Exhibit 10(c)
FIRST MODIFICATION TO CREDIT FACILITY AND
SECOND AMENDMENT TO MASTER LOAN AGREEMENT
THIS FIRST MODIFICATION TO CREDIT FACILITY AND SECOND AMENDMENT TO
MASTER LOAN AGREEMENT (this "Agreement") is made as of this 1st day of
October, 1998, and is effective as of the 1st day of October, 1998, by and
among the following entities: (i) BANC ONE CAPITAL PARTNERS IV, LTD., an
Ohio limited liability company (the "Lender"), (ii) INTERSTATE GENERAL
COMPANY, L.P., a Delaware limited partnership ("IGC"), (iii) AMERICAN
COMMUNITY PROPERTIES TRUST, a Maryland real estate investment trust
("ACPT"), (iv) ST. XXXXXXX COMMUNITY, LLC, a Delaware limited liability
company ("St. Xxxxxxx"), (v) XXXXX X. XXXXXX ("Xxxxx Xxxxxx"), (vi) J.
XXXXXXX XXXXXX ("Xxxxxxx Xxxxxx"), (vii) XXXXX X. XXXXX ("Xxxxx Xxxxx")
(Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, and Xxxxx Xxxxx are herein the "Original
Guarantors"), (viii) AMERICAN RENTAL PROPERTIES TRUST, a Maryland real
estate investment trust ("American Rental"), (ix) AMERICAN RENTAL
MANAGEMENT COMPANY, a Delaware corporation ("American Management"), (x)
AMERICAN LAND DEVELOPMENT U.S., INC., a Maryland corporation ("American
Land"), (xi) IGP GROUP CORP., a Puerto Rico corporation ("IGP Group") and
(xii) AMERICAN HOUSING PROPERTIES, L.P., a Delaware limited partnership
("American Housing") (American Rental, American Management, American Land,
American Housing and IGC Group are herein, the "Subsidiary Entities").
RECITALS
I. ORIGINAL LOAN STRUCTURE.
WHEREAS, pursuant to that certain Master Loan Agreement, dated as of
August 1, 1997, by and among IGC, ACPT, St. Xxxxxxx and Lender, as amended
by that certain First Amendment to Master Loan Agreement, dated as of
September 30, 1997, by and among IGC, ACPT, St. Xxxxxxx and Lender (the
Master Loan Agreement, as amended by the First Amendment to Master Loan
Agreement is herein, the "Original Loan Agreement"), Lender agreed to
provide IGC and ACPT a credit facility in the principal sum of up to Twenty
Million Dollars ($20,000,000) (the "Original Credit Facility" and the
Original Credit Facility as amended pursuant to the terms herein, the
"Credit Facility"); and
WHEREAS, the obligations of ACPT and IGC under the Original Loan
Agreement were evidenced by that certain Promissory Note dated as of August
1, 1997, in the original principal sum of Twenty Million Dollars
($20,000,000) executed and delivered by IGC and ACPT to Lender (the
"Original Promissory Note"); and
WHEREAS, pursuant to the terms of the Original Loan Agreement, IGC and
ACPT have re-loaned a portion of the Original Credit Facility proceeds to
St. Xxxxxxx to fund St. Xxxxxxx' development of certain of the Real
Property (as defined below); and the obligations of St. Xxxxxxx to repay
such sums to IGC and ACPT are evidenced by that certain Mirror Promissory
Note dated as of August 1, 1997, in the original principal sum of Twenty
Million Dollars ($20,000,000) executed and delivered by St. Xxxxxxx to IGC
and ACPT (the "Original Mirror Promissory Note"); and
A. Real Estate Collateral.
WHEREAS, pursuant to that certain Property Owner Guaranty
Agreement, dated as of August 1, 1997, from St. Xxxxxxx to Lender (the
"Original Property Guaranty"), St. Xxxxxxx guaranteed the obligations of
IGC and ACPT under the Original Loan Agreement and Original Promissory
Note; St. Xxxxxxx secured its obligations under the Original Property
Owner Guaranty pursuant to (i) that certain Indemnity Deed of Trust,
Security Agreement and Assignment of Leases and Rents, from St. Xxxxxxx to
Xxxxxxx X. Xxxxx and Xxxxxx X. Xxxxxx, as Trustees (the "Trustees") for the
benefit of Lender and recorded among the Land Records of Xxxxxxx County
(the "Original Deed of Trust"), thereby encumbering approximately 4,400
acres of improved and unimproved real estate located in Xxxxxxx County (the
"Real Property"); (ii) that certain Assignment of Contracts dated as of
August 1, 1997, from IGC and St. Xxxxxxx for the benefit of Lender (the
"Original Assignment of Contracts"); and (iii) that certain Assignment of
Plans, Specifications and Permits, dated as of August 1, 1997, from IGC and
St. Xxxxxxx for the benefit of Lender (the "Original Assignment of Plans,
Specifications and Permits", and together with the Original Property
Guaranty, Original Deed of Trust, and Original Assignment of Contracts, the
"Original Real Estate Collateral Documents"); and
B. Partnership Interest Collateral.
WHEREAS, IGC further secured its obligations to Lender under the
Original Credit Facility pursuant to that certain Assignment and Pledge of
Partnership Interest, dated as of August 1, 1997, by and between Lender and
IGC (the "IGC Partnership Pledge Agreement"), whereby IGC conveyed to
Lender and granted to Lender a security interest in, all of IGC's right,
title and interest in certain partnerships formed under Maryland law
(herein collectively, the "Maryland Partnerships"), and pursuant to that
certain Assignment and Pledge of Partnership Interest, dated as of August,
1998, by and between Lender and IGC (the "IGPLP Partnership Pledge
Agreement", and together with the IGC Partnership Pledge Agreement, the
"Partnership Pledge Agreements"), whereby IGPLP conveyed to Lender and
granted to Lender a security interest in, all of IGC's right, title and
interest in Interstate General Properties Limited Partnership S.E., a
Maryland limited partnership ("IGPLP"); and
WHEREAS, IGC, either directly or indirectly, further secured its
obligations to Lender under the Original Credit Facility pursuant to that
certain Assignment and Pledge of Management Fees, dated as of August 1,
1997, between Lender and IGC (the "Pledge of IGC Management Fees"), whereby
IGC conveyed to Lender and granted to Lender a security interest in, all of
IGCs right, title and interest in and to the management fees (the "American
Partnership Management Fees") payable to IGC by the Maryland partnerships
and certain other partnerships (herein collectively, the "American
Partnerships"); and pursuant to that certain Assignment and Pledge of
Management Fees, dated as of August 1, 1997, between Lender and IGPLP (the
"Pledge of IGPLP Management Fees", and together with the Pledge of IGC
Management Fees, the "Pledge of Management Fees"), whereby IGPLP conveyed
to Lender and granted to Lender a security interest in, all of IGPLP's
right, title and interest in and to the management fees (the "Puerto Rico
Management Fees", and together with the American Partnership Management
Fees, the "Partnership Management Fees") payable to IGPLP by certain
partnerships (herein collectively, the "Puerto Rico Partnerships"); and
WHEREAS, IGC, either directly or indirectly, further secured its
obligations to Lender under the Original Credit Facility pursuant to (i)
that certain Assignment of Incentive Management Fees, dated as of August 1,
1997, by and between IGC and Lender (the "IGC Assignment of Incentive
Management Fees"), whereby IGC conveyed to Lender and granted to Lender a
security interest in, all of IGC's right, title and interest in and to all
incentive management fees (the "IGC Incentive Management Fees") payable to
IGC by the American Partnerships; (ii) that certain Assignment of Incentive
