EXHIBIT 10.31
AMENDMENT NO. 4 TO MASTER
REIMBURSEMENT AGREEMENT
THIS AMENDMENT NO. 4 TO MASTER
REIMBURSEMENT AGREEMENT (this “ Amendment No. 4
”) amends that certain Master Reimbursement Agreement made
and entered into as of June 1, 2001, by and among Fannie Mae,
Mid-America Apartments, L.P. and Fairways-Columbia, L.P. (as
amended, the “ Master Reimbursement Agreement ”)
and is made and entered into as of November 17, 2005 by and among
Fannie Mae, Mid-America Apartments, L.P., Mid-America Apartment
Communities, Inc. and Mid-America Apartments of Texas, L.P.
(individually and collectively, “ Borrower ”).
All capitalized terms not otherwise defined herein shall have the
respective meanings set forth in the Master Reimbursement
Agreement.
RECITALS
WHEREAS, the Borrower has requested
and Fannie Mae has agreed to add an Additional Mortgaged Property
to the Collateral Pool;
WHEREAS, Fannie Mae and Borrower
desire to amend the Master Reimbursement Agreement to add certain
provisions and to add the following Additional Mortgaged Property
to the Collateral Pool: Runaway Bay Apartments located in Mount
Pleasant, Charleston County, South Carolina (the “
2005 Additional Mortgaged Property
”);
WHEREAS, Prudential Multifamily
Mortgage, Inc., a Delaware corporation (the “ Lender
”) has agreed to make one or more additional loans to
Borrower pursuant to and subject to the terms and conditions of
that certain Master Credit Facility Agreement dated as of March 2,
2004 between Borrower and Lender, as assigned by the Lender to
Fannie Mae pursuant to the Assignment of Master Credit Facility
Agreement and Other Loan Documents dated as of March 2, 2004, and
as amended by Amendment No. 1 to Master Credit Facility Agreement
dated as of the date hereof (as so amended, the “ Credit
Agreement ”) among Borrower, Lender and Fannie
Mae.
WHEREAS, the obligations of Borrower
to Fannie Mae under the Credit Agreement and the related Loan
Documents, the Master Reimbursement Agreement and the Reimbursement
Security Documents are cross-defaulted and
cross-collateralized;
WHEREAS, Fannie Mae and Borrower
intend these Recitals to be a material part of this Amendment No.
4.
NOW, THEREFORE, for and in
consideration of Ten Dollars ($10.00), the mutual covenants and
agreements set forth herein, and other good and valuable
consideration, all of which each party agrees constitutes
sufficient consideration received at and before the execution
hereof, the parties agree as follows:
Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
AGREEMENTS
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1.
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Section 1.2 is hereby amended by adding the
following defined terms:
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“ 2005 Additional Mortgaged
Property ” means Runaway Bay Apartments located in Mount
Pleasant, Charleston County, South Carolina.
2. Section
1.2 is hereby amended by deleting the definition of
“Commitment” in its entirety and replacing such
definition with the following definition:
“ Commitment ”
means the aggregate original principal amount of the Bonds. The sum
of the Commitment under this Agreement and the “DMBS Loan
Commitment” under the Credit Agreement shall not exceed
$100,000,000.
3. Section
1.2 is hereby amended by deleting the definition of “Facility
Note” (as added to the Master Reimbursement Agreement by
Amendment No. 3 to the Master Reimbursement Agreement dated as of
March 2, 2004) in its entirety and replacing such definition with
the following definition:
“ Facility Note ”
means the DMBS Discount Multifamily Note in the initial principal
amount of $11,720,000 delivered by Borrower to Lender pursuant to
the Credit Agreement, as such note may be amended, supplemented or
amended and restated from time to time, including without
limitation in connection with the making of an additional loan
under the Credit Agreement, and any other promissory note issued by
the Borrower to Lender to evidence a loan made pursuant to the
Credit Agreement.
4. Section
1.2 is hereby amended by deleting the definition of
“Reimbursement Mortgages” in its entirety and replacing
such definition with the following definition:
“ Reimbursement
Mortgages ” means (i) each second priority Security
Instrument (including all riders thereto) executed by a Borrower in
favor of Fannie Mae on each of the Mortgaged Properties securing
the obligations of the Borrower under this Agreement, including,
without limitation, the obligations under Article IV of this
Agreement or (ii) in the case of the 2004 Additional Mortgaged
Properties known as Stassney Woods and Travis Station, each second
priority Security Instrument (including all riders thereto)
executed by a Borrower in favor of Fannie Mae and Lender on each of
such Mortgaged Property securing the obligations of the Borrower
under this Agreement, the Credit Agreement and the Facility
Note.”
