UNITED STATES
SECURITIES AND EXCHANGE COMMISSION
WASHINGTON, DC 20549
FORM 8-K
CURRENT REPORT
Pursuant to Section 13 or 15(d) of the
Securities Exchange Act of 1934
Date of Report (Date of earliest event reported):
September 11, 2015
Trade Street Residential, Inc. |
(Exact Name of Registrant as Specified in its Charter) |
Maryland |
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001-32365 |
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13-4284187 |
(State or Other Jurisdiction of
Incorporation) |
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(Commission File Number) |
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(IRS Employer
Identification No.) |
19950 West Country Club Drive, Suite 800, Aventura, Florida |
33180 |
(Address of Principal Executive Offices) |
(Zip Code) |
(786) 248-5200 |
(Registrant's telephone number, including area code) |
N/A |
(Former Name or Former Address, if Changed Since Last Report) |
Check the appropriate box below if the
Form 8-K filing is intended to simultaneously satisfy the filing obligation of the registrant under any of the following provisions
(see General Instruction A.2. below):
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Written communications pursuant to Rule 425 under the Securities Act (17 CFR 230.425) |
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Soliciting material pursuant to Rule 14a-12 under the Exchange Act (17 CFR 240.14a-12) |
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Pre-commencement communications pursuant to Rule 14d-2(b) under the Exchange Act (17 CFR 240.14d-2(b)) |
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Pre-commencement communications pursuant to Rule 13e-4(c) under the Exchange Act (17 CFR 240.13e-4(c) |
Item 1.01. Entry into a Material Definitive Agreement.
Merger Agreement Amendment
On September 11, 2015, Trade Street
Residential, Inc., a Maryland corporation (“TSRE”), entered into Amendment No. 1 (the “Amendment”) to
the Agreement and Plan of Merger (the “Merger Agreement”), dated as of May 11, 2015, by and among TSRE, Trade
Street Operating Partnership, LP, a Delaware limited partnership (“TSR OP”), Independence Realty Trust, Inc., a
Maryland corporation (“IRT”), Independence Realty Operating Partnership, LP, a Delaware limited partnership and a
subsidiary of IRT (“IRT OP”), IRT Limited Partner, LLC, a Delaware limited liability company and a wholly-owned
subsidiary of IRT, and Adventure Merger Sub LLC, a Delaware limited liability company and a wholly-owned subsidiary of IRT
OP.
The Amendment provides for certain
adjustments to the Merger Agreement resulting from IRT’s entry into the Contribution and Exchange Agreement with
Michael D. Baumann and Heidi Baumann (the “Baumanns”), the sole third party holder of units of limited
partnership interest of TSR OP (“TSR OP Units”) pursuant to which, immediately prior to the consummation of the
Partnership Merger, the Baumanns will contribute all of their TSR OP units to IRT OP in exchange for common units of limited
partnership interests in IRT OP in lieu of the Baumanns receiving cash and common units of limited partnership interests in
IRT OP in the Partnership Merger (as such term is defined in the Merger Agreement). Concurrently with the entry into
the Amendment, the Baumanns entered into an agreement with TSRE and the general partners of TSR OP whereby the Baumanns
agreed to release any and all claims against TSRE, TSR OP and all of their past and present stockholders, directors, officers
and employees effective as of immediately prior to the closing of the Partnership Merger.
The foregoing description of the Amendment
is not complete and is subject to and qualified in its entirety by reference to the Amendment, a copy of which is attached as Exhibit
2.1 hereto and incorporated herein by reference.
Amendment No. 2 to TSR OP Partnership Agreement
On September 11, 2015, Trade Street
OP GP, LLC, the sole general partner of TSR OP (the “General Partner”), TSRE and the Baumanns entered into
Amendment No. 2 (“Amendment No. 2”) to the Second Amended and Restated Agreement of Limited Partnership of TSR
OP (the “Partnership Agreement”). The sole purpose of Amendment No. 2 is to remove in its entirety Section 11.03(c)(iv) of the Partnership Agreement, which provided that the General Partner could not consent to any transfer of a
limited partner’s partnership interest unless such transfer became effective as of the first day of a fiscal quarter of
TSR OP.
