EXHIBIT 10.3
FIRST AMENDMENT TO CASH COLLATERAL ACCOUNT SECURITY, PLEDGE AND ASSIGNMENT
AGREEMENT
This FIRST AMENDMENT TO CASH COLLATERAL ACCOUNT SECURITY, PLEDGE AND
ASSIGNMENT AGREEMENT (this "AMENDMENT"), dated as of January [__], 1998, among
Mid-America Capital Partners, L.P. (the "PARTNERSHIP"), Mid-America Apartments,
L.P. ("MAALP"), First Union National Bank ("ACCOUNT BANK"), Xxxxxx Xxxxxxx
Mortgage Capital Inc. ("XXXXXX XXXXXXX") and LaSalle National Bank, as trustee
("TRUSTEE") under the Indenture described below.
W I T N E S S E T H
WHEREAS, the Partnership has issued its First Mortgage Bridge Notes
to Xxxxxx Xxxxxxx in the principal amount of $140,000,000 pursuant to an
Indenture dated as of November 21, 1997 (as the same may be amended,
supplemented or modified from time to time, the "INDENTURE");
WHEREAS, the obligations of the Partnership under such First
Mortgage Bridge Notes and the Indenture are secured by, among other things, a
Cash Collateral Account Security, Pledge and Assignment Agreement dated as of
November 21, 1997 among the parties hereto (the "CASH COLLATERAL AGREEMENT");
WHEREAS, the Partnership desires to issue its First Mortgage Bonds
in the maximum aggregate principal amount of $150,000,000 under the Indenture,
which First Mortgage Bonds will be secured by, among other things, the Cash
Collateral Agreement;
WHEREAS, the parties hereto desire to amend the Cash Collateral
Agreement as set forth in this Amendment.
NOW, THEREFORE, in consideration of the premises and the agreements
and covenants hereinafter contained and other good and valuable consideration,
the receipt and sufficiency of which are hereby acknowledged, the parties hereto
hereby agree as follows:
Capitalized terms used but not otherwise defined herein have the
respective meanings given thereto in or pursuant to the Cash Collateral
Agreement unless otherwise expressly provided herein.
Section 1. AMENDMENT OF SECOND RECITAL OF THE CASH COLLATERAL
AGREEMENT. The second recital of the Cash Collateral Agreement is hereby amended
(a) by the deletion of the words "Secured Bridge Notes" each time such words
appear and the substitution of the words "First Mortgage Bridge Notes" therefor
and (b) by the deletion of the second parenthetical in such second recital and
the substitution therefor of the following words and punctuation: "(as the same
may be amended, supplemented or modified from time to time, the "INDENTURE")".
Section 2. AMENDMENT OF FOURTH RECITAL OF THE CASH COLLATERAL
AGREEMENT. The fourth recital of the Cash Collateral Agreement is hereby amended
by the deletion of the words "Secured Bridge Notes" therein and the substitution
of the words "First Mortgage Bridge Notes" therefor.
Section 3. AMENDMENT OF SECTION 3(H) OF THE CASH COLLATERAL
AGREEMENT. Section 3(h) of the Cash Collateral Agreement is hereby amended by
the deletion of the first sentence therein and the substitution therefor of the
following sentence: "Trustee shall give prompt written notice to Account Bank of
any Event of Default hereunder or under the Notes, the Indenture or any other
Security Document of which a Trust Officer of Trustee has actual knowledge and
of the making of any Advance by the Trustee (each, a "DEFAULT TRIGGER NOTICE")
and of any claim for indemnity under the Partnership Environmental Indemnity or
the MAALP Environmental Indemnity, in each case of which a Trust Officer of
Trustee has actual knowledge, or of any failure of the Partnership to maintain a
Debt Service Coverage Ratio of at least 1.30 to 1 as set forth in Section
4.19(b) of the Indenture (each, a "FUNDING TRIGGER NOTICE"; any such Funding
Trigger Notice and any Default Trigger Notice, a "TRIGGER NOTICE") and prompt
written notice to Account Bank of the termination of any such Event of Default,
the repayment of any such Advance, the satisfaction by the Partnership or MAALP,
as the case may be, of any such claim or the cure by the Partnership of any such
failure (each, a "TERMINATION NOTICE")."
Section 4. AMENDMENT OF SECTION 3(i) OF THE CASH COLLATERAL
AGREEMENT. Section 3(i) of the Cash Collateral Agreement is hereby amended by
the deletion of the words and figure "an amount equal to $594,700.00" therein
and the substitution of the words and figure "an amount equal to $1,189,400"
therefor.
