Third Amendment to Amended and Restated Master Credit Facility Agreement among TC Parties, Prudential Multifamily Mortgage, Inc., and Fannie Mae
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This amendment updates the existing Master Credit Facility Agreement between various Town and Country entities (including partnerships, trusts, and LLCs), Prudential Multifamily Mortgage, Inc. as lender, and Fannie Mae. It releases two properties and their owners from loan obligations, adds a new property as collateral, updates ownership interests, and makes technical changes to references and exhibits in the agreement. The amendment also clarifies notice procedures and updates the list of properties and owners covered by the agreement.
EX-10.4.3 6 l06123aexv10w4w3.txt EXHIBIT 10.4.3 EXHIBIT 10.4.3 THIRD AMENDMENT TO AMENDED AND RESTATED MASTER CREDIT FACILITY AGREEMENT THIS THIRD AMENDMENT TO AMENDED AND RESTATED MASTER CREDIT FACILITY AGREEMENT (the "AMENDMENT") is made as of the 4th day of November, 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 OWNERS"), (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 ( "OPERATING PARTNERSHIP"), (c) THE TOWN AND COUNTRY HOLDING COMPANY, LLC, a Delaware limited liability company ("HOLDING COMPANY"), as the successor-in-interest to Town and Country Holding Corporation, a Delaware corporation ("REIT SUB") (d) THE TC PROPERTY COMPANY, a Maryland general partnership ("PROPERTY COMPANY") and (e) THE TOWN AND COUNTRY ORIOLE CORPORATION, a Delaware corporation ("TC-ORIOLE"), (f) THE TC-EXCALIBUR COMPANY, LLC, a Delaware limited liability company ("EXCALIBUR"), f/k/a Ivy Acquisitions LLC, a Delaware limited liability company, (g) THE TC-COURTS COMPANY, LLC, a Delaware limited liability company ("COURTS"), f/k/a Daisy Acquisitions LLC, a Delaware limited liability company, (h) THE TC-AVALON COMPANY, LLC, a Delaware limited liability company ("AVALON"), f/k/a Shamrock Acquisitions LLC, a Delaware limited liability company (Excalibur, Courts and Avalon being collectively referred to as the "GUARANTORS"), and (i) THE TC-LIONSGATE COMPANY, LLC, a Delaware limited liability company ("ADDITIONAL OWNER") (the REIT, Operating Partnership, Holding Company, Property Company, TC-Oriole, the Guarantors, Additional Owner, and each of the Original Owners being collectively referred to as "TC PARTIES" and individually referred to as a "TC PARTY"), (the Original Owners, the Guarantors, and Additional Owner are collectively referred to herein as "OWNERS"), and (iv) PRUDENTIAL MULTIFAMILY MORTGAGE, INC., a Delaware corporation (the "LENDER"), and (v) 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 (except Additional Owner) and Lender are parties to, or have joined into, 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, and as amended by that certain Second Amendment to Amended and Restated Master Credit Facility Agreement, dated as of July 29, 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 Second Reaffirmation and Joinder Agreement, dated as of even date herewith, Additional Owner has joined into the Master Agreement as an Owner thereunder, and Holding Company joined in and assumed all of REIT Sub's obligations thereunder. D. Pursuant to that certain letter from the REIT to the Lender dated September 25, 2003, and approved by the Lender and Fannie Mae, certain of the subsidiaries of the REIT were restructured resulting in REIT Sub's one percent (1%) general partnership interest in The TC Property Company and REIT Sub's one percent (1%) general partnership interest in each Original Owner being transferred to Holding Company. E. The parties are executing this Amendment pursuant to the Master Agreement to (i) reflect the release of two (2) Mortgaged Properties from the Collateral Pool, (ii) reflect the addition of one (1) property as a Mortgaged Property to the Collateral Pool as set forth below, and (iii) reflect certain other changes to the Master Agreement as further set forth herein. 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: (i) Garden Wood (Baltimore County, Maryland), owned by The TC-Garden Wood Company, and (ii) Rolling Road (Baltimore County, Maryland), owned by The TC-Rolling Road Company. SECTION 2. RELEASE OF OWNERS. In connection with the aforementioned release, the Parties hereby acknowledge that The TC-Garden Wood Company and The TC-Rolling Road Company are each hereby released from the Loan Documents, including but not limited to their respective Base Notes and Payment Guaranties. SECTION 3. ADDITION OF MORTGAGED PROPERTY. The following property is hereby added to the Collateral Pool as an Additional Mortgaged Property: Lionsgate (Fairfax County, VA) owned by Additional Owner. SECTION 4. OWNERSHIP INTERESTS AND ENTITY TYPES. Any references in any loan documents that refer to "partnership", "partners", and/or "partnership interests", and/or (ii) "corporation", "shareholders", "shares", or "corporate" and/or (iii) "ownership" shall be deemed to include "membership", "members" and/or "membership interests", as applicable. SECTION 5. REIT SUB TRANSFER OF INTERESTS TO HOLDING COMPANY. Holding Company acknowledges receipt of REIT Sub's one percent (1%) general partnership interest in the TC Property Company and the one percent (1%) general partnership interest in each Original Owner and agrees that all references to "REIT Sub" in the Loan Documents are hereby replaced with "Holding Company", provided that clause (d) of the definition of "change of control" is hereby deleted in its entirety and replaced with the following in lieu thereof: 2 "(d) the date on which Operating Partnership shall for any reason whatsoever cease to own, directly or indirectly, 100% of the Ownership Interests of Holding Company," SECTION 6. NOTICES. The definition of Notice Address set forth in Article I of the Master Agreement is hereby amended by deleting the reference to Venable LLP and replacing it with the following: with a copy to: Venable LLP 575 7th Street, N.W. Suite 1000 Washington, D.C. 20004 Attention: Lawrence H. Gesner, Esq. Telecopy No. 202 ###-###-#### SECTION 7. 