Management Fees, dated as of August 1, 1997, by and between IGPLP and
Lender (the "IGPLP Assignment of Incentive Management Fees"), whereby IGPLP
conveyed to Lender and granted to Lender a security interest in, all of
IGPLP's right, title and interest in and to all management fees (the "IGPLP
Incentive Management Fees") payable to IGPLP by all of the Puerto Rico
Partnerships except for Carolina Associates Limited Partnership; and (iii)
that certain Assignment and Pledge of Excluded Incentive Management Fees,
dated as of August 1, 1997, between Lender and IGPLP (the "Pledge of IGPLP
Excluded Incentive Management Fees", and together with the IGC Assignment
of Incentive Management Fees and IGPLP Assignment of Incentive Management
Fees, the "Assignment of Incentive Management Fees"), whereby IGPLP
conveyed to Lender and granted to Lender a security interest in, all of
IGPLP's right, title and interest in and to the incentive management fees
(the "IGPLP Excluded Incentive Management Fees", together with the IGC
Incentive Management Fees and IGPLP Incentive Management Fees, the
"Incentive Management Fees") payable to IGPLP by Carolina Associates
Limited Partnership; and
WHEREAS, IGC, either directly or indirectly, further secured its
obligations to Lender under the Original Credit Facility pursuant to that
certain Assignment and Pledge of Operating Deficit Loans, dated as of
August 1, 1997, by and between Lender and IGC (the "IGC Deficit Loans
Pledge"), whereby IGC conveyed to Lender and granted to Lender a security
interest in, all of IGC's right, title and interest in and to all amounts
due to IGC relating to those certain short term operating deficit loans
(the "American Partnership Deficit Loans") made from time to time by IGC to
the American Partnerships; and pursuant to that certain Assignment and
Pledge of Operating Deficit Loans, dated as of August 1, 1997, by and
between Lender and IGPLP (the "IGPLP Deficit Loans Pledge", and together
with the IGC Deficit Loans Pledge, the "Deficit Loans Pledge"), whereby
IGPLP conveyed to Lender and granted to Lender a security interest in, all
of IGPLP's right, title and interest in and to all amounts due to IGPLP
relating to those certain short term operating deficit loans (the "Puerto
Rico Partnership Deficit Loans" together with the American Partnership
Deficit Loans, are herein the "Partnership Deficit Loans") made from time
to time by IGPLP to the Puerto Rico Partnerships; and
WHEREAS, IGC, either directly or indirectly, further secured its
obligations to Lender under the Original Credit Facility pursuant to that
certain Assignment of Proceeds from Sale of Partnership Interest, dated as
of August 1, 1997, by and between IGC and Lender (the "IGC Assignment of
Sale Proceeds"), whereby IGC conveyed to Lender and granted to Lender a
security interest in, all of IGC's right, title and interest in and to all
proceeds received by or payable to IGC from the sale or transfer of IGC's
partnership interests in the American Partnerships; and pursuant to that
certain Assignment of Proceeds from Sale of Partnership Interest, dated as
of August 1, 1997, by and between IGPLP and Lender (the "IGPLP Assignment
of Sale Proceeds", and together with the IGC Assignment of Sale Proceeds,
the "Assignment of Sale Proceeds"), whereby IGPLP conveyed to Lender and
granted to Lender a security interest in, all of IGPLP's right, title and
interest in and to all proceeds received by or payable to IGC from the sale
or transfer of IGPLP's partnership interests in the Puerto Rico
Partnerships; and
WHEREAS, IGC, either directly or indirectly, further secured its
obligations to Lender under the Original Credit Facility pursuant to that
certain Assignment of Proceeds, dated as of August 1, 1997, by and between
IGC and Lender (the "IGC Assignment of Proceeds"), whereby IGC conveyed to
Lender and granted to Lender a security interest in, all of IGC's right,
title and interest in and to all distributions and other amounts received
by or payable to IGC certain of the Maryland Partnerships; and pursuant to
that certain Assignment of Proceeds, dated as of August 1, 1997, by and
between IGPLP and Lender (the "IGPLP Assignment of Proceeds", and together
with the IGC Assignment of Proceeds, the "Assignment of Proceeds" ),
whereby IGPLP conveyed to Lender and granted to Lender a security interest
in, all of IGPLP's right, title and interest in and to all distributions
and other amounts received by or payable to IGPLP from the Puerto Rico
Partnerships; and
WHEREAS, IGC, either directly or indirectly, further secured its
obligations to Lender under the Original Credit Facility pursuant to that
certain Assignment of Long Term Receivables, dated as of August 1, 1997, by
and between IGC and Lender (the "IGC Assignment of Long Term Receivables"),
whereby IGC conveyed to Lender and granted to Lender a security interest
in, all of IGC's right, title and interest in and to all proceeds payable
to or received by Assignor relating to long-term loans made by Assignor to
the American Partnerships (the "IGC Long Term Receivables"); and pursuant
to that certain Assignment of Long Term Receivables, dated as of August 1,
1997, by and between IGPLP and Lender (the "IGPLP Assignment of Long Term
Receivables", and together with the IGC Assignment of Long Term
Receivables, the "Assignment of Long Term Receivables"), whereby IGPLP
conveyed to Lender and granted to Lender a security interest in, all of
IGPLP's right, title and interest in and to all proceeds payable to or
received by Assignor relating to long-term loans made by Assignor to the
Puerto Rico Partnerships (the "IGPLP Long Term Receivables", and together
with the IGC Long Term Receivables, the "Long Term Receivables"); and
WHEREAS, the Partnership Pledge Agreements, Pledge of Management
Fees, Assignment of Incentive Management Fees, Deficit Loans Pledge,
Assignment of Proceeds, and Assignment of Long Term Receivables all as
amended to date are herein collectively, the "Original Partnership
Collateral Documents"; and Lender's rights pursuant to the Original
Partnership Collateral Documents, the Maryland Partnerships, IGPLP, the
Partnership Management Fees, the Incentive Management Fees, the Partnership
Deficit Loans, and the Long Term Receivables are herein collectively the
"Partnership Collateral"; and
C. Guaranties, Indemnifications and Warrants.
WHEREAS, certain of the obligations of IGC and ACPT are
guaranteed by (i) Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, and Xxxxx Xxxxx pursuant to
that certain Guaranty Agreement dated as of August 1, 1998 from Xxxxx
Xxxxxx, Xxxxxxx Xxxxxx, and Xxxxx Xxxxx to and for the benefit of Lender
(the "Original Principal Guaranty"); and (ii) Xxxxx Xxxxxx pursuant to that
certain Guaranty Agreement dated as of August 1, 1997 from Xxxxx Xxxxxx to
and for the benefit of Lender, as amended by that certain First Amendment
to Guaranty Agreement dated as of September 30, 1997 by and between Xxxxx
Xxxxxx and Lender (the Guaranty Agreement, as amended by the First
Amendment to Guaranty Agreement is herein, the "Original Xxxxxx Guaranty");
and
WHEREAS, pursuant to that certain letter dated as of August 1,
1997, from IGC, ACPT, St. Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, and Xxxxx