The foregoing description of Amendment No.
2 is not complete and is subject to and qualified in its entirety by reference to Amendment No. 2, a copy of which is attached
as Exhibit 10.1 hereto and incorporated herein by reference.
Item 9.01. Financial Statements and Exhibits.
Exhibit
No. |
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Description |
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2.1 |
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Amendment No. 1, dated as of September 11, 2015, to Agreement and Plan of Merger, dated as of May 11, 2015, by and among Independence Realty Trust, Inc., Independence Realty Operating Partnership, LP, Adventure Merger Sub LLC, IRT Limited Partner, LLC, Trade Street Residential, Inc. and Trade Street Operating Partnership, LP. |
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10.1 |
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Amendment No. 2, dated as of September 11, 2015, to the Second Amended and Restated Agreement of Limited Partnership of Trade Street Operating Partnership, L.P. |
SIGNATURES
Pursuant to the requirements of the Securities Exchange Act
of 1934, the registrant has duly caused this report to be signed on its behalf by the undersigned hereunto duly authorized.
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Trade Street Residential, Inc. |
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Date: September 11, 2015 |
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By: |
/s/ Richard H. Ross |
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Richard H. Ross |
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Chief Executive Officer |
EXHIBIT INDEX
Exhibit
No. |
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Description |
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2.1 |
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Amendment No. 1, dated as of September 10, 2015, to Agreement and Plan of Merger, dated as of May 11, 2015, by and among Independence Realty Trust, Inc., Independence Realty Operating Partnership, LP, Adventure Merger Sub LLC, IRT Limited Partner, LLC, Trade Street Residential, Inc. and Trade Street Operating Partnership, LP. |
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10.1 |
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Amendment No. 2, dated as of September 11, 2015, to the Second Amended and Restated Agreement of Limited Partnership of Trade Street Operating Partnership, L.P. |
Exhibit 2.1
AMENDMENT
NO. 1 TO AGREEMENT AND PLAN OF MERGER
This Amendment No.
1 to Agreement and Plan of Merger (this “Amendment”) is made and entered into as of September 11, 2015
by and among Independence Realty Trust, Inc., a Maryland corporation (“Parent”), Independence Realty
Operating Partnership, LP, a Delaware limited partnership (“Parent OP”), Adventure Merger Sub LLC, a
Delaware limited liability company and a direct wholly owned Subsidiary of Parent OP (“OP Merger Sub”),
IRT Limited Partner, LLC, a Delaware limited liability company and direct wholly owned Subsidiary of Parent (“IRT LP
LLC”), Trade Street Residential, Inc., a Maryland corporation (the “Company”), and Trade
Street Operating Partnership, LP, a Delaware limited partnership (the “Company OP”), as an amendment
to the Agreement and Plan of Merger (the “Merger Agreement”), dated as of May 11, 2015, by and among
Parent, Parent OP, OP Merger Sub, IRT LP LLC, the Company, and the Company OP.
RECITALS
WHEREAS, Parent, Parent
OP, OP Merger Sub, IRT LP LLC, the Company, and the Company OP previously entered into the Merger Agreement, which provides for
(i) the merger of OP Merger Sub with and into the Company OP with the Company OP being the surviving entity (the “Partnership
Merger”) and (ii) the merger of Company with and into IRT LP LLC with IRT LP LLC being the surviving entity (the
“Company Merger” and, together with the Partnership Merger, the “Merger”).
WHEREAS, pursuant to
Section 8.04 of the Merger Agreement, the parties hereto now wish to amend the Merger Agreement as set forth in this Amendment;
and
NOW, THEREFORE, for
good and valuable consideration, the receipt of which is hereby acknowledged, the parties agree as follows:
AMENDMENT
1. Capitalized terms in this Amendment
and not otherwise defined shall have the meaning given them in the Merger Agreement.
