EXHIBIT 10.1 EXECUTION COPY
TERM LOAN CREDIT AGREEMENT
among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
AIMCO/BETHESDA HOLDINGS, INC., AND
NHP MANAGEMENT COMPANY
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent,
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
Dated as of May 30, 0000
XXXX XX XXXXXXX SECURITIES LLC,
as Sole Lead Arranger
and
Sole Bookrunner
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS................................................................1
1.01 DEFINED TERMS.....................................................................................1
1.02 USE OF CERTAIN TERMS.............................................................................36
1.03 ACCOUNTING TERMS.................................................................................36
1.04 ROUNDING.........................................................................................37
1.05 EXHIBITS AND SCHEDULES...........................................................................37
1.06 REFERENCES TO AGREEMENTS, EXHIBITS AND LAWS......................................................37
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT.......................................................37
2.01 COMMITTED LOANS..................................................................................37
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.....................................38
2.03 PREPAYMENTS......................................................................................38
2.04 [INTENTIONALLY OMITTED]..........................................................................39
2.05 PRINCIPAL AND INTEREST; DEFAULT RATE.............................................................39
2.06 FEES.............................................................................................40
2.07 COMPUTATION OF INTEREST AND FEES.................................................................40
2.08 MAKING PAYMENTS..................................................................................40
2.09 FUNDING SOURCES..................................................................................41
2.10 COLLATERAL.......................................................................................41
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY.........................................................41
3.01 TAXES............................................................................................41
3.02 ILLEGALITY.......................................................................................44
3.03 INABILITY TO DETERMINE RATES.....................................................................44
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY..............................................45
3.05 BREAKFUNDING COSTS...............................................................................45
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION..............................................46
3.07 SURVIVAL.........................................................................................46
SECTION 4. CONDITIONS TO EFFECTIVENESS....................................................................46
4.01 CONDITIONS TO INITIAL EXTENSION OF CREDIT........................................................46
SECTION 5. REPRESENTATIONS AND WARRANTIES.................................................................49
5.01 EXISTENCE AND QUALIFICATION; POWER...............................................................49
5.02 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS....................................................49
5.03 NO LEGAL BAR.....................................................................................50
5.04 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.................................................50
5.05 LITIGATION.......................................................................................50
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5.06 NO DEFAULT.......................................................................................51
5.07 OWNERSHIP OF PROPERTY; LIENS.....................................................................51
5.08 TAXES............................................................................................51
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY ACT; REIT AND TAX
STATUS; STOCK EXCHANGE LISTING...................................................................52
5.10 ERISA COMPLIANCE.................................................................................52
5.11 INTANGIBLE ASSETS................................................................................54
5.12 COMPLIANCE WITH LAWS.............................................................................54
5.13 ENVIRONMENTAL COMPLIANCE.........................................................................54
5.14 INSURANCE........................................................................................55
5.15 GP LOANS.........................................................................................55
5.16 SUBSIDIARIES; INTERESTS IN OTHER ENTITIES; CHANGES IN ORGANIZATIONAL STRUCTURE...................55
5.17 MATTERS RELATING TO PLEDGED COLLATERAL...........................................................55
5.18 DISCLOSURE.......................................................................................56
5.19 TAX SHELTER REGULATIONS..........................................................................57
SECTION 6. AFFIRMATIVE COVENANTS..........................................................................57
6.01 FINANCIAL STATEMENTS.............................................................................57
6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION......................................................58
6.03 PAYMENT OBLIGATIONS..............................................................................61
6.04 PRESERVATION OF EXISTENCE........................................................................61
6.05 MAINTENANCE OF PROPERTIES........................................................................61
6.06 MAINTENANCE OF INSURANCE.........................................................................61
6.07 COMPLIANCE WITH LAWS.............................................................................62
6.08 INSPECTION RIGHTS................................................................................62
6.09 KEEPING OF RECORDS AND BOOKS OF ACCOUNT..........................................................62
6.10 COMPLIANCE WITH ERISA............................................................................63
6.11 COMPLIANCE WITH AGREEMENTS.......................................................................63
6.12 USE OF PROCEEDS..................................................................................63
6.13 COMMUNICATION WITH ACCOUNTANTS...................................................................63
6.14 MAINTENANCE OF REIT STATUS; STOCK EXCHANGE LISTING...............................................63
6.15 SOLVENCY.........................................................................................63
6.16 FURTHER ASSURANCES...............................................................................63
6.17 UNCONSOLIDATED PARTNERSHIP DISTRIBUTIONS.........................................................65
SECTION 7. NEGATIVE COVENANTS.............................................................................65
7.01 INDEBTEDNESS.....................................................................................65
7.02 LIENS AND NEGATIVE PLEDGES.......................................................................67
7.03 FUNDAMENTAL CHANGES..............................................................................68
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7.04 DISPOSITIONS.....................................................................................70
7.05 INVESTMENTS......................................................................................70
7.06 LEASE OBLIGATIONS................................................................................71
7.07 RESTRICTED PAYMENTS..............................................................................72
7.08 ERISA............................................................................................73
7.09 CHANGE IN NATURE OF BUSINESS.....................................................................73
7.10 TRANSACTIONS WITH AFFILIATES.....................................................................73
7.11 USE OF PROCEEDS..................................................................................74
7.12 INTENTIONALLY OMITTED............................................................................74
7.13 LIMITATIONS ON UPSTREAMING.......................................................................74
7.14 FINANCIAL COVENANTS..............................................................................74
7.15 CHANGE IN AUDITORS...............................................................................75
7.16 SPECIAL COVENANTS RELATING TO THE REIT...........................................................75
7.17 TAXATION OF BORROWERS............................................................................76
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.................................................................76
8.01 EVENTS OF DEFAULT................................................................................76
8.02 REMEDIES UPON EVENT OF DEFAULT...................................................................81
SECTION 9. ADMINISTRATIVE AGENT...........................................................................82
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT............................................82
9.02 DELEGATION OF DUTIES.............................................................................83
9.03 LIABILITY OF ADMINISTRATIVE AGENT................................................................83
9.04 RELIANCE BY ADMINISTRATIVE AGENT.................................................................83
9.05 NOTICE OF DEFAULT................................................................................84
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE AGENT...............................84
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT..........................................................85
9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY......................................................85
9.09 SUCCESSOR ADMINISTRATIVE AGENT...................................................................85
SECTION 10. MISCELLANEOUS.................................................................................86
10.01 AMENDMENTS; CONSENTS.............................................................................86
10.02 TRANSMISSION AND EFFECTIVENESS OF NOTICES AND SIGNATURES.........................................87
10.03 ATTORNEY COSTS, EXPENSES AND TAXES...............................................................88
10.04 BINDING EFFECT; ASSIGNMENT.......................................................................89
10.05 SET-OFF..........................................................................................92
10.06 SHARING OF PAYMENT...............................................................................92
10.07 NO WAIVER; CUMULATIVE REMEDIES...................................................................93
10.08 USURY............................................................................................93
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10.09 COUNTERPARTS.....................................................................................94
10.10 INTEGRATION; CONFLICTS WITH OTHER LOAN DOCUMENTS.................................................94
10.11 NATURE OF LENDERS' OBLIGATIONS...................................................................94
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.......................................................94
10.13 INDEMNITY BY BORROWERS...........................................................................95
10.14 NONLIABILITY OF LENDERS..........................................................................95
10.15 NO THIRD PARTIES BENEFITED.......................................................................96
10.16 SEVERABILITY.....................................................................................96
10.17 CONFIDENTIALITY..................................................................................97
10.18 HEADINGS.........................................................................................98
10.19 TIME OF THE ESSENCE..............................................................................98
10.20 [INTENTIONALLY OMITTED]..........................................................................98
10.21 GOVERNING LAW....................................................................................98
10.22 WAIVER OF RIGHT TO TRIAL BY JURY.................................................................98
10.23 NON-EXCLUSIVE JURISDICTION.......................................................................99
10.24 NOTICE OF CLAIMS; CLAIMS BAR.....................................................................99
10.25 BORROWERS' OBLIGATIONS...........................................................................99
10.26 LENDER COVENANT.................................................................................103
10.27 RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.................................................103
SECTION 11. COLLATERAL AGENT.............................................................................104
11.01 COLLATERAL AGENT................................................................................104
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TERM LOAN CREDIT AGREEMENT
This
TERM LOAN CREDIT AGREEMENT ("AGREEMENT") is entered
into as of May 30, 2003, by and among APARTMENT INVESTMENT AND MANAGEMENT
COMPANY, a Maryland corporation (the "REIT"), AIMCO PROPERTIES, L.P., a
Delaware limited partnership ("AIMCO"), AIMCO/BETHESDA HOLDINGS, INC., a
Delaware corporation ("AIMCO/BETHESDA"), and NHP MANAGEMENT COMPANY, a
District of Columbia corporation ("NHP MANAGEMENT") (the REIT, AIMCO,
AIMCO/Bethesda and NHP Management, collectively referred to as "BORROWERS"),
each lender from time to time party hereto (collectively, "LENDERS" and
individually, a "LENDER"), and BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as
Administrative Agent (in such capacity "ADMINISTRATIVE AGENT").
