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CREDIT AGREEMENT
BETWEEN
U.S. BANK NATIONAL ASSOCIATION
AND
ASSET INVESTORS OPERATING PARTNERSHIP, L.P.
AND
ASSET INVESTORS CORPORATION
DATED AS OF SEPTEMBER 1, 1998
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TABLE OF CONTENTS
Page
Article I CERTAIN DEFINITIONS..........................................1
1.1 Advance......................................................1
1.2 Advance Request..............................................1
1.3 AIOP.........................................................1
1.4 AIC..........................................................1
1.5 Annual Debt Service..........................................2
1.6 Borrowers....................................................2
1.7 Borrowing Base...............................................2
1.8 Business Day.................................................2
1.9 Closing......................................................2
1.10 Current Assets...............................................2
1.11 Current Liabilities..........................................2
1.12 Current Ratio................................................2
1.13 Debt Service Coverage Ratio..................................2
1.14 Documentation................................................2
1.15 EBITDA.......................................................2
1.16 Eligible Property............................................2
1.17 Equity Investment............................................2
1.18 Event of Default.............................................3
1.19 Lender.......................................................3
1.20 LIBO Rate....................................................3
1.21 LIBO-Based Rate..............................................3
1.22 Loan.........................................................3
1.23 Loan Documents...............................................3
1.24 Maturity Date................................................3
1.25 Net Earnings.................................................3
1.26 Note.........................................................3
1.27 Obligations..................................................3
1.28 Person.......................................................4
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TABLE OF CONTENTS
(continued)
1.29 Pledge Agreement.............................................4
1.30 Pledged Stock................................................4
1.31 Portfolio Properties.........................................4
1.32 Property.....................................................4
1.33 Reference Rate...............................................4
1.34 Tangible Net Worth...........................................4
1.35 Title Company................................................4
1.36 Title Policy.................................................4
Article II THE LOAN.....................................................5
2.1 Loan Amount..................................................5
2.2 Loan Term....................................................5
2.3 Interest Rate................................................5
2.4 Repayment....................................................5
2.5 Prepayment...................................................6
2.6 Payments on Non-Business Days................................6
2.7 Loan Costs and Expenses......................................6
Article III LOAN DOCUMENTS; USE OF LOAN PROCEEDS.........................6
3.1 Loan Documents...............................................6
3.2 Use of Loan Proceeds.........................................6
3.3 Equity Investment............................................7
Article IV MANNER AND CONDITIONS OF DISBURSEMENT OF LOAN PROCEEDS.......7
4.1 Conditions Precedent to Closing..............................7
4.2 Advances only for Eligible Properties........................8
4.3 Conditions Precedent to Each Advance........................10
4.4 Request for Advance.........................................10
4.5 Notice, Frequency and Place of Advances.....................10
4.6 Advances to Title Company...................................11
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TABLE OF CONTENTS
(continued)
4.7 Advances Do Not Constitute a Waiver.........................11
Article V REPRESENTATIONS AND WARRANTIES OF BORROWERS.................11
5.1 Representations and Warranties..............................11
5.2 Continuing Effect...........................................13
Article VI COVENANTS OF BORROWER.......................................14
6.1 Permanent Financing.........................................14
6.2 Maintenance of Insurance....................................14
6.3 Collection of Insurance Proceeds............................14
6.4 Application of Loan Proceeds................................14
6.5 Right of Lender to Inspect Portfolio Properties.............14
6.6 Licenses....................................................14
6.7 Compliance with Laws, Etc...................................14
6.8 Books and Records...........................................14
6.9 Existence...................................................15
6.10 Change of Executive Offices.................................15
6.11 Nature of Business..........................................15
6.12 Mergers; Acquisitions.......................................15
6.13 Tangible Net Worth..........................................15
6.14 Current Ratio...............................................15
6.15 Debt Service Coverage Ratio.................................15
6.16 Indebtedness................................................15
6.17 Encumbrances................................................15
6.18 Transfer of Properties......................................15
6.19 Environmental Compliance....................................15
6.20 Reporting Requirements......................................16
6.21 Further Assurances..........................................16
6.22 Audits......................................................17
iii
TABLE OF CONTENTS
(continued)
Article VII DEFAULTS....................................................17
7.1 Failure to Make Payment.....................................17
7.2 Default Under Loan Documents................................17
7.3 Breach of Covenant..........................................17
7.4 Breach of Warranty..........................................17
7.5 Litigation..................................................17
7.6 Levy........................................................17
7.7 Bankruptcy..................................................17
7.8 Deterioration of Financial Status...........................18
7.9 Transfer or Encumbrance.....................................18
Article VIII REMEDIES OF LENDER..............................................18
8.1 Remedies Under Other Loan Documents, At Law or In Equity....18
8.2 Encumbrance of Portfolio Property...........................18
8.3 No Waiver...................................................18
Article IX MISCELLANEOUS...............................................18
9.1 No Third Party Rights.......................................18
9.2 Participations..............................................19
9.3 Assignment..................................................19
9.4 Amendments..................................................19
9.5 Headings....................................................19
9.6 Governing Law...............................................19
9.7 Notices.....................................................19
9.8 Severability................................................19
9.9 Prior Understandings........................................19
9.10 Binding Effect..............................................19
9.11 Counterparts................................................20
9.12 Waiver of Jury Trial........................................20
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CREDIT AGREEMENT
This CREDIT AGREEMENT (this "Agreement") is entered into as of
the 1st day of September, 1998, between U.S. BANK NATIONAL ASSOCIATION, a
national banking association ("Lender"), and ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership ("AIOP"), and ASSET INVESTORS
CORPORATION, a Maryland corporation ("AIC", and together with AIOP,
"Borrowers").
Recitals
A. AIOP is a real estate investment trust which is in the
business of acquiring and operating manufactured home communities.
B. AIC is the sole general partner of AIOP.
C. Borrowers have requested that Lender extend to Borrowers a
loan (the "Loan") in the maximum principal amount of $5,000,000.00, to be used
for the purposes set forth herein.
D. Lender is willing to make the Loan to Borrowers, upon the
terms and conditions set forth herein.
E. Borrowers and Lender are entering into this Agreement for
the purpose of establishing the terms, conditions and agreements pursuant to
which Lender will make the Loan to Borrowers.
NOW, THEREFORE, for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, Borrowers and Lender
hereby agree as follows:
Article I
CERTAIN DEFINITIONS
The following terms shall have the meanings set forth below:
1.1 Advance. Each advance of Loan funds by Lender pursuant to
the terms of this Agreement or the Note.