2. Section 2.02(a) of the Merger Agreement
is hereby deleted and amended in its entirety to read as follows:
“(a) RESERVED.”
3. Section 2.02(b) of the Merger Agreement
is hereby deleted and amended in its entirety to read as follows:
“(b) Exchanged OP Units;
Outstanding OP Units.
(i) Each Company OP Unit that is owned
by the Company or any wholly-owned Subsidiary of the Company as of immediately prior to the Partnership Merger Effective Time
shall be exchanged for a number of Parent OP Common Units equal to the Exchange Ratio, together with exchange rights associated
with such Parent OP Common Units substantially similar to the exchange rights previously granted to other limited partners of
Parent OP.
(ii) Each Company OP Unit that is owned
by Parent OP as of immediately prior to the Partnership Merger Effective Time shall remain issued and outstanding and shall survive
the Partnership Merger as units of limited partnership interest of the Surviving Partnership.”
4. Section 2.02(d) of the Merger Agreement
is hereby deleted and amended in its entirety to read as follows:
“(d) Conversion of OP Merger
Sub Membership Interests. The membership interests of OP Merger Sub issued and outstanding immediately prior to the Partnership
Merger Effective Time shall be converted into and become one unit of limited partnership interest of the Surviving Partnership.”
5. Section 2.03(b) of the
Merger Agreement is hereby deleted and amended in its entirety to read as follows:
“(b) Prior to the Effective Time,
Parent shall deposit, or shall cause to be deposited, with the Paying Agent in trust for the benefit of the holders of Shares and
holders of shares of Company Restricted Stock, for exchange in accordance with this Article II, (i) evidence of Parent Common
Stock in book-entry form issuable pursuant to Section 2.01 equal to the aggregate Share Stock Consideration and (ii) immediately
available funds equal to the aggregate Share Cash Consideration (together with, to the extent then determinable, any cash payable
in lieu of fractional shares pursuant to Section 2.08 collectively, the “Exchange Fund”), and Parent
shall instruct the Paying Agent to timely pay the Share Cash Consideration, and cash in lieu of fractional shares of Parent Common
Stock, in accordance with this Agreement.”
6. Section 2.03(c)(i) and (ii) of the
Merger Agreement is hereby deleted and amended in its entirety to read as follows:
“(i) As soon as reasonably practicable
(and in any event within three (3) Business Days) after the Effective Time, to the extent not previously delivered, the Surviving
Company shall cause the Paying Agent to mail to each holder of record of Shares whose Shares were converted into the Merger Consideration
pursuant to Section 2.01, a letter of transmittal (the “Letter of Transmittal”) in customary form as agreed
to between the Company and Parent prior to the date of this Agreement. The Letter of Transmittal shall be accompanied by instructions
for use in effecting the surrender of certificates that immediately prior to the Effective Time represented Shares (“Certificates”)
(or effective affidavits of loss in lieu thereof) or non-certificated Shares represented by book-entry of the Company (“Book-Entry
Shares”) pursuant to this Article II, representing the shares of Company Common Stock to which such Letter of Transmittal
relates, duly endorsed in blank or otherwise in form acceptable for transfer on the books of the Company, or by an appropriate
customary guarantee of delivery of such Certificates, as set forth in such Letter of Transmittal, from a firm that is an “eligible
guarantor institution” (as defined in Rule 17Ad-15 under the Exchange Act); provided, that such Certificates are in fact
delivered to the Paying Agent by the time required in such guarantee of delivery, and, in the case of Book-Entry Shares, any additional
documents specified in the procedures set forth in the Letter of Transmittal. The Letter of Transmittal shall specify that delivery
shall be effected, and risk of loss and title to Certificates shall pass, only upon delivery of such Certificates (or effective
affidavits of loss in lieu thereof as provided in this Section 2.03(c)(i)) or Book-Entry Shares to the Paying Agent and shall be
in such form and have such other provisions as Parent and the Company may agree.