RECITALS
WHEREAS, the Lenders have agreed to provide a term loan
facility of up to $250,000,000 to the Borrowers.
NOW, THEREFORE, in consideration of the agreements,
provisions and covenants contained herein, the parties agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have
the meanings set forth below:
"ADJUSTED TOTAL CORPORATE EBITDA" means, for any period,
the Total Corporate EBITDA for such period minus the Capital Expenditure
Reserve as of the last day of such period.
"ADJUSTED TOTAL NOI" means, for any period, Borrowers', the
Guarantors' and their respective downstream Affiliates' pro-rata share of Net
Operating Income, including the Borrowers', Guarantors' and their respective
downstream Affiliates' pro-rata share of Net Operating Income from
unconsolidated Persons, LESS the Capital Expenditure Reserve as of the last
day of such period.
"ADJUSTED FIXED CHARGES" means, for any period, the sum of
(i) Total Interest Expense for such period, plus (ii) Total Scheduled
Amortization for such period (including Scheduled Amortization for Borrowers,
Guarantors and their respective Subsidiaries made pursuant to the Casden Loan
Documents for such period), plus (iii) dividends accrued (whether or not
declared or payable) on the preferred Stock and/or preferred Partnership
Units of the Borrowers or any of their Subsidiaries during such period. For
purposes of determining Scheduled Amortization under the Casden Loan
Documents for the calculation of Adjusted Fixed Charges for any period, that
certain $97,000,000 principal amortization installment
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required to be paid under the Casden Loan Documents on or before March 11,
2003 shall be deemed to have been paid in equal quarterly installments during
each of the fiscal quarters ending June 30, 2002, September 30, 2002,
December 31, 2002 and March 31, 2003, and that certain $97,000,000 principal
amortization installment required to be paid under the Casden Loan Documents
on or before March 11, 2004 shall be deemed to have been paid in equal
quarterly installments during each of the fiscal quarters ending June 30,
2003, September 30, 2003, December 31, 2003 and March 31, 2004.
"ADJUSTED FIXED CHARGES COVERAGE RATIO" means, as of any
date of determination, the ratio of (a) Adjusted Total Corporate EBITDA for
the four fiscal quarter period ending on such date to (b) Adjusted Fixed
Charges during such period.
"ADMINISTRATIVE AGENT" means Bank of America, in its
capacity as Administrative Agent under any of the Loan Documents, or any
successor administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means Administrative
Agent's address and, as appropriate, account as set forth in Schedule 10.02,
or such other address or account as Administrative Agent hereafter may
designate by written notice to Borrowers and Lenders.
"ADMINISTRATIVE AGENT-RELATED PERSONS" means Administrative
Agent (including any successor agent), together with its Affiliates
(including, in the case of Administrative Agent, Banc of America Securities
LLC), and the officers, directors, employees, agents and attorneys-in-fact of
such Persons and Affiliates.
"AFFILIATE", as applied to any Person, means any other
Person directly or indirectly controlling, controlled by, or under direct or
indirect common control with, that Person. A Person shall be deemed to be
"controlled by" any other Person if such other Person possesses, directly or
indirectly, power (a) to vote 10% or more of the securities (on a fully
diluted basis) having ordinary voting power for the election of directors or
managing general partners; or (b) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"AGREEMENT" means this
Term Loan Credit Agreement, as
amended, restated, extended, supplemented or otherwise modified in writing
from time to time.
"ANCILLARY SERVICES" means real property asset management,
accounting, ordering and inventory services and other property related
services provided by AIMCO/NHP Holdings, Inc. and NHP A&R Services, Inc. and
any other entities so designated by Borrowers as a provider of Ancillary
Services and acceptable to Administrative Agent in its reasonable discretion.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and
Acceptance substantially in the form of EXHIBIT D.
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the allocated
cost of internal legal services and all disbursements of internal counsel.
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"AUDITED FINANCIAL STATEMENTS" means the audited
consolidated balance sheet of the REIT for the fiscal year ended December 31,
2002, and the related consolidated statements of income and cash flows for
such fiscal year of the REIT.
"BANK OF AMERICA" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC.
"BASE RATE" means a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of
interest in effect for such day as publicly announced from time to time by
Bank of America as its "prime rate" in effect at its principal office in
Charlotte, North Carolina. The prime rate is a rate set by Bank of America
based upon various factors including Bank of America's costs and desired
return, general economic conditions and other factors, and is used as a
reference point for pricing some loans, which may be priced at, above, or
below such announced rate. Any change in the "prime rate" announced by Bank
of America shall take effect at the opening of business on the day specified
in the public announcement of such change.
"BASE RATE LOAN" means a Loan which bears interest based on
the Base Rate.
"BORROWERS" has the meaning set forth in the introductory
paragraph hereto. Any reference to Borrowers herein shall be deemed to refer
to each Person constituting Borrowers, and the responsibilities, obligations
and covenants of each such Person under this Agreement and the other Loan
Documents shall be joint and several unless expressly stated otherwise herein
or the context otherwise requires; PROVIDED, HOWEVER, that the obligations of
Borrowers with respect to delivery of reports, financial statements and
certifications may be performed by AIMCO for or on behalf of any or all of
the REIT, AIMCO/Bethesda or NHP Management, as applicable.
"BORROWER PARTY" means Borrowers or any Person from time to
time party to a Loan Document, other than (x) Lenders and any Affiliates of
Lenders, Collateral Agent or Administrative Agent, (y) the Casden Lenders
party to the Casden Credit Agreement, and (z) the Revolver Lenders party to
the Revolver Credit Agreement.
"BORROWERS PLEDGE AGREEMENT" means the Omnibus Borrowers
Pledge Agreement, as the Omnibus Borrowers Pledge Agreement may thereafter be
amended, supplemented or otherwise modified from time to time.
"BORROWING" and "BORROW" each mean, a borrowing hereunder
consisting of Loans of the same type made on the same day and, other than in
the case of Base Rate Loans, having the same Interest Period.
"BUSINESS DAY" means any day other than a Saturday, Sunday,
or other day on which commercial banks are authorized to close under the Laws
of, or are in fact closed in, the state where Lender's lending office is
located and, if such day relates to any Offshore Rate Loan, means any such
day on which dealings in Dollar deposits are conducted by and between banks
in the offshore Dollar interbank market.
3
"CAPITAL EXPENDITURES" means, for any period and with
respect to any Person, the aggregate of all expenditures by such Person for
the acquisition or leasing of fixed or capital assets or additions to
equipment or Property (including replacements, capitalized repairs and
improvements during such period, but excluding Enhancements and Initial
Capital Expenditures) which should be capitalized under GAAP on a
consolidated balance sheet of such Person. For the purpose of this
definition, the purchase price of equipment which is purchased simultaneously
with the trade-in of existing equipment owned by such Person or with
insurance proceeds shall be included in "CAPITAL EXPENDITURES" only to the
extent of the gross amount of such purchase price, less the credit granted by
the seller of such equipment for such equipment being traded in at such time,
or the amount of such proceeds, as the case may be.
"CAPITAL EXPENDITURE RESERVE" means as of any date of
determination, the product of (a) $400 per apartment unit (subject to
adjustment as provided below), and (b) the sum of (i) the number of apartment
units owned by Borrowers, any Guarantors or any of their Wholly-Owned
Subsidiaries during such period PLUS (ii) the number of apartment units that
constitute Non-Wholly Owned Properties which is proportionate to the
ownership interest of any Borrower, any Guarantors or any of their
Wholly-Owned Subsidiaries in such Non-Wholly Owned Properties, measured at
the end of the most recent calendar quarter ending prior to such date of
determination. Administrative Agent shall review the Capital Expenditure
Reserve as of the last day of each calendar year and, based on such review,
shall adjust the per apartment unit charge in clause (a) hereof to the extent
necessary to cause the Capital Expenditure Reserve to equal or exceed
Borrowers', Guarantors' and their respective Subsidiaries' aggregate
proportionate ownership interest of actual Capital Expenditures, excluding
Enhancements and Initial Capital Expenditures, for the four calendar quarters
preceding the date of such review.
"CAPITAL LEASE" means any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease.
"CAPITAL LEASE OBLIGATIONS" means, with respect to any
Person, the amount at which such Person's obligations under Capital Leases
are required to be carried on the balance sheet of such Person in accordance
with GAAP.
