EXHIBIT 10.7
VICTORY TAX EXEMPT REALTY INCOME FUND
LIMITED PARTNERSHIP
Amendment To Standstill Agreement
Between
Victory Tax Exempt Realty Income Fund
Limited Partnership
And
Concam Associates, LP
2
AMENDMENT TO STANDSTILL AGREEMENT
---------------------------------
This AMENDMENT TO STANDSTILL AGREEMENT (this "Agreement") is made
effective as of December 31, 1998, by and between VICTORY TAX EXEMPT REALTY
INCOME FUND LIMITED PARTNERSHIP, a Delaware limited partnership ("Lender"), and
CONCAM ASSOCIATES, L.P., a California limited partnership ("Borrower").
R E C I T A L S :
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1. Lender is the sole holder and owner of a $15,515,000 Mortgage
Revenue Bond (the "Bond"), issued by the City of Fresno, California ("Issuer"),
pursuant to the terms of that certain Indenture of Trust and Lender Loan
Agreement, dated as of April 15, 1989, and that certain Regulatory Agreement,
dated as of April 15, 1989 (collectively, the "Bond Documents"), with respect to
that certain property commonly known as the "Camelot Lake Apartment Project"
located in Fresno, California and more particularly described on Exhibit A
attached hereto, which, with all Improvements, Fixtures and Personalty thereon,
shall hereafter be referred to as the "Property."
2. In connection with the issuance of the Bond, Issuer, Lender and
Camelot Lake Associates, a California limited partnership ("Camelot"), entered
into that certain Loan Agreement, dated as of April 15, 1989 (the "Loan
Agreement"), as well as certain other documents in connection therewith,
including the Bond Documents, as described on Exhibit B attached hereto
(collectively, the "Loan Documents"), including, without limitation, that
certain Deed of Trust with Assignment of Rents and Fixture Filing, dated as of
April 15, 1989 (the "Deed of Trust"), made by Camelot for the benefit of Lender.
Pursuant to the Loan Documents, Lender made a loan to Camelot in the original
principal amount of $15,515,000 (the "Loan") from the proceeds of the Bond.
3. Borrower has heretofore acquired title to the Property and
accordingly replaced Camelot as the owner of the Property and as borrower and
obligor under the Loan Documents.
4. Certain Events of Default under the Loan Documents existed at
the time Borrower acquired title to the Property because income from the
Property was not sufficient to pay operating expenses and amounts payable under
the Loan. Rather than exercise its remedies based on any such Events of Default,
Lender agreed to forbear exercising such remedies, on the terms and conditions
of that certain Forebearance [sic] Agreement, dated as of January 31, 1994, by
and between Lender and Borrower (the "Forbearance Agreement"). All capitalized
terms used and not otherwise defined herein shall have the respective meanings
ascribed thereto in the Forbearance Agreement.
5. The Forbearance Agreement was amended by that certain Standstill
Letter, dated as of May 8, 1996 (as the same may have been amended, the
"Standstill Agreement").
6. Lender and Borrower now desire to sell the Bond and the Property
and, as a result, (i) Borrower expects to sell the Property to Wasatch
Acquisitions, LLC, a Utah limited liability company ("Buyer"), or its affiliate,
for a purchase price of One Dollar ($1.00) and the assumption by Buyer of
Borrower's obligations under the Loan Documents and (ii) concurrently with the
sale of the Property, Lender expects to sell the Bond to Buyer or its affiliate
for a purchase price of Eleven Million Six Hundred Thousand Dollars
($11,600,000) (the "Sale Proceeds").
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7. Lender and Borrower desire to enter into this Agreement in order
to facilitate and agree to such sale of the Bond and the Property to Buyer or
its affiliate in accordance with, and subject to, the terms and conditions set
forth in this Agreement.
A G R E E M E N T :
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NOW, THEREFORE, in consideration of the covenants contained herein and
other good and valuable consideration, the receipt and sufficiency of which are
hereby acknowledged, the parties hereto hereby covenant and agree as follows:
1. TERM. The term of the Standstill Agreement and this Agreement
shall be extended and shall continue until the earlier to occur of (a) June 30,
1999, (b) the closing (the "Closing") of the sale or other disposition of all or
substantially all of the Property to Buyer or its affiliate and the sale of the
Bond (collectively, the "Sale") or (c) the termination of this Agreement by
Lender upon a default by Borrower of the terms and conditions of the Standstill
Agreement or this Agreement which continues for a period of thirty (30) days
after written notice thereof from Lender to Borrower. Except with respect to
Paragraph 3 herein which will survive the termination or expiration of this
Agreement, upon the termination or expiration of the Standstill Agreement, the
rights and obligations of the parties under the Standstill Agreement shall cease
and the Standstill Agreement (including, without limitation, this Agreement)
shall be of no further force or effect, and the rights, liabilities and
obligations of the parties shall be as they existed immediately prior to the
execution of this Agreement.