5. Section
1.2 is hereby amended by deleting the definition of
“Underwriting Rate” in its entirety and replacing such
definition with the following definition:
“ Underwriting Rate
” means 6.9861% for the Mortgaged Property known as Fairways
Apartments, 6.9861% for the Mortgaged Property known as Post House
North Apartments, 6.9861% for the Mortgaged Property known
as
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Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
Reflection Pointe Apartments, 6.258%
for each of the Four Additional Mortgaged Properties, 6.22% for the
Mortgaged Property known as Westbury Creek Apartment, 6.1746% for
the Mortgaged Property known as Windridge Apartments, 6.13772% for
the Mortgaged Property known as The Park at Hermitage, 6.29552% for
the Mortgaged Property known as Travis Station Apartments, 6.26444%
for the Mortgaged Property known as Stassney Woods Apartments and
6.185% for the Mortgaged Property known as Runaway Bay
Apartments.
6. Section
1.2 is hereby amended by deleting the definition of “Unused
Capacity” in its entirety and replacing such definition with
the following definition:
“ Unused Capacity
” means, for any month, (i) the Commitment minus (ii) the
aggregate outstanding principal balance of the Bonds.
7. Section
2.6(1) (“ Financial Definitions ”) is hereby
amended by deleting the definition of “Net Worth” in
its entirety and replacing it with the following:
“ Net Worth ”
means, as of any specified dated, for any Person, the excess of the
Person’s assets over the Person’s liabilities,
determined in accordance with GAAP but excluding any adjustment for
the fair value of swaps or caps, on a consolidated basis, provided
that all real property shall be valued on an undepreciated
basis.
8. Section
2.6(5) (“ Compliance with REIT’s Net Worth Test
”), which was amended by Amendment No. 1, is hereby amended
by deleting such provision in its entirety and replacing it with
the following:
“2.6(5). Compliance with
REIT’s Net Worth Test . The REIT shall at all times
maintain its Net Worth so that it is not less than the highest Net
Worth covenant required by any other financial institution where
the REIT maintains a bank line (whether secured or unsecured), but
in no event less than $550,000,000 plus 65% of proceeds (less all
reasonable and customary expenses and costs) of equity offerings,
net of redemptions, consummated by the REIT after August 22,
2002.”
9. The
additional provision added to Section 3.13(1) pursuant to Amendment
No. 1 is hereby amended by deleting such provision in its entirety
and replacing it with the following:
“Notwithstanding that the
obligations under each Note and Bond Mortgage relating to the Four
Additional Mortgaged Properties, the Two Additional Properties, the
2004 Additional Mortgaged Properties and the 2005 Additional
Mortgaged Property are not generally personal obligations of the
Borrower and notwithstanding that Fannie Mae is a holder of such
Notes, each Borrower agrees and acknowledges that the intent of the
parties to this Agreement is that each Borrower is and shall
remain, except as provided in Section 3.13(2), jointly and
severally personally liable to Fannie Mae for the payment and
performance of all Obligations throughout the term of this
Agreement.
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Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
Consequently, in the event that
Fannie Mae becomes the sole holder of such Notes and Bond
Mortgages, by its rights of subrogation or otherwise, any amounts
owing to Fannie Mae under such Notes or Bond Mortgages shall be
joint and several personal obligations of each Borrower. In
addition, it is the intent of the parties that the non-recourse
liability of the Borrowers under such Notes shall not in any manner
or under any circumstances be interpreted or understood to
contradict, undermine, negate or nullify that each Borrower is and
shall remain, except as provided in Section 3.13(2), jointly and
severally personally liable to Fannie Mae for the payment and
performance of all Obligations throughout the term of this
Agreement.”
10. Section
5.3(c) is hereby amended by adding the following sentences to the
end thereof:
“If an Additional Mortgaged
Property is added to the Collateral Pool after October 1, 2005, the
Bonds relating to such Additional Mortgaged Property may mature up
to 30 years from the Closing Date relating to such Additional
Mortgaged Property, provided that the Credit Enhancement Instrument
supporting such Bonds shall have an Expiration Date which is the
same as the Expiration Date of the Credit Enhancement Instrument
supporting the Initial Bonds. The Principal Reserve Fund schedule,
if the Bonds bear interest at the Weekly Variable Rate, or the
amortization schedule of the Note, if the Bonds bear interest at
the Fixed Rate or Reset Rate, shall be over a time period equal to
the term of the Credit Enhancement Instrument or the maturity date
of the Bonds if such maturity date is later than the term of the
Credit Enhancement Instrument.