"CASDEN" means, collectively, Casden Properties, Inc.,
National Partnership Investments Corp., and other Affiliates or related
entities thereof in existence as of the date immediately prior to the date of
the Casden Acquisition, directly or indirectly acquired by, or merged into,
Borrowers and/or their Affiliates from time to time as provided in the Casden
Merger Agreement.
"CASDEN ACQUISITION" means the acquisition and merger of
the Casden Assets contemplated under the Casden Merger Agreement, including,
without limitation, the "OP Unit Contribution Agreement" and the "Casden
Contribution Agreement" (as the foregoing terms are defined in the Casden
Merger Agreement).
"CASDEN ASSETS" means any and all assets, rights and
interests, including, without limitation, all corporate interests, general
and limited partnership interests and limited liability company interests
comprising Casden, and all other Property and associated rights held or
4
controlled, directly or indirectly, by Casden acquired on or to be acquired
after March 11, 2002 pursuant to the Casden Merger Agreement, and the
interests to be acquired pursuant to the "OP Unit Contribution Agreement" and
the "Casden Contribution Agreement" (as the foregoing terms are defined in
the Casden Merger Agreement).
"CASDEN CREDIT AGREEMENT" means that certain Interim Credit
Agreement dated as of March 11, 2002 between the REIT, AIMCO and NHP
Management, as borrowers, the financial institutions listed therein as
lenders, and LCPI, as administrative agent for the lenders party thereto, as
amended by that certain First Amendment and Waiver, dated as of June 12,
2002, that certain Second Amendment, dated as of August 2, 2002, that certain
Third Amendment, dated as of February 14, 2003, that certain Fourth
Amendment, dated as of May 9, 2003, and the Casden Credit Agreement Amendment
and as hereafter may be amended from time to time in accordance with the
Intercreditor Agreement.
"CASDEN CREDIT AGREEMENT AMENDMENT" means that certain
Fifth Amendment to the Casden Credit Agreement dated of even date herewith.
"CASDEN LENDERS" means the lenders from time to time party
to the Casden Credit Agreement.
"CASDEN LOAN" means that certain term loan facility in the
original principal amount of $287,000,000 which has been extended to the
REIT, AIMCO and NHP Management pursuant to the Casden Credit Agreement.
"CASDEN LOAN DOCUMENTS" means the Casden Credit Agreement
and the "Loan Documents" as defined therein, as amended from time to time in
accordance with the Intercreditor Agreement.
"CASDEN MERGER AGREEMENT" means that certain Agreement and
Plan of Merger dated as of December 3, 2001, by and among the REIT, Casden
Properties Inc. and XYZ Holdings LLC, including all documents executed in
connection therewith or attached as exhibits thereto; provided that copies of
such documents and exhibits were delivered to Administrative Agent prior to
the date hereof.
"CASH" means money, currency or a credit balance in any
demand, time, savings, passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an account
evidenced by a negotiable certificate of deposit.
"CASH EQUIVALENTS" means:
(a) securities issued or fully guaranteed or insured by
the United States Government or any agency thereof and backed by the
full faith and credit of the United States having maturities of not
more than six months from the date of acquisition;
(b) certificates of deposit, time deposits, demand deposits,
eurodollar time deposits, repurchase agreements, reverse repurchase
agreements, or bankers' acceptances, having in each case a term of not
more than three (3) months, issued by Administrative
5
Agent, or by any U.S. commercial bank (or any branch or agency of a
non-U.S. bank licensed to conduct business in the U.S.) having
combined capital and surplus of not less than $100,000,000 whose
short-term securities are rated at least A-1 by S&P and P-1 by
Xxxxx'x; PROVIDED, HOWEVER, such Investments may not be made in
amounts in excess of $1,000,000 with any lender that is owed
Indebtedness in excess of $1,000,000 by Borrowers or any Subsidiary
(other than (i) the Obligations and funds held by Bank of America
cash investments services, including, without limitation, Nations
Funds, FundsSweep and overnight repos, and (ii) any balances of
Borrowers or any Subsidiary held by any Lender, any Revolver Lender
or any Casden Lender so long as such balances are maintained in
compliance with Sections 10.05 and 10.06 herein) unless such bank
waives in writing (in form and substance satisfactory to the
Requisite Lenders) its right to set-off such Investment against such
Indebtedness;
(c) demand deposits on deposit in accounts maintained
at commercial banks having membership in the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder; and
(d) commercial paper of an issuer rated at least A-1 by
S&P or P-1 by Moody's and in either case having a term of not more than
three (3) months.
"CLOSING DATE" means the date all the conditions precedent
in SECTION 4.01 are satisfied or waived in accordance with SECTION 4.01.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
"COLLATERAL AGENT" means Bank of America, in its capacity
as Collateral Agent under the Intercreditor Agreement and the Borrowers
Pledge Agreement, or any successor collateral agent pursuant to SECTION
11.01(g).
"COLLATERAL DOCUMENTS" means the Borrowers Pledge Agreement
and all other instruments or documents delivered by Borrowers or any of their
Subsidiaries pursuant to this Agreement or any of the other Loan Documents in
order to grant to Administrative Agent, on behalf of the Lenders, or
Collateral Agent, on behalf of Lender Group, a Lien on any real, personal or
mixed property of that Person as security for all or a portion of the
Collective Obligations.
"COLLECTIVE OBLIGATIONS" means, collectively, the
Obligations owing under this Agreement, the obligations owing under the
Casden Credit Agreement and the obligations owing under the Revolver Credit
Agreement.
"COMBINED COMMITMENTS" has the meaning assigned to such
term in the definition of "Commitment". The Combined Commitments are
$250,000,000.
"COMMITMENT" means, for each Lender, the obligation of such
Lender to make Extensions of Credit in an aggregate principal amount not
exceeding the amount set forth opposite such Lender's name on SCHEDULE 2.01
at any one time outstanding, as such amount may
6
be reduced or adjusted from time to time in accordance with this Agreement
(collectively, the "COMBINED COMMITMENTS").
"COMMITTED LOAN" means a Loan of any type made to Borrowers
by Lenders in accordance with their respective Pro Rata Shares pursuant to
SECTION 2.01, except as otherwise provided herein.
"COMMITTED LOAN NOTE" means a promissory note made by
Borrowers in favor of a Lender evidencing Committed Loans made by such
Lender, substantially in the form of EXHIBIT C (collectively, the "COMMITTED
LOAN Notes").
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B, properly completed and signed by a Responsible Officer of
Borrowers.
"CONSOLIDATED INTEREST EXPENSE" means for any Person and
for any period, the Interest Expense of such Person and its Subsidiaries for
such period determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means for any Person and for any
period, the net income (or loss) of such Person and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP; PROVIDED that there shall be excluded (a)
any after-tax gains or losses attributable to dispositions of property, (b)
(to the extent not included in clause (a) above) any net extraordinary gains
or net non-cash extraordinary losses, and (c) income from Borrowers' and
their Subsidiaries' minority interests in operating partnerships.
"CONSOLIDATED NET WORTH" means, as of any date of
determination and without double counting any item, the sum of the capital
stock or other capital equity interests and additional paid-in capital plus
retained earnings (or minus accumulated deficits) of the Borrowers and their
respective Subsidiaries on a consolidated basis determined in conformity with
GAAP.
"CONSOLIDATED OPERATIONS EBITDA" means, for any period, the
sum of the amounts for such period of (a) Consolidated Net Income, PLUS (b)
Consolidated Interest Expense, PLUS (c) total depreciation expense, PLUS (d)
total amortization expense, PLUS (e) provisions for taxes based on income,
PLUS (f) other non-cash items or non-cash charges reducing Consolidated Net
Income arising in the ordinary course of business (including impairment
charges against goodwill) LESS other non-cash items increasing Consolidated
Net Income arising in the ordinary course of business MINUS (g) to the extent
included in Consolidated Net Income, the sum of (1) Borrowers' and their
Subsidiaries' earnings or losses from unconsolidated partnerships and
unconsolidated subsidiaries PLUS (2) income from Borrowers' and their
Subsidiaries' minority interests in other entities PLUS (3) interest income
from intercompany notes, all of the foregoing, except as otherwise noted, as
determined on a consolidated basis for Borrowers and their Subsidiaries in
conformity with GAAP.
"CONSTRUCTION/RENOVATION" means any New Construction or any
substantial rehabilitation, renovation and/or expansion by Borrowers or any
of their Subsidiaries or unconsolidated subsidiaries of any multi-family
Property which, in the case of rehabilitation,
7
renovation or expansion, involves the repositioning or upgrading of such
multi-family Property with respect to comparable multi-family properties
located in the proximate geographic area. Properties under
Construction/Renovation as of the Closing Date are listed on SCHEDULE 1.01A
attached hereto.
