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Loan No. 6032ZR
SECOND MODIFICATION AGREEMENT
UNSECURED LOAN
THIS SECOND MODIFICATION AGREEMENT is dated as of July 25, 1996, entered among
OASIS RESIDENTIAL, INC., a Nevada corporation ("Company"), XXXXXX GUARANTY
TRUST COMPANY OF NEW YORK, BANK ONE, ARIZONA, N.A., UNION BANK, DRESDNER BANK
AG, Los Angeles Agency and Grand Cayman Branch, and XXXXX FARGO BANK, N.A.,
each individually referred to therein as a lender ("Lender") and collectively
referred to as lenders ("Lenders"), and XXXXXX GUARANTY TRUST OF NEW YORK and
BANK ONE, ARIZONA, Lenders having the capacity of co-agents ("Co-Agents") and
XXXXX FARGO BANK, N.A., as administrative agent for Lenders and Co-Agents (in
such capacity, "Administrative Agent").
RECITALS
A. Pursuant to the terms of a Credit Agreement between Company and
Lenders dated September 25, 1995 ("Credit Agreement"), Lenders made a
loan to Company in the aggregate principal amount of ONE HUNDRED FIFTY
MILLION AND NO/100THS DOLLARS ($150,000,000.00) ("Loan"). The Loan is
evidenced by promissory notes dated as of the date of the Credit
Agreement, executed by Company in favor of Lenders, in the following
principal amounts:
Xxxxxx Guaranty Trust Company of New York $35,000,000.00;
Bank One, Arizona, N.A. $35,000,000.00;
Union Bank $20,000,000.00;
Dresdner Bank AG $20,000,000.00; and
Xxxxx Fargo Bank, N.A. $40,000,000.00 (each singularly
Xxxxxx Note, Bank One Note,
Union Note, Dresdner Note and
Xxxxx Note, respectively, and
collectively, the "Note").
B. The Note and Credit Agreement have been previously amended and
modified by modification agreement dated: February 27, 1996 (the
"First Modification").
C. The Note, Credit Agreement, the First Modification Agreement, this
Second Modification 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 Second Modification Agreement, Company, Administrative Agent,
Co-Agents and Lenders intend to modify and amend certain terms and
provisions of the Loan Documents.
NOW, THEREFORE, Company, Administrative Agent, Co-Agents 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 Second Modification Agreement, and any and
all other documents and agreements which are required pursuant
to this Second Modification Agreement or which Administrative
Agent has requested pursuant to the Loan Documents, in form
and content acceptable to Administrative Agent;
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Loan No. 6032ZR
1.2 Reimbursement to Administrative Agent by Company of Lender'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 Lender's
employees or agents or by independent contractors;
1.3 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 Second Modification 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 Second Modification 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:
3.01 DEFINED TERMS. Effective July 29, 1996, the following
defined terms are hereby added to Section 1.1
DEFINED TERMS. of the Credit Agreement, as follows:
"Duff & Xxxxxx" - means Duff & Xxxxxx Credit Rating Co.
"Rating Agencies" - means each of (i) S&P, (ii) Xxxxx'x and
(iii) Duff and Xxxxxx.
3.02 AMENDMENT TO DEFINITION OF "APPLICABLE LIBO RATE MARGIN". For
all new LIBO Rate Loans, effective as of July 29, 1996, the
definition of "Applicable LIBO Rate Margin" set forth in
Section 1.1 of the Credit Agreement is hereby amended and
restated to read in its entirety as follows:
"Applicable LIBO Rate Margin" means, as of any date of
determination: (i) 1.25%, if Company's senior unsecured long
term debt obligations are rated at least BBB+/Baa 1 by the
Rating Agencies, (ii) 1.375%, if Company's senior unsecured
long term debt obligations are rated at least BBB/Baa2 by the
Ratings Agencies but the condition set forth in clause (i) of
this definition is not satisfied, (iii) 1.50%, if Company's
senior unsecured long term debt obligations are rated at least
BBB-/Baa3 by the Rating Agencies but neither the condition
set forth in clause (i) of this definition nor the condition
set forth in clause (ii) of this definition is satisfied, or
(iv) 1.75%, if the Company's senior unsecured long term debt
obligations does not satisfy the conditions of any of clause
(i), clause (ii), or clause (iii) 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.
3.03 AMENDMENT TO EXTENSION OF THE MATURITY DATE. Section 2.9
Extension of the Maturity Date. subparagraphs (i) through (v)
of the Credit Agreement are hereby supplemented to incorporate
the following subparagraph (vi):
"(vi) Lenders shall have reaffirmed or restated the
definition of Applicable LIBO Rate Margin."
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
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Loan No. 6032ZR
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
Second Modification 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 Second Modification 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 Second Modification
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 Second Modification
Agreement are for convenience only and shall be disregarded in
interpreting the substantive provisions of this Second Modification
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 Second Modification Agreement. If any provision of
this Second Modification 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
Second Modification 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 Lenders.
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 Second Modification Agreement to be duly executed as of the date
first above written.