1.2 Advance Request. A request by Borrowers for an advance
hereunder in accordance with the procedures set forth in Section 4.4 of this
Agreement.
1.3 AIOP. Asset Investors Operating Partnership, L.P., a
Delaware limited partnership, whose address is 0000 X. Xxxxxx Xxxxxx, Xxxxx 000,
Xxxxxx, Xxxxxxxx 00000, Attention Xxxxx Xxxxxx, and whose facsimile number is
(000) 000-0000
1.4 AIC. Asset Investors Corporation, a Maryland corporation,
whose address is 0000 X. Xxxxxx Xxxxxx, Xxxxx 000, Xxxxxx, Xxxxxxxx 00000,
Attention Xxxxx Xxxxxx, and whose facsimile number is (000) 000-0000.
1.5 Annual Debt Service. At any time for AIOP, the sum of all
scheduled interest payments owing under any indebtedness for the year commencing
on the date of determination, plus all scheduled principal payments on any
recourse indebtedness during such year period.
1.6 Borrowers. AIOP and AIC.
1.7 Borrowing Base. At any time, the amount computed on the
Borrowing Base Certificate most recently delivered to, and accepted by, Lender
in accordance with this Agreement and equal to the lesser of: (i) $5,000,000.00,
(ii) 65% of the closing price for the Pledged Stock on the American Stock
Exchange on the Business Day immediately preceding the date of the Borrowing
Base Certificate, or (iii) 65% of the aggregate purchase price for each Eligible
Property.
1.8 Business Day. A day when Lender's offices are open for
business in Denver, Colorado.
1.9 Closing. The date of this Agreement.
1.10 Current Assets. All assets of AIOP that should be
classified as current assets on a balance sheet of AIOP in accordance with
generally accepted accounting principles, consistently applied.
1.11 Current Liabilities. All liabilities of AIOP that should
be classified as current liabilities on a balance sheet of AIOP in accordance
with generally accepted accounting principles, consistently applied. excluding
however, any outstanding principal under the Loan.
1.12 Current Ratio. The ratio of current assets to current
liabilities.
1.13 Debt Service Coverage Ratio. The ratio, as determined by
Lender, of EBITDA to Annual Debt Service.
1.14 Documentation. The definition assigned to such term in
Section 4.2 of this Agreement.
1.15 EBITDA. With reference to any period, Net Earnings for
one-year period preceding the date of determination plus all amounts deducted in
arriving at such Net Earnings amount in respect of: (i) interest expense for
such period, (ii) federal, state and local income taxes for such period, (iii)
all amounts properly charged for depreciation of fixed assets and amortization
of intangible assets during such period but excluding any extraordinary profits
or losses and also excluding any taxes on such profits.
1.16 Eligible Property. A Property which meets the
requirements of Section 4.2 of this Agreement.
1.17 Equity Investment. The definition assigned to such term
in Section 3.3 of this Agreement.
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1.18 Event of Default. Any of the events specified in Article
VII hereof.
1.19 Lender. U.S. Bank National Association, a national
banking association, whose address is 0000 Xxxx Xxxxxxxxx, XXXX0000, Xxxxxx,
Xxxxxxxx 00000, Attention: Xxxxxx X. Xxxxx, and whose facsimile number is (303)
290-8671.
1.20 LIBO Rate. An interest rate per annum equal to the
average (rounded up to the nearest one-sixteenth of one percent) of the London
Interbank Offered Rates for U.S. Dollar deposits, for an amount approximately
equal to the outstanding balance of the Loan and for a one-month period, in
effect from time to time and reset on a daily basis, as such rate appears on the
Reuters Screen (LIBO page) (or, if Reuters is not available, any other publicly
available source of similar market data reasonably selected by Lender).
1.21 LIBO-Based Rate. The LIBO Rate plus one and
three-quarters percent (1.75%).
1.22 Loan. A loan in a principal amount not to exceed
$5,000,000.00, on a revolving basis, to be advanced by Lender to or for the
account of Borrower in a series of Advances, pursuant to the terms, conditions
and requirements set forth in this Agreement, together with any and all other
indebtedness, obligations and liabilities arising under or pursuant to this
Agreement or any of the Loan Documents.
1.23 Loan Documents. The definition assigned to such term in
Section 3.1 of this Agreement.
1.24 Maturity Date. The definition assigned to such term in
Section 2.2 of this Agreement.
1.25 Net Earnings. For any period, the gross revenues of AIOP
for such period less all expenses and other proper charges (including taxes on
income) determined in accordance with generally accepted accounting principles,
consistently applied, but excluding in any event any gains resulting from the
sale or other disposition of investments or other assets not in the ordinary
course of business, gains resulting from any reappraisal, reevaluation or
write-up of assets and other extraordinary items.
1.26 Note. A promissory note of even date herewith executed by
Borrowers in favor of Lender in the principal amount of $5,000,000.00,
evidencing Borrowers' obligation to repay all sums advanced under the Loan.
1.27 Obligations. All obligations of Borrowers:
(a) To pay the principal of and interest on the Note to
Lender in accordance with the terms of the Note, to pay all other
amounts that Borrowers are required to pay to Lender under this
Agreement, the Note or the other Loan Documents, and to satisfy all of
their other liabilities to Lender, whether hereunder or otherwise,
whether now existing or hereafter incurred, matured or unmatured,
direct or contingent, joint or several, including any extensions,
modifications or renewals thereof and substitutions therefor;
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(b) To repay to Lender all amounts advanced hereunder or
under any of the other Loan Documents on behalf of Borrowers; and
(c) To reimburse Lender, on demand, for all of Lender's
expenses and costs, including the fees and expenses of its counsel, in
connection with the preparation, administration, amendment,
modification or enforcement of this Agreement and the other Loan
Documents, including, without limitation, any proceeding brought, or
threatened, to enforce payment of any of the obligations referred to in
the foregoing paragraphs (a) and (b).
1.28 Person. Any individual, corporation, partnership, limited
liability company, limited liability partnership, association, joint-stock
company, trust, unincorporated organization, joint venture, court or government
or political subdivision or agency thereof.
1.29 Pledge Agreement. A Stock Pledge Agreement of even date
herewith pursuant to which AIOP has pledged to Lender the Pledged Stock to
secure payment and performance of the Obligations.