(ii) As soon as reasonably practicable
after the date of delivery (or, if later, after the Effective Time) to the Paying Agent of a Certificate (or effective affidavit
of loss in lieu thereof as provided in Section 2.03(c)(i)) or Book-Entry Shares (or, in the case of Book-Entry Shares, receipt
of an “agent’s message” by the Paying Agent, or such other evidence, if any, of transfer as the Paying Agent
may reasonably request), together with a properly completed and duly executed Letter of Transmittal and any other documentation
required hereby, the holder of record of such Certificate (or effective affidavit of loss in lieu thereof as provided in Section
2.03(c)(i)) or Book-Entry Shares shall be entitled to receive from the Exchange Fund in exchange therefor the Share Merger Consideration
in respect of the shares of Company Common Stock or Company Restricted Stock formerly represented by such holder’s properly
surrendered Certificate (or effective affidavit of loss in lieu thereof as provided in Section 2.03(c)(i)) or Book-Entry Shares.
Any Share Cash Consideration payments shall be made via check or wire or other electronic transfer of immediately available funds,
at each such holder’s election as specified in the Letter of Transmittal. No interest will be paid or accrued on any amount
payable upon due surrender of Certificates (or effective affidavits of loss in lieu thereof) or Book-Entry Shares. In the event
of a transfer of ownership of Shares that is not registered in the transfer records of the Company, payment upon due surrender
of the Certificate may be paid to such a transferee if the Certificate formerly representing such Shares is presented to the Paying
Agent, accompanied by all documents required to evidence and effect such transfer and to evidence that any applicable stock transfer
Taxes have been paid or are not applicable. The Merger Consideration, paid in full with respect to any Share in accordance with
the terms hereof, shall be deemed to have been paid in full satisfaction of all rights pertaining to such Share.”
7. Section 2.03(d) of the Merger Agreement
is hereby deleted and amended in its entirety to read as follows:
“Subject to the terms of the Paying
Agent Agreement, Parent and the Company, in the exercise of their reasonable discretion, shall have the joint right to make all
determinations, not inconsistent with the terms of this Agreement, governing (i) the issuance and delivery of certificates
representing the number of shares of Parent Common Stock into which shares of Company Common Stock or Company Restricted Stock
are converted into the right to receive Share Stock Consideration in the Merger and (ii) the method of payment of cash for
shares of Company Common Stock or Company Restricted Stock converted into the right to receive the Share Cash Consideration and
cash in lieu of fractional shares of Parent Common Stock.”
8. Section 2.03(i) of the Merger Agreement
is hereby deleted and amended in its entirety to read as follows:
“Termination of Exchange Fund.
Any portion of the Exchange Fund (including the proceeds of any investments thereof) that remains undistributed to the former holders
of Shares for one year after the Effective Time shall be delivered to the Surviving Company upon demand, and any former holders
of Shares who have not surrendered their Shares in accordance with this Section 2.03 shall thereafter look only to the Surviving
Company for payment of their claim for the Merger Consideration (including any cash in lieu of fractional shares and any applicable
dividends or other distributions with respect to Parent Common Stock), without any interest thereon, upon due surrender of their
Shares.”
9. Section 2.03(l) of the Merger Agreement
is hereby deleted and amended in its entirety to read as follows:
“Lost Certificates. If any
Certificate shall have been lost, stolen or destroyed, upon the making of an affidavit of that fact by the Person claiming such
document to be lost, stolen or destroyed and, if determined by Parent in its sole discretion, the posting by such Person of a bond
in customary amount as indemnity against any claim that may be made against it or the Surviving Company with respect to the Certificate,
the Paying Agent will pay in exchange for such lost, stolen or destroyed document the amount equal to the number of Shares represented
by such lost, stolen or destroyed Certificate multiplied by the Share Merger Consideration without any interest thereon.”
10. The reference to “and Unit
Cash Consideration” set forth in Section 4.23(a) is hereby deleted.
11. Section 2.03(e)(ii) of the Merger
Agreement is hereby amended to delete the second sentence.