"CONTINGENT ACQUISITION NOTE" means, collectively, those
four Promissory Notes, in respect of each Real Estate Company, in the
aggregate maximum principal amount of $655,000,000 from AIMCO, as maker, in
favor of XYZ Holdings LLC, as holder, pursuant to the Tri-Party Agreement
secured by a pledge of the membership interests in each of the Real Estate
Companies owned by a Subsidiary of the REIT, which secured promissory notes
represent (i) the $619,000,000 purchase price for the Real Estate Companies,
less the aggregate amount of construction loans to be refinanced, and (ii) a
$36,000,000 earnout payment for the Real Estate Companies. "Contingent
Acquisition Note" shall not include any renewal, extension or refinancing of
such Indebtedness.
"CONTINUATION" and "CONTINUE" mean, with respect to any
Offshore Rate Loan, the continuation of such Offshore Rate Loan as an
Offshore Rate Loan on the last day of the Interest Period for such Loan.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement,
instrument or undertaking to which such Person is a party or by which it or
any of its property is bound.
"CONTROLLED GROUP" means Borrowers and all Persons (whether
or not incorporated) under common control or treated as a single employer
with Borrowers pursuant to Section 414(b), (c), (m) or (o) of the Code.
"CONVERSION" and "CONVERT" mean, with respect to any Loan,
the conversion of such Loan from or into another type of Loan.
"CREDIT RATING" means a credit rating assigned to the
senior unsecured indebtedness of the REIT and AIMCO by S&P and/or Moody's.
"DEBT SECURITIES" means any arrangement, bonds, debentures,
notes or other evidences of Indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments evidencing
Indebtedness commonly known as "securities" or any certificates of interest,
shares or participations in temporary or interim certificates for the
purchase or acquisition of, or any right to subscribe to, purchase or
acquire, any of the foregoing.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the
United States of America, and all other liquidation, conservatorship,
bankruptcy, assignment for the benefit of creditors, moratorium,
rearrangement, receivership, insolvency, reorganization, or similar debtor
relief Laws of the United States of America or other applicable jurisdictions
from time to time in effect affecting the rights of creditors generally.
"DEFAULT" means any event that, with the giving of any
notice, the passage of time, or both, would be an Event of Default.
8
"DEFAULT RATE" means an interest rate equal to the Base
Rate, PLUS 105 basis points per annum, PLUS 3.0% per annum, to the fullest
extent permitted by applicable Laws; PROVIDED, HOWEVER, that with respect to
an Offshore Rate Loan, the Default Rate shall be an interest rate equal to
the interest rate otherwise applicable to such Loan plus 3.0% per annum.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Borrowers with Bank of America, N.A. as from time to time
designated by Borrowers by written notification to Administrative Agent.
"DEVCO" means Casden Properties LLC.
"DEVCO LLC AGREEMENT" means the limited liability company
agreement of DevCo.
"DISPOSITION", "DISPOSE", or "DISPOSED" means the sale,
transfer, license or other disposition (including any sale and leaseback
transaction) of any property, including, without limitation, any contract
rights, or intangible property or rights to receive revenue or cash flow, by
any Person, including any sale, assignment, transfer or other disposal with
or without recourse of any notes or accounts receivable or any rights and
claims associated therewith. "DISPOSITIONS" shall not include the incurrence
of Ordinary Course Liens or the transfer of Partnership Units to third party
vendors or service providers in lieu of cash payments and in consideration of
services performed on behalf of the Borrowers or any Subsidiary thereof.
"DOLLAR" and "$" means lawful money of the United States of
America.
"EBITDA" means, for any period, the sum determined in
accordance with GAAP, of the following, for any Person (a) the net income (or
net loss) of such Person during such period PLUS (b) all amounts on a
consolidated basis treated as expenses or non-cash charges for depreciation,
Interest Expense and the amortization of intangibles of any kind to the
extent included in the determination of such net income (or loss) (including
impairment charges against goodwill), PLUS (c) all accrued taxes on or
measured by income to the extent included in the determination of such net
income (or loss); PROVIDED, HOWEVER, that net income (or loss) shall be
computed for these purposes without giving effect to (i) extraordinary losses
or extraordinary gains (including gains or losses from the sale of
Properties), (ii) any amortization of capitalized financing expenses or
charges related to restructuring of Indebtedness (excluding such expenses or
charges in connection with renewals or extensions of existing Indebtedness in
the Ordinary Course of Business), and (iii) such Person's minority interests
in operating partnerships.
"ELIGIBLE ASSIGNEE" means (a) a financial institution
organized under the laws of the United States, or any state thereof, and
having a combined capital and surplus of at least $500,000,000; (b) a
commercial bank organized under the laws of any other country which is a
member of the Organization for Economic Cooperation and Development, or a
political subdivision of any such country, and having a combined capital and
surplus of at least $500,000,000, provided that such bank is acting through a
branch or agency located in the United States; (c) a Person that is engaged,
among other things, in the business of commercial banking and/or commercial
loans (including purchasing or investing in such loans), and that is (i) a
9
Subsidiary of a Lender, (ii) a Subsidiary of a Person of which a Lender is a
Subsidiary, (iii) a Person of which a Lender is a Subsidiary; or (iv) a
Related Fund of Lender; (d) another Lender; (e) any other person which is an
"accredited investor" (as defined in Regulation D under the Securities Act)
which extends credit or buys loans as one of its businesses, including
insurance companies, mutual funds and lease finance companies in each case
with a capital and surplus of at least $500,000,000; and (f) an investment
fund which deals in commercial loans and has assets of at least $100,000,000;
PROVIDED, HOWEVER, that in no event may an Affiliate of Borrowers be an
Eligible Assignee.
"ENCUMBERED PROPERTY DEBT COVERAGE RATIO" means, as of the
last day of any fiscal quarter, the ratio of (a) Adjusted Total NOI from all
real property assets subject to Liens during the four fiscal quarter period
ending on such date TO (b) Borrowers', the Guarantors' and their
Subsidiaries' pro rata share of the aggregate debt service (including all
scheduled principal and interest payments, but excluding balloon payments) on
all such real property assets subject to Liens during such period.
"ENHANCEMENTS" means any material item of Capital
Expenditures (other than an Initial Capital Expenditure) which adds a new
feature or revenue source to an existing Property and which is not properly
characterized as an Ordinary Course of Business Capital Expenditure.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted,
by any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or
injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability or responsibility for damages
(punitive or otherwise), cleanup, removal, remedial or response costs,
restitution, civil or criminal penalties, injunctive relief, or other type of
relief, resulting from or based upon (a) the presence, placement, discharge,
emission or release (including intentional and unintentional, negligent and
non-negligent, sudden or non-sudden, accidental or non-accidental placement,
spills, leaks, discharges, emissions or releases) of any Hazardous Material
at, in, or from Property, whether or not owned by Borrowers, or (b) any other
circumstances forming the basis of any violation, or alleged violation, of
any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, state or local
laws, statutes, common law duties, rules, regulations, ordinances and codes,
together with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental
Authority, in each case relating to environmental, health, safety and land
use matters applicable to any property.
"ERISA" means the Employee Retirement Income Security Act
of 1974 and any regulations issued pursuant thereto, as amended from time to
time.
"ERISA AFFILIATE" means any trade or business (whether or
not incorporated) under common control with any Borrower within the meaning
of Sections 414(b) or (c) of the Code (and Sections 414(m) and (o) of the
Code for purposes of provisions relating to Section 412 of the Code).
10
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization or that it intends to terminate; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under Section 4042 of ERISA for the termination of, or the appointment of a
trustee to administer, any Pension Plan or Multiemployer Plan; or (f) the
imposition of any lien or liability pursuant to Sections 401(a)(29) or 412(n) of
the Code or under Title IV of ERISA, other than PBGC premiums due but not
delinquent under Section 4007 of ERISA, upon any Borrower or any ERISA
Affiliate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by the Board of Governors
of the Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate Loan shall
be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" means any of the events specified in
SECTION 8.
"EXCEPTIONS TO NONRECOURSE" means, with respect to
Indebtedness secured by mortgage loans which are not Recourse to the borrower
thereof, the customary exceptions to the nonrecourse nature of such mortgage
loans which include liability of the borrower and/or its principals for fraud,
misrepresentations, failure to insure, misapplication of insurance or
condemnation proceeds and waste, in each case with respect to the property
encumbered by the mortgage loan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXTENSION OF CREDIT" means (a) the Borrowing of Loans or (b)
the Conversion or Continuation of any Loans (collectively, the "EXTENSIONS OF
CREDIT").
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; PROVIDED that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding
11
Business Day as so published on the next succeeding Business Day, and (b) if
no such rate is so published on such next succeeding Business Day, the
Federal Funds Rate for such day shall be the average rate charged to Bank of
America on such day on such transactions as determined by Administrative
Agent.