Xxxxx to Lender (the "Original Environmental Indemnification"), each IGC,
ACPT, St. Xxxxxxx, Xxxxx Xxxxxx, Xxxxxxx Xxxxxx, and Xxxxx Xxxxx agreed to
indemnify and hold Lender harmless against certain environmental claims
which may arise relating to the Real Property; and
WHEREAS, as additional consideration for agreeing to provide the
Credit Facility, IGC granted Lender a right to purchase units of limited
partnership interest of IGC pursuant to that certain Warrant Certificate,
dated as of August 1, 1997, from IGC to Lender (the "Original Warrant
Certificate") (the Original Loan Agreement, the Original Promissory Note,
the Original Mirror Promissory Note, the Original Real Estate Collateral
Documents, the Original Partnership Collateral Documents, the Original
Principal Guaranty, the Original Xxxxxx Guaranty, the Original
Environmental Indemnification and the Original Warrant Certificate are
herein the "Original Loan Documents"); and
II. RESTRUCTURING OF IGC AND ACPT.
WHEREAS, IGC holds all of the issued and outstanding shares of
American Rental, American Management, American Land and IGP Group; and
American Rental owns a 99% limited partnership interest in American Housing
and is the sole stockholder of American Housing Management Company, a
Delaware corporation ("American Housing"), which owns a 1% general
partnership interest in American Housing; and
WHEREAS, as set forth in the Registration Statement of ACPT on Form S-
11 Registration No. 333-58835 as filed with the Securities and Exchange
Commission (the "Registration Statement") IGC and ACPT will consummate the
terms of the "Restructuring" as defined therein (the "Restructuring")
whereby, among other things, IGC will (i) transfer and convey to American
Land, all of its right, title and interest in all of the membership
interests of St. Xxxxxxx, and then subsequently transfer and convey to ACPT
all of its right, title and interest in all of the issued and outstanding
shares of American Land; (ii) transfer and convey to IGP Group, American
Land and American Housing, all of IGC's right, title and interest in 100%
of the partnership interests in IGPLP and then subsequently transfer and
convey to ACPT, all of IGC's right, title and interest in all of the issued
and outstanding shares of IGP Group; and (iii) pursuant to the Partnership
Transfer Documents (as defined in Schedule 4 hereto) transfer and convey to
American Housing all of IGC's right, title and interest in certain of the
American Partnerships which will result in American Housing holding all of
IGC's right, title and interest in the American Partnerships and then
subsequently convey to ACPT all of IGC's right, title and interest in all
of the issued and outstanding shares of American Rental; and
WHEREAS, in connection with the Restructuring, IGC, ACPT and the
Lender wish to (i) modify and amend the terms of the Original Credit
Facility and the Original Loan Documents and release ACPT as a primary
obligor of the Original Credit Facility, a co-maker of the Original
Promissory Note and a borrower under the Original Loan Agreement, (ii)
permit American Land to assume all of the obligations of ACPT under the
Original Credit Facility and Original Loan Documents, and (iii) release all
of Lender's interest in the Released Partnership Collateral (defined
below); and
WHEREAS each of IGC, ACPT, American Land, American Rental, American
Housing, IGP Group and American Management will receive substantial
benefits in connection with the Restructuring, and Lender wishes to modify
the Original Credit Facility and the Original Loan Documents as hereinafter
provided, so that upon transfer of the Released Partnership Collateral, the
Released Partnership Collateral will not be subject to the Obligations;
and
WHEREAS, in consideration for the release of ACPT by Lender of its
direct obligations under the Original Credit Facility, Lender's agreement
to release all of its interests in the Partnership Collateral and Lender's
agreement to otherwise modify and amend the Original Credit Facility, as
hereinafter provided, American Land has agreed to assume all obligations of
ACPT under the Original Credit Facility and the Original Loan Documents,
ACPT has agreed to unconditionally guarantee the obligations of IGC and
American Land under the Credit Facility and the Original Loan Documents, as
amended hereby, and ACPT and IGC have further agreed to secure its
obligations to Lender by pledging to Lender all of the issued and
outstanding shares of American Rental, American Management, American Land
and IGP Group to be held by ACPT; and
WHEREAS, as additional consideration for Lender's agreement to modify
and amend the Original Credit Facility as hereinafter provided, American
Housing, IGP Group and American Management have agreed to guarantee the
obligations of IGC and American Land under the Credit Facility and the
Original Loan Documents and ACPT under the ACPT Guaranty Agreement (as
defined herein) and have further agreed that their respective guaranty
agreements shall include certain negative covenants whereby each will
agree, among other things, that it shall not directly or indirectly
encumber or otherwise pledge any of the Partnership Collateral owned by
such entity; and Xxxxx Xxxxxx and his wife, Xxxxxxx X. Xxxxxx have agreed
to unconditionally guarantee the obligations of IGC, ACPT and American Land
to Lender.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto agree as follows without in any way or
manner whatsoever affecting, limiting, impairing, releasing, changing or
evading any of the provisions of the Original Loan Documents except to the
extent expressly and specifically amended or modified by the provisions of
this Agreement or by instruments or agreements executed and delivered
pursuant to this Agreement.
ARTICLE I
Section 1. Definitions and Rules of Construction, Recitals.
1.1. Definitions. As used in this Agreement, the terms defined in
the Recitals hereto shall have the respective meaning specified therein.
Terms used herein but not otherwise defined shall have the meanings given
to them under in the Original Loan Agreement.
1.2. Rules of Construction. All accounting terms which are not
expressly defined herein shall have the meanings given to them under
generally accepted accounting principles ("GAAP"), consistently applied to
applicable persons. Unless otherwise defined herein or in he Original Loan
Agreement, all terms used herein which are defined by the Maryland Uniform
Commercial Code shall have the same meanings as given to them by the
Maryland Uniform Commercial Code unless and to the extent varied by this
Agreement or the Original Loan Agreement. The words "hereof", "herein",
and "hereunder" and words of similar import when used in this Agreement
shall refer to this Agreement as a whole and not to any particular
provision of this Agreement, and "Section", "Subsection", "Schedule" and
"Exhibit" references to sections or subsections of, or schedules or
exhibits to, as the case may be, of this Agreement unless otherwise
specified. As used herein, the singular number shall include the plural,
the plural shall include the singular and the use of the masculine,
feminine or neuter gender shall include all genders, as the context may
require.
1.3. Incorporation of Recitals. The Recitals set forth hereinabove
are hereby incorporated into this Agreement as though fully set forth
herein.
Section 2. Assumption of Obligations by American Land. In consideration
for IGC's conveyance of all of its right, title and interest in St. Xxxxxxx
to American Land, American Land hereby assumes any and all obligations of
ACPT under the Original Credit Facility, the Original Loan Agreement and
all other Original Loan Documents, and succeeds to the rights and
obligations of ACPT thereunder, and further hereby represents, warrants and
covenants that it will perform all of the obligations of ACPT in accordance
with the terms thereof. From and after the date of this Agreement,
American Land shall be deemed one of the Borrowers, together with IGC,
under the Original Loan Agreement, the Original Promissory Note, and all
other Original Loan Documents.
Section 3. Release of ACPT. Lender hereby releases and discharges ACPT as
a direct obligor under the Credit Facility, a Borrower under the Original
Loan Agreement, a co-maker of the Original Promissory Note and as borrower
or obligor under any of the other Original Loan Documents, provided,
however, that such release shall not in any way be deemed nor interpreted
as a release of ACPT as a guarantor of any of the Obligations existing or
arising after the date hereof, pursuant to that certain ACPT Guaranty
Agreement (as hereinafter defined), executed and delivered by ACPT
simultaneously herewith. Notwithstanding the release of ACPT as a Borrower
under the Original Loan Agreement, ACPT shall, and hereby agrees to,
perform, observe and comply with the Affirmative Covenants and the Negative
Covenants set forth in Sections 5 and 6 of the Original Loan Agreement as
if ACPT remains a "Borrower" thereunder.
Section 4. Release of Partnership Collateral; Consummation of
Restructuring.
4.1 Release of Partnership Collateral. Lender waives, relinquishes
and releases all of its right, title and interest in all of the Partnership
Collateral except for the "Retained Partnership Collateral" as defined on
Schedule 4 hereto (such released portion of the Partnership Collateral
being referred to herein as the "Released Partnership Collateral"),
effective immediately preceding the assignment and transfer of the Released
Partnership Collateral by IGC to American Management, IGP Group and
American Housing pursuant to the Restructuring. Lender agrees to execute
and deliver to IGC and ACPT such UCC-3 Termination Statements and such
other documents necessary to effectuate such relinquishment and release of
the Released Partnership Collateral as reasonably requested by IGC and
ACPT. IGC and ACPT agree to execute and deliver, or cause their affiliates
to execute and deliver, to Lender such documents as Lender may reasonably
request to confirm and ratify Lender's rights with respect to the Retained
Partnership Collateral.
4.2 Consummation of Restructuring. IGC covenants and agrees that
immediately following the relinquishment and release by Lender of all of
its right, title and interest in the Released Partnership Collateral, IGC
will assign and transfer the respective Released Partnership Collateral to
American Management, IGP Group and American Housing and will promptly, in
accordance with the Restructuring, assign and transfer all of the issued
and outstanding shares of stock and beneficial interest in American Land,
American Rental, IGP Group and American Management to ACPT in exchange for
shares of beneficial interest in ACPT, and distributing such shares of
beneficial interest in ACPT to the unitholders of IGC.
Section 5. Amendments and Modifications to Original Loan Documents.
5.1. Modification to Master Loan Agreement. The Original Loan
Agreement shall be and hereby is, modified and amended as follows (all
references in this Section 5.1 to Subsections shall mean Subsections of the
Original Loan Agreement):
5.1.1. Any and all reference to the term "Borrower" shall now
mean both IGC and American Land, jointly and severally.
5.1.2. The definition of "Base Rate" under Subsection 1.8 is
amended by deleting all of the text of such subsection and inserting in
lieu thereof "means the Base Interest Rate under the Note equal to the Bank
One Prime Rate, as in effect from time to time, plus Six Hundred Fifty
(650) Basis Points, provided, however, that if and when Bank One is re-
granted a security interest in the Released Partnership Collateral as more
fully set forth in the Note, then effective as of the first calendar day of
the immediately succeeding calendar month, the Base Interest Rate under the
Note shall be equal to the Bank One Prime Rate, as in effect from time to
time, plus Two Hundred Fifty (250) Basis Points."
5.1.3. The definition of "Borrower" in Subsection 1.10 is
amended by deleting all of the text therefrom and inserting in lieu thereof
"means individually and collectively IGC and American Land".
5.1.4. The definition of "Financing Documents" in Subsection
1.32 is amended to include this Agreement and the other Loan Modification
Documents.
5.1.5. The definition of "Guarantor" and "Guarantors" in
Subsection 1.38 is amended by adding thereto, Xxxxxxx X. Xxxxxx, the spouse
of Xxxxx Xxxxxx.
