FOURTEENTH AMENDMENT TO SECOND AMENDED AND RESTATED MASTER CREDIT FACILITY AGREEMENT (MAA II)
FOURTEENTH AMENDMENT TO
SECOND AMENDED AND RESTATED
(MAA
II)
THIS
FOURTEENTH AMENDMENT TO SECOND AMENDED AND RESTATED MASTER CREDIT FACILITY
AGREEMENT (the “Amendment”)
is effective as of the 28th day of
December, 2006, by and among (i) (a) MID-AMERICA APARTMENT COMMUNITIES, INC., a
Tennessee corporation (the “REIT”),
(b) MID-AMERICA APARTMENTS, L.P., a Tennessee limited partnership (“OP”)
(the REIT and OP being collectively referred to as “Borrower”),
and (ii) PRUDENTIAL MULTIFAMILY MORTGAGE, INC., a Delaware corporation (“Lender”).
RECITALS
A. Borrower
is a party to that certain Master Credit Facility Agreement dated as of the 22nd
day of August, 2002, by and between Borrower and Lender, which was amended and
restated pursuant to that certain Amended and Restated Master Credit Facility
Agreement dated as of December 10, 2003, which has been further amended and
restated pursuant to that certain Second Amended and Restated Master Credit
Facility Agreement dated as of March 30, 2004, as amended by that certain First
Amendment to Second Amended and Restated Master Credit Facility Agreement dated
as of March 31, 2004, as further amended by that certain Second Amendment to
Second Amended and Restated Master Credit Facility Agreement dated as of April
30, 2004, as further amended by that certain Third Amendment to Second Amended
and Restated Master Credit Facility Agreement dated as of August 3, 2004, as
further amended by that certain Fourth Amendment to Second Amended and Restated
Master Credit Facility Agreement dated as of August 31, 2004, as further amended
by that certain Fifth Amendment to Second Amended and Restated Master Credit
Facility Agreement dated as of October 1, 2004, as further amended by that
certain Sixth Amendment to Second Amended and Restated Master Credit Facility
Agreement dated as of December 1, 2004, as further amended by that certain
Seventh Amendment to Second Amended and Restated Master Credit Facility
Agreement dated as of December 15, 2004, as further amended by that certain
Eighth Amendment to Second Amended and Restated Master Credit Facility Agreement
dated as of March 31, 2005, as further amended by that certain Ninth Amendment
to Second Amended and Restated Master Credit Facility Agreement dated as of
September 23, 2005, as further amended by that certain Tenth Amendment to Second
Amended and Restated Master Credit Facility Agreement dated as of December 16,
2005, as further amended by that certain Eleventh Amendment to Second Amended
and Restated Master Credit Facility Agreement dated as of February 22, 2006, as
further amended by that certain Twelfth Amendment to Second Amended and Restated
Master Credit Facility Agreement dated as of April 3, 2006, and as further
amended by that certain Thirteenth Amendment to Second Amended and Restated
Master Credit Facility Agreement dated as of April 28, 2006 (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 Xxxxxx Xxx pursuant
to that certain Assignment of Collateral Agreements and Other Loan Documents,
dated as of August 22, 2002 and that certain Assignment of Collateral Agreements
and Other Loan Documents, dated as of December 10, 2003 and that certain
Assignment of Collateral Agreements and Other Loan Documents dated as of March
31, 2004 (collectively, the “Assignment”). Xxxxxx
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. Xxxxxx
Xxx has designated the Lender as the servicer of the Loans contemplated by the
Master Agreement. Lender is entering into this Amendment in its capacity as
servicer of the loan set forth in the Master Agreement.
C. Borrower
and Lender are executing this Amendment to (i) reflect an increase in the
maximum amount by which the Commitment may be increased, (ii) reflect an
increase in the Variable Facility Commitment as set forth hereinafter, (iii)
reflect a Transfer of those certain Mortgaged Properties commonly known as
Calais Forest, located in Pulaski County, Arkansas (“Calais
Forest”), and Napa Valley, located in Pulaski County, Arkansas (“Napa
Valley”), from OP to REIT (the “Transfer”);
and (iv) revise certain definitions of Financial Covenants.