"FINANCE SUBSIDIARY" means AIMCO Properties Finance
Partnership, L.P., a Delaware limited partnership.
"FINANCE SUBSIDIARY LOAN" means, collectively, (i) the loan in
the amount of $95,387,690 made by the Finance Subsidiary to the REIT on or
around September 12, 1995, as evidenced by that certain Promissory Note, dated
as of September 12, 1995, executed by the REIT, in favor of the Finance
Subsidiary, which loan has been assumed by AIMCO pursuant to that certain
Redemption Agreement, dated as of April 15, 1996, between the REIT and AIMCO,
among others, and (ii) the loan in the amount of $3,000,000 made by the Finance
Subsidiary to the REIT on or around September 6, 1995, as evidenced by that
certain Promissory Note, dated as of September 6, 1995, executed by the REIT, in
favor of the Finance Subsidiary.
"FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Adjusted Total Corporate EBITDA for the four
fiscal quarter period ending on such date TO (b) Fixed Charges during such
period.
"FIXED CHARGES" means, for any period, the sum of (i) Total
Interest Expense for such period, PLUS (ii) Total Scheduled Amortization for
such period (excluding Scheduled Amortization for Borrowers under the Casden
Loan and additional amortization under the Casden Loan and the Casden Loan
Documents for such period), PLUS (iii) dividends accrued (whether or not
declared or payable) on the preferred Stock and/or preferred Partnership Units
of the Borrowers or any of their Subsidiaries during such period.
"FREE CORPORATE CASH FLOW" means, for any period, Total
Corporate EBITDA for such period minus the sum of (a) Total Interest Expense for
such period (excluding interest paid or accrued in respect of the Obligations),
plus (b) Borrowers', the Guarantors' and their respective Subsidiaries' pro-rata
share of all repayments of principal of Indebtedness (excluding (i) any
principal amortization consisting of a balloon payment of Indebtedness in
connection with the repayment in full of such Indebtedness, and (ii) principal
amortization in respect of the Obligations under, and as defined in, the
Revolver Credit Agreement), PLUS (c) Borrowers', the Guarantors' and their
respective Subsidiaries' pro-rata share of taxes based on income paid for such
period, plus (d) preferred dividends accrued (whether or not declared or
payable) on the preferred Stock and/or Partnership Units of the Borrowers or any
of their Subsidiaries during such period, plus (e) an amount equal to 90% of the
aggregate amount of REIT taxable income as reported on the REIT's federal income
tax return (Form 1120-REIT) or as estimated from time to time based on current
financial results for the period determined in accordance with all applicable
requirements of the Code, plus (f) the Capital Expenditure Reserve as of the
last day of such period of determination; provided, however, that, for purposes
of determining Free Corporate Cash Flow, in no event shall any calculation of
Total Corporate EBITDA include any Consolidated Net Income or net income (or
loss, as applicable) in respect of any Property which
12
has been Disposed of by Borrowers or any Subsidiary thereof, or any
unconsolidated partnership or subsidiary thereof.
"FUNDS FROM OPERATIONS" means, with respect to Borrowers and
their Subsidiaries on a consolidated basis, net income calculated in accordance
with GAAP, excluding gains or losses from debt restructuring and sales of
property, plus real estate depreciation and amortization (excluding amortization
of financing costs), plus amortization associated with the purchase of property
management companies, and after adjustments for unconsolidated partnerships and
joint ventures (with adjustments for unconsolidated partnerships and joint
ventures calculated to reflect funds from operations on the same basis) together
with adjustments for the non-cash deferred portion of any income tax provision
for unconsolidated subsidiaries and the payment of dividends on preferred Stock,
as interpreted by the National Association of Real Estate Investment Trusts in
its March, 1995, White Paper on Funds From Operations.
"GAAP" means generally accepted accounting principles and
practices at any date of determination in respect of a business conducting a
business the same as or similar to that of Borrowers, including, without
limitation, those set forth in applicable bulletins, opinions, pronouncements,
statements and interpretations issued by the Accounting Principles Board, the
American Institute of Certified Public Accountants and the Financial Accounting
Standard Board, which are applicable to the circumstances as of the date of
determination.
"GOVERNING STATE" means the State of California.
"GOVERNMENTAL AUTHORITY" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality, central bank or public body, or
(c) any court, administrative tribunal or public utility.
"GP CORP" means AIMCO-GP, Inc., a Delaware corporation. GP
Corp is a Wholly-Owned Subsidiary of the REIT and is the general partner of
AIMCO.
"GP LOAN NOTE" means a promissory note substantially in the
form of Exhibit J attached hereto, whether secured or unsecured, evidencing a GP
Loan.
"GP LOANS" means that certain Indebtedness loaned by AIMCO to
its Affiliates, whether secured or unsecured, evidenced by GP Loan Notes in an
aggregate principal amount of approximately $469,558,455 outstanding as of March
31, 2003 and such Indebtedness is set forth in more detail on SCHEDULE 1.01B
hereto.
"GROSS ASSET VALUE" means as of any date of determination, the
sum of the following, determined for Borrowers, the Guarantors and their
respective Subsidiaries:
(i) Cash (including Restricted Cash) and Cash Equivalents
of both consolidated and unconsolidated Persons, which Cash and Cash
Equivalents are owned, directly or indirectly, by Borrowers, the
Guarantors or their respective Subsidiaries as of such date of
determination;
13
(ii) GP Loans valued at net realizable value as of such
date of determination determined in accordance with GAAP;
(iii) with respect to all real estate assets wholly or
partially owned by such Person(s) throughout the most recent four
calendar quarters ending on or prior to such date of determination
(other than Real Property Assets Under Development), the Adjusted Total
NOI attributable to such real estate assets for such four quarter
period DIVIDED BY 9.00%;
(iv) with respect to all real estate assets wholly or
partially owned by such Person(s) on such date of determination, but
acquired less than four calendar quarters but at least one calendar
quarter preceding such date of determination (other than Real Property
Assets Under Development), the Adjusted Total NOI attributable to such
real estate assets for the number of full calendar quarters that such
Person(s) owned such assets measured on an annualized basis and DIVIDED
BY 9.00%;
(v) with respect to all real estate assets owned by such
Person(s) on such date of determination, but acquired less than one
calendar quarter preceding such date of determination (other than Real
Property Assets Under Development), 95% of the purchase price paid by
such Person(s) for such assets;
(vi) the gross book value of Real Property Assets Under
Development as of such date of determination; and
(vii) an amount equal to 400% of Management EBITDA for the
four consecutive fiscal quarter period preceding such date of
determination.
"GUARANTY" means a guaranty of the Obligations, in the form of
EXHIBITS H or attached hereto, and any documents relating to such guaranty as
Administrative Agent requires, duly executed by the Guarantors, together with
the guaranties delivered pursuant to SECTION 6.16(c), and "Guaranties" means all
of such guaranties collectively.
"GUARANTOR" means each Subsidiary of any Borrower that
executes and delivers a counterpart of any Guaranty on the Closing Date or from
time to time thereafter pursuant to SECTION 6.16(c), and collectively are
referred to herein as the "GUARANTORS". The Guarantors as of the Closing Date
are set forth on 1.01C attached hereto.
"GUARANTY OBLIGATION" means, as to any Person, any (a)
guaranty by that Person of Indebtedness of, or other obligation payable or
performable by, any other Person or (b) assurance, agreement, letter of
responsibility, letter of awareness, undertaking or arrangement given by that
Person to an obligee of any other Person with respect to the payment or
performance of an obligation by, or the financial condition of, such other
Person, whether direct, indirect or contingent, including any purchase or
repurchase agreement covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss
14
with respect to any obligation of such other Person; PROVIDED, HOWEVER, that
the term Guaranty Obligation shall not include endorsements of instruments
for deposit or collection in the ordinary course of business. The amount of
any Guaranty Obligation shall be deemed to be an amount equal to the stated
or determinable amount of the related primary obligation, or portion thereof,
covered by such Guaranty Obligation or, if not stated or determinable, the
maximum reasonably anticipated liability in respect thereof as determined by
the Person in good faith.
"HAZARDOUS MATERIALS" means (i) all those substances which are
regulated by, or which may form the basis of liability under, any Environmental
Law, including all substances identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance, or petroleum or
petroleum-derived substance or waste, (ii) any other materials or pollutants
that (a) pose a hazard to any Property of Borrowers or to Persons on or about
such Property or (b) cause such Property to be in violation of any Environmental
Laws, (iii) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million, and (iv) any other chemical, material, substance, or
waste, exposure to which is prohibited, limited, or regulated by any
Governmental Authority or may or could pose a hazard to the health and safety of
the owners, occupants, or any Persons surrounding the relevant Property.
"HUD" means the United States Department of Housing and Urban
Development.