2. FEES, COSTS AND EXPENSES.
1. Deposits to Operating Account and Savings Account.
Notwithstanding anything to the contrary contained in the Loan Documents, the
Forbearance Agreement or the Standstill Agreement, during the period that this
Agreement is in effect, Borrower shall deposit all rental and other income or
receipts attributable to or with respect to the Property (the "Gross Receipts")
for such period in the "Operating Account" (as hereinafter defined). In
addition, concurrently with the execution hereof, Borrower shall deposit in the
Operating Account all Net Cash Flow (if any) in Borrower's possession or control
and attributable to the period prior to January 1, 1999. From time to time in
Borrower's reasonable discretion, Borrower may (i) transfer funds in the
Operating Account in excess of the "Permitted Expenses" (as hereinafter defined)
to the "Savings Account" (as hereinafter defined) and (ii) to the extent
required, transfer funds from the Savings Account to the Operating Account to
fund the Permitted Expenses. Borrower shall maintain with Bank of America, N.T.
& S.A. (a) corporate checking account no. 0000-0-00000 (the "Operating Account")
and (b) corporate account no. 0000-0-00000 (the "Savings Account"). Borrower
shall and does hereby grant to Lender a first priority security interest in the
Operating Account and the Savings Account in the manner provided in Article 2 of
the Deed of Trust and shall execute such further instruments, notices and
agreements as may be reasonably required by Lender in order to perfect or
effectuate the security interest granted hereby.
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2. Permitted Expenses. Borrower may make disbursements from
the Operating Account only for (i) the reasonable, actual costs, fees and
expenses of operation, maintenance and management of the Property, (ii) the
reasonable, actual costs, fees and expenses of administration of Borrower's
partnership and (iii) the "Closing Costs" (as hereinafter defined), all of the
foregoing disbursements as paid and incurred by Borrower in accordance with
Schedule 1 attached hereto (collectively, the "Permitted Expenses") during the
applicable period, including, without limitation, the reasonable, actual amounts
paid and incurred for leasing, marketing, taxes, assessments, capital
improvements, refund of security deposits, insurance, salaries, repairs and
utilities, accounting, tax preparation and auditing fees of the Property or
Borrower, the Bond Trustee Fee, the property management fee paid to the
Management Agent (to the extent approved by Lender pursuant to Section 11.1 of
the Loan Agreement), and the reasonable out-of-pocket fees and expenses incurred
by Borrower in connection with this Agreement or the Sale, but excluding (i) any
payments of interest on, or the repayment of principal of, the Loan and the
Working Capital Loan, (ii) amounts paid in payment of the Mortgage
Administration and Servicing Fee, (iii) any property management fee paid to the
Management Agent if the Management Agent is the Fund or an affiliate of the
Fund, and (iv) payments on account of any Operating Working Capital Loan(s)
and/or interest thereon. All disbursements from the Operating Account shall be
made in accordance with Schedule 1 attached hereto, provided, however, that
Borrower may, without Lender's consent, allocate amounts from the contingency
line-item in such schedule to any other line item.
3. Suspension of Debt Service. During the period that this
Agreement remains in effect, and provided that Borrower complies with the terms
and conditions hereof and no Event of Default hereafter occurs, Borrower shall
not be required to make any payments of Base Interest nor deposits into the
Reserve Fund for Replacements or Property tax payments to Lender that would
otherwise be scheduled to be made during the term of this Agreement.
4. Closing Costs. At the Closing of the Sale, Borrower shall
use (i) the amounts remaining in the Operating Account, (ii) the amounts
remaining in the Savings Account, (iii) any amounts held in the Reserve Account
or by Lender on account of real property taxes, insurance, replacements,
security deposits or bond fees (collectively, the "Reserve Funds"), and (iv) any
other income attributable to the Property and retained by Borrower, to pay the
reasonable, actual expenses of the Sale (including, without limitation, payment
by Borrower of any amounts due from Borrower under the "Purchase Agreement" (as
hereinafter defined) and any Permitted Expenses paid or prorated at the Closing)
incurred by Borrower and approved by Lender in its reasonable discretion prior
to or at the Closing (collectively, the "Closing Costs"). If at the Closing or
any time prior thereto that this Agreement is in effect (A) the amount of the
Closing Costs exceeds the amounts then held in the Operating Account, the
Savings Account and any Reserve Funds or (B) the total amount of the Permitted
Expenses paid or incurred during the term of this Agreement exceeds the amounts
available in the Operating Account and the Savings Account (such events
collectively being referred to herein as a "Shortage"), then (1) Borrower shall
fund any Shortage and (2) upon an "Accounting" (as hereinafter defined) pursuant
to Paragraph 3 below, Lender shall reimburse Borrower for such expenses.