1.30 Pledged Stock. 1,015,674 shares of common stock of
Commercial Assets, Inc. owned by AIOP and pledged to Lender pursuant to the
Pledge Agreement.
1.31 Portfolio Properties. At any one time, each Property with
respect to which an Advance has been made pursuant to Article IV of this
Agreement and is still outstanding.
1.32 Property. A manufactured home community owned by AIOP or
which AIOP has entered into a contract to purchase or, if approved by Lender in
its sole and absolute discretion, another kind of income producing real property
owned by AIOP or which AIOP has entered into a contract to purchase.
1.33 Reference Rate. The rate of interest which has been
publicly announced by Lender as its "reference rate" from time to time, which
may be a rate at, above or below the rate or rates at which Lender lends money
to other parties, changing as such announced reference rate changes.
1.34 Tangible Net Worth. At any time, AIOP's tangible net
worth, determined in accordance with generally accepted accounting principles,
consistently applied;
1.35 Title Company. With respect to each Portfolio Property,
the title insurance company which issues the Title Policy.
1.36 Title Policy. The definition assigned to such term in
subsection 4.2(e) of this Agreement.
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Article II
THE LOAN
2.1 Loan Amount. Subject to the terms hereof, Lender will lend
Borrowers, from time to time until the Maturity Date, such amounts as Borrowers
may request, but which shall not exceed in the aggregate amount at any one time
outstanding, the lesser of $5,000,000.00 or the Borrowing Base. The Loan shall
be funded in accordance with, and subject to, the terms, conditions and
requirements set forth in this Agreement.
2.2 Loan Term. The term of the Loan shall commence as of
Closing. If not sooner paid, the entire unpaid principal indebtedness, all
accrued and unpaid interest, and all other sums payable in connection with the
Loan shall be due and payable in full on August 31, 2000, as such date may be
accelerated upon the occurrence of an Event of Default (the "Maturity Date").
2.3 Interest Rate. The outstanding principal balance of the
Loan shall bear interest on and from the date funds are advanced until the Loan
is paid in full at a non-default rate equal to either the Reference Rate or the
LIBO-Based Rate, as elected by Borrowers from time to time in accordance with
the provisions of this Section 2.3. At any one time, Borrowers may elect only a
single rate applicable to the entire outstanding balance of principal. If
Borrowers fail to make an election, the LIBO-Based Rate shall apply. Borrowers
may elect to change the applicable rate by delivering written notice of its
election to Lender, in which case the applicable rate shall change on the first
Business Day following Lender's receipt of such notice. Following maturity or an
Event of Default, whether maturity is brought about by acceleration upon an
Event of Default or otherwise, the Loan shall bear interest at a rate equal to
the Reference Rate plus five percent (5%) per annum. The applicable interest
rate shall be adjusted on the same day as any change in the Reference Rate or
LIBO Rate, as applicable.
2.4 Repayment. The Loan shall be repayable as follows:
(a) On the first Business Day of the first month
following Closing, Borrowers shall pay to Lender all interest that has
accrued on the Loan from Closing through such date. Thereafter,
Borrowers shall make monthly payments of interest only, in arrears, on
the unpaid principal balance of the Loan on the first Business Day of
each month until the Maturity Date.
(b) With respect to each Advance, a principal payment
equal to the amount of such Advance shall be due and payable on the
earlier to occur of: (i) 180 days from the date of such Advance, (ii)
at such time as AIOP sells or refinances the Portfolio Property with
respect to which such Advance was made, or (iii) at such time as the
Portfolio Property with respect to which such Advance was made ceases
to be an Eligible Property.
(c) If not sooner paid, the entire unpaid principal
balance of the Loan, together with all unpaid interest and other sums
due under the Loan, shall be due and payable in full on the Maturity
Date.
5
2.5 Prepayment. Borrower shall have the right to prepay, in
whole or in part, the principal balance of the Loan at any time.
2.6 Payments on Non-Business Days. Whenever any payment to be
made hereunder is due on a day other than a Business Day, such payment may be
made on the next succeeding Business Day, and such extension of time shall be
included in the computation of payment of interest.
2.7 Loan Costs and Expenses. Borrowers shall pay all expenses
incurred by Lender and any participants with Lender in connection with the Loan,
including, without limitation, all costs to prepare and review the Loan
Documents, the cost of any third-party consultants retained by Lender, recording
fees and attorneys' fees, provided, however, the total of expenses which may be
charged to Borrowers in connection with the closing of the Loan is $25,000.00.
Borrowers shall also pay all costs and expenses of any kind and nature incurred
by Lender in the administration or enforcement of this Agreement or any of the
other Loan Documents, including, without limitation, all attorneys' fees,
consultants' fees, appraisal fees and costs, receivers' fees, and all costs and
expenses incurred by Lender in protecting its interest in any collateral for the
Loan. Lender shall have the right, at its sole option, to advance proceeds of
the Loan for the payment of costs and expenses described in this Section 2.7,
and all sums so advanced shall be deemed a part of the Loan and secured by the
Loan Documents.
Article III
LOAN DOCUMENTS; USE OF LOAN PROCEEDS
3.1 Loan Documents. Borrowers have duly authorized, executed
or caused to be executed, and delivered to Lender the following documents to
evidence and secure the Obligations (all of which documents, collectively and
together with this Agreement, are referred to as the "Loan Documents"):
(a) Note. The Note.
(b) Pledge Agreement. The Pledge Agreement.
(c) Stock Powers. Irrevocable stock powers with respect
to the certificate or certificates representing the Pledged Stock,
endorsed in blank by AIOP.
(d) Financing Statements. Uniform Commercial Code
financing statements in favor of Lender, perfecting the security
interest in the Pledged Stock to be filed in the Central Indexing
System of the State of Colorado.
(e) Other Documents. Other documents as may be reasonably
required by Lender to evidence the Obligations, to perfect Lender's
security interest as described in the Pledged Stock, or otherwise to
protect Lender's interests.
3.2 Use of Loan Proceeds. Subject to all of the terms and
conditions of this Agreement, the proceeds of the Loan shall be used by AIOP to
pay a portion of the purchase price of Eligible Properties or as otherwise
permitted pursuant to Section 4.2 of this Agreement.
6
3.3 Equity Investment. It is a condition to Lender's
obligation to make the Loan that AIOP shall at all times maintain an equity
investment (the "Equity Investment") in each Portfolio Property of at least 35%
of the purchase price of the Portfolio Property. Prior to each Advance, AIOP
shall furnish to Lender satisfactory written evidence of its then existing
Equity Investment.