"INDEBTEDNESS" of any Person means without duplication, (a)
all indebtedness for borrowed money, (b) all obligations issued, undertaken or
assumed as the deferred purchase price of Property or services, (c) all direct
or contingent obligations with respect to surety bonds, letters of credit,
bankers' acceptances and similar instruments (in each case, to the extent
material or noncontingent), (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of Properties, (e) all indebtedness created
or arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to Properties acquired by the
Person (even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of such
properties), (f) all Capital Lease Obligations, (g) all net obligations with
respect to Swap Agreements, (h) all obligations (other than, in the case of the
REIT, the obligation to acquire Partnership Units in exchange for shares of
common Stock of the REIT) to purchase, redeem, or acquire any Stock of such
Person or its Affiliates that, by its terms or by the terms of any security into
which it is convertible or exchangeable, (x) is, or upon the happening of any
event (other than a change of control event as may be set forth in certain
securities of the REIT and/or AIMCO which has not occurred prior to the date of
determination hereunder) or the passage of time would be, required to be
redeemed or repurchased by such Person or its Affiliates, including at the
option of the holder, in whole or in part, or (y) has, or upon the happening of
an event (other than the above change of control event as may be set forth in
certain securities of the REIT and/or AIMCO which has not occurred prior to the
date of determination hereunder) or passage of time would have, a redemption or
similar payment due, in each case of clauses (x) and (y) before the date which
is the one (1) year anniversary of the then effective Maturity Date (excluding,
however, any such preferred Stock
15
which is convertible only into common Stock of the REIT), (i) any direct or
contingent obligations or liabilities under any equity forward agreements or
transactions or under any similar arrangements or transactions, (j) all
indebtedness referred to in clauses (a) through (i) above secured by (or for
which the holder of such Indebtedness has an existing right, contingent or
otherwise, to be secured by) any Lien upon or in Properties (including
accounts and contract rights) owned by such Person, even though such Person
has not assumed or become liable for the payment of such Indebtedness, and
(k) all Guaranty Obligations in respect of indebtedness or obligations of
others of the kinds referred to in clauses (a) through (i) above.
"INDEBTEDNESS" shall also include such Person's share of the Indebtedness of
any partnership or joint venture in which such Person, directly or
indirectly, holds any interest, and any direct or indirect Recourse or
contingent obligations of such Person with respect to Indebtedness of such
partnership or joint venture in excess of its proportionate share. Solely for
purposes of SECTION 7.14 only, "INDEBTEDNESS" shall exclude Intra-Company
Debt, security deposits, accounts payable and accrued liabilities, any
prepaid rent (as such terms are defined under GAAP) and that portion of the
Contingent Acquisition Note, if any, which is not required under GAAP to be
shown as indebtedness of any Borrower or any of their Subsidiaries at any
time (including in the event of any acceleration thereof).
"INDEMNIFIED LIABILITIES" has the meaning set forth in
Section 10.13.
"INITIAL CAPITAL EXPENDITURES" means Capital Expenditures
incurred as part of a program of spending to improve any Properties acquired
after the Closing Date; PROVIDED that such Initial Capital Expenditures are
(x) identified prior to any such acquisition of Property and (y) completed
within one year after the closing of such acquisition of Property.
"INITIAL EXTENSION OF CREDIT" means a Loan in the amount of
$250,000,000 to be disbursed on the Closing Date pursuant to SECTION 2.01.
"INSTITUTIONAL JOINT VENTURE" means a Permitted Joint Venture
which either (a) involves a financial institution or sophisticated investor
which is primarily contributing Cash to the Permitted Joint Venture in exchange
for equity interests therein and the Borrowers, Guarantors or their Subsidiaries
directly or indirectly contributing Property to the Permitted Joint Venture in
exchange for equity interests therein, or (b) involves the Borrowers, Guarantors
or their Subsidiaries and one or more other Persons and where the Permitted
Joint Venture's Organization Documents provide at any time that such other
Persons may receive preferential returns or distributions with respect to the
assets and/or cash flow of such Permitted Joint Venture, or (c) is set forth on
SCHEDULE 1.01F attached hereto. Before (but in no event later than 10 Business
Days before) the consummation of the formation of any new Institutional Joint
Venture, Borrower shall provide the Administrative Agent with copies of the
proposed Organization Documents and promptly after such formation provide
Administrative Agent with executed copies of the final Organization Documents.
SCHEDULE 1.01F attached hereto sets forth all entities which are Institutional
Joint Ventures in existence or in negotiation on the Closing Date.
"INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor and Collateral Agency Agreement entered into as of the date hereof
between Borrowers,
16
Administrative Agent, borrowers party to the Revolver Credit Agreement, and
Bank of America, in its capacity as administrative agent under the Revolver
Credit Agreement, borrowers party to the Casden Credit Agreement, and LCPI,
in its capacity as administrative agent under the Casden Credit Agreement and
Collateral Agent, attached hereto as Exhibit L, as amended from time to time,
as provided therein and herein. The Intercreditor Agreement shall be binding
on and inure to the benefit of each lender in the Lender Group.
"INTEREST COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Adjusted Total Corporate EBITDA for the four
fiscal quarter period ending on such date TO (b) Total Interest Expense during
such period.
"INTEREST EXPENSE" means, for any Person and for any period,
without double counting any item, the sum of (x) gross interest expense paid in,
incurred or accrued during such period by such Person (including all
commissions, discounts, fees and other charges in connection with standby
letters of credit and similar instruments), including any amounts as capitalized
interest, plus (y) dividends paid in, incurred or accrued during such period by
such Person with respect to Trust Based Convertible Preferred Securities, PLUS
(z) the portion of the upfront costs and expenses for Swap Agreements entered
into by such Person (to the extent not included in gross interest expense)
fairly allocated to such Swap Agreements as expenses for such period, as
determined for such Person in accordance with GAAP; PROVIDED that all interest
expense accrued by Borrowers and their respective Subsidiaries during such
period, even if not payable on or before the Maturity Date, shall be included
with "INTEREST EXPENSE". Notwithstanding the foregoing, amortization of loan
costs and interest accrued under any Intra-Company Debt shall not be included
within "INTEREST EXPENSE" for any purposes hereof.
"INTEREST PAYMENT DATE" means (a) as to any Base Rate Loan,
the last day of each calendar month; (b) as to any Offshore Rate Loan, the last
day of each relevant Interest Period and any date that such Loan is prepaid in
whole or in part; PROVIDED, HOWEVER, that if any Interest Period for an Offshore
Rate Loan exceeds three months, interest shall also be paid on the date which
falls every three months after the beginning of such Interest Period; and (c) as
to all Loans, the Maturity Date; PROVIDED FURTHER that interest accruing at the
Default Rate shall be payable from time to time at any time upon demand of
Administrative Agent.
"INTEREST PERIOD" means, for each Offshore Rate Loan, (a)
initially, the period commencing on the date such Offshore Rate Loan is
disbursed, Continued as, or Converted into, an Offshore Rate Loan and (b)
thereafter, the period commencing on the last day of the preceding Interest
Period, and ending, in each case, on the earlier of (x) the Maturity Date, or
(y) one, two, three or six months thereafter, as requested by Borrowers;
PROVIDED that:
(i) any Interest Period that would otherwise end on a day
that is not a Business Day shall be extended to the next succeeding
Business Day unless such Business Day falls in another calendar month,
in which case such Interest Period shall end on the next preceding
Business Day;
(ii) any Interest Period which begins on the last Business
Day of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar
17
month at the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest Period;
and
(iii) unless Administrative Agent otherwise consents, there
may not be more than seven (7) Interest Periods in effect at any time.
"INTERIM LINCOLN PLACE FINANCING" means Indebtedness of
Borrowers, Guarantors or their Subsidiaries used solely as interim, short term
financing for pre-development and development activity for Lincoln Place
Apartments, the amount, interest rate, terms and maturity date of which shall be
satisfactory to the Administrative Agent.
"INTRA-COMPANY DEBT" means all Indebtedness (whether
book-entry or evidenced by a term, demand or other note or other instrument)
owed by Borrowers, any Guarantor or any of their respective Subsidiaries to
Borrowers, any Guarantor or any of their respective Subsidiaries; PROVIDED that
all such Intra-Company Debt owed by Borrowers or any Guarantor shall be
subordinated in right of payment to the payment in full of the Obligations in
accordance with the Intra-Company Loan Subordination Agreement.
"INTRA-COMPANY LOAN SUBORDINATION AGREEMENT" means a
Subordination Agreement, in the form attached hereto as EXHIBIT I, with respect
to Intra-Company Debt (including the Finance Subsidiary Loan), in favor of
Administrative Agent for the ratable benefit of Lenders, and entered into by
each of the lenders of the Intra-Company Debt and Borrowers.
