indiana


	
18. 

	
KRG Estero, LLC

	
Indiana


	
19. 

	
KRG Fox Lake Crossing, LLC

	
Delaware


	
20. 

	
KRG Gainesville, LLC

	
Indiana


	
21. 

	
KRG ISS LH OUTLOT, LLC

	
Indiana


	
22. 

	
KRG Lithia, LLC

	
Indiana


	
23. 

	
KRG New Hill Place, LLC

	
Indiana


	
24. 

	
KRG Oleander, LLC

	
Indiana


	
25. 

	
KRG Peakway at 55, LLC

	
Indiana


	
26. 

	
KRG Plaza Green, LLC

	
Indiana


	
27. 

	
KRG Rivers Edge, LLC

	
Indiana


	
28. 

	
KRG Rivers Edge II, LLC

	
Indiana


	
29. 

	
KRG Waterford Lakes, LLC

	
Indiana


	
30. 

	
KRG Woodruff Greenville, LLC

	
Indiana


	
31. 

	
Noblesville Partners, LLC

	
Indiana