Article IV
MANNER AND CONDITIONS OF DISBURSEMENT OF LOAN PROCEEDS
Lender hereby agrees to make disbursements to Borrowers
against the Note in accordance with and subject to the following procedures:
4.1 Conditions Precedent to Closing. Lender's obligation to
close and to make any Advance of funds hereunder is expressly conditioned upon
Lender having received the following, in form and substance satisfactory to
Lender and its counsel:
(a) The Loan Documents;
(b) The Pledged Stock;
(c) Copies of AIOP's certificate of limited partnership
and limited partnership agreement, and all amendments thereto,
certified as being accurate and complete by AIC, as general partner of
AIOP;
(d) A current certificate of good standingfor AIOP,
issued by the Delaware Secretary of State;
(e) Certified resolutions consenting to and authorizing
the Loan from such partners of AIOP as may be required under its
partnership agreement;
(f) Copies of AIC's articles of incorporation and bylaws,
and all amendments thereto, certified as being accurate and complete by
the secretary of AIC;
(g) A current certificate of good standingfor AIC, issued
by the Maryland Secretary of State;
(h) Certified resolutions of the board of directors of
AIC, consenting to and authorizing the Loan;
(i) A written opinion of counsel to Borrowers dated as of
Closing, regarding such matters as Lender or its counsel may require,
including, without limitation, that the execution, delivery and
performance by Borrowers of the Loan Documents have been duly
authorized by all required action, and that the Loan Documents have
been duly executed and delivered by Borrowers;
7
(j) Such financial statements and other materials of
Borrowers as Lender may request, all in form and substance satisfactory
to Lender and certified as true and accurate by chief financial
officers of Borrowers; and
(k) Such other documents as Lender may reasonably
require.
4.2 Advances only for Eligible Properties. Advances shall be
made only to AIOP. AIOP shall be entitled to request Advances of principal only
for the purpose of paying not more than 65% of the purchase price of an Eligible
Property or, if AIOP has already acquired the Eligible Property, it may request
an Advance of not more than 65% of the purchase price it paid to be used as
operating capital. An Eligible Property is a Property which satisfies each of
the following criteria:
(a) AIOP must have prepared and have on file a
preliminary park profile containing background information on the park;
(b) AIOP must have prepared and have on file a property
condition assessment addressing the condition of the Property;
(c) AIOP must have received and have on file, or be
receiving in connection with the closing of its acquisition of the
Property, either a general warranty deed or special warranty deed to
the Property conveying fee simple title to the Property to AIOP;
(d) AIOP must have received and have on file an
improvement survey plat of the Property, prepared in accordance with
minimum standard detail requirements for ALTA/ASCM, certified to AIOP
and its assigns and to the Title Company, with a appropriate surveyor's
certification, sufficient to cause the Title Company to delete the
standard survey exceptions from the Title Policy, which indicates no
condition which could interfere with AIOP's operation of the Property
in any material manner or require a material expenditure to remedy;
(e) AIOP must have received and have on file an ALTA
owner's title insurance policy (the "Title Policy") issued by the Title
Company in amount equal to the purchase price of the Property, insuring
AIOP's fee simple estate in the Property, subject to no monetary liens
(other than taxes and assessments for the current year not yet due and
owing) and subject to no other exceptions except easements, covenants,
reservations or restrictions which will not interfere with AIOP's
ownership and operation of the Property, or an unconditional commitment
from the Title Company to issue the Title Policy;
(f) AIOP must have received and have on file a Phase 1
Environmental Report, and such additional reports as may be recommended
within such Phase 1 report, prepared by a registered engineer,
certifying that there are no indications that any part of the Property,
or any site in the immediate vicinity of the Land, is or has been used
to store or dispose of any hazardous wastes, toxic substances or
pollutants or contaminants of any kind which are or could be
detrimental to the Property, human health or the environment, or which
would be in violation of any governmental laws or regulations, or that
8
the Property is or has been affected by any of the same, or contains or
has contained any underground storage tanks of any kind;
(g) AIOP must have on file a current rent roll for the
Property.
(h) AIOP must have on file a copy of a sample lease
affecting or relating to the Property;
(i) AIOP must have on file historical income statements
for the Property for not less than two years;
(j) With respect to a Property which AIOP already owns,
AIOP must have satisfied the Equity Investment requirement set forth in
Section 3.3 of this Agreement and must have on file copies of the
signed settlement statements executed in connection with its
acquisition of the Property;
(k) With respect to a Property for which the Advance will
be used to pay a portion of the purchase price at the closing of AIOP's
acquisition of the Property, AIOP must satisfy the Equity Investment
requirement set forth in Section 3.3 of this Agreement at such closing
and must obtain at closing and maintain on file copies of the signed
settlement statements executed in connection with its acquisition of
the Property;
(l) AIOP must have on file each of the following with
respect to the Property: (i) copies of plans and specifications with
respect to any improvements on the Property, (ii) evidence that
adequate utility services exist for the operation of the Property as
currently operated, (iii) evidence that the Property conforms to all
zoning ordinances and similar laws or regulations applicable to it as a
matter of right and not as a nonconforming use, and (iv) copies of all
permits or licenses necessary for the operation of the Property for its
current use;
(m) The Property must not be the subject of any pending
or threatened litigation, action, proceeding or investigation,
including, without limitation, any condemnation proceeding, before any
court, governmental or quasi-governmental, arbitrator or other
authority, which if determined adversely could impair AIOP's title to
the Property or have a materially adverse impact on the value or the
operation of the Property or AIOP's financial condition;
(n) The following insurance must be in effect for the
Property from insurers rated by A.M. Best Company as "A-" or better and
having a size classification of at least "IX": (i) insurance covering
all risk of loss, damage, destruction, theft or other casualty for the
full replacement cost of any improvements on the Property, (ii) use and
occupancy insurance covering either rental income or business
interruption with coverage in an amount not less than twelve months'
anticipated gross rental income, (iii) comprehensive general liability
covering the Property and AIOP in an amount not less than $500,000 for
bodily injury and/or property damage liability per occurrence, and
$1,000,000 in the aggregate, and (iv) worker's compensation insurance
in accordance with the requirements of applicable law; and
9
(o) The Property must not be subject to any mortgage,
deed of trust, deed to secure debt or similar encumbrance.