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5. Incentive Management Fee. At the Closing of the Sale of
the Bond, Lender shall cause the escrow agent to pay, from the net proceeds of
such Sale, an amount equal to two percent (2%) of the gross Sale price (which
equals Two Hundred Thirty Two Thousand Dollars ($232,000)) based upon a Sale
price of Eleven Million Six Hundred Thousand Dollars ($11,600,000)) which shall
be paid to ConAm Management Corporation, a California corporation ("Management
Company"), as an incentive management fee.
6. Mortgage Administration and Servicing Fee. Borrower shall
suspend payment of the Mortgage Administration and Servicing Fee as of the date
hereof.
7. Purchase Agreement. Lender has read and approved that
certain Agreement of Purchase and Sale and Joint Escrow Instructions, dated as
of February 5, 1999 (the "Purchase Agreement"), by and between Borrower and
Buyer. Upon the Closing of the Sale pursuant to the Purchase Agreement and
provided that Borrower complies with the terms and provisions hereof, Lender
acknowledges that, except as provided herein, Borrower shall have no further
obligation to Lender to repay any principal or interest to Lender under any of
the Loan Documents, the Working Capital Loan, the Capital Improvements Loan or
any other loan (including accrued interest) outstanding from Borrower to Lender.
During the term of this Agreement and the Standstill Agreement, Borrower shall
not amend or modify the Purchase Agreement without the prior written consent of
Lender.
3. FINAL ACCOUNTING. On or before seventy-five (75) days after the
Closing, Borrower shall deliver to Lender a final accounting (the "Accounting")
reconciling (a) the Gross Receipts delivered into the Operating Account, the
Savings Account and any other amounts held in any Reserve Funds and any other
income attributable to the Property and retained by Borrower prior to the
Closing, (b) the actual expenses of the Sale incurred by Borrower and reasonably
approved by Lender and (c) the actual Permitted Expenses incurred by Borrower
and reasonably approved by Lender. Upon Lender's reasonable approval of the
Accounting, any and all remaining funds held by or on behalf of Borrower per the
Accounting shall be remitted to Lender as final payment of the Base Interest, or
in the event that the Accounting establishes that a Shortage occurred, Lender
shall reimburse Borrower for the amount of such Shortage.
4. MISCELLANEOUS.
1. In the event the Sale of the Property or the Bond to Buyer
does not occur, nothing contained herein shall be construed as a commitment by
Lender to (i) make any new loan or loans or to grant or extend any other
financial accommodations to Borrower, (ii) restructure the Loan or to modify any
Loan Document or (iii) except as expressly provided for herein, waive, modify or
forbear from exercising any rights, powers, remedies or privileges, whether
under the Loan Documents, the Forbearance Agreement or the Standstill Agreement,
at law or in equity.
2. No purported alteration, amendment, change, waiver,
termination or other modification of this Agreement, the Loan Documents, the
Forbearance Agreement or the Standstill Agreement shall be binding upon any
party hereto, or have any other force or effect in any respect unless the same
shall be in writing and signed by, or on behalf of, the party to be charged
therewith.
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3. Each of the parties hereto understands that this Agreement
is a legally binding agreement that may affect such party's rights. Each party
hereto represents to the other that it has been represented by independent legal
counsel of its choice regarding the meaning and legal significance of this
Agreement and that it is satisfied with its legal counsel and the advice
received from it.
4. Should any provision of this Agreement require judicial
interpretation, it is agreed that a court interpreting or construing the same
shall not apply a presumption that the terms hereof shall be more strictly
construed against any party by reason of the rule of construction that a
document is to be construed more strictly against the party who itself or
through its agent prepared the same.
5. This Agreement shall be interpreted and enforced in
accordance with the internal laws of the State of California as the same may
from time to time exist, without giving effect to the principles of conflicts of
laws.
6. This Agreement constitutes the entire agreement of the
parties concerning the subject matter hereof, and supersedes any prior or
contemporaneous representations or agreements, either oral or written, not
contained herein.