11. Section
9.5(a) is hereby amended by deleting the notice address of the Loan
Servicer in its entirety and replacing it with the
following:
“As to the Loan
Servicer:
Prudential Multifamily Mortgage,
Inc.
c/o Prudential Asset
Resources
2200 Ross Avenue
Suite 4900 E
Dallas, Texas 75201
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Attention:
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Fannie Mae Asset Management
Department
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Telecopy No.:
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(214) 777-4556
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with a copy to:
Prudential Multifamily Mortgage,
Inc.
8401 Greensboro Drive
Suite 200
McLean, Virginia 22102
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Attention:
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Michele Levoir-Sloan
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Telecopy No.:
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(703) 610-1401”
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Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
12. Schedules
2, 3, 4, 5 and 9 are hereby amended and restated in their entirety
as set forth in Annex 1 attached hereto.
13. By
execution and delivery of this Amendment No. 4 by Fannie Mae,
Fannie Mae hereby consents to the addition of the 2005 Additional
Mortgaged Property to the Fannie Mae Credit Facility as an
Additional Mortgaged Property effective as of November 17, 2005
(the “ Effective Date ”).
14. In
connection with the addition of the 2005 Additional Mortgaged
Property to the Fannie Mae Credit Facility as an Additional
Mortgaged Property, Borrower and Fannie Mae acknowledge and agree
as follows in relation to such Additional Mortgaged
Property:
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(a)
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The Facility Fee shall be as follows:
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(i)
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Credit Enhancement Rate shall be 57 basis points
per annum.
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(ii)
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Principal Reserve Fund Rate shall be 15 basis
points per annum.
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(iii)
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Loan Servicer’s Rate shall be 10 basis
points.
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(iv)
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Liquidity Rate shall be 12.5 basis
points.
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(v)
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Swap Credit Enhancement Rate shall be 17 basis
points for the initial five-year Swap purchased in connection with
the 2005 Additional Mortgaged Property and otherwise to be
determined at the time of the purchase of a Swap.
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(b) Standby
Fee shall be 15 basis points on any unused capacity of the Fannie
Mae Credit Facility and/or the Fannie Mae Credit Facility expansion
capacity.
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(c)
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Substitution Fee shall be 75 basis
points.
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(d)
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Collateral Addition Fee shall be 75 basis
points.
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(e)
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Release Fee shall be $15,000 per Collateral
Release Property.
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(f)
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The Strike Rate shall be 6% for the Tax-Exempt
Bonds.
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(g)
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The Hedge Rate shall be 6% for the Tax-Exempt
Bonds.
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(h)
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The Underwriting Rate shall be 6.185% for the
Mortgaged Property known as Runaway Bay Apartment.
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15. Fannie
Mae hereby waives the requirement of Section 17(a)(5) of the
Reimbursement Mortgage and the Conventional Mortgage relating to
the Mortgaged Property known as Runaway Bay Apartments that
Borrower enter into a written contract for management of such
Mortgaged Property, provided however, that
(a) In
the event that the Borrower should ever elect to employ an
affiliate or third party management company for the management of
the Mortgaged Property, the Borrower agrees that (i) the management
company and the management agreement to be executed therewith are
subject to the prior written approval of Fannie Mae, which approval
may be
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Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
granted or denied in Fannie Mae’s sole and
absolute discretion and (ii) any such approved management company
shall not receive a management fee greater than 4% of gross
collected rents from the Mortgaged Property;
(b) In
the event that the Borrower should ever elect to contract with an
affiliate or third party management company for the management of
the Mortgaged Property, the Borrower agrees to execute (and to
cause any such management company to execute) in favor of Fannie
Mae an “Assignment of Management Agreement” on a form
approved by Fannie Mae; and
(c) Borrower
acknowledges that Fannie Mae reserves the right, under the Loan
Documents, to require independent, professional third party
management of the Mortgaged Property if inadequate or at any time
after the occurrence of an Event of Default. At any time after an
Event of Default shall have occurred, Fannie Mae shall have the
right either (i) to direct the Borrower to contract with a third
party management company approved by Fannie Mae for the management
of the Mortgaged Property or (ii) to assume responsibility for the
management of the Mortgaged Property, directly or through its
designee. Promptly upon Fannie Mae’s written request after
the occurrence of an Event of Default, Borrower shall turn over to
Fannie Mae all books and records relating to the Mortgaged Property
(copies of which may be retained by Borrower, at Borrower's
expense), together with such authorizations and letters of
direction addressed to tenants, suppliers, employees, banks and
other parties as Fannie Mae may reasonably require. Borrower shall
cooperate with Fannie Mae in the transfer of management
responsibilities to Fannie Mae or its designee.