5.1.6. The definition of "Loan Agreement" is hereby added and
inserted as Subsection 1.51A, and shall mean collectively, the Original
Loan Agreement as modified and amended by this Agreement.
5.1.7. The definition of "Loan Modification Documents" is
hereby added and inserted as Subsection 1.51B, and shall mean collectively,
this Agreement, the Amended and Restated Promissory Note, the Amendment to
Property Owner Guaranty Agreement, the Amended and Restated Mirror
Promissory Note, the Modification to Deed of Trust, the Modification of
Assignment of Contracts and Assignment of Plans, Specifications and
Permits, the Amended and Restated Principals' Guaranty, the Amended and
Restated Xxxxxx Guaranty, the Amended and Restated Environmental
Indemnification, the ACPT Guaranty, the Stock Pledge Agreement, the IGP
Group Guaranty, the American Housing Guaranty, the American Management
Guaranty, the New Xxxxxx Guaranty, the ACPT Warrant Certificate and any
other documents or agreements executed and delivered in connection with the
first modification of the Original Credit Facility.
5.1.8. The definition of the term "Note" under Subsection 2.5.5
is amended to include the Amended and Restated Promissory Note (as
hereinafter defined).
5.1.9. The definition of the term "Mirror Note" in Subsection
2.5.5 is amended to include the Amended and Restated Mirror Note (as
hereinafter defined).
5.1.10. The definition of the term "Property Owner Guaranty" in
Subsection 2.6.1.1 is amended to include the First Amendment to Property
Owner Guaranty Agreement (as hereinafter defined).
5.1.11. The definition of the term "Key Principals Guaranty" in
Subsection 2.6.1.2 is amended to include the Amended and Restated Key
Principals Guaranty (as hereinafter defined).
5.1.12. The definition of the term "Xxxxxx Guaranty" in
Subsection 2.6.1.3 is amended to include the Amended and Restated Xxxxxx
Guaranty (as hereinafter defined).
5.1.13. Section 2.6.2 entitled "Collateral", is hereby amended
by adding a new subsection (e) as follows: "certain Stock Pledge Agreement
(which Stock Pledge Agreement, as the same may from time to time be
amended, restated, supplemented or otherwise modified, is herein called the
"Stock Pledge Agreement") whereby, IGC and ACPT pledged to Lender their
respective rights, title and interest in the "Pledged Stock" and adding to
the definition of "Collateral" contained therein the words "Pledged Stock".
5.1.14. Section 5.25 is hereby amended by deleting all of the
text therein and inserting in lieu thereof as follows: "For the term of the
Loan, ACPT shall maintain a ratio of aggregate liabilities to tangible net
worth equal to no greater than seven and one-half to one (7.5 to 1), and
the Borrower and ACPT shall maintain a ratio of combined aggregate
liabilities to combined tangible net worth equal to no greater than three
to one (3 to 1). For purposes of this Section 5.25, the term "tangible net
worth" shall mean the net worth ACPT, or ACPT and the Borrower combined, as
the case may be, less any good will and deferred costs, as calculated on a
GAAP basis."
5.1.15. A new Subsection 8.13 is added to read as follows:
8.13. Failure to Comply With Covenants. The failure by
any Borrower, ACPT or any of the Subsidiary Entities to perform, observe or
comply with any of the Negative Covenants contained in Section 6 of this
Agreement, any of the Negative Covenants contained in the ACPT Guaranty,
the IGP Group Guaranty, the American Housing Guaranty, the American Rental
Guaranty or the American Management Guaranty, or any of the Covenants
contained in the Stock Pledge Agreement.
5.1.16. A new Subsection 8.14 is added to read as follows:
8.14. Failure to Consummate Restructuring. The failure
of IGC to transfer and convey the Released Partnership Collateral to
American Management, IGP Group and American Housing immediately after the
relinquishment and release by Lender of its right, title and interest in
the Released Partnership Collateral, or the failure of IGC to assign and
transfer all of the issued and outstanding shares of stock and beneficial
interest in American Land, American Rental, IGP Group and American
Management to ACPT in exchange for shares of beneficial interest in ACPT
and distribution of such ACPT shares to IGC Unitholders on or before
October 31, 1998.
5.1.17. A new Subsection 8.15 is added to read as follows:
8.15. Other Events of Default. The occurrence of any
Event of Default under any of the other Financing Documents.
5.1.18. Subsection 10.5 is hereby amended by deleting all of
the text therein and inserting in lieu thereof as follows: "Upon completion
of the Restructuring, the parties hereby covenant and agree, that, without
further action by any party, as of such date of the Restructuring, IGC
shall be released from any and all prospective covenants, representations
or warranties arising hereunder, except for and excluding, the affirmative
covenants set forth under Section 5.25."
5.2. Amendment to Original Promissory Note. The Original Promissory
Note shall be amended and restated in accordance with the provisions of
that certain Amended and Restated Promissory Note (which Amended and
Restated Promissory Note, as the same may from time to time be extended,
replaced, amended, restated or otherwise modified, is herein the "Amended
and Restated Promissory Note") in the form attached hereto as Exhibit 5.2
to reflect, inter alia, the Restructuring, an increase in the Base Rate,
and American Land's assumption of ACPT's obligations under the Credit
Facility and Original Loan Documents. The Amended and Restated Promissory
Note has been executed and delivered by IGC and American Land
simultaneously herewith.
5.3. Amendment to Original Property Owner Guaranty Agreement. The
Original Property Owner Guaranty Agreement shall be amended in accordance
with the provisions of that certain First Amendment to Property Owner
Guaranty Agreement (which Amendment to Property Owner Guaranty Agreement,
as the same may from time to time be extended, replaced, amended, restated
or otherwise modified, is herein the "Amendment to Property Owner Guaranty
Agreement") in the form attached hereto as Exhibit 5.3 to reflect, inter
alia, the Restructuring, American Land's assumption of ACPT's obligations
under the Credit Facility and Original Loan Documents, and the change in
definition of the Base Rate. The Amendment to Property Owner Guaranty
Agreement has been executed and delivered by St. Xxxxxxx simultaneously
herewith.
5.4. Amendment to Original Mirror Promissory Note. The Original
Mirror Promissory Note shall be amended and restated in accordance with the
provisions of that certain Amended and Restated Mirror Promissory Note
(which Amended and Restated Mirror Promissory Note, as the same may from
time to time be extended, replaced, amended, restated or otherwise
modified, is herein the "Amended and Restated Mirror Promissory Note") in
the form attached hereto as Exhibit 5.4 to reflect, inter alia, the
Restructuring, American Land's assumption of ACPT's obligations under the
Credit Facility and Original Loan Documents and the change in definition of
the Base Rate. The Amended and Restated Mirror Promissory Note has been
executed and delivered by Property Owner; and assigned to Lender by allonge
executed and delivered by St. Xxxxxxx, simultaneously herewith.
5.5. Amendment to Indemnity Deed of Trust. The Indemnity Deed of
Trust shall be amended in accordance with the terms of that certain
Modification to Indemnity Deed of Trust (which Modification to Indemnity
Deed of Trust, as the same may from time to time be extended, replaced,
amended, restated or otherwise modified, is herein the "Modification to
Deed of Trust") in the form attached hereto as Exhibit 5.5 to reflect the
Restructuring and American Land's assumption of ACPT's obligations under
the Credit Facility. The Modification to Deed of Trust has been executed
and delivered by St. Xxxxxxx simultaneously herewith.
5.6. Amendment to Assignment of Contracts and Assignment of Plans,
Specifications and Permits. The Assignment of Contracts and Assignment of
Plans, Specifications and Permits shall be amended pursuant to the terms of
that certain Modification of Assignment of Contracts and Assignment of
Plans, Specifications and Permits (which Modification to Assignment of
Contracts and Assignment of Plans, Specifications and Permits, as the same
may from time to time be extended, replaced, amended, restated or
otherwise modified, is herein the "Modification of Assignment of Contracts
and Assignment of Plans, Specifications and Permits") in the form attached
hereto as Exhibit 5.6 to reflect, inter alia, the Restructuring and
American Land's assumption of ACPT's obligations under the Credit Facility
and Original Loan Documents. The Modification of Assignment of Contracts
and Assignment of Plans, Specifications and Permits has been executed and
delivered simultaneously herewith.