7. Each party executing this Agreement represents that such
party has the full authority and legal power to do so.
8. This Agreement may be executed in one or more
counterparts, each of which shall be deemed an original but all of which
together shall constitute one and the same instrument, with the same effect as
if each party had executed all counterparts.
Remainder of this page left intentionally blank.
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IN WITNESS WHEREOF, Lender and Borrower have caused this Agreement
to be duly executed as of the date first written above.
LENDER:
VICTORY TAX EXEMPT REALTY INCOME
FUND LIMITED PARTNERSHIP, a
Delaware limited partnership
By: CA VICTORY, INC., a Delaware cor-
poration, Its General Partner
By: /s/Xxxxxx Xxxxxxx
-----------------
Name: Xxxxxx Xxxxxxx
Its: President
BORROWER:
CONCAM ASSOCIATES, L.P., a California
limited partnership
By: CONCAM, INC., a California corpo-
ration, Its General Partner
By: /s/Xxxxx X. Xxxxxx
------------------
Name: Xxxxx X. Xxxxxx
Its: Vice President
A-1
EXHIBIT A
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LEGAL DESCRIPTION
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All that certain real property located in the County of Fresno, State
of California, described as follows: Xxx 00 xx Xxxxx Xx. 0000, Xxxxx Xxxx
Village, in the City of Fresno, County of Fresno, State of California, according
to the Map thereof Recorded in Book 37, Pages 99 and 100 of Plats, in the Office
of the County Recorder of said county.
B-1
EXHIBIT B
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BOND DOCUMENTS
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1. Deed of Trust with Assignment of Rents and Fixture Filing, dated as of
April 15, 1989, from Borrower to Ticor Title Insurance Company ("TICOR"), as
trustee, for the benefit of Lender.
2. Assignment of Lessor's Interest in Leases, dated as of April 15, 1989,
from Borrower to Lender.
3. Working Capital Loan Agreement, dated as of April 15, 1989, by and
between Borrower and Lender.
4. Second Deed of Trust with Assignment of Rents and Fixture Filing, dated as
of April 15, 1989, from Borrower to TICOR for the benefit of Lender.
5. Second Assignment of Lessor's Interest in Leases, dated as of April 15,
1989, from Borrower to Lender.
6. Regulatory Agreement, dated as of April 15, 1989, by and among Issuer,
Lender, Borrower and First Interstate Bank of California ("Trustee").
7. Indenture of Trust and Lender Loan Agreement, dated as of April 15, 1989,
by and among Issuer, Lender and Trustee.
S 1-1
SCHEDULE 1
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ADJUSTED CASH FLOW PROJECTIONS
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See attached.
Schedule 1
Camelot Lakes
Projected Ending Cash Balance at May 31, 1999
Cash Balance at 2/28/99 $ 209,648
Estimated Net Cash Flow(1)
March $ 62,000
April 20,000
May 68,000
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150,000 150,000
=========
Property Insurance
Insurance Effective Date 5/16/98
Projected Selling Date 5/31/99
Estimated Annual cost 23,803
Payments Made Through Sale 24,000
Less: Earned Premium Through Sale (24,846) 381 Days
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Refund/(Payment) Due (846) (846)
=========
Property Taxes
Property Tax Paid Through Date 6/30/99
Projected Selling Date 5/31/99
Actual Taxes Due (7/1/98 - 6/30/99) 120,942
Less: Seller Portion Due Through Closing 0 0 Days 0
Less: Buyer Portion Due Through Closing 9,940 30 Days 9,940
Miscellaneous
Last Month's Expenses (85,000)
Prepaid Rents (3,500)
Security Deposits 2/28/99 (143,177)
Tax Impound Account Balance 12/31/98 66,000
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(165,677) (165,677)
========= ---------
Projected Ending Cash Balance at 5/31/99 203,065
Other Final Costs
Final Audit/Tax Return (20,000)
Legal Fees (20,000)
Title Costs (per LandAmerica estimate) (31,000)
Fire Damage deductible (5,000)
Contingency (25,000) (101,000)
========= ---------
Projected Ending Cash Surplus (Deficit) 102,065
=========
Mar Apr May
(1)Income $175,000 $175,000 $175,000
Oper Expense (94,000) (80,000) (94,000)
Other Inc/Exp (1,000) (1,000) (1,000)
Taxes (61,000) 0
Insurance (2,000) (2,000) (2,000)
Debt Service
Impounds 0 0 0
Capital Items (16,000) (11,000) (10,000)
-------- -------- --------
Net Cash Flow $ 62,000 $ 20,000 $ 68,000
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