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EXHIBIT 10.88
FIFTH MODIFICATION AGREEMENT
Unsecured Loan
THIS MODIFICATION AGREEMENT ("Agreement") is dated as of September 25, 1997,
entered by and among OASIS RESIDENTIAL, INC., a Nevada corporation ("Company"),
the financial institutions listed on the signature pages hereof ("Lenders") and
Xxxxx Fargo Bank, National Association, as agent for Lenders (in such capacity,
"Administrative Agent"), and Xxxxxx Guaranty Trust Company of New York and Bank
One, Arizona NA, as co-agents for the Lenders (in such capacity, collectively,
"Co-Agents").
R E C I T A L S
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A. Pursuant to the terms of an Amended and Restated Credit Agreement between
Company and Lenders dated September 25, 1995 ("Credit Agreement") as
amended from time to time, Lenders made a loan to Company in the principal
amount of TWO HUNDRED MILLION AND NO/100THS DOLLARS ($200,000,000.00)
("Loan"). The Loan is evidenced by promissory notes dated as of the date of
the Credit Agreement and additional notes dated as of September 24, 1996,
executed by Company in favor of Lenders, in the following principal amounts
of the Loan:
Xxxxxx Guaranty Trust Company of New York $35,000,000.00 and
$12,500,000.00;
Bank One, Arizona $35,000,000.00 and $12,500,000.00;
Union Bank $20,000,000.00 and $5,000,000.00;
Dresdner Bank AG $20,000,000.00 and $5,000,000.00;
Xxxxx Fargo Bank, National Association $40,000,000.00 and
$15,000,000.00 (collectively, the "Note").
B. The Note and Credit Agreement have been previously amended and modified by
modification agreements dated: February 27, 1996 (the "First
Modification"); July 25, 1996 (the "Second Modification"); September 24,
1996 (the "Third Modification"); and December 18, 1996 (the "Fourth
Modification").
C. The Note, Credit Agreement, this Agreement, the other documents described
in the Credit Agreement as "Loan Documents" together with all modifications
and amendments thereto and any document required hereunder, are
collectively referred to herein as the "Loan Documents".
D. By this Agreement, Company and Lenders intend to modify and amend certain
terms and provisions of the Loan Documents.
NOW, THEREFORE, Company and Lenders agree as follows:
1. CONDITIONS PRECEDENT. The following are conditions precedent to Lenders'
obligations under this Agreement:
1.1 Receipt and approval by Administrative Agent of the executed originals
of this Agreement, and any and all other documents and agreements
which are required pursuant to this Agreement or which Administrative
Agent has requested pursuant to the Loan Documents, in form and
content acceptable to Administrative Agent;
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1.2 Reimbursement to Administrative Agent by Company of Administrative
Agent's costs and expenses incurred in connection with this Agreement
and the transactions contemplated hereby, including, without
limitation, attorneys' fees, and documentation costs and charges,
whether such services are furnished by Administrative Agent's
employees or agents or by independent contractors;
1.3 Receipt of an extension fee in the amount of $500,000.00;
1.4 Receipt of annual Administrative Agent's fee in the amount of
$75,000.00; and
1.5 The representations and warranties contained herein are true and
correct.
2. REPRESENTATIONS AND WARRANTIES. Company hereby represents and warrants
that no breach or failure of condition has occurred, or would exist with
notice or the lapse of time or both, under any of the Loan Documents, as
modified by this Agreement, and all representations and warranties herein
and in the other Loan Documents are true and correct, which representations
and warranties shall survive execution of this Agreement.
3. MODIFICATION OF LOAN DOCUMENTS. The Loan Documents are hereby supplemented
and modified to incorporate the following, which shall supersede and
prevail over any conflicting provisions of the Loan Documents:
3.1 Extension of the Maturity Date. Pursuant to the provisions of section
2.9 of the Credit Agreement, the Maturity Date is hereby extended from
September 25, 1997 to September 25, 1998.
3.2 Unused Facility Fee. Section 2.3 A. of the Credit Agreement is hereby
amended and restated to read in its entirety as follows:
Company agrees to pay to Administrative Agent on the last date of
each calendar quarter, in arrears, for distribution to each Lender
in proportion to that Lender's Pro Rata Share (subject to Section
8.8), an unused facility fee in an amount equal to (i) .125%
(annualized) (if the Company maintains more than 50% average
outstanding during the quarter) or (ii) .25% (annualized) (if the
Company maintains less than 50% average outstanding during the
quarter), such average outstanding being the difference between (a)
the average daily aggregate Commitments during such calendar quarter
and (b) the average daily aggregate principal balance of Loans
outstanding during such calendar quarter.
3.3 Amendment to Definition of "Applicable LIBO Rate Margin". For all new
LIBO Rate Loans, the definition of "Applicable LIBO Rate Margin" set
forth in Section 1.1 of the Credit Agreement, as amended by Fourth
Modification, is hereby amended and restated to read in its entirety
as follows:
"Applicable LIBO Rate Margin" means as of any date of determination:
(i) 1.15%, if Company's senior unsecured long term debt obligations
are rated at least BBB-/Baa3 by the Rating Agencies, or (ii) 1.50%,
if Company's senior unsecured long term debt obligations does not
satisfy clause (i) of this definition.
The assigned rating of the Company's senior unsecured long term debt
obligations given by at least two of three Rating Agencies will be
used for purposes of determining the Applicable LIBO Rate Margin.
3.4 Amendment to Definition of "Consolidated Gross Asset Value".
Effective June 30, 1997 the defined term "Consolidated Gross Asset
Value" as recited in the Credit Agreement is hereby amended and
restated in its entirety to read: "Consolidated Gross Asset Value"
means; as of any date of
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determination, the sum (without duplication of any item) of (i)
Cash, cash reserves, refundable deposits, accounts receivable at
book value, owned by Company or any of its Subsidiaries as of such
date, (ii) Cash equivalents owned by Company or any of its
Subsidiaries as of such date, (iii) the book value of joint venture
investments, (iv) the book value of Undeveloped Land owned by
Company or any of its Subsidiaries as of such date, (v) the book
value, as contained in Company's or its Subsidiaries' books and
records as maintained in accordance with GAAP, of Construction in
Process as of such date and (vi) and amount equal to (a)
Consolidated EBITDA for the most recently ended Fiscal Quarter (as
adjusted by Administrative Agent in its reasonable discretion to
take into account any acquisitions or dispositions of Properties by
Company or any of its Subsidiaries), excluding, however, any
Consolidated EBITDA resulting from Construction in Progress, times
(b) 4, divided by (c) 10%; or 9.5% (for those properties located in
Las Vegas, Nevada; Reno, Nevada; Denver, Colorado); or 8.5% (for
those properties located in Orange County, California).
4. FORMATION AND ORGANIZATIONAL DOCUMENTS. Company has previously delivered
to Administrative Agent all of the relevant formation and organizational
documents of Company, of the partners or joint venturers of Company (if
any), and of all guarantors of the Loan (if any), and all such formation
documents remain in full force and effect and have not been amended or
modified since they were delivered to Administrative Agent. Company hereby
certifies that: (i) the above documents are all of the relevant formation
and organizational documents of Company; (ii) they remain in full force and
effect; and (iii) they have not been amended or modified since they were
previously delivered to Administrative Agent.
5. NON-IMPAIRMENT. Except as expressly provided herein, nothing in this
Agreement shall alter or affect any provision, condition, or covenant
contained in the Loan Documents or affect or impair any rights, powers, or
remedies thereunder, it being the intent of the parties hereto that the
provisions of the Loan Documents shall continue in full force and effect
except as expressly modified hereby.
6. MISCELLANEOUS. This Agreement and the other Loan Documents shall be
governed by and interpreted in accordance with the laws of the State of
Nevada, except if preempted by Federal law. In any action brought or
arising out of this Agreement or the Loan Documents, Company, and the
general partners and joint venturers of Company, hereby consent to the
jurisdiction of any Federal or State Court having proper venue within the
State of Nevada and also consent to the service of process by any means
authorized by Nevada or federal law. The headings used in this Agreement
are for convenience only and shall be disregarded in interpreting the
substantive provisions of this Agreement. Except as expressly provided
otherwise herein, all terms used herein shall have the meaning given to
them in the other Loan Documents. Time is of the essence of each term of
the Loan Documents, including this Agreement. If any provision of this
Agreement or any of the other Loan Documents shall be determined by a court
of competent jurisdiction to be invalid, illegal or unenforceable, that
portion shall be deemed severed therefrom and the remaining parts shall
remain in full force as though the invalid, illegal, or unenforceable
portion had never been a part thereof.
7. INTEGRATION; INTERPRETATION. The Loan Documents, including this Agreement,
contain or expressly incorporate by reference the entire agreement of the
parties with respect to the matters contemplated herein and supersede all
prior negotiations. The Loan Documents shall not be modified except by
written instrument executed by all parties. Any reference to the Loan
Documents in any of the Loan Documents includes any amendments, renewals or
extensions approved by Lender.
8. EXECUTION IN COUNTERPART. This Agreement, and other Loan Documents which
expressly so provide, may be executed in any number of counterparts, each
of which when executed and delivered will be deemed to be an original and
all of which, taken together, will be deemed to be one and the same
instrument.
IN WITNESS WHEREOF, Company, Administrative Agent, Co-Agents and Lenders have
caused this Agreement to be duly executed as of the date first above written.
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"LENDERS" "COMPANY"
XXXXX FARGO BANK,
NATIONAL ASSOCIATION, individually and as OASIS RESIDENTIAL, INC.,
Administrative Agent a Nevada corporation
By: /s/ XXXX X. XXXXXX By: /s/ [SIG]
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Xxxx X. Xxxxxx
Its: Vice President Its: CFO
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XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
By:
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Its:
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BANK ONE, ARIZONA NA, individually and as
Co-Agent
By:
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Its:
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UNION BANK of California, N.A., formerly
known as Union Bank
By:
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Its:
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By:
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Its:
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DRESDNER BANK AG, NEW YORK BRANCH AND
GRAND CAYMAN BRANCH
By:
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Its:
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By:
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Its:
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