5.7. Original Principal's Guaranty. The Original Principal's Guaranty
shall be amended and restated in accordance with the provisions of that
certain Amended and Restated Principals' Guaranty (which Amended and
Restated Principals' Guaranty, as the same may from time to time be
extended, replaced, amended, restated or otherwise modified is herein the
"Amended and Restated Principals' Guaranty") in the form attached hereto as
Exhibit 5.7 to reflect, inter alia, the Restructuring and American Land's
assumption of ACPT's obligations under the Credit Facility and Original
Loan Documents. The Amended and Restated Principals' Guaranty has been
executed and delivered by the Key Principals simultaneously herewith.
5.8. Original Xxxxxx Guaranty. The Original Xxxxxx Guaranty shall be
amended and restated in accordance with the provisions of that certain
Amended and Restated Xxxxxx Guaranty (which Amended and Restated Xxxxxx
Guaranty, as the same may from time to time be extended, replaced, amended,
restated or otherwise modified is herein the "Amended and Restated Xxxxxx
Guaranty") in the form attached hereto as Exhibit 5.8 to reflect, inter
alia, the Restructuring and American Land's assumption of ACPT's
obligations under the Credit Facility and Original Loan Documents. The
Amended and Restated Xxxxxx Guaranty has been executed and delivered by
Xxxxx Xxxxxx simultaneously herewith.
5.9. Original Environmental Indemnification. The Original
Environmental Indemnification shall be amended and restated in accordance
with the provisions of that certain Amended and Restated Environmental
Indemnification (which Amended and Restated Environmental Indemnification,
as the same may from time to time be extended, replaced, amended, restated
or otherwise modified is herein the "Amended and Restated Environmental
Indemnification") in the form attached hereto as Exhibit 5.9 to reflect,
inter alia, the Restructuring and American Land's assumption of ACPT's
obligations under the Credit Facility and Original Loan Documents. The
Amended and Restated Environmental Indemnification has been executed and
delivered by the signatories thereto simultaneously herewith.
5.10. Amendment of Partnership Collateral Documents. Each of the
Original Partnership Collateral Documents as amended and in effect as of
the date hereof, is hereby amended (i) to release therefrom all of the
Released Partnership Collateral, without affecting in any way Lender's
rights and the Assignors' obligations with respect to the Retained
Partnership Collateral; and (ii) to acknowledge the Restructuring and this
Agreement.
Section 6. Additional Agreements and New Loan Documents.
6.1. ACPT Guaranty and Pledge of Stock.
6.1.1 ACPT Guaranty. In consideration for the release of
ACPT as a primary obligor under the Credit Facility, as a Borrower under
the Original Promissory Note and the other Original Loan Documents, the
release by Lender of its interest in the Released Partnership Collateral
and Lender's consent to the Restructuring, ACPT shall unconditionally
guarantee all of the obligations of IGC and American Land under the
Original Credit Facility, as amended hereby, and the other Original Loan
Documents, as amended hereby, pursuant to that certain Guaranty Agreement
(which Guaranty Agreement, as the same may from time to time be extended,
replaced, amended, restated or otherwise modified is herein the "ACPT
Guaranty") in the form attached hereto as Exhibit 6.1.1. The ACPT Guaranty
has been executed and delivered by ACPT simultaneously herewith.
6.1.2 Pledge of Stock. ACPT shall secure its obligations
under the ACPT Guaranty, and IGC shall further secure its obligations under
the Amended and Restated Note, by pledging to Lender their respective
right, title and interest in all of the issued and outstanding shares of
stock or beneficial interests, as applicable, of American Land, American
Management, American Rental and IGP Group (the "Pledged Stock"), pursuant
to that certain Stock Pledge Agreement (which Stock Pledge Agreement, as
the same may from time to time be extended, replaced, amended, restated or
otherwise modified is herein the "Stock Pledge Agreement") in the form
attached hereto as Exhibit 6.1.2. The Stock Pledge Agreement has been
executed and delivered by ACPT and IGC simultaneously herewith.
6.2. IGP Group Guaranty. As additional consideration for Lender
agreeing to release all of its right, title and interest in and to the
Released Partnership Collateral, and to consent to the Restructuring, IGP
Group shall unconditionally guarantee the obligations of IGC and American
Land under the Original Credit Facility, as amended herein, and the
Original Loan Documents, as amended herein, and to further guarantee the
obligations of ACPT under the ACPT Guaranty, pursuant to that certain
Guaranty Agreement (which Guaranty Agreement, as the same may from time to
time be extended, replaced, amended, restated or otherwise modified is
herein the "IGP Group Guaranty") in the form attached hereto as Exhibit
6.2. The IGP Group Guaranty has been executed and delivered by IGP Group
simultaneously herewith.
6.3. American Housing Guaranty. As additional consideration for
Lender agreeing to release all of its right, title and interest in and to
the Released Partnership Collateral, and to consent to the Restructuring,
American Housing shall unconditionally guarantee the obligations of IGC and
American Land under the Original Credit Facility, as amended herein, and
the Original Loan Documents, as amended herein, and to further guarantee
the obligations of ACPT under the ACPT Guaranty, pursuant to that certain
Guaranty Agreement (which Guaranty Agreement, as the same may from time to
time be extended, replaced, amended, restated or otherwise modified is
herein the "American Housing Guaranty") in the form attached hereto as
Exhibit 6.3. The American Housing Guaranty has been executed and delivered
by American Housing simultaneously herewith.
6.4. American Management Guaranty. As additional consideration for
Lender agreeing to release all of its right, title and interest in and to
the Released Partnership Collateral, and to consent to the Restructuring,
American Management shall unconditionally guarantee the obligations of IGC
and American Land under the Original Credit Facility, as amended herein,
and the Original Loan Documents, as amended herein, and to further
guarantee the obligations of ACPT under the ACPT Guaranty, pursuant to that
certain Guaranty Agreement (which Guaranty Agreement, as the same may from
time to time be extended, replaced, amended, restated or otherwise modified
is herein the "American Management Guaranty") in the form attached hereto
as Exhibit 6.4. The American Management Guaranty has been executed and
delivered by American Management simultaneously herewith.
6.5. American Rental Guaranty. As additional consideration for Lender
agreeing to release all of its right, title and interest in and to the
Released Partnership Collateral, and to consent to the Restructuring,
American Rental shall unconditionally guarantee the obligations of IGC and
American Land under the Original Credit Facility, as amended herein, and
the Original Loan Documents, as amended herein, and to further guarantee
the obligations of ACPT under the ACPT Guaranty, pursuant to that certain
Guaranty Agreement (which Guaranty Agreement, as the same may from time to
time be extended, replaced, amended, restated or otherwise modified is
herein the "American Rental Guaranty") (the IGP Group Guaranty, American
Housing Guaranty, American Management Guaranty, and American Rental
Guaranty are herein collectively the "Subsidiary Entities' Guaranties") in
the form attached hereto as Exhibit 6.5. The American Rental Guaranty has
been executed and delivered by American Rental simultaneously herewith.
6.6. New Guaranty from Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx. As
additional consideration for Lender agreeing to release all of its right,
title and interest in and to the Released Partnership Collateral, and to
consent to the Restructuring, Xxxxx X. Xxxxxx and Xxxxxxx X. Xxxxxx shall
unconditionally guarantee the obligations of IGC and American Land under
the Original Credit Facility, as amended herein, and the Original Loan
Documents, as amended herein, and to further guarantee the obligations of
ACPT under the ACPT Guaranty, pursuant to that certain Guaranty Agreement
(which Guaranty Agreement, as the same may from time to time be extended,
replaced, amended, restated or otherwise modified is herein the "New Xxxxxx
Guaranty") in the form attached hereto as Exhibit 6.6. The New Xxxxxx
Guaranty has been executed and delivered by Xxxxx X. Xxxxxx and Xxxxxxx X.
Xxxxxx, his wife, simultaneously herewith.
6.7. New Warrant Certificate. In order to reflect the restructuring,
and as required by the Original Warrant Certificate, ACPT shall issue,
execute and deliver Lender a new Warrant Certificate to replace the
Original Warrant Certificate (which new Warrant Certificate, as the same
may from time to time be replaced, amended, restated or otherwise modified
is herein the "ACPT Warrant Certificate") in the form attached hereto as
Exhibit 6.7. The ACPT Warrant Certificate has been executed and delivered
by ACPT simultaneously herewith but shall be effective upon the
consummation of the Restructuring.
Section 7. Ratification, No-Novation, Effect of Amendments and
Modification.
7.1. Ratification and No Novation. Each of IGC, ACPT, St. Xxxxxxx,
the Original Guarantors and the Subsidiary Entities, individually and
collectively, hereby ratifies and confirms all of its or his respective
obligations, liabilities and indebtedness under the provisions of the
Original Promissory Note, the Original Deed of Trust, and each other
Original Loan Document, as the case may be, as the same are amended hereby
or will be amended pursuant to the terms hereof. Each of IGC, ACPT, St.