All documents described or listed in this Section 4.2 relating to the Property
shall be referred to herein as the "Documentation." The Property shall cease to
be an Eligible Property on the earlier to occur of the following: (i) 180 days
from the date an Advance is made with respect to the Property, (ii) at such time
as AIOP obtains permanent financing secured by a lien upon the Property, (iii)
the date the Property no longer meets any of the requirements listed above in
this Section 4.2, or (iv) AIOP sells, conveys, assigns or transfers its title to
the Property.
4.3 Conditions Precedent to Each Advance. At no time and in no
event shall Lender be obligated to disburse funds:
(a) If any Event of Default or any other event or set of
circumstances which, with the giving of notice or the passing of time,
or both, would constitute an Event of Default, has occurred and has not
been cured; or
(b) If following such Advance, the outstanding principal
balance of the Loan would exceed the Borrowing Base; or
(c) Unless each request for an Advance is accompanied by
the materials and evidence required by this Article IV.
4.4 Request for Advance. At such time as Borrowers shall
desire to obtain, subject to the other requirements hereof, an Advance of any
portion of the Loan proceeds, Borrowers shall deliver to Lender a current
Borrowing Base Certificate, duly completed and executed by Borrowers; together
with a request for an Advance on a form approved by Lender, which shall be
properly completed and signed by Borrowers, and shall certify to the effect
that:
(a) The Property for which the Advance Request is being
submitted is an Eligible Property and AIOP has on file, or will receive
as part of the closing of its purchase of the Eligible Property, the
Documentation with respect to the Property required by Section 4.2;
(b) No material adverse change has occurred in the
financial condition of either Borrower since the date of its last
financial statement;
(c) Each of the representations and warranties contained
in this Credit Agreement is true and correct as if made on the date
thereof; and
(d) As of the date thereof, no Event of Default has
occurred and is continuing, and no event has occurred which, with the
giving of notice, passage of time, or both, would constitute an Event
of Default.
4.5 Notice, Frequency and Place of Advances. At the option of
Lender, (a) each request for an Advance shall be submitted to Lender at least
one Business Day prior to the date of the requested Advance, (b) Advances shall
be made in increments of not less than $100,000.00 , and (c) all Advances shall
10
be made at the principal office of Lender in Denver, Colorado, or at such other
place as Lender may designate.
4.6 Advances to Title Company. At its option, Lender may make
any Advance which is being used to pay a portion of the purchase price of an
Eligible Property directly to the Title Company which is closing AIOP's
acquisition and issuing the Title Policy for such Eligible Property under
instructions that the funds are to be returned to Lender in the event the
acquisition does not close within a time period specified in such instructions.
Any portion of the Loan so disbursed by Lender shall be deemed disbursed, and
shall bear interest, as of the date on which the Title Company receives such
disbursement. Borrowers shall bear all risk of malfeasance on the part of Title
Company. In the event the funds are returned to Lender by the Title Company,
they shall be applied to repay the Advance. The execution of this Agreement by
Borrower constitutes an irrevocable authorization to Lender to advance funds in
this manner, and no further authorization from Borrower shall be necessary to
warrant such Advances to the Title Company. All such advances shall satisfy pro
tanto the obligations of Lender hereunder as fully as if made directly to
Borrowers, regardless of the disposition thereof by the Title Company.
4.7 Advances Do Not Constitute a Waiver. No Advance of Loan
proceeds hereunder shall constitute a waiver of any of the conditions of
Lender's obligation to make further Advances nor, in the event Borrowers are
unable to satisfy any such condition, shall any such waiver have the effect of
precluding Lender from thereafter declaring such inability to be an Event of
Default under Article VII hereof.
Article V
REPRESENTATIONS AND WARRANTIES OF BORROWERS
5.1 Representations and Warranties. Borrowers hereby represent
and warrant to Lender as follows:
(a) Consummation of the transactions hereby contemplated
and performance of the obligations of Borrowers under the Loan
Documents will not result in any breach of, or constitute a default
under, any contract, mortgage, deed of trust, security agreement,
lease, loan or credit agreement, partnership agreement or other
instrument to which either Borrower is or may be bound.
(b) The execution, delivery and performance by Borrowers
of the Loan Documents do not contravene any applicable law of which
Borrowers are aware.
(c) No authorization, approval, consent or other action
by, and no notice to or filing with, any governmental authority or
regulatory body is required for the due execution, delivery and
performance by Borrowers of any of the Loan Documents or the
effectiveness of any assignment to Lender of any of Borrowers' rights
and interests of any kind.
(d) This Agreement is, and each other Loan Document to
which either Borrower is a party will be, when delivered hereunder,
valid and binding obligations enforceable against such Borrower in
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accordance with their respective terms, except as limited by equitable
principles and bankruptcy, insolvency and similar laws affecting
creditors' rights.
(e) AIOP is a limited partnership duly organized and
validly existing under the laws of the State of Delaware. AIOP has all
requisite power, authority and legal right to carry on the business now
being conducted by it and to engage in the transactions contemplated by
the Loan Documents. The execution and delivery of the Loan Documents
and the performance and observance of the provisions thereof are within
the powers of AIOP and have been duly authorized by all necessary
action.
(f) AIC is a corporationduly organized and validly
existing under the laws of the State of Maryland. AIC has all requisite
power, authority and legal right to carry on the business now being
conducted by it and to engage in the transactions contemplated by the
Loan Documents The execution and delivery of the Loan Documents and the
performance and observance of the provisions thereof are within the
powers of AIC and have been duly authorized by all necessary action.
(g) Each Borrower is a "non-foreign person" within the
meaning of Section 1445 of the United States Internal Revenue Code of
1986, as amended, and the regulations issued thereunder.
(h) Borrowers have filed all tax returns which are
required to be filed by Borrowers and have paid all taxes as shown on
such returns or on any assessment received pertaining to the Premises.
(i) Neither Borrower has made an assignment for the
benefit of creditors, nor has either Borrower filed, or, to the
knowledge of such Borrower, had filed against it, any petition in
bankruptcy.
(j) There are no actions, suits or proceedings, pending
or, to the best of Borrowers' knowledge threatened, against or
affecting either Borrower, or affecting the validity or enforceability
of any of the Loan Documents or the priority of the lien thereof, at
law or in equity, or before or by any governmental authority. Neither
Borrower is in default with respect to any order, writ, injunction,
decree or demand of any court or any governmental authority.
(k) Neither Borrower is in default in the performance,
observance or fulfillment of any material obligation, covenant or
condition set forth in any agreement or instrument to which it is a
party or by which it or any of its properties, assets or revenues are
bound, and no event has occurred which, with the passing of time or the
giving of notice, or both, would constitute a default under any such
agreement or instrument.