12. Section 9.03(a) of the Merger Agreement
is hereby amended to add the following definition:
““Company OP Unit” means
each unit of limited partnership interest of Company OP.”
13. The definition of “Merger
Consideration” contained in Section 9.03(a) of the Merger Agreement is hereby deleted and amended in its entirety
to read as follows:
““Merger Consideration”
means the Share Merger Consideration.”
14. Section 9.03(b) of the Merger Agreement
is hereby amended to delete the cross references to “Company OP Unit,” “Exchanged OP Units,”
“Unit Cash Consideration,” “Unit Merger Consideration” and “Unit Ownership Consideration.”
15. Except as otherwise provided in this
Amendment, the Merger Agreement shall remain in full force and effect. On or after the date of this Amendment, each reference in
the Merger Agreement to “this Agreement,” “hereunder,” “hereof,” “herein” or words
of like import referring to the Merger Agreement shall mean and be a reference to the Merger Agreement as amended by this Amendment,
and this Amendment shall be deemed to be a part of the Merger Agreement.
16. This Amendment may be executed (including
by facsimile or email of a .pdf attachment) in one or more counterparts, each of which shall be deemed an original, but all of
which together shall constitute one and the same instrument, it being understood that all parties need not sign the same counterpart.
The parties hereto may deliver this Amendment by facsimile or email of a .pdf attachment, and each party shall be permitted to
rely upon the signatures so transmitted to the same extent and effect as if they were original signatures.
[Signature Pages Follow]
IN WITNESS WHEREOF, Parent, Parent OP, OP
Merger Sub, IRT LP LLC, the Company and Company OP have duly executed this Amendment as of the date first written above.
INDEPENDENCE REALTY TRUST, INC. |
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by: |
/s/ Farrell
Ender |
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Name: |
Farrell Ender |
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Title: |
President |
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INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP |
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By: |
INDEPENDENCE REALTY TRUST, INC., |
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its General Partner |
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by: |
/s/ Farrell
Ender |
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Name: |
Farrell Ender |
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Title: |
President |
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ADVENTURE MERGER SUB LLC |
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By: |
INDEPENDENCE REALTY OPERATING PARTNERSHIP, LP, |
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its Sole Member |
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By: |
INDEPENDENCE REALTY TRUST, INC., |
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its General Partner |
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by: |
/s/ Farrell
Ender |
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Name: |
Farrell Ender |
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Title: |
President |
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IRT LIMITED PARTNER, LLC |
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By: |
INDEPENDENCE REALTY TRUST, INC., |
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its Sole Member |
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by: |
/s/ Farrell
Ender |
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Name: |
Farrell Ender |
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Title: |
President |
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TRADE STREET RESIDENTIAL, INC. |
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by: |
/s/ Richard Ross |
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Name: |
Richard Ross |
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Title: |
Chief Executive Officer |
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TRADE STREET OPERATING PARTNERSHIP, LP. |
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By: |
Trade Street OP GP, LLC, |
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its General Partner |
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By: |
TRADE STREET RESIDENTIAL, INC., |
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its Sole Member |
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by: |
/s/ Richard Ross |
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Name: |
Richard Ross |
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Title: |
Chief Executive Officer |
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Exhibit 10.1
AMENDMENT NO. 2 TO SECOND AMENDED AND
RESTATED AGREEMENT OF LIMITED PARTNERSHIP
OF TRADE STREET OPERATING PARTNERSHIP,
LP
September 11, 2015
THIS AMENDMENT NO. 2 (the “Amendment”)
to the Second Amended and Restated Agreement of Limited Partnership (the “OP Agreement”) of Trade Street Operating
Partnership, LP, a Delaware limited partnership (the “Operating Partnership”), dated March 26, 2013 and as amended
on February 23, 2014, is made and entered into effective as of September 11, 2015 by and among Trade Street OP GP, LLC, a Delaware
limited liability company and the general partner of the Operating Partnership (the “General Partner”), Trade
Street Residential, Inc. (the “Parent”), and Michael D. Baumann and Heidi Baumann (collectively, the “Outside
Limited Partners”).