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY:______________________________
Xxxx X. Xxxxxx
Its: Vice President
-------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY:______________________________
Its:___________________________
BANK ONE, ARIZONA, N.A., individually
and as Co-Agent
BY:______________________________
Its:___________________________
UNION BANK
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By:______________________________
ITS:__________________________
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY:______________________________
Xxxx X. Xxxxxx
Its: Vice President
-------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY:______________________________
Its:___________________________
BANK ONE, ARIZONA, N.A., individually
and as Co-Agent
BY: /SIG/
------------------------------
Its: Vice President
---------------------------
UNION BANK
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By:______________________________
ITS:__________________________
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY: /s/ XXXX X. XXXXXX
------------------------------
Xxxx X. Xxxxxx
Its: Vice President
-------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY:______________________________
Its:___________________________
BANK ONE, ARIZONA, N.A., individually
and as Co-Agent
BY:______________________________
Its:___________________________
UNION BANK
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By: /s/ XXXXX X. XXXXXXXX
------------------------------
Xxxxx X. Xxxxxxxx
ITS: President
--------------------------
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY:______________________________
Xxxx X. Xxxxxx
Its: Vice President
-------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY: /s/ XXXXXXX X. XXXXXXXXXX
------------------------------
Its: VICE PRESIDENT
---------------------------
BANK ONE, ARIZONA, N.A., individually
and as Co-Agent
BY:______________________________
Its:___________________________
UNION BANK
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By:______________________________
ITS:__________________________
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY:______________________________
Xxxx X. Xxxxxx
Its: Vice President
--------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY:______________________________
Its:___________________________
BANK ONE, ARIZONA, N.A., individually
and as Co-Agent
BY: /SIG/
------------------------------
Its: Vice President
---------------------------
UNION BANK
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By:______________________________
ITS:__________________________
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY:______________________________
Xxxx X. Xxxxxx
Its: Vice President
--------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY:______________________________
Its:___________________________
BANK ONE, ARIZONA, N.A., individually
and as Co-Agent
BY:______________________________
Its:___________________________
UNION BANK
BY: /SIG/
------------------------------
Its: Assistant Vice President
---------------------------
BY: /SIG/
------------------------------
Its: Vice President & Manager
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DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By:______________________________
ITS:__________________________
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Loan No. 6032ZR
"LENDERS"
XXXXX FARGO BANK, NATIONAL ASSOCIATION,
individually and as Administrative
Agent
BY:______________________________
Xxxx X. Xxxxxx
Its: Vice President
--------------------
XXXXXX GUARANTY TRUST COMPANY OF NEW YORK,
individually and as Co-Agent
BY:______________________________
Its:___________________________
BANK ONE, ARIZONA, N.A., individually and
as Co-Agent
BY:______________________________
Its:___________________________
UNION BANK
BY:______________________________
Its:___________________________
BY:______________________________
Its:___________________________
DRESDNER BANK AG, LOS ANGELES AGENCY AND
GRAND CAYMAN BRANCH
BY: /SIG/
------------------------------
Its: AVP
---------------------------
BY: /SIG/
------------------------------
Its: AVP
---------------------------
"COMPANY"
OASIS RESIDENTIAL, INC., a Nevada corporation
By:______________________________
ITS:__________________________
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[ ] ADD [ ] CHANGE [ ] DELETE LINE NUMBER______________________
CERTIFICATE
(For Disbursement of Loan Proceeds By Funds Transfer)
I hereby certify that the following officers ("Transfer Authorizers") of OASIS
RESIDENTIAL, INC., a Nevada corporation ("Company") have authority under the
Loan Documents described below to initiate drawdowns of loan proceeds and under
that certain Funds Transfer Agreement for Disbursement of Loan Proceeds dated
September 25, 1995 between XXXXX FARGO BANK, NATIONAL ASSOCIATION ("Xxxxx
Fargo") and Company and to initiate and verify transfers of such loan proceeds
up to the maximum wire amounts specified after their names. I further certify
that the titles and telephone numbers following the names of such officers are
the current, true and authentic titles and telephone numbers of such officers.
DESCRIPTION OF LOAN DOCUMENTS:
Loan Number: 6032ZR Loan Amount: $150,000,000.00 Date: September 25, 1995
TRANSFER AUTHORIZERS
Maximum
Name and Title Telephone No. Wire Amount*
-------------- ------------- ------------
Xxxxxx X. Xxxxx, CEO/Chairman of the Board (000) 000-0000 $150,000,000.00
Xxxxx X. Xxxxxx, President/COO (000) 000-0000 $150,000,000.00
Xxxxx X. Xxxxxx, Xx. EVP/Secretary (000) 000-0000 $150,000,000.00
Xxxxxxxx X. Xxxxxx, VP/Controller/Treasurer (000) 000-0000 $150,000,000.00
Xxxx X. Xxxxxxx, SrVP/CFO/Assistant Secretary (000) 000-0000 $150,000,000.00
* Maximum Wire Amount may not exceed the Loan Amount.
I further certify that I am authorized by the resolutions of Company to
designate the Transfer Authorizers named above.
Xxxxx Fargo is hereby authorized to rely on this Certificate until a new
Certificate certified by an officer of Company is received by Xxxxx Fargo even
in the event that any or all of the foregoing information may have changed.
/SIG/ Xxxxx X. Xxxxxxxx, President
-------------------------------- --------------------------------
Officer's Signature Name Printed
/SIG/ Xxxxx X. Xxxxxx, Xx., Secretary
-------------------------------- --------------------------------
Officer's Signature Name Printed
OASIS RESIDENTIAL, INC., a Nevada corporation July 29, 1996
--------------------------------------------- --------------------------------
Company Name Date