(l) The properties of each Borrower have been and are
presently used and operated in compliance with any applicable statute,
law, regulation, rule, ordinance or order of any kind whatsoever,
including, without limitation, any building, fire, health, safety,
pollution, environmental (including, without limitation, the Resource
Conservation and Recovery Act, as amended, 42 U.S.C.ss.6901, et seq.,
12
the Comprehensive Environmental Response, Compensation and Liability
Act, as amended, 42 U.S.C. ss. 9601, et seq., the Solid Waste Disposal
Act, as amended, 42 X.X.X.xx. 6901, et seq., the Colorado Waste
Management Act, as amended, X.X.X.xx. 00-00-000, et seq., the Solid
Waste Disposal Sites and Facilities Act, as amended, X.X.X.xx.
00-00-000, et seq., and the Water Quality Act, as amended, X.X.X.xx.
25-8-101, et seq., and the regulations adopted pursuant thereto or any
other similar applicable federal, state or local law, rule, regulation
or ordinance), subdivision and zoning statute, law, code, ordinance,
rule, regulation, approval or order or urban redevelopment plan or
other governmental or quasi-governmental requirement affecting such
properties or any part thereof.
(m) Neither Borrower has generated, stored or disposed of
any hazardous waste on any of its properties, and neither Borrower has
any knowledge of any previous or present generation, storage, disposal
or existence of any hazardous waste on such properties. There is no
asbestos on any of the properties of either Borrower. Neither Borrower
has received any notice from any federal, state, county, municipal or
other governmental department, agency or authority, nor does Borrower
have any knowledge, of the existence of any petroleum product or other
hazardous waste discharge or seepage on any of its properties. There
are no on-site facilities at any of the properties of either Borrower
for the permanent disposal of solid waste. The term "hazardous waste"
shall mean "hazardous waste" as defined in the statutes cited in the
immediately preceding subsection of this Agreement and regulations
adopted thereunder. Borrowers hereby agrees to indemnify, defend and
hold harmless Lender and its agents, affiliates, officers, directors
and employees of and from any and all liability, claims, demand,
actions and causes of action whatsoever and of and from any and all
costs and expenses incurred by Lender, (including, without limitation,
all of Lender's attorneys' fees and expenses, and costs and expenses
incurred in investigating, preparing or defending against any
litigation or claim, action, suit, proceeding or demand of any kind or
character) arising out of or related to any contamination of any of
properties of either Borrower or the existence of any asbestos or
"hazardous waste" on such properties.
5.2 Continuing Effect. Borrowers shall be liable to Lender for
any damage suffered by Lender if any of the foregoing representations are
materially inaccurate as of Closing, regardless of when such inaccuracy may be
discovered by, or result in harm to, Lender. Borrowers further represent and
warrant that the foregoing representations, warranties and indemnities, as well
as all other representations, warranties and indemnities of Borrowers to Lender
relative to the Loan and this Agreement, shall continue to be true at all times
throughout the term of this Agreement. Such representations, warranties and
indemnities shall survive the termination of this Agreement.
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Article VI
COVENANTS OF BORROWER
Borrower hereby covenants and agrees with Lender as follows:
6.1 Permanent Financing. With respect to each Portolio
Property within the Borrowing Base, AIOP shall diligently pursue and obtain
permanent non-recourse financing in an amount sufficient to repay the Advance
made with respect to such Portfolio Property within 180 days from the date such
Advance was made. All proceeds of such financing, net of reasonable and
customary closing costs of such financing, shall be paid to Lender to be applied
to the Loan.
6.2 Maintenance of Insurance. Borrowers will at all times
maintain the insurance described in Section 4.2(n) and such other insurance as
is reasonable and customary within Borrowers' respective industries.
6.3 Collection of Insurance Proceeds. Borrowers will cooperate
with Lender in obtaining for Lender the benefits of any insurance or other
proceeds lawfully or equitably payable to it in connection with the transactions
contemplated hereby, and will reimburse Lender for any expenses incurred in
connection therewith. All proceeds of any insurance with respect to any
Portfolio Property shall be used either to repair or restore the Portfolio
Property or be paid to Lender to be applied to the Advance made with respect to
such Portfolio Property.
6.4 Application of Loan Proceeds. Borrower will use the
proceeds of the Loan solely for the purposes described in Section 3.2 of this
Agreement.
6.5 Right of Lender to Inspect Portfolio Properties. Borrowers
will permit Lender, its representatives and agents, and any other independent
engineers or consultants employed by Lender, to enter upon and inspect any
Portfolio Properties, and will cooperate with Lender and its representatives and
agents during such inspections; provided, however, that this provision shall not
be deemed to impose upon Lender any obligation to undertake such inspections,
nor shall the making of such inspections impose any responsibility on Lender
with respect to such Portfolio Properties.
6.6 Licenses. Borrowers will do or cause to be done all things
necessary to obtain and renew all permits, licenses and other approvals required
by any federal, state or local agency for the operation of their respective
businesses and properties.
6.7 Compliance with Laws, Etc. Borrowers will comply in all
material respects with all applicable laws, rules, regulations, orders,
easements, covenants, declarations, deed restrictions and other legal or
contractual obligations and restrictions affecting any Portfolio Property.
6.8 Books and Records. Each Borrower will keep and maintain
proper and accurate books, records and accounts reflecting all items of income
and expense of such Borrower, and AIOP shall keep and maintain such books,
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records, and accounts separately for each Portfolio Property. Upon the request
of Lender, each Borrower will make such books, records and accounts immediately
available to Lender for inspection or independent audit. Each Borrower will
permit Lender, or any agents or representatives of Lender, to discuss the
affairs, finances and accounts of such Borrower with any of its representatives
or officers.
6.9 Existence. AIOP will do or cause to be done all things
necessary to maintain its legal existence and powers as a limited partnership
qualified to do business in the State of Colorado and in each other state where
the failure to be qualified could materially and adversely affect AIOP or the
business, assets or operations of AIOP. AIC will do or cause to be done all
things necessary to maintain its legal existence and powers as a corporation
qualified to do business in the State of Colorado and in each other state where
the failure to be qualified could materially and adversely affect AIC or the
business, assets or operations of AIC.
6.10 Change of Executive Offices. Each Borrower will promptly
notify Lender if changes are made in the location of such Borrower's primary
executive offices.