Section 5. AMENDMENT OF SECTION 3(k) OF THE CASH COLLATERAL
AGREEMENT. Section 3(k) of the Cash Collateral Agreement is hereby amended (a)
by the deletion of the words and punctuation "During any Funding Period," from
the second sentence thereof and (b) by the addition of the words and punctuation
", to the extent available," after the words "Mortgage Escrow Account" in the
second sentence thereof.
Section 6. AMENDMENT OF SECTION 3(l) OF THE CASH COLLATERAL
AGREEMENT. Section 3(l) of the Cash Collateral Agreement is hereby amended (a)
by the deletion of the words and punctuation "During any Cash Management
Period," from the second sentence thereof and (b) by the addition of the words
and punctuation ", to the extent available," after the words "Replacement
Reserve Account" in the second sentence thereof.
Section 7. AMENDMENT OF SECTION 3(O)(4) OF THE CASH COLLATERAL
AGREEMENT. Section 3(o)(4) of the Cash Collateral Agreement is hereby amended by
the insertion of the words "from any Account" between the word "funds" and the
word "solely" therein.
Section 8. AMENDMENT OF SECTION 12(d) OF THE CASH COLLATERAL
AGREEMENT. Section 12(d) of the Cash Collateral Agreement is hereby amended to
read in its entirety as follows:
"(d) If, at any time, Account Bank shall reasonably determine that
there is any dispute between any of the parties hereto with respect to the
holding or disposition of any funds in any Accounts hereunder, or if at any time
Account Bank is unable to determine, to Account Bank's satisfaction, the proper
disposition of any funds in the Accounts or Account Bank's proper actions with
respect to its obligations hereunder, then Account Bank may suspend the
performance of any of its obligations under this Agreement until such dispute or
uncertainty shall be resolved by written instruction of Trustee (acting upon
direction of the holders of the First Mortgage Bridge Notes or the First
Mortgage Bonds as provided in the Indenture). If no written instruction of
Trustee is delivered to Account Bank or if such written instruction of Trustee
fails to resolve such dispute or uncertainty, Account Bank may, at its sole
option, (i) resign as Account Bank pursuant to Section 14 or (ii) petition (by
means of an interpleader action or any other appropriate method) any court of
competent jurisdiction in Charlotte, North Carolina, for instructions with
respect to such dispute or uncertainty, and pay into such court all funds held
by it in the Accounts for holding and disposition in accordance with the
instructions of such court. Account Bank shall have no liability to any person
with respect to any such suspension of performance, resignation as Account Bank,
reliance upon the written instructions of Trustee or disbursement into court,
specifically including any liability or claimed liability that may arise, or be
alleged to have arisen, out of or as a result of any delay in the disbursement
of funds held in the Accounts or any delay in or with respect to any other
action required or requested of Account Bank."
Section 9. COUNTERPARTS. This Amendment may be executed in any
number of counterparts, each of which when so executed shall be deemed to be an
original, but all of such counterparts shall together constitute but one and the
same instrument.
Section 10. RATIFICATION OF CASH COLLATERAL AGREEMENT. Except as
modified and expressly amended by this Amendment, the Cash Collateral Agreement
is in all respects ratified and confirmed, and all terms, provisions and
conditions thereof shall be and remain in full force and effect.
Section 11. GOVERNING LAW. This Amendment shall be governed by
and construed and enforced in all respects in accordance with the laws of the
State in which the Accounts are located.
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IN WITNESS WHEREOF, the Partnership, MAALP, Account Bank, Xxxxxx
Xxxxxxx and the Trustee have caused their names to be signed hereto by their
respective officers thereunto duly authorized, all as of the day and year first
above written.
MID-AMERICA CAPITAL PARTNERS, L.P.,
By: MAACP, Inc., its general partner
By
Name: Simon X.X. Xxxxxxxxx
Title: President
MID-AMERICA APARTMENTS, L.P.
By: Mid-America Apartment Communities,
Inc., its general partner
By
Name: Simon X.X. Xxxxxxxxx
Title: Executive Vice President and
CFO
XXXXXX XXXXXXX MORTGAGE CAPITAL INC.
By _____________________________________
Name:
Title:
LASALLE NATIONAL BANK, as trustee
By ______________________________
Name:
Title:
FIRST UNION NATIONAL BANK
By ____________________________
Name:
Title:
