Exhibit 10.1
LOAN AGREEMENT
THIS LOAN AGREEMENT (this "Agreement"), is made as of the 28th day of
June, 1996, by and between WELLSFORD RESIDENTIAL PROPERTY TRUST, a Maryland
Real Estate investment trust ("Lender"), whose address is 000 00xx Xxxxxx,
Xxxxx 0000, Xxxxxx, Xxxxxxxx 00000, Attention: Xxxxxx X. XxxXxxxxx and
SPECIFIED PROPERTIES VIII, L.P., a Texas limited partnership ("Borrower"),
whose address is 0000 Xxxxxxxxx Xxxx, Xxxxx 000, Xxxxxx, Xxxxx 00000,
Attention: Xxxx X. Xxxxxxxxxx and Xxx Xxxxxx.
W I T N E S S E T H:
WHEREAS, Borrower is the owner of a 344-unit apartment project located
in Tucson, Arizona and commonly known as Sonterra at Xxxxxxxx Centre (the
"Project").
WHEREAS, Borrower has applied to Lender for a loan in the amount of
$17,800,000.00 (the "Loan"), the proceeds of which are to be used by Borrower
to repay in full the construction loan for the Project, to repay a portion of
the equity investment in Borrower by its partners, and for the payment of
certain third-party expenses of Borrower as set forth herein; and
WHEREAS, Lender is willing to make the Loan to Borrower on the terms and
conditions set forth herein.
NOW, THEREFORE, in consideration of the premises, and the mutual
covenants and agreements herein contained, the sufficiency of which is hereby
acknowledged, Lender and Borrower hereby covenant and agree as follows:
ARTICLE 1
DEFINITIONS
The following terms shall have the meanings indicated whenever used
herein:
"Affiliate" shall mean, with respect to any Person, any other Person
which directly or indirectly controls, is controlled by, or is under common
control with such Person and, in addition, in the case of the Borrower, each
general partner of the Borrower and each general partner of such general
partner.
"Business Day" shall mean every day except a Saturday, Sunday or public
holiday under the laws of the United States or the State of Arizona.
"Code" shall mean the Internal Revenue Code of 1986, as amended from
time to time.
"Collateral" shall have the meaning ascribed to such term in the Deed of
Trust.
"Deed of Trust" shall mean that certain Deed of Trust, Security
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Agreement and Fixture Filing dated as of the date hereof and given by
Borrower to secure the Obligations.
"Default" shall mean any event which if continued uncured would, with
notice or lapse of time or both, constitute an Event of Default.
"Default Interest Rate" shall mean an annual rate equal to the lesser of
fifteen percent (15%) or the highest rate permitted by law.
"Event of Default" shall mean any Event of Default described in Article
6 hereof.
"Fiscal Year" shall mean the annual period on the basis of which
Borrower computes its income in keeping its books. Borrower's Fiscal Year
shall be January 1 through December 31.
"GAAP" shall mean generally accepted accounting principles consistently
applied and maintained throughout the period indicated. Whenever any
accounting term is used herein which is not otherwise defined, it shall be
interpreted in accordance with GAAP.
"Guarantor" shall mean Xxxx X. Xxxxxxxxxx.
"Guaranty" shall mean that certain Guaranty Agreement of even date
herewith executed by Guarantor pursuant to which Guarantor has guaranteed
payment and performance of certain of the obligations of Borrower under the
Loan Documents in accordance with the terms and provisions set forth therein.
"Indebtedness" of any Person at any time shall mean: (a) indebtedness
for borrowed money or for the deferred purchase price of property or services
but excluding accounts payable arising in the ordinary course of business;
(b) capitalized lease obligations; (c) obligations under direct or indirect
guaranties of Indebtedness of others; and (d) any Indebtedness secured by any
Security Interest on the property of such Person.
"Loan Documents" shall have the meaning ascribed to such term in the
Deed of Trust.
"Loan Expenses" shall mean all reasonable and actual fees, charges,
costs and expenses incurred by Lender on or before the Closing Date (as
defined in Section 2.2) (including reasonable legal fees and expenses not to
exceed $5,000.00) with respect to preparation and negotiation of this
Agreement and the other Loan Documents and funding the Loan, but only to the
extent set forth on the closing statement to be signed by Borrower.
"Material Adverse Occurrence" shall mean any occurrence of whatsoever
nature (including, without limitation, any adverse determination in any
litigation, arbitration or governmental investigation or proceeding) which
materially adversely affects the present or prospective business, operations,
assets or condition, financial or otherwise, of the Borrower or impairs the
ability of the Borrower to perform its obligations under the Loan Documents
to which it is a party.
"Maturity Date" shall mean the earlier of: (a) the date upon which the
Note, is declared by Lender to be due and payable (or automatically becomes
due and payable) upon the occurrence of an Event of Default as provided in
Article 6 or (b) July 1, 1999.
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"Note" shall mean that certain Promissory Note in the stated principal
amount of $17,800,000.00 evidencing the Loan, executed simultaneously
herewith by Borrower and payable to the order of Lender.
"Obligations" shall mean, collectively, all obligations of Borrower to
Lender under the Loan Documents, whether now existing or hereafter arising.
"Option Agreement" shall mean that certain Option Agreement dated as of
the date hereof between Borrower, as the Seller, and Lender or an Affiliate
of Lender as the Buyer, pursuant to which Borrower has granted an option to
purchase the Project.
"Person" shall mean any natural person, corporation, firm, association,
partnership, government, governmental agency or any other entity, whether
acting in an individual, fiduciary or other capacity.
"Security Interest(s)" shall mean any constitutional, statutory, Uniform
Commercial Code, common-law, real property or other interest, in law or
equity giving one Person a right, for security purposes, in or to the
property of another Person.
ARTICLE 2
THE LOAN; DISBURSEMENT OF THE LOAN
Section 2.1. Agreement to Borrow and Lend. Subject to all of the
terms, provisions, conditions, covenants and agreements contained in this
Agreement and in reliance upon the representations and warranties set forth
herein, Borrower hereby agrees to borrow from Lender, and Lender agrees to
lend to Borrower, the Loan. The Loan shall be repaid by the Borrower in full
on the Maturity Date. The Loan is to be used for the repayment in full by
the Borrower of the outstanding construction loan encumbering the Project,
the repayment of a portion of the equity investment in Borrower by its
partners and the payment of certain other third-party expenses of Borrower as
set forth herein.
Section 2.2. Conditions Precedent to Disbursement. Lender shall have
no obligation to make any disbursement of the proceeds of the Loan unless and
until all of the following conditions precedent are satisfied (unless waived
in writing by Lender as Lender shall, in its sole discretion, determine) and
Loan Expenses incurred to the date of disbursement (the "Closing Date") have
been paid by Borrower:
(a) Opinions of Counsel. Lender shall have received an opinion of
Borrower's and Guarantor's counsels, which opinions shall be satisfactory to
Lender and Lender's counsel, stating, among other things, (A) that each of
Borrower, its general partner, and the general partner of its general partner
is validly formed and in good standing and duly existing under the laws of
the state of its formation; (B) that Borrower has the full partnership power
and authority to execute and deliver the Loan Documents to which it is a
party and to perform all of its obligations thereunder; (C) that Borrower's
general partner and the general partner of such general partner are each duly
authorized and have full partnership or corporate power and authority, as
applicable, to execute and deliver the Loan Documents on behalf of Borrower
or such general partner, as applicable; ; (D) that, to the best of said
counsel's knowledge and except as otherwise noted in said opinion, there are
no judicial proceedings pending or threatened against or affecting Borrower
or the Guarantor which would materially impair either Borrower's or the
Guarantor's ability to perform their respective covenants or obligations
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required to be performed under the Loan Documents; and (E) such other matters
as Lender may require.
(b) Bankruptcy. Neither Borrower nor the Guarantor shall be the
subject of any bankruptcy or insolvency proceeding nor shall Borrower or the
Guarantor have made an assignment for the benefit of their respective
creditors. There shall not have been any adverse change from the date of
Lender's determination to make the Loan in the financial condition of
Borrower or the Guarantor which would materially impair the capacity of
Borrower or the Guarantor to perform their respective obligations under the
Loan Documents.
(c) Lender's Approval. All instruments and documents required
hereby or relating to Borrower's capacity and authority to execute the Loan
Documents to which it is a party and such other documents, instruments,
opinions and assurances as Lender may reasonably request, and all procedures
in connection herewith, shall have been received and approved, as to form and
substance, by Lender and by Lender's counsel.
(d) Evidence of Authority; Governing Documents. Borrower shall
have furnished Lender with evidence satisfactory to Lender that Borrower is
validly formed and existing and in good standing in all relevant
jurisdictions. Furthermore, Borrower shall have submitted to Lender the
documents governing and creating Borrower. Borrower and its general partner
and the general partner of such general partner shall each have delivered to
Lender a grant of authority executed by the appropriate parties and
satisfactory to Lender, authorizing Borrower to enter into the loan
transaction contemplated hereby and authorizing the execution, delivery and
performance under the Loan Documents and authorizing the general partner of
Borrower and the general partner of such general partner to act in such
capacity with respect to such partnerships and to the execution and delivery
of the Loan Documents.
(e) Loan Fee. Borrower shall have paid to Lender on the date of
this Agreement a fee in the amount of $178,000.00 in consideration for Lender
agreeing to make the Loan, which fee is nonrefundable.
(f) Loan Documents; Further Documentation. Borrower and the
Guarantor shall have executed and delivered to Lender the Loan Documents to
which each is a party and shall have provided Lender at Borrower's expense,
with such other documents or instruments as Lender shall reasonably require
in order to make the Loan or to evidence or secure the obligations of
Borrower and the Guarantor under the Loan Documents, including without
limitation the following:
(i) an ALTA Mortgagee's Policy of Title Insurance insuring
the lien of the Deed of Trust as a first and prior lien on the Project,
subject only to liens for taxes, assessments or governmental charges or
levies not yet due and payable and to such other matters as are acceptable to
Lender in its sole discretion and including such endorsements and reinsurance
agreements as Lender may require;
(ii) a survey certified to Lender satisfying all the
requirements set forth in the "Minimum Standard Detail Requirements for
ALTA/ACSM Land Title Surveys" jointly adopted in 1992 by ALTA and ACSM and
including items 1 through 4, 6 through 11 and 13 on Table A thereof and
prepared and certified in accordance with the Accuracy Standards of an Urban
Survey as adopted by ALTA and ACSM at the date of such certification.
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(iii) a UCC lien search acceptable to Lender showing no
prior liens affecting any of the Collateral (except liens securing the
construction loan that are to be discharged from proceeds of the Loan);
(iv) current financial statements of Borrower and the
Guarantor in form and substance acceptable to Lender in its sole discretion;
(v) tax certificates, certificates of insurance, certificates
of occupancy, as-built plans and specifications and such other information
concerning the Project and its operations as Lender may reasonably require;
(vi) a current certified rent roll, current operating
statements and a budget for the current year, each in form and content
acceptable to Lender in its sole discretion;
(vii) evidence satisfactory to Lender that the Project is
in compliance with all applicable laws, ordinances, rules, regulations and
orders of any governmental authority, including, without limitation, safety
and fire codes and the Americans with Disabilities Act;
(viii) copies of any notices, correspondence, licenses or
agreements (including without limitation subdivision and similar agreements)
with, to or from any governmental or quasi-governmental authority having
jurisdiction over the Project;
(ix) any soils reports, environmental studies and building
plans and specifications for the Project which are in the possession of
Borrower or its agents or contractors; and
(x) any and all additional data, plans, geological and
engineering studies or reports, zoning information, water and sewer studies,
topographic maps, platting and other materials, and all other information and
agreements relating to the Project or any portion thereof which are in the
possession of Borrower or its agents.
(g) Representations and Warranties. All representations and
warranties of Borrower made herein or in the Loan Documents or in the Option
Agreement shall be true and complete on the Closing Date, and Borrower shall
be in compliance with all covenants of Borrower under this Agreement, the
Loan Documents and the Option Agreement in all material respects.
(h) Satisfaction of Condition. Borrower shall have satisfied the
condition described in Section 2.6 and shall provide Lender with a written
waiver of such condition.
Section 2.3. Disbursement of Loan Proceeds.
(a) Disbursement. Proceeds of the Loan in the amount of
$17,800,000.00 shall be fully disbursed upon satisfaction of all of the
conditions precedent set forth above, and provided that no Default or Event
of Default has occurred and is continuing on the Closing Date. Out of such
proceeds, the amount of $100,000.00 (the "Improvement Escrow Funds") shall be
deposited into escrow as provided under Section 2.3(d) below.
(b) Note. The Loan shall be evidenced by, and be payable in
accordance with the terms of, this Agreement and the Note.
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(c) Interest on the Note.
(i) Borrower agrees to pay interest on the outstanding
principal amount of the Note from the date of disbursement of the Loan
proceeds until the Maturity Date at the rate of nine percent (9%) per annum.
(ii) Borrower agrees to pay interest on any overdue
installment payment of principal or interest, from the due date thereof until
paid, at the Default Interest Rate.
(iii) Interest accrued on the Note through the Maturity Date
shall be payable on the first day of each calendar month commencing August 1,
1996.
(iv) No provision of this Agreement or the Note shall
require the payment or allow the collection of interest in excess of the rate
permitted by applicable law.
(d) Release of Improvement of Escrow Funds. The Improvement
Escrow Fund shall be deposited with an escrow agent acceptable to both Lender
and Borrower and shall be released to Borrower after the Closing Date upon
satisfaction of the following conditions:
(i) At any time when there is no uncured Event of Default,
Borrower may make written requests, not more often than monthly, for
disbursement of a portion of the Improvement Escrow Funds to be used solely
for the following purposes: replacement or repair of concrete or asphalt
pavement within the Project, replacement or improvement of landscaping,
exterior painting and other improvements or repairs to the exterior of the
improvements in the Project. Each such request shall be made to the escrow
agent, with a copy to Lender, and shall include a detailed description of the
work done, specifications therefor, samples of materials used, photographs of
the areas repaired or improved, and paid invoices for the work.
(ii) Upon receipt by the escrow agent of such evidence,
unless the escrow agent has received from Lender written notice of an uncured
Event of Default, the escrow agent shall disburse the amount of the
Improvement Escrow Funds requested for such work.
Section 2.4. No Prepayment. Except as provided in this Section 2.4,
prepayment of the Loan shall be prohibited and shall be subject to the
prepayment premium set forth in the Note (the "Prepayment Premium").
Notwithstanding the foregoing, a prepayment that occurs solely as the result
of one of the following shall be exempt from the Prepayment Premium:
(a) closing of the transaction contemplated under the Option
Agreement;
(b) prepayment in full after January 1, 1999, if and only if the
option granted under the Option Agreement has not been timely exercised; or
(c) application of casualty insurance proceeds or condemnation
proceeds.
Section 2.5. Payments. Any other provision of this Agreement to the
contrary notwithstanding, the Borrower shall make all payments of interest on
and principal of the Loan and fees due under this Agreement in immediately
available funds to the Lender. If not sooner paid or terminated, full
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payment of the outstanding balance of principal and accrued and unpaid
interest shall be due and payable on the Maturity Date.
Section 2.6. Borrower's Condition. Notwithstanding any
representation, warranty or covenant in this Agreement to the contrary,
Borrower's obligations under this Agreement are conditioned upon approval of
this Agreement by the limited partner of Borrower.
ARTICLE 3
REPRESENTATIONS AND WARRANTIES OF BORROWER
Borrower hereby represents and warrants to Lender as follows:
Section 3.1. Organization, Etc. Borrower is a limited partnership
validly organized, and existing under the laws of the state of its formation,
has full power and authority to own its property and conduct its business
substantially as presently conducted by it and is duly qualified to do
business and is in good standing as a foreign entity in each jurisdiction
where the nature of its business makes such qualification necessary. Each
Guarantor is an individual residing in the State of Texas.
Section 3.2. Authority and Enforceability. Each of the Borrower and
the Guarantor has full power and authority to enter into and to perform its
obligations under the Loan Documents to which it is a party and in the case
of Borrower, to grant a Security Interest in its property pursuant to the
Loan Documents to which it is a party and to obtain the Loan hereunder. The
execution and delivery of this Agreement and the other Loan Documents and the
performance and observance of the Obligations hereunder and thereunder have
been duly authorized by all necessary action on the part of Borrower and the
Guarantor. This Agreement and the other Loan Documents will constitute, when
executed and delivered to Lender by Borrower or the Guarantor, legal, valid
and binding obligations of Borrower or the Guarantor (whichever is a party
thereto) enforceable in accordance with their respective terms, subject to
bankruptcy, insolvency and similar laws affecting the enforcement of secured
creditors' rights generally.
Section 3.3. No Conflict. The execution and delivery by Borrower and
each of the Guarantor of the Loan Documents to which it is a party and
consummation of all the transactions contemplated hereby and thereby, do not
and will not conflict with, or contravene any law, order, rule or regulation
applicable to Borrower or the Guarantor or any material agreement or
instrument to which Borrower or the Guarantor is a party or by which any of
their respective properties or assets are bound, and will not result in the
creation of any lien, charge or encumbrance of any nature upon the assets or
properties of Borrower or the Guarantor other than those contemplated hereby
and by the other Loan Documents.
Section 3.4. Financial Condition. All balance sheets, income
statements, financial statements, operating statements and other financial
data required pursuant to the terms of the Loan Documents that have been
delivered (or will be delivered) to Lender by Borrower: (a) are (or will be)
accurate and complete in all material respects; and (b) accurately present
(or will present) the financial condition of the person or entity to which
they pertain as of the dates thereof, and the results of its operations for
the periods for which the same have been (or will be) furnished, and all
balance sheets disclose (or will disclose) all liabilities, direct and
contingent, as of their respective dates to the extent such liabilities are
required to be disclosed under GAAP. No additional material liabilities have
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been incurred by Borrower (except for further advances on the construction
loan disclosed in Borrower's financial statements) since the date of its most
recent financial statements delivered to Lender other than as disclosed to
Lender in writing.
Section 3.5. Litigation. There is no action, suit, legal proceeding
or other proceeding pending or threatened against Borrower or the Guarantor
that, if decided adversely to Borrower or the Guarantor, as applicable, would
have a material adverse affect on the properties or assets of Borrower or on
the ability of the Guarantor to perform under the Guarantee, or involving the
validity or enforceability of this Agreement or the other Loan Documents.
Neither Borrower nor any Guarantor is in default with respect to any order of
any court, arbitrator or governmental body and neither Borrower nor any
Guarantor is subject to or a party to any order of any court or governmental
body arising out of any action, suit or proceeding. For the purposes of this
Section, the term "governmental body" includes any federal, state, municipal
or other governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, and the term "order" includes any
order, writ, injunction, decree, judgment, award, determination, direction or
demand.
Section 3.6. No Default. There is no Default on the part of Borrower
or the Guarantor under this Agreement or any of the other Loan Documents to
which it is a party and, to the knowledge of Borrower and the Guarantor, no
event has occurred that with notice or the passage of time or both would
constitute an Event of Default hereunder or thereunder.
Section 3.7. Information Correct. None of the representations and
warranties in this Agreement or the other Loan Documents to which Borrower or
the Guarantor is a party, contains (or will contain) any untrue statement of
a material fact.
Section 3.8. No Other Financing. As of the Closing Date, except for
liens to be paid in full from the proceeds of the Loan, there shall be no
other financing secured by the Collateral.
ARTICLE 4
CERTAIN AFFIRMATIVE COVENANTS
The Borrower agrees with the Lender that, as long as the Loan shall be
outstanding, unless the Lender shall otherwise consent in writing:
Section 4.1. Financial Information, Etc. The Borrower will furnish
to the Lender copies of the following financial statements, reports and
information:
(a) (i) as soon as available and in any event within ninety (90)
calendar days after the end of each Fiscal Year, a copy of the Borrower's
annual financial reports, including balance sheet, related statements of
earnings, partners' equity and cash flow statement, for such Fiscal Year,
with comparative figures for the preceding Fiscal Year, prepared in
accordance with accounting principles consistent with those applied in the
preceding Fiscal Year, certified by Borrower to be in accordance with Section
3.4 of this Agreement; (ii) as soon as available and in any event within
fifteen (15) calendar days after the end of each calendar month: (A) a copy
of the unaudited statement of income and expenses of the Project for such
month with comparative information from the beginning of such Fiscal Year to
the end of such month, (B) a rent roll for such month, and (C) a monthly and
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year-to-date budget variance report, accompanied by a certificate signed by
Borrower stating that, to its knowledge, such unaudited statements and
reports fairly present the results of operations of Borrower and the Project
for the period covered, subject, however, to year-end adjustments which will
not be materially adverse, and have been prepared on the same basis as the
most recent annual statement delivered to the Lender pursuant to Section
4.1(a)(i);
(b) with each annual financial statement or report required by
Section 4.1(a)(i), a compliance certificate of Borrower stating that, to the
best knowledge of Borrower, no Default or Event of Default has occurred and
is continuing, or if a Default or an Event of Default has occurred and is
continuing, a statement of the nature thereof and the action which the
Borrower proposes to take with respect thereto; and
(c) by the last day of each Fiscal Year, Borrower-prepared
financial projections by month for the next Fiscal Year.
Section 4.2. Maintenance of Existence, Etc. Borrower shall cause to
be done at all times all things necessary to maintain and preserve its
existence as a limited partnership in good standing in all relevant
jurisdictions.
Section 4.3. Payment of Taxes, Etc. Unless being contested as
permitted in the Loan Documents, Borrower shall pay and discharge, as the
same may become due and payable, all taxes, assessments and other
governmental charges or levies against or on any of its property, as well as
claims of any kind which, if unpaid, might become a lien upon any of its
properties. If Borrower has any employees, Borrower shall make all required
payroll tax withholding deposits.
Section 4.4. Notices. Borrower shall give prompt written notice to
the Lender of:
(a) any action, suit, proceeding, or investigation instituted by
or against Borrower in any federal or state court or before any arbitrator,
commission or other regulatory body (federal, state or local, domestic or
foreign) or any such act or proceeding threatened against Borrower which, if
determined adversely to Borrower, would constitute a Material Adverse
Occurrence, in a writing that contains the details thereof;
(b) the commencement of any uninsured (except for deductible
amounts) litigation relating to Borrower in which the damages claimed exceed
$100,000 or questioning the validity of the transactions contemplated by this
Agreement;
(c) the filing, recording or assessment of any federal, state or
local tax lien against Borrower or any of its assets, other than ad valorem
taxes not yet due and payable;
(d) the occurrence of any Event of Default under this Agreement;
and
(e) the suspension, revocation or termination of any of
Borrower's material rights, franchises, permits, certificates of compliance
or grants of authority required in the conduct of its business.
Section 4.5. Compliance with Laws. Borrower shall carry on its
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business activities in compliance with all applicable federal or state laws
and all applicable rules, regulations and orders of all governmental bodies
and offices having power to regulate or supervise its business activities.
Borrower shall maintain all material rights, franchises, permits,
certificates of compliance or grants of authority required in the conduct of
its business.
Section 4.6. Books and Records, Periodic Audits. Borrower shall keep
books and records reflecting all of its business affairs and transactions and
permit Lender, and its respective representatives and agents, at reasonable
times and intervals and upon reasonable notice to Borrower, to visit all of
its offices, discuss its financial matters with representatives of Borrower
and its property manager for the Project (and by this provision the Borrower
authorizes its property manager for the Project to participate in such
discussions) and examine any of its books and other records relating to
operation of the Project.
Section 4.7. Conduct of Business. Borrower shall maintain and keep
its assets, property and equipment in good repair, working order and
condition and from time to time make or cause to be made all needed renewals,
replacements and repairs.
Section 4.8. Option Agreement. Borrower shall fully and timely
perform all obligations of the Seller under the Option Agreement.
ARTICLE 5
CERTAIN NEGATIVE COVENANTS
Borrower agrees with Lender that, as long as the Loan shall be
outstanding, unless Lender shall otherwise consent in writing:
Section 5.1. Consolidation, Merger, Sale of Assets, Etc. Without the
prior written consent of Lender, Borrower shall not do any of the following:
(a) consolidate with or merge into or with any other Person or
change its entity structure; or
(b) sell or dispose of or make any other distribution of the
Property (as defined in the Deed of Trust), except as otherwise permitted in
the Loan Documents with respect to eminent domain and replacement of worn,
damaged or obsolete components.
Section 5.2. Security Interest. Borrower will not create, incur,
assume or suffer to exist any Security Interest on any of its property, real
or personal, except: (a) Security Interests in favor of the Lender created
by the Loan Documents; (b) liens or encumbrances permitted under the Loan
Documents or specifically consented to in advance and in writing by Lender.
Section 5.3. Additional Indebtedness. Borrower shall not create,
incur, assume or suffer to exist any Indebtedness except: (a) the
Indebtedness under this Agreement; and (b) current liabilities (other than
for borrowed money) incurred in the ordinary course of business.
Section 5.4. Inconsistent Agreements. Borrower shall not enter into
any agreement containing any provision which would be violated or breached by
Borrower under any Loan Document or the Option Agreement or by the
performance by Borrower of its obligations under any Loan Document or the
Option Agreement.
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Section 5.5. Guaranties. Borrower shall not, without Lender's
consent, incur, assume or enter into any guaranty except endorsements of
negotiable instruments for deposit or collection in the regular course of
business.
Section 5.6. Distributions, Etc. During any period when an Event of
Default exists, Borrower shall not, without the prior written consent of
Lender, declare or make any distributions (whether cash or property),
purchase, redeem, retire, or otherwise acquire for value any of its
partnership interests now or hereafter outstanding, return any capital to its
partners as such, or make any distribution of assets to its partners as such
except for payment of customary salaries and employee benefits.
Section 5.7. Transactions with Affiliates. Without the prior written
consent of Lender, Borrower shall not: (a) permit the direct or indirect
transfer, distribution or payment of any of its funds, assets or property to
any Affiliate, except that Borrower may pay: (i) bona fide compensation to
Affiliates for services actually rendered to Borrower; (ii) expenses incurred
by an Affiliate in rendering services to Borrower in the ordinary course of
Borrower's business; (iii) expenses for services or property allocated or
leased by an Affiliate to Borrower in the ordinary course of Borrower's
business; (iv) distributions to partners if, at the time of the distribution,
no Event of Default exists; and (v) indemnification of Affiliates as required
by the Borrower's partnership agreement; (b) lend or advance money, credit or
property to any Affiliate; (c) invest in (by capital contribution or
otherwise) or purchase or repurchase any stock or indebtedness, or any assets
or properties, of any Affiliate, or (d) guarantee, assume, endorse or
otherwise become responsible for, or enter into any agreement or instrument
for the purpose of discharging or assuming (directly or indirectly, through
the purchase of goods, supplies or services or otherwise) the indebtedness,
performance, obligations, dividends or agreements for the furnishing of funds
of any Affiliate or employee thereof.
Section 5.8. Acquisitions. Borrower shall not acquire the stock or
substantially all the assets of any other entity or Person.
Section 5.9. Changes in Ownership. Except for the partnership
interests of Borrower presently outstanding, Borrower shall not issue any
general partnership interests nor shall it permit the transfer of any of its
outstanding general partnership interests except by operation of law.
Section 5.10. No Other Business. Borrower shall not engage in any
business or activity other than (i) the ownership, management, finance and
maintenance of the Project, and (ii) taking all actions that are reasonably
necessary or desirable in connection with the foregoing.
Section 5.11. Change in Management. Borrower shall not cause or
permit any change in the property manager for the Project without the prior
written consent of Lender. Any management agreement for the Project shall
provide for cancellation by owner on not more than thirty (30) days' notice.
ARTICLE 6
EVENTS OF DEFAULT AND REMEDIES
Section 6.1. Events of Default. The occurrence of any one or more of
the following events or the existence of one or more of the following
conditions shall constitute an event of default ("Event of Default") under
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this Agreement:
(a) There shall occur an Event of Default under the terms of any
of the Loan Documents (unless cured within any applicable cure period as
therein provided); or
(b) Any representation or warranty set forth herein or in any of
the other Loan Documents is materially false in any respect at the time made;
or
(c) Borrower fails to perform any covenant, agreement,
obligation, term or condition set forth herein, and such default is not cured
by Borrower within 30 days after written notice to Borrower from Lender of
such default or, if Borrower is unable to cure such default within said 30
days, Borrower fails to begin or to diligently pursue the cure of such
default or to complete such cure in any event within 60 days after such
written notice; or
(d) Any default shall occur under the terms applicable to any
Indebtedness (other than the Note and the Obligations) of Borrower in an
aggregate principal amount that exceeds $50,000, and such default shall cause
the holder(s) of the Indebtedness to accelerate the maturity thereof or shall
continue unremedied for a period of time sufficient to permit acceleration;
or
(e) Borrower shall become insolvent or generally fail to pay, or
admit in writing its inability to pay, its debts as they become due as such
terms are defined in the United States Bankruptcy Code, as amended; or shall
apply for, consent to, or acquiesce in, the appointment of a trustee,
receiver or other custodian for Borrower or for any of Borrower's property,
or make a general assignment for the benefit of creditors; or, in the absence
of such application, consent or acquiescence, a trustee, receiver or other
custodian shall be appointed for Borrower or for a substantial part of
Borrower's property; or any bankruptcy, reorganization, debt arrangement, or
other case or proceeding under any bankruptcy or insolvency law, or any
dissolution or liquidation proceeding shall be commenced in respect of
Borrower and shall not be dismissed within 90 days, or shall be consented to
or acquiesced in by Borrower; or Borrower shall take any action which
authorizes or in furtherance of any of the foregoing; or
(f) Any judgments, writs, warrants of attachment, executions or
similar process issued or levied against Borrower's assets, in the aggregate
shall constitute a Material Adverse Occurrence upon enforcement; or
(g) The occurrence of a Material Adverse Occurrence; or
(h) Any default by Borrower under the Option Agreement which has
not been cured within 30 days after written notice thereof or, if Borrower is
unable to cure such default within said 30 days, Borrower fails to begin or
to diligently pursue the cure of such default or to complete such cure in any
event within 45 days after such written notice; or
(i) The removal of, or the institution of removal proceedings to
effect the removal of, Westwood Residential No. 9 Limited Partnership as
general partner of Borrower or of Westwood Residential General Partner No. 9,
Inc. as general partner of such general partner.
Section 6.2. Remedies.
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(a) Upon the occurrence of any Event of Default hereunder which
has not been cured within any applicable cure period, the Loan, with all
accrued interest thereon and other amounts payable hereunder, under the Note
and under the other Loan Documents, shall, at the option of Lender, become
immediately due and payable without presentment, demand, protest or other
notice of any kind, all of which are expressly waived by Borrower. Lender
may proceed with every remedy available at law or in equity or provided for
herein or in the other Loan Documents, and all reasonable expenses incurred
by Lender in connection with any remedy shall be deemed indebtedness of
Borrower to Lender, shall be added to the outstanding principal balance of
the Note, shall bear interest thereafter at the Default Interest Rate and
shall be secured by the Deed of Trust and any other Loan Documents securing
the Loan. Lender may apply the proceeds from any Collateral for the Loan
against any of the Obligations, as and in the order set forth in the Deed of
Trust.
Subject to the limitations set forth in the Note, this
Agreement and the other Loan Documents, each and every right, remedy and
power granted to Lender hereunder or under the other Loan Documents shall be
cumulative and in addition to any other right, remedy or power herein or in
the other Loan Documents specifically granted or now or hereafter existing in
equity, at law, or by virtue of statute or otherwise and may be exercised by
Lender from time to time concurrently or independently and as often and in
such order as Lender may deem expedient. Any failure or delay on the part of
Lender in exercising any such right, remedy or power, or abandonment or
discontinuance of steps to enforce the same, shall not operate as a waiver
thereof or affect Lender's right thereafter to exercise the same.
ARTICLE 7
MISCELLANEOUS
Section 7.1. Amendments. No provision or term of this Agreement may
be amended, modified, revoked, supplemented, waived or otherwise changed
except by a written instrument duly executed by Borrower and Lender. No
failure or delay on the part of Lender or the holder of the Note in
exercising any power or right under this Agreement, the Note, or any Loan
Document shall operate as a waiver thereof, nor shall any single or partial
exercise of any such power or right preclude any other or further exercise
thereof or the exercise of any other power or right. No notice to or demand
on Borrower in any case shall entitle it to any notice or demand in similar
or other circumstances.
Section 7.2. Notices. All notices, demands and requests or other
communication to be sent by one party to the other hereunder or required by
law shall be in writing and shall be deemed to have been validly given or
served by delivery of same in person to the addressee or by depositing same
with a carrier in the business of making guaranteed overnight deliveries for
next business day delivery or by depositing same in the United States mail,
postage prepaid, registered or certified mail, return receipt requested,
addressed as set forth on the first page of this Agreement:
With, If Sent to Xxxxx X. Xxxxx, Esq.
Lender, Copy to: Xxxxxxxxxx Hyatt Xxxxxx & Xxxxxxxxxx, P.C.
000 00xx Xxxxxx, 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
With, If Sent to Xxxxxxx X. Xxxxxx, Esq.
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Borrower, Copy to: Xxxxx Day Xxxxxx & Xxxxx
0000 Xxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
All notices, demands and requests shall be effective upon such personal
delivery or upon being deposited with the above-referenced overnight carrier
or in the United States mail as required above. However, with respect to
notices, demands or requests so deposited with the above-referenced overnight
carrier or in the United States mail, the time period within which a response
to any such notice, demand or request must be given shall commence to run
from the next business day following any such deposit with the above-
referenced overnight carrier or, in the case of a deposit in the United
States mail as provided above, the date on the return receipt of the notice,
demand or request reflecting the date of delivery or rejection of the same by
the addressee thereof. Rejection or other refusal to accept or the inability
to deliver because of changed address of which no notice was given as herein
required shall be deemed to be receipt of the notice, demand or request sent.
By giving to the other party hereto at least 15 days' written notice thereof
in accordance with the provisions hereof, the parties hereto shall have the
right from time to time to change their respective addresses and each shall
have the right to specify as its address any other or additional address
within the United States of America.
Section 7.3. Counterparts. This Agreement may be executed in any
number of counterparts and this Agreement shall be deemed effective upon
delivery of all such counterparts. Each counterpart of this Agreement shall
be deemed an original and all such counterparts shall be taken to be one and
the same instrument, for the same effect as if all parties hereto had signed
the same signature page.
Section 7.4. Headings. The article and section headings herein are
for convenience only and shall not affect the construction hereof.
Section 7.5. Payment of Expenses. Borrower agrees to pay, and Lender
shall have no obligation for the payment of, the Loan Expenses and any other
expenses of Lender required to be paid under the other Loan Documents. All
Loan Expenses known as of the Closing Date shall be paid by Borrower at the
Closing Date. Any expenses incurred by Lender after the Closing Date that
Borrower is required to pay under the Loan Documents shall be paid within 30
days after receipt by Borrower of a statement therefor, and, if the same are
not so paid, shall be added to the outstanding principal balance of the Note
and shall thereafter bear interest from the date of expenditure by Lender
until paid at the Default Interest Rate.
Section 7.6. Entire Agreement. This Agreement and the other Loan
Documents constitute and incorporate the entire agreement between Lender and
Borrower concerning the subject matter of this Agreement, and supersede and
cancel any prior understandings and agreements between Lender and Borrower
concerning the subject matter hereof.
Section 7.7. Conflict. If any provision of any other Loan Document
shall conflict with any provision of this Agreement, this Agreement shall
control.
Section 7.8. Severability. If any provision in this Agreement shall
be held invalid, illegal or unenforceable in any jurisdiction, the validity,
legality and enforceability of the remaining provisions of this Agreement
shall not be impaired thereby, nor shall the validity, legality or
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enforceability of any such defective provision be in any way affected or
impaired in any other jurisdiction.
Section 7.9. Time of Essence. Time is of the essence hereof.
Section 7.10. Survival. The representations, warranties and covenants
herein shall survive the disbursement of the Loan and shall remain in full
force and effect.
Section 7.11. No Third Party Benefits. This Agreement is made for the
sole benefit of Borrower and Lender, their successors and assigns, and,
unless otherwise provided by law, no other person or persons shall have any
rights or remedies under or by reason of this Agreement. Borrower shall have
no right to assign this Agreement or any of Borrower's rights or obligations
hereunder and any attempt to make such an assignment shall be a Default
hereunder.
Section 7.12. Governing Law. The terms of the Loan Documents and the
terms and provisions of this Agreement will be governed by and construed in
accordance with the laws of the State of Colorado, except to the extent that
any of such laws may now or hereafter be preempted by Federal law, in which
case such Federal law shall so govern and be controlling, and except with
respect to enforcement of liens and security interests on Collateral located
in the State of Arizona, which shall be governed by the laws of the State of
Arizona.