"INVESTMENT" means, as to any Person, any acquisition or any
investment by such Person, whether by means of the purchase or other acquisition
of Stock, Partnership Units or other securities or Property of any other Person
or by means of a loan, creating a debt, capital contribution, guaranty or other
debt or equity participation or interest in any other Person, including any
partnership and joint venture interests in such other Person. For purposes of
covenant compliance, the amount of any Investment shall be the amount actually
invested as of any date of determination (taking into account any redemption,
repayment or partial liquidation thereof), without adjustment for subsequent
increases or decreases in the value of such Investment.
"IRS" means the Internal Revenue Service.
"KNOWLEDGE OF BORROWERS" means the actual knowledge (after
reasonable inquiry) of any of the officers of any Borrower and each other Person
with executive responsibility for any aspect of such Borrower's business.
"LAWS" or "LAW" means, collectively, all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or
authorities, including without limitation the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, in each case whether or not having the
force of law.
"LCPI" means Xxxxxx Commercial Paper Inc., in its capacity as
administrative agent for the Casden Loan.
18
"LENDER" means each lender from time to time party hereto.
"LENDER GROUP" means, collectively, the Term Lenders, the
Casden Lenders and the Revolver Lenders.
"LENDING OFFICE" means, as to any Lender, the office or
offices of such Lender described as such on SCHEDULE 10.02, or such other office
or offices as such Lender may from time to time notify Borrowers and
Administrative Agent.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement (in the nature of compensating balances, cash collateral
accounts or security interests), encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing), and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction, including the interest of a purchaser of accounts
receivable.
"LINCOLN PLACE APARTMENTS" means the real Property acquired by
AIMCO Lincoln Place Apartments, L.P., a Subsidiary of the REIT, on June 18,
2001, and which consists of 795 apartment units located in Venice, California. A
portion of the proceeds of the Lincoln Place Construction Financing will be used
to add 44 new apartment units to the project.
"LINCOLN PLACE CONSTRUCTION FINANCING" means Indebtedness of
Borrowers, Guarantors, or their Subsidiaries in an aggregate principal amount
not to exceed $151,000,000 in all events, with an interest rate, terms and
maturity date satisfactory to the Administrative Agent, the proceeds of which
are to be used to finance the refinancing of certain purchase money indebtedness
and the rehabilitation and stabilization of Lincoln Place Apartments and which
may also include the Interim Lincoln Place Financing, together with any Guaranty
Obligations in connection therewith; provided that "Lincoln Place Construction
Financing" shall not include any renewal, extension or refinancing of such
Indebtedness or Guaranty Obligations other than a refinancing of the Interim
Lincoln Place Financing.
"LOAN" means any advance made by any Lender to any Borrower
as provided in SECTION 2 (collectively, the "LOANS").
"LOAN DOCUMENTS" means this Agreement, the Collateral
Documents, the Guaranties, the Intercreditor Agreement, and any Note,
certificate, fee letter, and other instrument, document or agreement from time
to time delivered in connection with this Agreement.
"LP CORP" means AIMCO-LP, Inc., a Delaware corporation.
"MANAGEMENT EBITDA" means, for any period, the sum, without
duplication, of (x) the aggregate amount of EBITDA for Borrowers and their
Subsidiaries attributable to their management of multi-family apartment projects
or other real estate projects or provision of
19
Ancillary Services during such period, PLUS (y) Unconsolidated Subsidiaries
EBITDA generated by the Management Entities.
"MANAGEMENT ENTITY" means any Subsidiary of any Borrower (i)
which is primarily engaged in the business of managing multifamily apartment
projects or other real estate projects or providing Ancillary Services, and (ii)
whose assets (other than Intra-Company Debt) are not subject to any Liens (other
than Ordinary Course Liens), and "MANAGEMENT ENTITIES" includes, without
limitation, the Persons listed on SCHEDULE 1.01D.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon (i) the validity or enforceability of any Loan
Document or the rights and remedies of Administrative Agent and the Lenders
thereunder, or (ii) the business, assets, property or condition (financial or
otherwise) of the REIT and AIMCO and its Subsidiaries, taken as a whole, which
would reasonably be expected to cause the aggregate amount of loss, damage or
expense to the REIT and AIMCO and its Subsidiaries, taken as a whole, as a
result of such circumstances and events to exceed $100,000,000, or (b)
materially impairs or could reasonably be expected to materially impair the
ability of the Borrower Parties, taken as a whole, to pay and/or perform the
Obligations.
"MATERIAL ENTITY" means any Person in which any Borrower or
any of their Subsidiaries owns any equity interest which generates 1.5% or more
of Total Corporate EBITDA.
"MATURITY DATE" means May 30, 2008.
"MINIMUM AMOUNT" means, with respect to each of the following
actions, the minimum amount and any multiples in excess thereof set forth
opposite such action:
============================================ ===================== ====================
MINIMUM MULTIPLES IN
TYPE OF ACTION AMOUNT EXCESS THEREOF
-------------------------------------------- --------------------- --------------------
Prepayment of, or Conversion into, Base $2,000,000 $500,000
Rate Loans
-------------------------------------------- --------------------- --------------------
Prepayment of, Continuation of, or $5,000,000 $1,000,000
Conversion into, Offshore Rate Loans
-------------------------------------------- --------------------- --------------------
Assignments (other than with respect to $1,000,000 $1,000,000
the entire amount of a Lender's
Commitment, in which event the Minimum
Amount shall be such Commitment Amount)
============================================ ===================== ====================
20
"MOODY'S" means Xxxxx'x Investors Service, a Delaware
corporation, and its successors and assigns.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that
restricts Liens on property in favor of the Administrative Agent for the benefit
of the Lenders.
"NET DISPOSITION PROCEEDS" means, with respect to any
Disposition of any Property (including as a result of casualty or condemnation
and any purchase price refund in respect of any acquisition), Subsidiary,
Management Entity or material property management contract, Cash payments
(including any Cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) or Cash Equivalents received from such Disposition (which, in the case
of non-wholly owned Persons, shall be limited to the Borrowers', the Guarantors'
or any of their Subsidiaries' respective pro-rata share of such Disposition
proceeds), net of any bona fide direct costs incurred in connection with such
Disposition, including (i) income taxes reasonably estimated to be actually
payable within two years of the date of such Disposition as a result of any gain
recognized in connection with such Disposition and (ii) payment of the
outstanding principal amount of, premium or penalty, if any, and interest on any
Indebtedness (other than the Loans) that is secured by a Lien on the Stock or
assets in question and that is required to be repaid under the terms thereof as
a result of such Disposition.
"NET ISSUANCE PROCEEDS" means, in respect of any issuance of
Stock or Partnership Units or Debt Securities (other than proceeds of Debt
Securities which are Indebtedness permitted pursuant to SECTION 7.01) by
Borrowers or any of their respective Subsidiaries, the proceeds in Cash or Cash
Equivalents (or, for purposes of SECTION 7.14(h), in the case of any issuance of
Partnership Units in exchange for Property, the fair market value of the
Property so acquired) received by Borrowers or any of their respective
Subsidiaries upon or substantially simultaneously with such issuance (which, in
the case of non-wholly owned Persons, shall be limited to the Borrowers', the
Guarantors' or any of their Subsidiaries' respective pro-rata share of such
issuance proceeds), net of (a) the direct costs of such issuance then payable by
the recipient of such proceeds (excluding amounts payable to Borrowers or any
Affiliate of Borrowers), (b) sales, use and other taxes paid or payable by such
recipient as a result thereof, and (c) in the case of the issuance of
Indebtedness secured by any Property, the portion of such proceeds used to repay
Indebtedness previously incurred and secured by the same Property.
"NET OPERATING INCOME" means, for any period, as to any
Property (a) all gross revenues received from the operation of such Property
during such period (including, without limitation, payments received from
insurance on account of business or rental interruption and condemnation
proceeds from any temporary use or occupancy, in each case to the extent
attributable to the period for which such Net Operating Income is being
determined, but excluding any proceeds from the sale or other disposition of any
part or all of such Property; or from any financing or refinancing of such
Property; or from any condemnation of any part or all
21
of such Property (except for temporary use or occupancy); or on account of a
casualty to the property (other than payments from insurance on account of
business or rental interruption); or any security deposits paid under leases
of all or a part of such Property, unless forfeited by tenants; and similar
items or transactions the proceeds of which under GAAP are deemed
attributable to capital), MINUS (b) all reasonable and customary property
maintenance and repair costs, leasing and administrative costs, management
fees and, without double counting, real estate taxes and insurance premiums
paid or accrued on account of such Property (whether by direct payment or by
deposit into reserves for future payment), or, to the extent applicable for
purposes of calculating Net Operating Income, the applicable prior owner of
such Property during such period with respect to such Property (exclusive of
Capital Expenditures). When calculating Net Operating Income, there shall be
no deduction for any non cash items, such as depreciation.
