Second Amendment to Amended and Restated Master Credit Facility Agreement among TC Parties, Ivy, Daisy, Shamrock, Prudential Multifamily Mortgage, and Fannie Mae

Summary

This amendment updates a master credit facility agreement between several Maryland-based real estate entities (the TC Parties), three Delaware LLCs (Ivy, Daisy, Shamrock), Prudential Multifamily Mortgage, and Fannie Mae. It releases three properties from the collateral pool and adds two new properties. The amendment also updates certain exhibits, clarifies insurance claim procedures, and adjusts references to property ownership and the number of properties covered. The parties reaffirm their obligations and update the agreement to reflect current ownership structures and collateral.

EX-10.4.2 5 l06123aexv10w4w2.txt EXHIBIT 10.4.2 EXHIBIT 10.4.2 SECOND AMENDMENT TO AMENDED AND RESTATED MASTER CREDIT FACILITY AGREEMENT THIS SECOND AMENDMENT TO AMENDED AND RESTATED MASTER CREDIT FACILITY AGREEMENT (the "AMENDMENT") is made as of the 29th day of July, 2003, by and among (i) EACH OF THE GENERAL PARTNERSHIPS SET FORTH ON EXHIBIT A-1 TO THE MASTER AGREEMENT, each a Maryland general partnership (being collectively referred to as the "ORIGINAL OWNER"), (ii) (a) THE TOWN AND COUNTRY TRUST, a Maryland real estate investment trust (the "REIT"), (b) THE TC OPERATING LIMITED PARTNERSHIP, a Maryland limited partnership (the "OPERATING PARTNERSHIP"), (c) THE TOWN AND COUNTRY HOLDING CORPORATION, a Delaware corporation (the "REIT SUB"), (d) THE TC PROPERTY COMPANY, a Maryland general partnership (the "PROPERTY COMPANY") and (e) THE TOWN AND COUNTRY ORIOLE CORPORATION, a Delaware corporation ("TC-ORIOLE") (the REIT, the Operating Partnership, the REIT Sub, the Property Company, TC-Oriole and each of the Original Owners being collectively referred to as the "TC PARTIES" and individually referred to as a "TC PARTY"), (iii) IVY ACQUISITIONS LLC, a Delaware limited liability company ("IVY"), (iv) DAISY ACQUISITIONS LLC, a Delaware limited liability company ("DAISY") (v) SHAMROCK ACQUISITIONS LLC, a Delaware limited liability company ("Shamrock") (Ivy, Daisy and Shamrock being collectively referred to as the "GUARANTORS") (together with the Original Owners, "OWNERS"), and (vi) PRUDENTIAL MULTIFAMILY MORTGAGE, INC., a Delaware corporation, successor to WASHINGTON MORTGAGE FINANCIAL GROUP, LTD., a Delaware corporation (the "LENDER"), and (vii) FANNIE MAE, a federally-chartered and stockholder-owned corporation organized and existing under the Federal National Mortgage Association Charter Act, 12 U.S.C. Section 1716 et seq. ("FANNIE MAE"). RECITALS A. TC Parties and Lender are parties to that certain Amended and Restated Master Credit Facility Agreement, dated as of April 25, 2002, as amended by that certain First Amendment to Amended and Restated Master Credit Facility Agreement, dated as of April 16, 2003 (as amended from time to time, the "MASTER AGREEMENT"). B. All of the Lender's right, title and interest in the Master Agreement and the Loan Documents executed in connection with the Master Agreement or the transactions contemplated by the Master Agreement have been assigned to Fannie Mae pursuant to that certain Assignment of Master Credit Facility Agreement and Other Loan Documents, dated as of April 25, 2002 (the "ASSIGNMENT"). Fannie Mae has not assumed any of the obligations of the Lender under the Master Agreement or the Loan Documents as a result of the Assignment. Fannie Mae has designated the Lender as the servicer of the Loans contemplated by the Master Agreement. C. Pursuant to that certain First Reaffirmation and Joinder Agreement, dated as of even date herewith, Guarantors have joined into the Master Agreement as Owners and Guarantors thereunder. D. Ivy has entered into (i) that certain Payment Guaranty (Base Note) dated as of even date herewith guarantying the obligations The TC-Fox Haven Company, a Maryland 1 general partnership ("TC-FOX HAVEN") has under that certain Amended and Restated Base Facility Note dated as of September 26, 1997 and (ii) that certain Payment Guaranty (Master Guaranty) dated as of