Xxxxxxx, the Original Guarantors and the Subsidiary Entities acknowledge
and agree that to the extent not otherwise specifically provided herein, it
is their intention that nothing in this Agreement or in any of the other
Loan Modification Documents shall be construed to extinguish, release, or
discharge or constitute, create, or effect a novation of, or an agreement
to extinguish, release or discharge, any of the obligations, indebtedness
and liabilities of the IGC, ACPT, St. Xxxxxxx, the Original Guarantors and
the Subsidiary Entities or any other party under the provisions of the
Original Promissory Note, the Original Deed of Trust, or any of the other
Original Loan Documents. IGC, ACPT, St. Xxxxxxx, the Original Guarantors
and the Subsidiary Entities, individually and collectively, acknowledge and
agree that all of the provisions of the Original Promissory Note, the
Original Deed of Trust, and each of the other Original Loan Documents shall
remain in full force and effect as the same may be amended hereby or
pursuant to the terms hereof. In the event of any conflict between the
terms of the Original Promissory Note, the Original Deed of Trust, or any
of the other Original Loan Documents and the terms of this Agreement or any
of the other Loan Modification Documents, the terms of this Agreement and
of the other Loan Modification document shall control.
7.2. Effect of Modification. Except as provided above, the Original
Promissory Note, the Original Loan Agreement, and all other Original Loan
Documents shall remain hereinafter unmodified and in full force and effect,
as if this Agreement had not been made.
7.3. No Waiver. Each of IGC, ACPT, St. Xxxxxxx, the Original
Guarantors and the Subsidiary Entities acknowledges that, except to the
extent expressly set forth herein, or as set forth in the Rectification
Agreement among the parties hereto of even date herewith, the execution of
this Agreement by Lender is not intended nor shall it be construed as (i)
an actual or implied waiver of any default under the Original Promissory
Note, or any of the other Original Loan Documents, or (ii) an actual or
implied waiver of any condition or obligation imposed upon each IGC, ACPT,
St. Xxxxxxx, the Original Guarantors and the Subsidiary Entities pursuant
to the Original Promissory Note, the Original Loan Agreement or any of the
other Original Loan Documents.
Section 8. Representations and Warranties.
8.1. IGC, ACPT, St. Xxxxxxx, the Original Guarantors and the
Subsidiary Entities each, jointly and severally, represents and warrants to
the Lender as of the date hereof, that:
8.1.1. Reaffirmation of IGC, ACPT, St. Xxxxxxx and Original
Guarantors. Except as otherwise provided herein or as otherwise
effectuated by the Restructuring, all representations and warranties made
by IGC, ACPT, St. Xxxxxxx and the Original Guarantors in the Original Loan
Documents remain true, complete and correct in all material respects on the
date hereof as if the same were made on the date hereof.
8.1.2. No Actions. As of the date hereof, there are no
actions, suits or proceedings pending, or to the knowledge of IGC, ACPT,
St. Xxxxxxx, the Original Guarantors, or the Subsidiary Entities,
threatened, (i) against or affecting the Collateral, or (ii) involving the
validity or enforceability of the Deed of Trust or the priority of the lien
thereof, or (iii) against IGC, ACPT, St. Xxxxxxx, any Original Guarantor or
any of the Subsidiary Entities at law or in equity or before or by any
governmental authority except (a) actions, suits and proceedings against
IGC, ACPT, St. Xxxxxxx, Original Guarantor or any of the Subsidiary
Entities fully covered by insurance and as to each of which IGC, ACPT, St.
Xxxxxxx, the Original Guarantor or any of the Subsidiary Entities has
provided information satisfactory to the Lender, (b) actions, suits and
proceedings against IGC, ACPT, St. Xxxxxxx, Original Guarantor or any of
the Subsidiary Entities which will not materially adversely affect their
business, financial condition or operations, or (c) otherwise previously
disclosed to Lender in the Original Loan Agreement; and to the knowledge of
IGC, ACPT, St. Xxxxxxx, the Original Guarantors or the Subsidiary Entities,
neither entity is in default with respect to any order, writ, injunction,
decree or demand of any court or any governmental authority.
8.1.3. Taxes. All federal, state and local tax returns and
reports of IGC, ACPT, St. Xxxxxxx, the Original Guarantors and the
Subsidiary Entities required by law to be filed have been duly filed, and
all taxes, assessments, fees and other governmental charges upon IGC, ACPT,
St. Xxxxxxx, the Original Guarantors and the Subsidiary Entities and their
respective properties, assets, income and franchises which are due and
payable have been paid in full. IGC, ACPT, St. Xxxxxxx, the Original
Guarantors and the Subsidiary Entities maintain adequate reserves and/or
accruals in respect of federal, state and local taxes for all fiscal
periods, and neither IGC, ACPT, St. Xxxxxxx, the Original Guarantors and
the Subsidiary Entities know of any unpaid assessments for any taxes or any
basis therefor.
8.1.4. No Default. Neither IGC, ACPT, St. Xxxxxxx, the Original
Guarantors or the Subsidiary Entities are in default in the payment of any
of its or their indebtedness or in the performance of any of its
obligations under any mortgage, indenture, lease, contract or other
agreement, instrument or undertaking to which it is a party or by which it
or any of its assets may be bound, and no Event of Default as provided
under the Original Loan Agreement has occurred and is continuing. Neither
IGC, ACPT, St. Xxxxxxx, the Original Guarantors or the Subsidiary Entities
are in default under any order, judgment, award or decree of any court,
arbitrator, or governmental authority binding on or affecting it or by
which any of its assets may be bound or affected, and no such order,
judgment, award or decree materially adversely affects the ability of IGC,
ACPT, St. Xxxxxxx, the Original Guarantors or the Subsidiary Entities to
carry on its business as now conducted or its ability to perform its
obligations under this Agreement, the Original Loan Documents or the Loan
Modification Documents.
8.1.5. Stock, etc. of Subsidiary Entities. Immediately prior to
consummation of the Restructuring, IGC owns, beneficially and of record,
all of the issued and outstanding shares of stock or beneficial interest of
each of the Subsidiary Entities. Immediately following consummation of the
Restructuring, ACPT will own, beneficially and of record, all of the issued
and outstanding shares of stock or beneficial interest of each of the
Subsidiary Entities. All issued and outstanding shares of stock or
beneficial interest of each Subsidiary Entity is duly authorized, validly
issued and fully paid and nonassessable and is, and will, subsequent to
consummation of the Restructuring, be free and clear of all liens, claims
and encumbrances except for the security interest therein granted to Lender
under the Stock Pledge Agreement.
8.1.6. Membership Interests in St. Xxxxxxx. Immediately prior
to consummation of the Restructuring, American Land is the sole member of,
and the sole beneficial and record owner of membership interests, in St.
Xxxxxxx. Upon consummation of the Restructuring, American Land will
continue to be the sole member, and the sole beneficial and record owner of
membership interests in St. Xxxxxxx. All membership interests in St.
Xxxxxxx are, and subsequent to consummation of the Restructuring, will be
free and clear of all liens, security interests, claims and encumbrances.
8.1.7. Partnership Collateral. Upon consummation of the
Restructuring, the Released Partnership Collateral will be owned by
American Management, IGP Group and American Housing. The Released
Partnership Collateral is, and subsequent to the consummation of the
Restructuring will be, free and clear of all liens, security interests,
claims and encumbrances (other than the security interest of Lender in such
Released Partnership Collateral which is released herein).
8.1.8. Solvency. IGC, ACPT and each of the Subsidiary
Entities are not insolvent and the execution, delivery and performance by
IGC, ACPT and each of the Subsidiary Entities of the Loan Modification
Documents to which each is a party, and the consummation of the
Restructuring, will not render IGC, ACPT, or any of the Subsidiary Entities
insolvent. For purposes of the representations and warranties set forth in
this subsection, the term "insolvent" means either (i) the present fair
market value of each entity's assets is less than the amount necessary to
pay such entity's probable liability on its existing debts as they become
absolute and mature, or (ii) the sum of the entity's debts is greater than
the present fair market value of the entity's assets.