6.11 Nature of Business. Neither Borrower will make any
substantial change in the nature of its business as such business is now
conducted.
6.12 Mergers; Acquisitions. Neither Borrower shall merge with
any other entity, or dispose of any of its current subsidiaries, without the
prior written consent of Lender.
6.13 Tangible Net Worth. AIOP shall at all times maintain a
minimum Tangible Net Worth of not less than $70,000,000.00.
6.14 Current Ratio. AIOP shall maintain a Current Ratio at all
times of no less than 2.0:1.
6.15 Debt Service Coverage Ratio. AIOP shall maintain a Debt
Service Coverage Ratio at all times of no less than 2.0:1.
6.16 Indebtedness. Without Lender's prior written approval,
AIOP will not incur or assume any debts or other liabilities or obligations,
other than the Loan, non-recourse first mortgage loans upon any Property which
is not a Portfolio Property, and trade debt incurred in the ordinary course of
business.
6.17 Encumbrances. AIOP will not create, incur, assume, permit
or suffer to exist any lien on all or any part of any Portfolio Property except
in accordance with Section 8.2 of this Agreement.
6.18 Transfer of Properties. Without the prior written consent
of Lender, AIOP will not lease (other than in the ordinary course of operating a
manufactured home community), sell, assign, transfer, convert the intended use
of or substantially modify all or any part of any Portfolio Property, or grant
any options or similar rights with respect thereto.
6.19 Environmental Compliance. AIOP will not permit any
Portfolio Property, or any portion thereof, to be used or operated in any manner
such that any area of the Portfolio Property becomes contaminated by any
"hazardous waste" in violation of any federal, state or local environmental
statute or ordinances.
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6.20 Reporting Requirements. Borrowers shall furnish or cause
to be furnished to Lender the following:
(a) Not later than ninety (90) days following each fiscal
year of each Borrower, audited annual financial statements of such
Borrower, which shall include a balance sheet, income statement and
such other financial statements as Lender may reasonably require for
the preceding year;
(b) Not later than forty-five (45) days after the end of
each fiscal quarter of each Borrower, quarterly financial statements of
such Borrower, which shall include a balance sheet, a statement of
income, and such other financial statements as Lender may reasonably
require for the preceding quarter, prepared in accordance with
generally accepted accounting principles, consistently applied, and
certified as true and correct by the chief financial officer of such
Borrower;
(c) Not later than forty-five (45) days after the end of
each fiscal quarter of AIOP, a compliance certificate executed by the
chief financial officer of AIOP addressing each of the financial
covenants contained in this Agreement and stating whether AIOP is in
compliance;
(d) Not later than 15 days after the end of each month
and at the time of each Advance Request, a Borrowing Base Certificate
in form approved by Lender;
(e) Not later than thirty (30) days after the filing
thereof, copies of all federal and state income tax returns, together
with all schedules thereto, of each Borrower;
(f) Within two Business Days after Lender has requested,
copies of the Documentation for each Portfolio Property.
(g) Promptly upon becoming aware of any condition or
event which constitutes an Event of Default hereunder or which, with
the giving of notice or the passing of time, or both, would become an
Event of Default hereunder, verbal notice thereof and of Borrowers'
intended actions with respect thereto, followed immediately by a
written notice to Lender confirming such matters;
(h) Promptly upon becoming aware thereof, written notice
of any action, suit or proceeding pending or threatened against or
affecting either Borrower which, if determined adversely, could
materially and adversely affect such Borrower or the business, assets
or operations of such Borrower; and
(i) Such other information respecting the condition or
operations, financial or otherwise, of Borrowers or pertaining to the
Portfolio Properties, as Lender may from time to time reasonably
request.
6.21 Further Assurances. Borrowers will promptly cure any
defects in the execution and delivery of this Agreement and any other instrument
or agreement mentioned herein or therein and will immediately execute and
deliver, upon request of Lender, all such further documents or instruments as
16
may be required by Lender to carry out the covenants of Borrowers herein.
6.22 Audits. AIOP shall permit Lender to audit the Portfolio
Properties on a semiannual basis and at any time an Event of Default has
occurred. Borrowers shall pay all expenses of Lender or its consultants in
connection with such audit, but in the case of each semiannual audit while no
Event of Default has occurred and is continuing, Borrowers shall not be required
to pay expenses in excess of $5,000 per audit.
Article VII
DEFAULTS
An Event of Default shall be deemed to have occurred hereunder
if:
7.1 Failure to Make Payment. Borrowers fail to pay when due
any installment of principal or interest payable under the terms of this
Agreement or the Note.
7.2 Default Under Loan Documents. Any default or event of
default occurs under any of the other Loan Documents.
7.3 Breach of Covenant. Any Borrower breaches or fails to
perform, observe or meet any covenant or condition made in any of the Loan
Documents (other than the obligation to make payments under the Note or the
other Loan Documents) and such failure continues for a period of ten (10) days
following written notice thereof from Lender to Borrowers; provided, however,
that if such failure is not curable within such ten (10) day period, then, so
long as Borrowers commence to cure such failure within such ten (10) day period
and is continually and diligently attempting to cure to completion, such failure
shall not be an Event of Default unless such failure remains uncured for thirty
(30) days after such written notice to Borrowers.
7.4 Breach of Warranty. Any warranty or representation made or
agreed to be made in any of the Loan Documents proves to be false or misleading
in any material respect.
7.5 Litigation. Any suit is filed against either Borrower,
which, if adversely determined, could reasonably be expected to materially
impair the ability of such Borrower to perform any of its or his obligations
under the Loan Documents.
7.6 Levy. A levy or attachment under any process is made on,
or a receiver is appointed for, any property of either Borrower.
7.7 Bankruptcy. Either Borrower shall admit its inability to
pay its debts, or shall make a general assignment for the benefit of creditors,
or shall generally not be paying its debts as such debts become due, or any
proceeding shall be instituted by or against it seeking reorganization,
arrangement, adjustment, or composition of it or its debts under any law
relating to bankruptcy, insolvency or reorganization or relief of debtors, or
seeking appointment of a receiver, trustee, or other similar official for it or
for any substantial part of its property and, if instituted against it, shall
remain undismissed for a period of sixty (60) days.
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7.8 Deterioration of Financial Status. Lender reasonably
determines that the financial condition of either Borrower has suffered a
material adverse change.