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. SECTION 8. 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 9. EXHIBIT KK. Exhibit KK to the Master Agreement, regarding the Replacement Reserve Report, is hereby supplemented with Exhibit C attached to this Amendment SECTION 10. 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-three (33) properties listed on Exhibit A-1 to the Master Agreement. SECTION 11. REFERENCED TO OWNERS. Any reference in any Loan Documents that refers to thirty-five (35) Owners shall hereinafter be deemed to refer to the thirty-four (34) Owners listed on Exhibit A-1 to the Master Agreement. SECTION 12. 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. SECTION 13. FULL FORCE AND EFFECT. Except as expressly modified by this Amendment, all terms and conditions of the Master Agreement, including without limitation the nonrecourse obligations set forth in Article XXI, shall continue in full force and effect. 3 SECTION 14. 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 15. 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 REMAINDER OF THE PAGE 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 5 THE TC-MCNAIR FARMS COMPANY, a Maryland general partnership 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, its general partner By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:___________________________ W. Daniel Brown Senior Vice President-Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 6 Additional Owner THE TC-LIONSGATE COMPANY, LLC, a Delaware limited liability company By: The TC Property Company, a Maryland general partnership, its managing member By: The TC Operating Limited Partnership, a Maryland limited partnership, its general partner By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:_____________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 7 REIT THE TOWN AND COUNTRY TRUST, A MARYLAND REAL ESTATE INVESTMENT TRUST By:_________________________________ W. Daniel Brown Senior Vice President - Human Relations 8 REIT Sub TOWN AND COUNTRY HOLDING CORPORATION, A DELAWARE CORPORATION By:_________________________________ Daniel G. Berick, Secretary [SIGNATURES CONTINUE ON FOLLOWING PAGE] 9 Operating Partnership THE TC OPERATING LIMITED PARTNERSHIP, A MARYLAND LIMITED PARTNERSHIP By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:_____________________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 10 Holding Company THE TOWN AND COUNTRY HOLDING COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY By: The TC Operating Limited Partnership, a Maryland limited partnership, its sole member By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:_________________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 11 Property Company THE TC PROPERTY COMPANY, A MARYLAND GENERAL PARTNERSHIP By: The TC Operating Limited Partnership, a Maryland limited partnership, its general partner By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:_________________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 12 TC-Oriole THE TOWN AND COUNTRY ORIOLE CORPORATION, A DELAWARE CORPORATION By:_________________________________ Daniel G. Berick, Secretary [SIGNATURES CONTINUE ON FOLLOWING PAGE] 13 EXCALIBUR THE TC-EXCALIBUR COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY, F/K/A 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, its general partner By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:_________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 14 COURTS THE TC-COURTS COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY, F/K/A 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, its general partner By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By: ________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 15 AVALON THE TC-AVALON COMPANY, LLC, A DELAWARE LIMITED LIABILITY COMPANY, F/K/A 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, its general partner By: The Town and Country Trust, a Maryland real estate investment trust, its general partner By:_________________ W. Daniel Brown Senior Vice President - Human Relations [SIGNATURES CONTINUE ON FOLLOWING PAGE] 16 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] 17 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:____________________________ Title:___________________________ 18 EXHIBIT A-1 SCHEDULE OF OWNERS
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21 EXHIBIT A-2 SCHEDULE OF INDEBTEDNESS OF OWNERS
- ------------------------------ 22 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). 2. V-6 has assumed each of the Base Notes made by The TC Garden Wood Company in the amount of ($11,080,320) and the TC Rolling Road Company in the amount of ($8,490,968). 23 EXHIBIT B SUPPLEMENTAL EXHIBIT JJ [INSERT LIONSGATE RESERVES] 24 EXHIBIT C SUPPLEMENTAL EXHIBIT KK
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