even date herewith guarantying the Guaranteed Obligations set forth therein. Daisy has entered into (i) that certain Payment Guaranty (Base Note) guarantying the obligations The TC-Charlesmont Company, a Maryland general partnership ("TC-CHARLESMONT") has under that certain Amended and Restated Base Facility Note dated as of September 26, 1997 and (ii) that certain Payment Guaranty (Master Guaranty) dated as of even date herewith guarantying the obligations set forth therein. Shamrock has entered into and Shamrock (i) that certain Payment Guaranty (Base Note) guarantying the obligations The TC-Woodmoor Company, a Maryland general partnership ("TC-WOODMOOR") has under that certain Amended and Restated Base Facility Note dated as of September 26, 1997 and (ii) that certain Payment Guaranty (Master Guaranty) dated as of even date herewith guarantying the obligations set forth therein. The parties are executing this Amendment pursuant to the Master Agreement to (i) reflect the release of three Mortgaged Properties from the Collateral Pool and (ii) reflect the addition of two properties as Mortgaged Properties to the Collateral Pool as set forth below. NOW, THEREFORE, the parties hereto, in consideration of the mutual promises and agreements contained in this Amendment and the Master Agreement, and other good and valuable consideration, the receipt and sufficiency of which is hereby acknowledged, hereby agree as follows: SECTION 1. RELEASE OF MORTGAGED PROPERTIES. The following Mortgaged Properties are hereby released from the Collateral Pool: 1. Woodmoor Apartments (Baltimore County, Maryland), owned by TC-Woodmoor; 2. Fox Haven Apartments (Baltimore County, Maryland), owned by TC-Fox Haven; and 3. Charlesmont Apartments (Baltimore County, Maryland), owned by TC-Charlesmont. SECTION 2. ADDITION OF MORTGAGED PROPERTIES. The following properties are hereby added to the Collateral Pool as Additional Mortgaged Properties: 1. Courts at Avalon (Baltimore County, Maryland), 39% tenancy- in-common interest owned by Shamrock (which 100% membership interest is owned by TC-Woodmoor) and 61% tenancy-in-common interest owned by Daisy (which 100% membership interest is owned by TC-Charlesmont); and 2. Excalibur (Baltimore County, Maryland), owned by Ivy (which 100% membership interest is owned by TC-Fox Haven). SECTION 3. EXHIBIT A. Exhibits A-1 and A-2 to the Master Agreement are hereby deleted in their entirety and replaced with the Exhibit A-1 and Exhibit A-2 attached to this Amendment. 2 SECTION 4. EXHIBIT JJ. Exhibit JJ to the Master Agreement, regarding the Replacement Reserve Payment Schedule, is hereby supplemented with Exhibit B attached to this Amendment. SECTION 5. EXHIBIT KK. Exhibit KK to the Master Agreement, regarding the Replacement Reserve Report, is hereby supplemented with Exhibit C attached to this Amendment SECTION 6. INSURANCE CLAIMS SETTLEMENT. Section 13.08(d) of the Master Agreement is hereby deleted in its entirety and restated as follows: INSURANCE CLAIMS SETTLEMENT. Notwithstanding the provision of the second sentence of the third paragraph of paragraph 5 of the Uniform Provisions of the Security Instruments or Section 19 of the Security Instrument (as applicable under each Security Instrument) relating to insurance claims, so long as (i) the casualty to a Mortgaged Property has led to a claim of less than $500,000 and (ii) no Event of Default then exists, the Lender shall not exercise the power of attorney granted thereby, and an Owner may make proof of loss, adjust and compromise claims, oppose and prosecute actions relating to the casualty insurance policy in question and collect and receive the insurance proceeds in question. SECTION 7. REFERENCES TO PROPERTIES. Any reference in any Loan Document that refers to thirty-five (35) properties shall hereinafter be deemed to refer to the thirty-four (34) properties listed on Exhibit A-1 to the Master Agreement. SECTION 8. REFERENCES TO OWNERS . TC-Fox Haven, TC-Woodmoor and TC-Charlesmont are no longer direct owners of the Properties, but directly own 100% of the membership interests of the current Mortgaged