EXHIBIT 10.40
FIRST AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT
THIS FIRST AMENDMENT TO MASTER CREDIT FACILITY AGREEMENT (the "FIRST
AMENDMENT") is made as of the 11th day of December, 1998, by and among (i)
(a) HOME PROPERTIES OF NEW YORK, INC., a Maryland corporation (the "REIT"),
(b) HOME PROPERTIES OF NEW YORK, L.P., a New York limited partnership (the
"OPERATING PARTNERSHIP"), (c) HOME PROPERTIES WMF I, LLC, a New York
limited liability company (the "BORROWER") and (d) HOME PROPERTIES OF NEW
YORK, L.P. AND P-K PARTNERSHIP DOING BUSINESS AS XXXXXXXX COURT AND XXXXX
COURT, a Pennsylvania general partnership (the "SUBSIDIARY OWNER"), (ii)
WMF WASHINGTON MORTGAGE CORP., a Delaware corporation, formerly known as
Washington Mortgage Financial Group, Ltd. ("WMF") and (iii) XXXXXX XXX, a
federally-chartered and stockholder-owned corporation organized and
existing under the Federal National Mortgage Association Charter Act, 12
U.S.C. 1716 ET SEQ.
RECITALS
A. The parties to this First Amendment are parties to that certain
Master Credit Facility Agreement, dated as of August 28, 1998 (as amended
from time to time, the "MASTER AGREEMENT").
B. All of the WMF'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 Xxxxxx Mae pursuant to that certain Assignment of Master
Credit Facility Agreement and Other Loan Documents, dated as of August 28,
1998 (the "ASSIGNMENT"). Xxxxxx Xxx has not assumed any of the obligations
of WMF under the Master Agreement or the Loan Documents as a result of the
Assignment. Xxxxxx Mae has designated WMF as the servicer of the Advances
contemplated by the Master Agreement.
C. The parties are executing this First Amendment pursuant to the
Master Agreement to reflect, among other things, an increase in the Base
Facility Credit Commitment pursuant to Article VIII of the Master
Agreement.
NOW, THEREFORE, the parties hereto, in consideration of the mutual
promises and agreements contained in this First Amendment and the Master
Agreement, and other good and valuable consideration, the receipt and
sufficiency of which is hereby acknowledged, hereby agree as follows:
1. EXPANSION. Pursuant to a Credit Facility Expansion Request submitted
by Borrower, the definition of "Base Facility Credit Commitment" is hereby
replaced in its entirety by the following new definition:
"BASE FACILITY CREDIT COMMITMENT" means an amount equal to $158,881,000, or
such greater amount, not to exceed $200,000,000, as the Borrower may elect
in accordance with, and subject to, the provisions of Article VIII.
2. MATURITY DATE OF BASE FACILITY ADVANCES. Section 2.02(a)(3) of the
Master Agreement is hereby replaced in its entirety by the following new
provision:
SECTION 2.02(a)(3) MATURITY DATE OF BASE FACILITY ADVANCES. The maturity
date of the Initial Advance shall be the Base Facility Termination Date.
The maturity date of any Base Facility Advance that is a Future Advance
shall be the Base Facility Termination Date or such other date as the
Borrower and WMF may agree upon, as reflected in the Base Facility Note
evidencing such Base Facility Advance.
3. FUTURE ADVANCE. Borrower hereby requests, and Lender hereby agrees
to make, on or about the date of this First Amendment, a Future Advance in
the amount of $58,881,000. In connection with the Future Advance, Borrower
has amended all of the existing Security Instruments (except for the
Security Instruments encumbering existing Mortgaged Properties located in
New York), has added seven Additional Mortgaged Properties to the
Collateral Pool by granting Security Instruments encumbering the Additional
Mortgaged Properties to WMF, and has executed certain additional documents,
and taken certain additional actions, in connection therewith. To reflect
the foregoing, Exhibit A to the Master Agreement is hereby replaced in its
entirety by the Exhibit A attached to this Agreement.
4. PAYMENTS UNDER THE NOTES AFTER ACCELERATION. Solely for purposes of
calculating the amount of the payment for each Note under Section 3(B) of
Schedule B to each Note, the Defeasance Deposit for each Note shall be
calculated by assuming that the "Mortgage Payment" means the amount of each
regularly scheduled monthly payment of interest due and payable under such
Note only (and not any other Note) during the period beginning on the first
day of the second calendar month after the Defeasance Closing Date and
ending on the last day of the Defeasance Period, and the amount that would
constitute the unpaid principal balance of such Note on the last day of the
Defeasance Period if all prior Mortgage Payments were paid on their due
dates. The foregoing is intended to have the effect of requiring a payment
under Section 3(B) of Schedule B to each accelerated Note which corresponds
to the principal amount of, and mortgage payments under, such Note only
rather than the aggregate principal amount of, and mortgage payments under,
all Notes.
5. CAPITALIZED TERMS. All capitalized terms used in this First
Amendment which are not specifically defined herein shall have the
respective meanings set forth in the Master Agreement.
6. FULL FORCE AND EFFECT. Except as expressly modified by this First
Amendment, all terms and conditions of the Master Agreement shall continue
in full force and effect.
7. COUNTERPARTS. This First 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.
IN WITNESS WHEREOF, the parties hereto have executed this Agreement as of
the day and year first above written.
HOME PROPERTIES OF NEW YORK, INC., a Maryland corporation
By: /S/ Xxx X. XxXxxxxxx
------------------------
Xxx X. XxXxxxxxx
Vice President
HOME PROPERTIES OF NEW YORK, L.P., a New York limited partnership
By: Home Properties of New York, Inc., a Maryland corporation, its sole
General Partner
By: /s/ Xxx X. XxXxxxxxx
------------------------
Xxx X. XxXxxxxxx
Vice President
[Signatures continued on following page]
[Signatures continued from preceding page]
HOME PROPERTIES WMF I, LLC, a New York limited liability company
By: Home Properties of New York, L.P., a New York limited partnership,
its sole Member
By: Home Properties of New York, Inc., a Maryland corporation, its sole
General Partner
By: /s/ Xxx X. XxXxxxxxx
------------------------
Xxx X. XxXxxxxxx
Vice President
HOME PROPERTIES OF NEW YORK, L.P. AND P-K PARTNERSHIP DOING BUSINESS AS
XXXXXXXX COURT AND XXXXX COURT, a Pennsylvania general partnership
By: Home Properties of New York, L.P., a New York limited partnership, a
General Partner
By: Home Properties of New York, Inc., a Maryland corporation, its sole
General Partner
By: /s/ Xxx X. XxXxxxxxx
-------------------------
Xxx X. XxXxxxxxx
Vice President
[Signatures continued on following page]
[Signatures continued from preceding page]
WMF WASHINGTON MORTGAGE CORP., A DELAWARE CORPORATION, FORMERLY KNOWN AS
WASHINGTON MORTGAGE FINANCIAL GROUP, LTD.
By: /s/ G. Xxxxx Xxxxxx
--------------------------
G. Xxxxx Xxxxxx
Vice President
[Signatures continued on following page]
[Signatures continued from preceding page]
XXXXXX XXX
By: /s/ Xxxxx X. Xxxxx
----------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