WHEREAS, the Outside Limited Partners
are the sole and legal beneficial owners and record holders of 2,343,500 units of limited partnership interest (the “TSR
OP Units”) in the Operating Partnership;
WHEREAS, the General Partner, the
Parent and the Outside Limited Partners (collectively, the “Partners”) comprise all the partners of the Operating
Partnership;
WHEREAS, on May 11, 2015, Independence
Realty Trust, Inc., a Maryland corporation (“IRT”), Independence Realty Operating Partnership, LP, a Delaware
limited partnership (“IRT OP”), Adventure Merger Sub LLC, a Delaware limited liability company and direct wholly
owned subsidiary of IRT OP (“OP Merger Sub”), IRT Limited Partner, LLC, a Delaware limited liability company
and a direct wholly owned subsidiary of IRT OP (“IRT LP LLC”), Parent and the Operating Partnership entered
into that certain Agreement and Plan of Merger (the “Merger Agreement”), which provides for (i) the merger of
OP Merger Sub with and into the Operating Partnership with the Operating Partnership being the surviving entity (the “Partnership
Merger”) and (ii) the merger of Parent with and into IRT LP LLC with IRT LP LLC being the surviving entity (the “Company
Merger” and, together with the Partnership Merger, the “Merger”);
WHEREAS, pursuant to the terms of
the Merger Agreement, upon the consummation of the Partnership Merger, TSR OP Units were to be automatically converted into the
right to receive consideration consisting of a combination of cash and common units of limited partnership interest in IRT OP (“IROP
Units”);
WHEREAS, the parties now desire for
the Outside Limited Partners to contribute their TSR OP Units to IRT OP in exchange for IROP Units, effective as of immediately
prior to the closing of the Partnership Merger, in lieu of the Outside Limited Partners receiving cash and IROP Units in the Partnership
Merger, and the parties to the Merger Agreement have entered into Amendment No. 1 thereto to provide for certain adjustment resulting
from the Outside Limited Partners’ contribution of their TSR OP Units to IRT OP prior to the Partnership Merger;
WHEREAS, Section 11.03 of the OP
Agreement provides that no Limited Partner (as such term is defined therein) may transfer all or any portion of its Partnership
Interest (as such term is defined therein) without the written consent of the General Partner and, among other conditions, that
the General Partner will not consent to any transfer unless such transfer is effective as of the first day of a fiscal quarter
of the Operating Partnership; and
WHEREAS, the Partners desire to amend
the OP Agreement in the manner and on the terms set forth below; and
WHEREAS, except to the extent amended
by this Amendment No. 2, the Partners intend that the OP Agreement continue in full force and effect, as amended herein.
NOW, THEREFORE, the Partners, intending
to be legally bound, hereby approve, adopt and consent to an amendment to the OP Agreement whereby Section 11.03(c)(iv) of the
OP Agreement is deleted in its entirety.
In all other respects, the OP Agreement
shall remain in full force and effect as amended by the foregoing.
[Signature Pages Follow]
IN WITNESS WHEREOF, the parties have
signed and delivered this Amendment No. 2 as of the day and year first above written.
GENERAL PARTNER: |
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Trade Street OP GP, LLC |
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By: |
Trade Street Residential, Inc., its sole member |
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by: |
/s/ Richard Ross |
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Name: |
Richard Ross |
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Title: |
Chief Executive Officer |
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LIMITED PARTNERS: |
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Trade Street Residential, Inc. |
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by: |
/s/ Richard Ross |
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Name: |
Richard Ross |
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Title: |
Chief Executive Officer |
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/s/ Michael D. Baumann |
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Name: |
Michael D. Baumann |
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/s/ Heidi Baumann |
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Name: |
Heidi Baumann |
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[Signature
Page to Amendment No. 2 to Second Amended and Restated Agreement of Limited Partnership of Trade Street Operating Partnership,
LP]
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