Property owners, Ivy, Daisy and Shamrock, respectfully. Notwithstanding the preceding sentence, TC-Fox Haven, TC-Charlesmont and TC-Woodmoor shall each remain an "Owner" under the Master Agreement and any other Loan Document. Any references in any Loan Document that refers to "Property Partnerships" are hereby deleted and replaced with the term "Owners." SECTION 9. REPRESENTATIONS AND WARRANTIES. Where applicable, the representations and warranties of TC-Fox Haven, TC-Woodmoor and TC-Charlesmont shall be deemed to be made by or through Ivy, Daisy and Shamrock, respectively. SECTION 10. CONFIRMATION. Notwithstanding the fact that Fannie Mae was not a party to the First Amendment to Master Credit Facility Agreement dated as of April 16, 2003, Fannie Mae hereby confirms, ratifies and joins into the First Amendment as if it were an original signatory thereto. SECTION 11. CAPITALIZED TERMS . All capitalized terms used in this Amendment which are not specifically defined herein shall have the respective meanings set forth in the Master Agreement. 3 SECTION 12. FULL FORCE AND EFFECT. Except as expressly modified by this Amendment, all terms and conditions of the Master Agreement shall continue in full force and effect. SECTION 13. COUNTERPARTS. This Amendment may be executed in counterparts by the parties hereto, and each such counterpart shall be considered an original and all such counterparts shall constitute one and the same instrument. SECTION 14. APPLICABLE LAW. The provisions of Section 22.06 of the Master Agreement (entitled "Choice of Law; Consent to Jurisdiction; Waiver of Jury Trial") are hereby incorporated into this Amendment by this reference to the fullest extent as if the text of such provisions were set forth in their entirety herein. [The rest of this page has been intentionally left blank.] 4 IN WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day and year first above written. THE TC-WEST/GREENSVIEW COMPANY, a Maryland general partnership THE TC-EAST COMPANY, a Maryland general partnership THE TC-HARFORD COMPANY, a Maryland general partnership THE TC-HOLLOWS COMPANY, a Maryland general partnership THE TC-MONTGOMERY COMPANY, a Maryland general partnership THE TC-NORTH COMPANY, a Maryland general partnership THE TC-WOODMOOR COMPANY, a Maryland general partnership THE TC-RIDGE-VIEW COMPANY, a Maryland general partnership THE TC-SOUTH COMPANY, a Maryland general partnership THE TC-GARDEN WOOD COMPANY, a Maryland general partnership THE TC-HALLFIELD MANOR COMPANY, a Maryland general partnership THE TC-MONTPELIER COMPANY, a Maryland general partnership THE TC-NORTHEAST COMPANY, a Maryland general partnership THE TC-LAUREL COMPANY, a Maryland general partnership THE TC-ROLLING ROAD COMPANY, a Maryland general partnership THE TC-VERSAILLES COMPANY, a Maryland general partnership THE TC-FOX HAVEN COMPANY, a Maryland general partnership THE TC-CHARLESMONT COMPANY, a Maryland general partnership THE TC-FOX RUN COMPANY, a Maryland general partnership THE TC-STONEGATE COMPANY, a Maryland general partnership THE TC-UNIVERSITY HEIGHTS COMPANY, a Maryland general partnership THE TC-BARTON'S CROSSING COMPANY, a Maryland general partnership THE TC-GLEN COMPANY, a Maryland general partnership THE TC-MCNAIR FARMS COMPANY, a Maryland general partnership 5 THE TC-CARLYLE STATION COMPANY, a Maryland general partnership THE TC-ALLENTOWN COMPANY, a Maryland general partnership THE TC-EMMAUS COMPANY, a Maryland general partnership THE TC-HANOVER COMPANY, a Maryland general partnership THE TC-HARRISBURG COMPANY, a Maryland general partnership THE TC-HARRISBURG-EAST COMPANY, a Maryland general partnership THE TC-LANCASTER WEST COMPANY, a Maryland general partnership THE TC-LANCASTER EAST COMPANY, a Maryland general partnership THE TC-YORK COMPANY, a Maryland general partnership THE TC-ROLLING HILLS COMPANY, a Maryland general partnership THE TC-CHRISTINA MILL COMPANY, a Maryland general partnership By: The TC Property Company, a Maryland general partnership, in its capacity as general partner of, and on behalf of, each of the foregoing thirty-five (35) general partnerships By: The TC Operating Limited Partnership, a Maryland limited partnership, General Partner By: The Town and Country Trust, a Maryland real estate investment trust, General Partner By: ----------------------------- W. Daniel Brown Senior Vice President - Human Relations REIT THE TOWN AND COUNTRY TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST By: ---------------------------- W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 6 Operating Partnership THE TC OPERATING LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP, GENERAL PARTNER By: The Town and Country Trust, a Maryland real estate investment trust By: ------------------------------------- W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 7 REIT Sub THE TOWN AND COUNTRY HOLDING CORPORATION, A DELAWARE CORPORATION By: --------------------------------- James Dolphin Senior Vice President and Treasurer [SIGNATURES CONTINUE ON FOLLOWING PAGE] 8 Property Company THE TC PROPERTY COMPANY, A MARYLAND GENERAL PARTNERSHIP By: The TC Operating Limited Partnership, a Maryland limited partnership, General Partner By: The Town and Country Trust, a Maryland real estate investment trust, General Partner By: ------------------------------- W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 9 TC-Oriole THE TOWN AND COUNTRY ORIOLE CORPORATION, A DELAWARE CORPORATION By: --------------------------------- James Dolphin Senior Vice President & Treasurer [SIGNATURES CONTINUE ON FOLLOWING PAGE] 10 Ivy IVY ACQUISITIONS LLC, A DELAWARE LIMITED LIABILITY COMPANY By: The TC-Fox Haven Company, a Maryland general Partner, its sole member By: The TC Property Company, a Maryland general partnership, its general partner By: The TC Operating Limited Partnership, a Maryland limited partnership, General Partner By: The Town and Country Trust, a Maryland real estate investment trust, General Partner By: -------------------------- W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 11 Daisy DAISY ACQUISITIONS LLC, A DELAWARE LIMITED LIABILITY COMPANY By: The TC-Charlesmont Company, a Maryland general Partner, its sole member By: The TC Property Company, a Maryland general partnership, its general partner By: The TC Operating Limited Partnership, a Maryland limited partnership, General Partner By: The Town and Country Trust, a Maryland real estate investment trust, General Partner By: --------------------------- W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 12 Shamrock SHAMROCK ACQUISITIONS LLC, A DELAWARE LIMITED LIABILITY COMPANY By: The TC-Woodmoor Company, a Maryland general Partner, its sole member By: The TC Property Company, a Maryland general partnership, its general partner By: The TC Operating Limited Partnership, a Maryland limited partnership, General Partner By: The Town and Country Trust, a Maryland real estate investment trust, General Partner By: --------------------------- W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 13 Lender PRUDENTIAL MULTIFAMILY MORTGAGE, INC., A DELAWARE CORPORATION, SUCCESSOR TO WASHINGTON MORTGAGE FINANCIAL GROUP, LTD. By: ------------------------------------- Name: Sharon D. Singleton Title: Vice President [SIGNATURES CONTINUE ON FOLLOWING PAGE] 14 FANNIE MAE, A FEDERALLY-CHARTERED AND STOCKHOLDER-OWNED CORPORATION ORGANIZED AND EXISTING UNDER THE FEDERAL NATIONAL MORTGAGE ASSOCIATION CHARTER ACT, Section 12 U.S.C. 1716, ET SEQ. By: ------------------------------------- Name: Barbara Ann Frouman Title: Vice President 15 EXHIBIT A-1 SCHEDULE OF OWNERS

16 Laurel, MD 20708 The TC-Northeast Company M-13 Rossville 7422 Brushfield Road Baltimore County Baltimore, MD 21237 The TC-Laurel Company M-14 Tall Oaks 3519 Leslie Way #101 Anne Arundel County Laurel, MD 20724 The TC-Rolling Road M-15 Rolling Road 7106-D Rolling Bend Road Company Baltimore County Baltimore, MD 21244 The TC-Versailles M-16 Versailles 111 Versailles Circle Company Baltimore County Baltimore, MD 21204 Ivy Acquisitions LLC Excalibur 9050 Iron Horse Lane, (100% Membership interest Baltimore County, owned by The TC-Fox Baltimore, MD 21208 Haven Company) Daisy Acquisitions LLC Courts at Avalon 9000 Iron Horse