Section 7.13. Limitation on Personal Liability. Except as hereinafter
provided, Lender's sole recourse shall be to the Collateral and Lender shall
not enforce any deficiency judgment or other amount due under any Loan
Document or any covenant, obligation, undertaking, representation or warranty
contained in any Loan Document (except enforcement against the Guarantor
under the Guaranty) against Borrower or any person who holds a direct or
indirect ownership interest in Borrower (hereinafter together with Borrower
collectively referred to as the "Exculpated Parties"); provided, however,
that nothing contained herein or in any Loan Document shall:
(a) limit Lender's rights and remedies against the Guarantor
under the Guaranty;
(b) limit the enforceability of any lien, security interest or
other right or remedy of Lender against any Collateral consistent with
nonrecourse liability as provided in this Section 7.13, including,
without limitation, the right to name any Exculpated Party in any
proceeding for enforcement thereof; or
(c) relieve the Exculpated Parties from personal liability or
responsibility for:
(i) any casualty or rental insurance proceeds or
condemnation awards received by any of the Exculpated Parties in
respect of the Project and not turned over to Lender or used for
restoration or repair of the Project;
(ii) any rents and other income from the Project received by
any of the Exculpated Parties after an Event of Default under the
Loan Documents and not otherwise applied to the expenses of
operating and maintaining the Project or to the Indebtedness
15
evidenced by the Loan Documents;
(iii) any fraud or intentional misrepresentation by any
of the Exculpated Parties in connection with the Project, the Loan
Documents, or any other aspect of the Loan; or
(iv) any default under the Hazardous Substances Remediation
and Indemnification Agreement, unless prior to the expiration of
any cure period relating to such default: (x) such default shall
have been duly and completely cured, and (y) any claims by any
party arising out of or relating to such default, which are
pending, threatened, or reasonably anticipated against Borrower,
Lender, or the Project, shall have been duly paid, settled, or
waived.
7.14. Non-Usurious Loan. It is the intent of Lender and Borrower
in this Agreement and all other Loan Documents now or hereafter securing the
Loan to contract in strict compliance with applicable usury law. In
furtherance thereof, Lender and Borrower stipulate and agree that none of the
terms and provisions contained in this Agreement, the Note, or in any other
instrument executed in connection herewith including but not limited to the
Loan Documents, shall ever be construed to create a contract to pay for the
use, forbearance or detention of money, interest at a rate in excess of the
maximum interest rate permitted to be charged by applicable law. Neither
Borrower nor any guarantors, endorsers or other parties now or hereafter
becoming liable for payment of the Loan shall ever be required to pay
interest on the Loan at a rate in excess of the maximum interest that may be
lawfully charged under applicable law, and the provisions of this paragraph
shall control over all other provisions of the Loan Documents and any other
instruments now or hereafter executed in connection herewith which may be in
apparent conflict herewith. Lender expressly disavows any intention to
charge or collect excessive unearned interest or finance charges in the event
the maturity of the Loan is accelerated. If the maturity of the Loan is
accelerated for any reason or if the principal of the Loan is paid prior to
the end of the term of the Loan, and as a result thereof the interest
received for the actual period of existence of the Loan exceeds the
applicable maximum lawful rate, Lender shall, at its option, either refund
the amount of such excess or credit the amount of such excess against the
principal balance of the Loan then outstanding and thereby shall render
inapplicable any and all penalties of any kind provided by applicable law as
a result of such excess interest. In the event that Lender collects monies
which are deemed to constitute interest which would increase the effective
interest rate on the Loan to a rate in excess of that permitted to be charged
by applicable law, all such sums deemed to constitute interest in excess of
the lawful rate shall, upon such determination, at the option of Lender, be
either immediately returned or credited against the principal balance of the
Loan then outstanding, in which event any and all penalties of any kind under
applicable law as a result of such excess interest shall be inapplicable. By
execution of this Agreement Borrower acknowledges that it believes the Loan
and all interest and fees paid pursuant to the Loan, to be non-usurious. The
term "applicable law" as used in this Section 7.14 shall mean the laws of the
State of Colorado or the laws of the United States, whichever allows the
greater rate of interest, as such laws now exist or may be changed or amended
or come into effect in the future.
7.15. Nonliability of Certain Persons. This Agreement and all
documents, agreements, understandings and arrangements relating to this
transaction have been executed by the undersigned in his/her capacity as an
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officer or trustee of Lender which has been formed as a Maryland real estate
investment trust pursuant to a Declaration of Trust of Lender dated as of
July 10, 1992, and not individually, and neither the trustees, officers or
shareholders of Lender shall be bound or have any personal liability
hereunder or thereunder. Borrower shall look solely to the assets of Lender
for satisfaction of any liability of the Lender in respect of this Agreement
and all documents, agreements, understandings and arrangements relating to
this transaction and will not seek recourse or commence any action against
any of the trustees, officers or shareholders of Lender or any of their
personal assets for the performance or payment of any obligation hereunder or
thereunder. The foregoing shall also apply to any future documents,
agreements, understandings, arrangements and transactions between the parties
hereto.
[THIS SPACE INTENTIONALLY LEFT BLANK.]
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IN WITNESS WHEREOF, the parties hereto have executed this Agreement as
of the day and year first above written.
BORROWER:
SPECIFIED PROPERTIES VIII, L.P.,
a Texas limited partnership
By: Westwood Residential No. 9 Limited
Partnership, its general partner
By: Westwood Residential General
Partner No. 9, Inc., its general
partner
By:/s/ Xxxx X. Xxxxxxxxxx
________________________________
Name: Xxxx X. Xxxxxxxxxx
Title: President
LENDER:
WELLSFORD RESIDENTIAL PROPERTY TRUST, a
Maryland Real Estate investment trust
By:/s/ Xxxxxx X. XxxXxxxxx
_________________________________________
Name: Xxxxxx X. XxxXxxxxx
Title: Vice President
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