8.1.9. Title to Properties. Immediately prior to the
Restructuring, ACPT and each of the Subsidiary Entities has good and
marketable title to its assets and properties free and clear of all liens,
securities, claims and encumbrances, except for liens, security interests
or encumbrances in favor of Lender. Immediately following consummation of
the Restructuring, ACPT and each of the Subsidiary Entities will have good
and marketable title to all of its assets and properties, including,
without limitation, the assets and properties transferred to it in
connection with the Restructuring, free and clear of all liens, security
interests and encumbrances except for liens, security interests or
encumbrances in favor of Lender.
8.2. Additional Representations and Warranties. In order to induce
the Lender to enter into this Agreement, IGC, ACPT, St. Xxxxxxx, the
Original Guarantors or the Subsidiary Entities each represents and warrants
to the Lender that as of the date hereof (a) no default or Event of Default
exists under the Original Promissory Note, or the other Original Loan
Documents, and (b) no event exists which, with the giving of notice or the
lapse of time, or both, could or would constitute a default or an Event of
Default thereunder.
Section 9. Bankruptcy.
9.1. Waiver of Bankruptcy. In consideration for Lender's agreement to
enter into this Agreement, each of IGC, ACPT, St. Xxxxxxx, the Original
Guarantors and the Subsidiary Entities hereby irrevocably agrees (i) not to
file a voluntary petition under title 11 of the United States Code, as
amended ("the Bankruptcy Code") with any bankruptcy court of competent
jurisdiction; (ii) not to voluntarily become or remain the subject of any
order for relief issued under the Bankruptcy Code; (iii) not to file or
voluntarily remain the subject of any petition seeking any reorganization,
arrangement, composition, readjustment, liquidation, dissolution, or
similar relief under any present or future federal or state act or law
relating to bankruptcy, insolvency, or other relief for debtors; (iv) not
to seek or consent to or acquiesce in the appointment of any trustee,
receiver, conservator, or liquidator, except such as may be sought by
Lender; and (v) not voluntarily become or remain the subject of an order,
judgment or decree of any court of competent jurisdiction approving a
petition filed against each IGC, ACPT, St. Xxxxxxx, the Original Guarantors
and the Subsidiary Entities for any reorganization, arrangement,
composition, readjustment, liquidation, dissolution, or similar relief
under any present or future federal or state act or law relating to
bankruptcy, insolvency or relief for debtors, except as may be permitted by
Lender. This covenant is a material inducement for Lender to enter into
and accept this Agreement.
9.2. Waiver of Automatic Stay. Each IGC, ACPT, St. Xxxxxxx, the
Original Guarantors and the Subsidiary Entities hereby agrees that, in
consideration for Lender's agreement to enter into this Agreement, and,
notwithstanding the provisions of subsection 9.1 above, if each IGC, ACPT,
St. Xxxxxxx, the Original Guarantors and the Subsidiary Entities shall (i)
file with any bankruptcy court of competent jurisdiction or be the subject
of any petition under the Bankruptcy Code; (ii) be the subject of any order
for relief issued under the Bankruptcy Code; (iii) file or be the subject
of any petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
or future federal or state act or law relating to bankruptcy, insolvency,
or other relief for debtors; (iv) have sought or consented to or acquiesced
in the appointment of any trustee, receiver, conservator, or liquidator; or
(v) be the subject of an order, judgment or decree entered by any court of
competent jurisdiction approving a petition filed against such person or
entity for any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
federal or state act or law relating to bankruptcy, insolvency or relief
for debtors, then Lender shall thereupon be entitled to file a motion to
seek, and each IGC, ACPT, St. Xxxxxxx, the Original Guarantors and the
Subsidiary Entities hereby irrevocably consents to and agrees to stipulate
to any motion filed by Lender seeking, relief from the automatic stay
imposed by Section 362 of the Bankruptcy Code, or any other stay of, on or
against the exercise of the rights and remedies otherwise available to
Lender as provided in this Agreement or any of the other Original Loan
Documents or Loan Modification Documents and/or provided by law, and each
IGC, ACPT, St. Xxxxxxx, the Original Guarantors and the Subsidiary Entities
hereby irrevocably waives its rights to object to such relief. This
covenant is a material inducement for Lender to enter into and accept this
Agreement.
9.3. Reduction of Exclusive Bankruptcy Plan Filing and Plan Acceptance
Periods. Borrower hereby agrees that, in consideration for Lender's
agreement to enter into and accept this Agreement, and, notwithstanding the
provisions of Section 9.1 above, if each IGC, ACPT, St. Xxxxxxx, the
Original Guarantors and the Subsidiary Entities shall (i) file with any
bankruptcy court of competent jurisdiction or be the subject of any
petition under the Bankruptcy Code; (ii) be the subject of any order for
relief issued under the Bankruptcy Code; (iii) file or be the subject of
any petition seeking any reorganization, arrangement, composition,
readjustment, liquidation, dissolution, or similar relief under any present
or future federal or state act or law relating to bankruptcy, insolvency,
or other relief for debtors; (iv) have sought or consented to or acquiesced
in the appointment of any trustee, receiver, conservator, or liquidator; or
(v) be the subject of an order, judgment or decree entered by any court of
competent jurisdiction approving a petition filed against such person or
entity for any reorganization, arrangement, composition, readjustment,
liquidation, dissolution, or similar relief under any present or future
federal or state act or law relating to bankruptcy, insolvency or relief
for debtors, then Lender shall thereupon be entitled to file a motion to
seek, and each IGC, ACPT, St. Xxxxxxx, the Original Guarantors and the
Subsidiary Entities hereby irrevocably consents to and agrees to stipulate
to any motion filed by Lender seeking, to reduce the exclusive plan filing
and acceptance periods provided by Section 1121 of the Bankruptcy Code or
any similar periods provided by law, and each IGC, ACPT, St. Xxxxxxx, the
Original Guarantors and the Subsidiary Entities hereby irrevocably waives
its rights to object to such relief. This covenant is a material
inducement for Lender to enter into and accept this Agreement.
Section 9.4. Release. Notwithstanding the foregoing, Subsections 9.1,
9.2, and 9.3 hereof shall be void and of no further effect on the ninety-
first (91st) day following such time as pursuant to a security agreement or
other assignment agreement with the terms substantially identical to the
Partnership Collateral Documents in form and content satisfactory to Lender
in its sole but reasonable discretion, each of IGP Group, American Rental,
American Housing, and American Management has conveyed to Lender a first
priority security interest in all of the Released Partnership Collateral.
Section 10. Fees, Costs and Expenses. IGC and ACPT shall pay to Banc
One Capital Markets, Inc. ("BOCM"), an affiliate of Lender, prior to or at
the time of execution of this Agreement, a financial advisory fee in the
amount of $100,000 (the "Financial Advisory Fee") in consideration of the
Lender's agreement to modify the Credit Facility as herein provided. BOCM
will credit up to $50,000 of the Financial Advisory Fee against any fees
due to BOCM pursuant to any engagement of BOCM by the Borrower or ACPT to
provide or arrange financing or provide financial advisory services during
the twelve (12) month period immediately following the date hereof. IGC,
ACPT and American Land shall also pay to the Lender upon demand, all costs
and expenses both now and hereafter paid or incurred with respect to the
preparation, negotiation, execution, administration and enforcement of this
Agreement, the Original Loan Documents and the other Loan Modification
Documents including, without limitation, reasonable attorney's fees and
expenses, recording costs, recordation and other taxes, appraisal fees,
costs of record searches and title insurance premiums and other title
costs. IGC and ACPT acknowledge that the provisions of this Agreement and
the other Loan Modification Documents shall not be effective to modify the
Original Loan Documents unless and until the obligation of IGC and ACPT to
pay the Financial Advisory Fee to BOCM and to reimburse Lender for the
expenses incurred through the date of this Agreement in connection with the
preparation, negotiation, execution and administration of this Agreement
are satisfied which such amount shall be set forth in a Closing Statement.
Section 11. Applicable Law, Etc. This Agreement shall be governed by
the laws of the State of Maryland and may be executed in any number of
duplicate originals or counterparts, each of such duplicate originals or
counterparts shall be deemed to be an original and all taken together shall
constitute one and the same instrument.
Section 12. Binding Effect. This Agreement shall be binding upon and
inure to the benefit of each party hereto, and their respective successors
and assigns.
Section 13. General.
13.1. Effectiveness. This Agreement shall become effective on and
only on its execution and delivery by each party hereto.
13.2. Headings. The headings of the Sections, subsections,
paragraphs and subparagraphs hereof are provided herein for and only for
convenience of reference, and shall not be considered in construing their
contents.
13.4. Time of Essence. To the extent that it may have been waived
in the past, Lender hereby specifically reinstates that time is of the
essence of this Agreement and of the Original Loan Documents.