Lane, (100% Membership interest (69% tenancy-in- Baltimore County, owned by The TC- common interest) Baltimore, MD 21208 Charlesmont Company) The TC-Fox Run Company M-19 Fox Run 2 Observation Court Montgomery County Germantown, MD 20876 The TC-Stonegate Company M-20 Stonegate 4301 Stonegate Boulevard Cecil County Elkton, MD 21921 The TC-University Heights V-1 University Heights 20300 River Ridge Terrace Company Loudoun County Ashburn, Virginia 20147 The TC-Barton's Crossing V-2 Barton's Crossing 205 Century Place Company Fairfax County Alexandria, VA 22304 The TC-Glen Company V-3 The Glen 90 Heritage Way N.E. Loudoun County Leesburg, VA 20176 The TC-McNair Farms V-4 McNair Farms 2511 Farmcrest Drive Company Fairfax County Herndon, VA 22070 The TC-Carlyle Station V-5 Carlyle Station 10519 Lariat Lane Company Prince William County Manassas, VA 20109 The TC-Allentown P-1 Hidden Village 1943-E Pinehurst Court Company Lehigh County Allentown, PA 18103

17 The TC-Emmaus Company P-2 Colonial Crest- 102 North Tenth Street Emmaus Lehigh County Emmaus, PA 18049 The TC-Hanover Company P-3 Hanover 203-E West Clearview Road York County Hanover, PA 17331 The TC-Lancaster West P-6 Lancaster West 190 Colonial Crest Drive Company Lancaster County Lancaster, PA 17601 The TC-Lancaster East P-7 Lancaster East 77 Foal Court Company Lancaster County Lancaster, PA 17602 The TC-York Company P-8 York 2000 Maplewood Drive York County York, PA 17403 The TC-Rolling Hills P-9 Rolling Hills 1701 Taxville Road Company #3-D York County York, PA 17404 The TC-Harrisburg East F-4 Heron's Run 175 Heron's Run Drive Company Sarasota, FL ###-###-#### The TC-Harrisburg F-6 Gardens East 2750 Rio Vista Boulevard Company Gardens, FL 33410 The TC-Christina Mill D-1 Christina Mill 100 Christina Mill Drive Company New Castle County Newark, DE 19711

18 EXHIBIT A-2 SCHEDULE OF INDEBTEDNESS OF OWNERS
ASSET NUMBER PROPERTY NAME NEW FIRST DEBT - ------------ ------------- -------------- M-1 Greensview West 32,687,872 M-2 Bowley's Quarters 8,691,648 M-3 Harford 7,398,016 M-4 Hollows 7,229,584 M-5 Mongtomery Knolls 5,058,528 M-6 Cockeysville 12,429,168 M-8 Ridge View 5,381,936 M-9 Woodhill 6,602,488 M-10 Garden Wood 11,080,320 M-11 Hallfield 1,535,376 M-12 Willow Lake 10,233,056 M-13 Rossville 14,455,688 M-14 Tall Oaks 8,718,328 M-15 Rolling Road 8,490,968 M-16 Versailles 7,009,880 M-19 Fox Run 500,000 M-20 Stonegate 10,992,640 V-1 University Heights 500,000 V-2 Barton's Crossing 25,250,000 V-3 The Glen 500,000 V-4 McNair Farms 500,000 V-5 Carlyle Station 15,101,196 P-1 Hidden Village 5,416,504 P-2 Colonial Crest-Emmaus 8,076,616 P-3 Hanover 3,837,280 P-6 Lancaster West 8,321,608 P-7 Lancaster East 5,431,584 P-8 York 8,047,384 P-9 Rolling Hills 4,750,000 F-4 Heron's Run 7,747,640 F-6 Gardens East 12,348,644 D-1 Christina Mill 8,906,1641 Excalibur 8,397,240 Courts at Avalon 17,372,624 Property Co. 1,000,000 (Fixed) Property Co. 139,000,000 (Revolver)
19 1. D-1, M-20 and V-5 have a joint and several obligation of $35,000,000 which will remain a joint and several obligation. For purposes of allocating debt, however, the $35,000,000 has been allocated pro rata over the three properties based on their appraised values (D-1: $13,830,000; M-20: $17,070,000; V-5: $23,450,000). 20 EXHIBIT B SUPPLEMENTAL EXHIBIT JJ [COURTS OF AVALON MAINTENANCE SCHEDULE CHART] [EXCALIBER AT AVALON MAINTENANCE SCHEDULE CHART] 1 EXHIBIT C SUPPLEMENTAL EXHIBIT KK COURTS OF AVALON SITE Seal Coat and Restripe Swimming Pool Equipment ARCHITECTURAL Wood Framed Balconies, Stain MECHANICAL/ELECTRICAL Domestic Hot Water DWELLING UNITS Living Area Floors, Carpet Living Area Floors, Resilient Refrigerators Microwaves Dishwasher Range Washers Dryers ADA COMPLIANCE Other EXCALIBUR AT AVALON SITE Civil Engineer-on-Site Review and Report Repair Leaks at Pool and Garage Swimming Pool Equipment ARCHITECTURAL Retaining Walls, Unit Masonry Exterior Walls, EIFS 22 MECHANICAL/ELECTRICAL Domestic Hot Water DWELLING UNITS Common Floors, Carpet Common Area Walls, Paint Living Area, Carpet Refrigerators Microwaves Dishwasher Range Washers Dryers ADA COMPLIANCE Other 23