7.9 Transfer or Encumbrance. AIOP transfers, leases, sells,
assigns, conveys or further encumbers all or any portion of a Portfolio Property
without Lender's prior written approval or in violation of the provisions of
this Agreement, except for an encumbrance in connection with permanent financing
of such Portfolio Property in accordance with the provisions of Section 6.1 of
this Agreement.
Article VIII
REMEDIES OF LENDER
The occurrence of any one or more of the events of default set
out in Article VII of this Agreement shall constitute an event of default under
each of the Loan Documents, entitling Lender, at its option, to proceed to
exercise any one or more of the following remedies:
8.1 Remedies Under Other Loan Documents, At Law or In Equity.
Lender may (i) exercise any of the various remedies provided for in the other
Loan Documents, including (whether or not specifically provided for by such Loan
Documents) the termination of any obligation to advance additional Loan
proceeds, the acceleration of the indebtedness evidenced by the Note and the
foreclosure of the Pledged Stock, and (ii) exercise any other rights, options
and privileges available to Lender at law or in equity.
8.2 Encumbrance of Portfolio Property. AIOP agrees, upon the
request of Lender, to immediately grant to Lender a security interest in all
real and personal property constituting the Portfolio Property, to execute and
deliver deeds of trust, mortgages, security agreements, financing statements and
other collateral documents as Lender may request to create and perfect such
security interests, to execute Lender's standard form Environmental Indemnity
Agreement with respect to the Portfolio Property, and to add Lender as a loss
payee or additional insured with respect to each policy of insurance relating to
a Portfolio Property.
8.3 No Waiver. No failure on the part of Lender to exercise,
and no delay in exercising, any right under any Loan Document shall operate as a
waiver thereof; nor shall any single or partial exercise of any right under any
Loan Document preclude any other or further exercise thereof or the exercise of
any other right. The remedies provided in the Loan Documents are cumulative and
not exclusive of any remedies provided by law.
Article IX
MISCELLANEOUS
9.1 No Third Party Rights. All conditions of the obligations
of Lender hereunder, including the obligation to make Advances, are imposed
solely and exclusively for the benefit of Lender and Borrowers and their
permitted successors and assigns, and no other person shall have standing to
require satisfaction of such conditions in accordance with their terms or be
entitled to assume that Lender will refuse to make Advances in the absence of
strict compliance with any or all thereof. No other person shall, under any
circumstances, be deemed to be a beneficiary of such conditions, any or all of
18
which may be freely waived in whole or in part by Lender at any time in Lender's
sole discretion.
9.2 Participations. Lender may, in its sole discretion and
without notice to Borrowers, sell or transfer participation interests in the
Loan, in such amounts or percentages, and to such persons or entities, as Lender
desires. Such sale or transfer of participation interests shall not relieve
Borrowers of any of their obligations under the Loan Documents.
9.3 Assignment. Borrowers may not assign this Agreement or any
of its rights or obligations hereunder without the prior written consent of
Lender.
9.4 Amendments. Neither this Agreement nor any provision
hereof may be changed, waived, discharged or terminated orally, but only by an
instrument in writing signed by the party against whom enforcement of the
change, waiver, discharge or termination is sought.
9.5 Headings. The headings of the articles, sections and
subsections of this Agreement are for convenience and reference only, are not to
be considered a part hereof, and shall not limit or otherwise affect any of the
terms hereof.
9.6 Governing Law. This Agreement shall be governed by and
construed in accordance with the laws of the State of Colorado.
9.7 Notices. Any notice required or permitted to be given by
Borrowers or Lender under this Agreement shall be in writing and will be deemed
given (a) upon personal delivery or upon transmission by telecopier or similar
facsimile transmission device, (b) on the first Business Day after receipted
delivery to a courier service which guarantees next-business-day delivery, or
(c) on the third Business Day after mailing, by registered or certified United
States mail, postage prepaid, in any case to the appropriate party at its
address set forth in Article I of this Agreement. Any party may change such
party's address for notices or copies of notices by giving notice to the other
parties in accordance with this Section 9.7.
9.8 Severability. Any provision of any of the Loan Documents
which is declared by a court of competent jurisdiction to be illegal, invalid,
prohibited or unenforceable shall be ineffective only to the extent of such
illegality, invalidity, prohibition or unenforceability, without invalidating or
otherwise affecting the remaining provisions of such Loan Document.
9.9 Prior Understandings. This Agreement supersedes all prior
understandings and agreements, whether written or not, between the parties
hereto relating to the transactions provided for herein. This Agreement
represents the final agreement between the parties and may not be contradicted
by evidence of prior, contemporaneous or subsequent oral agreements of the
parties. There are no unwritten oral agreements between the parties.
9.10 Binding Effect. This Agreement shall be binding upon
Borrowers, their successors and permitted assigns, and shall inure to the
benefit of Lender, its successors, assigns and participants, if any.
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9.11 Counterparts. This Agreement may be executed in any
number of counterparts, each of which shall be deemed to be an original, and all
of which shall constitute but one and the same instrument.
9.12 Waiver of Jury Trial. BORROWERS AND LENDER EACH HEREBY
WAIVE THE RIGHT TO A TRIAL BY JURY IN ANY DISPUTE ARISING IN CONNECTION WITH THE
LOAN OR ANY OF THE LOAN DOCUMENTS, OR IN ANY WAY RELATED TO THE NEGOTIATION,
ADMINISTRATION, MODIFICATION, EXTENSION OR COLLECTION OF THE LOAN. BORROWERS AND
LENDER STATE THAT THEY HAVE CONFERRED SPECIFICALLY WITH RESPECT TO THIS WAIVER,
AND HAVE AGREED TO THIS WAIVER AFTER CONSULTATION WITH THEIR RESPECTIVE COUNSEL
AND WITH FULL UNDERSTANDING OF THE IMPLICATIONS HEREOF.
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IN WITNESS WHEREOF, the parties hereto have executed this
Agreement as of the date first written above.
BORROWERS:
ASSET INVESTORS OPERATING
PARTNERSHIP, L.P., a Delaware limited
partnership
By: ASSET INVESTORS CORPORATION,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Xxxxx X. Xxxxxx
Chief Financial Officer,
Secretary and Treasurer
ASSET INVESTORS CORPORATION, a
Maryland corporation
By: /s/ Xxxxx X. Xxxxxx
---------------------------
Chief Financial Officer,
Secretary and Treasurer
LENDER:
U.S. BANK NATIONAL ASSOCIATION, a
national banking association
By:
---------------------------
Xxxxxx X. Xxxxx
Vice President
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