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. Maximum
Amount of Increase in Commitment. Notwithstanding the
provisions of Section 8.01(a) of the Master Agreement, which limit the maximum
amount by which Borrower is permitted to increase the Commitment, Lender hereby
agrees to grant Borrower a one-time right to increase the Commitment
to$691,785,000. In connection with the increase in Commitment, Lender
has granted Borrower a one-time right to increase the Commitment under the Other
Credit Agreement to $243,193,000. Borrower hereby agrees that the
total commitment, when added to the commitment of the Lender to the Borrower
under the Other Credit Agreement, shall not exceed $934,978,000. The
definition of “Reserved Amount” is hereby deleted in its entirety and restated
as follows:
“Reserved Amount”
means $0.
Section
2. Restriction
on Draw. Notwithstanding
the foregoing, the parties acknowledge that Borrower shall not be permitted to
draw a Future Advance until such time as (i) the Security Instrument with
respect to each Mortgaged Property in the Collateral Pool shall have been
amended to reflect an increased total secured amount of $934,978,000, and (ii)
Lender has received a date down endorsement to each Title Insurance Policy
amending the effective date of the Title Insurance Policy to the date of the
title search performed in connection with the endorsement.
Section
3. Expansion. The Variable
Facility Commitment is hereby increased by $82,600,000 and the definition of
Variable Facility Commitment is hereby replaced in its entirety with the
following new definition:
“Variable Facility
Commitment” means an aggregate amount of $691,785,000, which shall be evidenced
by the Variable Facility Note in the form attached hereto as Exhibit I, plus such
amount as the Borrower may elect to add to the Variable Facility Commitment in
accordance with Article VIII, and plus such amount as the Borrower may elect to
reborrow in accordance with Section 2.08, less such amount as the Borrower may
elect to convert from the Variable Facility Commitment to the Fixed Facility
Commitment in accordance with Article III and less such amount by which the
Borrower may elect to reduce the Variable Facility Commitment in accordance with
Article IX.
Section
4. Transfer
of Mortgaged Properties. Borrower has requested to Transfer
the fee simple ownership of Calais Forest and Napa Valley from OP to
REIT. Notwithstanding the provisions of Section 13.21 of the Master
Agreement, Lender hereby consents to the Transfer and agrees that no transfer
fee shall be due in connection with the Transfer. Exhibit AA to the
Master Agreement is hereby deleted in its entirety and replaced with the Exhibit
AA attached hereto.
Section
5. Financial
Covenants. The definition of “EBITDA” in the Master
Agreement is hereby amended and restated in its entirety as
follows:
“EBITDA” means, for
any period, the sum determined in accordance with GAAP, of the following, for
any Person on a consolidated basis--
(a) the
net income (or net loss) of such Person during such Period, but excluding gains
and losses on the sale of fixed assets;
(b) all
amounts treated as expenses for depreciation, Interest Expense and the
amortization of intangibles of any kind to the extent included in the
determination of such net income (or loss); and
(c) all
accrued taxes on or measured by income to the extent included in the
determination of such net income (or loss); provided,
however, that net income (or loss) shall be computed for these purposes without
giving effect to extraordinary losses (including storm related balance sheet
impairments) or extraordinary gains;
provided, however, that net income (or loss) shall be
computed for these purposes without giving effect to extraordinary losses,
extraordinary or unusual losses and impairment related to storm or earthquake,
or extraordinary gains.
Section
6. 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
7. Reaffirmation. The REIT and OP
hereby reaffirm their obligations under the Master Agreement as
Borrower.
Section
8. 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
9. 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.
[Remainder
of page intentionally left blank.]
IN
WITNESS WHEREOF, the parties hereto have executed this Amendment as of the day
and year first above written.
BORROWER:
MID-AMERICA
APARTMENT COMMUNITIES,
INC., a
Tennessee corporation
By:
/s/ Xx Xxxxxxxx
Name:
Xx Xxxxxxxx
Title:
Senior Vice President and Treasurer
MID-AMERICA
APARTMENTS, L.P.,
a
Tennessee limited partnership
By: Mid-America Apartment
Communities, Inc.,
a
Tennessee corporation, its general partner
By:
/s/ Xx Xxxxxxxx
Name: Xx Xxxxxxxx
Title: Senior
Vice President and Treasurer
LENDER:
PRUDENTIAL
MULTIFAMILY MORTGAGE, INC., aDelaware corporation
By: /s/ Xxxxxx
X. Xxxxxxxx
Name: Xxxxxx X.
Xxxxxxxx
Title: Vice
President
