FIFTH AMENDMENT TO AND WAIVER OF LOAN
AGREEMENT
THIS
FIFTH AMENDMENT TO AND WAIVER OF LOAN AGREEMENT (this
“Amendment”), executed and delivered as of
August 31, 2009, is between GRUBB & ELLIS APARTMENT
REIT, INC. (formerly known as NNN Apartment REIT, Inc.), a
Maryland corporation (the “ Company ”), and
WACHOVIA BANK, NATIONAL ASSOCIATION , a national banking
association (the “ Lender ”).
RECITALS:
A. Pursuant to that certain Loan Agreement
between the Company and the Lender dated as of November 1,
2007, as amended by that certain First Amendment to and Waiver of
Loan Agreement dated as of December 21, 2007, by that certain
Second Amendment to and Waiver of Loan Agreement dated as of
March 31, 2008, by that certain Third Amendment to and Waiver
of Loan Agreement dated as of June 26, 2008 and by that certain
Fourth Amendment to and Waiver of Loan Agreement dated as of
September 15, 2008 (as so amended, the “ Loan
Agreement ”), the Lender made available to the Company a
revolving line of credit in an outstanding aggregate principal
amount not to exceed $16,000,000.00, as evidenced by that certain
Amended and Restated Promissory Note dated as of March 31,
2008 made by the Company and payable to the order of the Lender
(the “ Note ”).
B. The Company has requested that the
Lender modify the Loan Agreement to amend certain mandatory
prepayment provisions and the Lender has agreed to such amendment,
subject to and on the terms and conditions stated
herein.
C. Capitalized terms not otherwise defined
herein shall have such meaning as assigned to them in the Loan
Agreement as amended hereby.
AGREEMENT:
NOW,
THEREFORE, in consideration of the mutual promises herein contained
and for other valuable consideration, the parties hereto agree as
follows:
Section 1. Amendments to Loan
Agreement.
(a) Paragraph 2(k)(2) of the Loan
Agreement is hereby amended and restated in its entirety as
follows:
“(2) The Company shall make payments in an
amount equal to the greater of (a) eighty percent (80%) of all
Equity Proceeds received by the Company during any period for which
an Equity Raise Statement has been provided and for which a related
payment has not already been made, or (b) the Mandatory
Principal Payment Amount (the “ Principal Payment
”). Such payments shall be due and payable to the Lender on
each Mandatory Payment Date. Equity Proceeds will be verified by a
certified Equity Raise Statement of Equity Proceeds from the
Company that will accompany each Principal Payment. In the event
the Principal Payment on a Mandatory Payment Date exceeds the
outstanding principal amount of the Loan, the Company shall repay
the amount necessary to bring the outstanding principal amount of
the Loan to zero. The Lender acknowledges that the Principal
Payment required to be made pursuant to this Paragraph (2)(k)(2) on
September 1, 2009 was received prior to the Fifth Amendment
Effective Date.”
(b) Paragraph 10 of the Loan Agreement
is hereby amended by amending and restating the following defined
term in its entirety:
“ Aggregate
Availability ” shall mean, on and after the Fifth
Amendment Effective Date, an amount equal to the amount of
outstanding Loans on the Fifth Amendment Effective Date.
(c) Paragraph 10 of the Loan Agreement
is hereby amended by adding the following new definitions in
appropriate alphabetical order:
“ Equity Raise
Statement ” shall mean a certified statement, in form and
substance reasonably satisfactory to the Lender, showing the
aggregate amount of Equity Proceeds received by the Company for the
applicable period.
“ Fifth Amendment Effective
Date ” shall mean August 31, 2009.
“ Mandatory Payment
Date ” shall mean September 1, 2009 and
October 1, 2009.
“ Mandatory Principal
Payment Amount ” shall mean with respect to the Mandatory
Payment Date occurring on (a) September 1, 2009, an
installment of principal equal to $500,000 and
(b) October 1, 2009, an installment of principal equal to
$500,000.
(d) Paragraph 6(c)(4) of the Loan Agreement is hereby
amended and restated in its entirety as follows:
“(4) The Company shall deliver an Equity
Raise Statement to the Lender no later than 5:00 PM (Pacific) on
the last Business Day of each calendar week, detailing the amount
of Equity Proceeds received by the Company during the immediately
preceding calendar week. The failure to deliver any such Equity
Raise Statement within twenty-four (24) hours of the deadline
required pursuant to the preceding sentence shall be an immediate
Event of Default.”
Section 2. Waiver . Pursuant to
Paragraph 9(b) of the Loan Agreement and solely with respect to the
mandatory prepayments required to be made by the Company prior to
the Fifth Amendment Effective Date pursuant to
Paragraph 2(k)(2) of the Loan Agreement as in effect prior to
the Fifth Amendment Effective Date (the “ Required
Mandatory Prepayments ”), the Lender hereby waives any
Event of Default that may have occurred as a result of the
Company’s failure to make such Required Mandatory
Prepayments.
Section 3. Conditions Precedent to
Closing of Amendment . In addition to such other requirements
as may be set forth