16. The
Borrower covenants and agrees to protect, defend and save harmless
Fannie Mae and Lender from all loss, costs and damages, including,
without limitation, costs of demolition and restoration of the
improvements located on the Mortgaged Property known as Stassney
Woods and reasonable attorney’s fees and expenses, that
Fannie Mae may suffer, expend or incur arising out of or in
connection with the City of Austin’s exercise of any of its
rights under that certain Easement dated March 5, 1987, recorded in
Volume 10311, page 491 of the Real Property Records of Travis
County, Texas and encumbering such Mortgaged Property.
17. This
Amendment No. 4 shall be construed, interpreted and enforced in
accordance with, and the rights and remedies of the parties hereto
shall be governed pursuant to, the provisions of Section 9.3 of the
Master Reimbursement Agreement (entitled “Governing Law;
Choice of Law; Consent to Jurisdiction; Waivers of Jury
Trial”), which provisions are hereby incorporated into this
Amendment No. 4 by this reference to the fullest extent as if the
text of such provisions were set forth in their entirety
herein.
18. Except
as herein expressly modified or amended, all terms and covenants,
and provisions of the Master Reimbursement Agreement are hereby
ratified and confirmed by the Borrower and Fannie Mae and remain in
full force and effect.
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19.
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The Borrower represents and warrants to Fannie
Mae as follows:
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Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
(a) All
representations and warranties set forth in the Master
Reimbursement Agreement are true and correct as of November 17,
2005.
(b) There
exists no Event of Default or Potential Event of Default as
described in the Master Reimbursement Agreement as of November 17,
2005.
20. This
Amendment No. 4 may be executed in any number of counterparts, each
of which shall be effective only upon delivery and thereafter shall
be deemed an original, and all of which shall be taken to be one
and the same instrument, for the same effect as if all parties
hereto had signed the same signature page.
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Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
IN WITNESS WHEREOF, the parties
hereto have caused this Amendment No. 4 to be signed, sealed, and
delivered by their duly authorized representatives as of the date
first above written.
MID-AMERICA APARTMENTS,
L.P., a Tennessee limited
partnership
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By:
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Mid-America Apartment Communities, Inc., a
Tennessee corporation, its sole General Partner
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By:
__________________________
Al Campbell
Senior Vice President and
Treasurer
MID-AMERICA APARTMENT
COMMUNITIES, INC. , a
Tennessee corporation
By:
__________________________
Al Campbell
Senior Vice President and
Treasurer
MID-AMERICA APARTMENTS OF TEXAS,
L.P., a Texas limited
partnership
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By:
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MAC of Delaware, Inc., a Delaware corporation,
its sole General Partner
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By:
__________________________
John A. Good
Assistant Secretary
S-1
Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
FANNIE MAE
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By:___________________________
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Name:
Title:
S-2
Amendment No. 4 to
Master Reimbursement Agreement
Mid-America Apartments
ANNEX 1
(See attached schedules)
A-1
Master Reimbursement Agreement
Mid-America Apartments
SCHEDULE 2
BONDS, ISSUERS AND MORTGAGED
PROPERTIES
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Bonds
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Issuer
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Mortgaged Property
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$5,880,000 City of Flowood, Mississippi Variable
Rate Multi-Family Housing Refunding Revenue Bonds, Series 2001
(Reflection Pointe Apartments Project)
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City of Flowood, Mississippi
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Reflection Pointe Apartments
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$7,735,000 South Carolina State Housing Finance
and Development Authority Multifamily Rental Housing Revenue
Refunding Bonds (Fairway Apartments Project), Series 2001
A
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South Carolina State Housing Finance and
Development Authority
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Fairways Apartments
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$3,375,000 The Health, Educational and Housing
Facility Board of the City of Jackson Multifamily Housing Revenue
Refunding Bonds, Series 2001 (Post House North
Apartments)
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The Health, Educational and Housing Facility
Board of the City of Jackson
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Post House North Apartments
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$7,000,000 Housing Finance Authority of Volusia
County, Florida Multifamily Housing Revenue Refunding Bonds, Series
2002 (The Anatole Apartments)
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Housing Finance Authority of Volusia County,
Florida
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The Anatole Apartments
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$5,095,000 The Health, Educational and Housing
Facility Board of the City of Jackson Mult
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