13.5. Additional Defaults. If IGC, ACPT, St. Xxxxxxx, the
Original Guarantors or the Subsidiary Entities shall fail to keep or
perform any of the covenants or agreements contained herein, or if any
statement, representation or warranty contained herein is false, misleading
or erroneous in any material respect, such failure shall be deemed to be an
Event of Default and Lender shall be entitled at its option to exercise any
and all of the rights and remedies granted pursuant to the Deed of Trust,
as amended hereby, or any of the other Financing Documents, or to which
Lender may otherwise be entitled, whether at law or in equity.
13.6. Lender's Title Policy Endorsement. Contemporaneously with
the execution and delivery hereof, IGC, ACPT or St. Xxxxxxx shall, at its
sole cost and expense, obtain and deliver to Lender an endorsement dated as
of the date hereof to Lender's existing title insurance policy covering the
Real Property, in form and content acceptable to Lender, insuring that the
Deed of Trust constitutes, and will continue to constitute subsequent to
consummation of the Restructure, a first priority lien on the Real Property
securing the full amount of the Credit Facility.
IN WITNESS WHEREOF, each party hereto has executed and ensealed this
Agreement or caused it to be executed and ensealed on its behalf by its
duly authorized representatives, the day and year first above written.
WITNESS: BANC ONE CAPITAL PARTNERS, IV, LTD.,
an Ohio limited liability company
By: BOCP Holdings Corporation, its Manager
/s/ Xxxxx X. Xxxxxx
---------------------------- By: /s/ Xxxxxxx X. Xxxx
------------------------------(SEAL)
Name: Xxxxxxx X. Xxxx
Title: Authorized Signer
INTERSTATE GENERAL COMPANY, L.P.,
a Delaware limited partnership
/s/ Xxxxxxx X. Xxxxxxx
____________________________ By: /s/ Xxxxx X. Xxxxx
_______________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: President
AMERICAN COMMUNITY PROPERTIES TRUST,
a Maryland real estate investment trust
/s/ Xxxxxxx X. Xxxxxxx
____________________________ By: /s/ Xxxxx X. Xxxxx
_________________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: President
ST. XXXXXXX COMMUNITY, LLC,
a Delaware limited liability company
/s/ Xxxxxxx X. Xxxxxxx
____________________________ By: /s/ Xxxxx X. Xxxxx
_________________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: Chairman Management Committee
/s/ Xxxxxxxx X. Xxxxxxx
____________________________ By: /s/ Xxxxx X. Xxxxxx
_______________________________________
XXXXX X. XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
____________________________ By: /s/ J. Xxxxxxx Xxxxxx
_______________________________________
J. XXXXXXX XXXXXX
/s/ Xxxxxxx X. Xxxxxxx
____________________________ By: /s/ Xxxxx X. Xxxxx
_______________________________________
XXXXX X. XXXXX
AMERICAN RENTAL PROPERTIES TRUST,
a Maryland real estate investment trust
/s/ Xxxxxxx X. Xxxxxxx
___________________________ By: /s/ Xxxxx X. Xxxxx
_________________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: Vice President
AMERICAN RENTAL MANAGEMENT COMPANY,
a Delaware corporation
/s/ Xxxxxxx X. Xxxxxxx
___________________________ By: /s/ Xxxxx X. Xxxxx
_________________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: President
AMERICAN LAND DEVELOPMENT U.S., INC.,
a Maryland corporation
/s/ Xxxxxxx X. Xxxxxxx
___________________________ By: /s/ Xxxxx X. Xxxxx
_________________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: Vice President
IGP GROUP CORP.,
a Puerto Rico corporation
___________________________ By: /s/ Xxxxxxxxx Xxxxxx
_________________________________(SEAL)
Name: Xxxxxxxxx Xxxxxx
Title: President
AMERICAN HOUSING PROPERTIES, L.P.,
a Delaware limited partnership
/s/ Xxxxxxx X. Xxxxxxx
____________________________ By: /s/ Xxxxx X. Xxxxx
_________________________________(SEAL)
Name: Xxxxx X. Xxxxx
Title: Vice President
STATE OF OHIO: COUNTY OF FRANKLIN: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared
Xxxxxxx X. Xxxx, known to me or satisfactorily proven to be the person
whose name is subscribed to the foregoing instrument, who acknowledged that
he/she is authorized signer of BANC ONE CAPITAL PARTNERS IV, LTD., that
he/she has been duly authorized to execute, and has executed, such
instrument on its behalf for the purposes therein set forth, and that the
same is its act and deed as trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxx X. Xxxxxx
__________________________________________
Notary Public
My commission expires on September 10, 2002.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is
President of INTERSTATE GENERAL COMPANY, L.P., that he/she has been duly
authorized to execute, and has executed, such instrument on its behalf for
the purposes therein set forth, and that the same is its act and deed as
trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is
President of AMERICAN COMMUNITY PROPERTIES TRUST, that he/she has been duly
authorized to execute, and has executed, such instrument on its behalf for
the purposes therein set forth, and that the same is its act and deed as
trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is
Chairman of ST. XXXXXXX COMMUNITY, LLC, that he/she has been duly
authorized to execute, and has executed, such instrument on its behalf for
the purposes therein set forth, and that the same is its act and deed as
trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is
President of AMERICAN RENTAL PROPERTIES TRUST, that he/she has been duly
authorized to execute, and has executed, such instrument on its behalf for
the purposes therein set forth, and that the same is its act and deed as
trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is
President of AMERICAN RENTAL MANAGEMENT COMPANY, that he/she has been duly
authorized to execute, and has executed, such instrument on its behalf for
the purposes therein set forth, and that the same is its act and deed as
trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is Vice
President of AMERICAN LAND DEVELOPMENT U.S., INC., that he/she has been
duly authorized to execute, and has executed, such instrument on its behalf
for the purposes therein set forth, and that the same is its act and deed
as trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF _____________: TO WIT:
I HEREBY CERTIFY that on this ____ day of ______________, 1998, before
me, a Notary Public for the state and county aforesaid, personally appeared
________________________, known to me or satisfactorily proven to be the
person whose name is subscribed to the foregoing instrument, who
acknowledged that he/she is __________________ of IGP GROUP CORP., that
he/she has been duly authorized to execute, and has executed, such
instrument on its behalf for the purposes therein set forth, and that the
same is its act and deed as trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
__________________________________________
Notary Public
My commission expires on ________________.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared Xxxxx
X. Xxxxx, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he is Vice
President of AMERICAN HOUSING PROPERTIES, L.P., that he/she has been duly
authorized to execute, and has executed, such instrument on its behalf for
the purposes therein set forth, and that the same is its act and deed as
trustee.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
__________________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared J.
XXXXXXX XXXXXX, known to me or satisfactorily proven to be the person whose
name is subscribed to the foregoing instrument, who acknowledged that he
has executed the foregoing instrument for the purposes therein set forth,
and that the same is his act and deed.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
___________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 25th day of September, 1998, before me,
a Notary Public for the state and county aforesaid, personally appeared
XXXXX X. XXXXXX, known to me or satisfactorily proven to be the person
whose name is subscribed to the foregoing instrument, who acknowledged that
he has executed the foregoing instrument for the purposes therein set
forth, and that the same is his act and deed.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
___________________________________
Notary Public
My commission expires on 02-01-01.
STATE OF MARYLAND: COUNTY OF XXXXXXX: TO WIT:
I HEREBY CERTIFY that on this 1st day of October, 1998, before me, a
Notary Public for the state and county aforesaid, personally appeared XXXXX
X. XXXXX, known to me or satisfactorily proven to be the person whose name
is subscribed to the foregoing instrument, who acknowledged that he has
executed the foregoing instrument for the purposes therein set forth, and
that the same is his act and deed.
IN WITNESS WHEREOF, I have set my hand and Notarial Seal, the day and
year first above written.
/s/ Xxxxxx Xxxxx
___________________________________
Notary Public
My commission expires on 02-01-01.
SCHEDULE 4
The "Retained Partnership Collateral" shall consist of the portion of the
Partnership Collateral derived from the following partnership interests
that shall not be transferred until transferred in accordance with the
attached assignment agreements (the "Partnership Transfer Documents").
Xxxxxx House Associates Limited Partnership
60% of IGC's beneficial general partnership interest
Xxxxxx Apartments Associates Limited Partnership
60% of IGC's beneficial general partnership interest
Wakefield Terrace Associates Limited Partnership
60% of IGC's beneficial general partnership interest
Wakefield Third Age Associates Limited Partnership
60% of IGC's beneficial general partnership interest