"NEW CONSTRUCTION" means the development and construction of
any new multi-family Property by any Borrower, any Guarantor or any of their
respective Subsidiaries and shall not include any renovations, rehabilitations
or expansions of existing multi-family Properties.
"NHP MANAGEMENT" is defined in the preamble.
"NONRECOURSE DEBT OBLIGOR" has the meaning given such term in
Section 8.01(g)(B).
"NON-WHOLLY OWNED PROPERTY" means the Property comprising a
multifamily apartment project the fee simple interest in which is not 100%
owned, directly or indirectly, by Borrowers and/or their Wholly-Owned
Subsidiaries.
"NOTES" means, collectively, the Committed Loan Notes.
"NYSE" means the New York Stock Exchange.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Borrower Party arising under any Loan
Document, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement of any proceeding
under any Debtor Relief Laws by or against any Borrower Party or any Subsidiary
or Affiliate of any Borrower Party.
"OFFSHORE BASE RATE" has the meaning set forth in the
definition of Offshore Rate.
"OFFSHORE RATE" means for any Interest Period with respect to
any Offshore Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Offshore Rate = OFFSHORE BASE RATE
-----------------------------------
1.00 - Eurodollar Reserve Percentage
22
Where,
"OFFSHORE BASE RATE" means for, such Interest Period,
(a) the offered rate (determined solely by the Administrative
Agent) for a period of time comparable to the number of days in the
applicable Interest Period for deposits in United States Dollars, as
shown on Telerate Page 3750 as of approximately 11:00 a.m. (London
time) two Business Days prior to the first day of such Interest Period.
"Telerate Page 3750" means the display designated as such on
Teleratesystem Incorporated (or such other page as may replace page
3750 on that service for the purpose of displaying London interbank
offered rates of major banks for United States Dollar deposits), or
(b) in the event the rate referenced in the preceding
subsection (a) does not appear on such page or service or such page or
service shall cease to be available, the rate per annum (carried to the
fifth decimal place) equal to the rate determined by Administrative
Agent to be the offered rate on such other page or other service that
displays an average British Bankers Association Interest Settlement
Rate for deposits in Dollars (for delivery on the first day of such
Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business
Days prior to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding
subsections (a) and (b) are not available, the rate per annum
determined by Administrative Agent as the rate of interest at which
Dollar deposits (for delivery on the first day of such Interest Period)
in same day funds in the approximate amount of the applicable Offshore
Rate Loan and with a term equivalent to such Interest Period would be
offered by its London Branch to major banks in the offshore dollar
market at their request at approximately 11:00 a.m. (London time) two
Business Days prior to the first day of such Interest Period. The
determination of the Offshore Base Rate by the Administrative Agent
shall be conclusive in the absence of manifest error.
"OFFSHORE RATE LOAN" means a Committed Loan bearing interest
based on the Offshore Rate.
"OMNIBUS BORROWERS PLEDGE AGREEMENT" means the Borrowers
Pledge Agreement executed and delivered by the Borrower Parties party thereto in
connection with this Agreement, the Revolver Credit Agreement and the Casden
Credit Agreement, substantially in the form of EXHIBIT G annexed hereto, as such
Borrowers Pledge Agreement may thereafter be amended, supplemented or otherwise
modified from time to time.
"ORDINARY COURSE DISPOSITIONS" means:
(a) Dispositions of obsolete or worn out Property or
Property no longer useful in any Borrower Party's business, whether now
owned or hereafter acquired, in the Ordinary Course of Business;
23
(b) Dispositions of Cash, Cash Equivalents, inventory and
other Property in the Ordinary Course of Business;
(c) Dispositions of Property to the extent that such
property is exchanged for credit against the purchase price of similar
replacement property, or the proceeds of such sale are reasonably
promptly applied to the purchase price of such replacement Property or
where any Borrower or its Subsidiary determines in good faith that the
failure to replace such property will not be detrimental to the
business of such Borrower or such Subsidiary;
(d) Dispositions of assets or Property by a Borrower or
any Subsidiary of a Borrower to any Borrower or another Wholly-Owned
Subsidiary of a Borrower; and
(e) Dispositions of Property or Properties which generate
Net Disposition Proceeds of less than $1,000,000 per Property and
$10,000,000 in the aggregate, PROVIDED the aggregate amount of Net
Disposition Proceeds generated by all such Dispositions shall not
exceed $10,000,000 during any four consecutive fiscal quarter period;
PROVIDED, HOWEVER, that no such Disposition shall be for less than the fair
market value of the property being disposed of.
"ORDINARY COURSE INDEBTEDNESS" means:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness under bonds supporting utility
deposits
or insurance or other comparable security deposits or property taxes,
in each case incurred in the Ordinary Course of Business; and
(c) Indebtedness arising from the honoring of a check,
draft or similar instrument against insufficient funds.
"ORDINARY COURSE INVESTMENTS" means:
(a) Investments in Cash and Cash Equivalents;
(b) Investments consisting of advances to officers,
directors and employees of Borrowers and their Subsidiaries for travel,
entertainment, relocation and analogous ordinary business purposes;
(c) Investments of Borrowers in any other Borrower or in
any of their Subsidiaries and Investments of any Subsidiary of
Borrowers in Borrowers or another Subsidiary of Borrowers;
24
(d) Investments consisting of or evidencing the extension
of credit to customers or suppliers of Borrowers and their Subsidiaries
in the ordinary course of business and any Investments received in
satisfaction or partial satisfaction thereof; and
(e) Investments consisting of Guaranty Obligations
permitted by SECTION 7.01.
"ORDINARY COURSE LIENS" means:
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being
contested
in good faith and by appropriate proceedings, if adequate reserves with
respect thereto are maintained on the books of the applicable Person in
accordance with GAAP;
(c) carriers', warehousemen's, mechanics', materialmen's,
repairmen's or other like Liens arising in the ordinary course of
business which are not overdue for a period of more than 60 days or
which are being contested in good faith and by appropriate proceedings,
if adequate reserves with respect thereto are maintained on the books
of the applicable Person and deposits securing liability to insurance
carriers under insurance arrangements;
(d) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and other
obligations of a like nature incurred in the ordinary course of
business;
(f) easements, rights-of-way, restrictions and other
similar encumbrances affecting real property which, in the aggregate,
are not substantial in amount, and which do not in any case materially
detract from the value of the property subject thereto or materially
interfere with the ordinary conduct of the business of any Borrower
Party;
(g) attachment, judgment or other similar Liens arising
in connection with litigation or other legal proceedings (and not
otherwise a Default hereunder) in the ordinary course of business that
are currently being contested in good faith by appropriate proceedings,
adequate reserves have been set aside and no material Property is
subject to a material risk of loss or forfeiture or the claims in
respect of such Liens are fully covered by insurance (subject to
ordinary and customary deductibles);
(h) statutory, contractual or common law landlords' Liens
under leases to which any Borrower Party or any Subsidiary thereof is
a party; and
(i) Liens securing reimbursement obligations with respect
to letters of credit and banker's acceptances which encumber only
documents and other property relating to such letters of credit and the
products and proceeds thereof.
25
"ORDINARY COURSE OF BUSINESS" means, in respect of any
transaction involving a Person, (i) the ordinary course of such Person's
business, substantially as intended to be conducted by any such Person as of the
Closing Date, and (ii) undertaken by such Person in good faith and not for
purposes of evading any covenant or restriction in any Contractual Obligation of
such Person or for purposes of defrauding its creditors; PROVIDED, that, with
respect to any Person (other than the Borrowers, any Material Entity or any
Institutional Joint Venture) which is disposing of all or substantially all of
its Property, Ordinary Course of Business shall also include any Disposition
consistent with clauses (i) and (ii) above and which is not otherwise in
violation of this Agreement and the proceeds thereof are applied as required
under this Agreement; PROVIDED, FURTHER, that in all events the Institutional
Joint Ventures described on SCHEDULE 1.01F and similar Institutional Joint
Ventures permitted hereunder, shall be deemed to be in the Ordinary Course of
Business for all purposes under this Agreement.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation, the certificate or articles of incorporation and the bylaws; (b)
with respect to any limited liability company, the articles of formation and
operating agreement; and (c) with respect to any partnership, joint venture or
other form of business entity, the partnership agreement and any agreement,
filing or notice with respect thereto filed with the secretary of state of the
state of its formation, in each case as amended from time to time.
"ORGANIZATIONAL CHART" means the list of Subsidiaries attached
as SCHEDULE 5.16 hereto showing the Borrowers, all of their Subsidiaries and
their interests in the Management Entities and any unconsolidated subsidiaries
or Persons, as the same may be modified pursuant hereto.
"OUTSTANDING OBLIGATIONS" means, as of any date, and giving
effect to making any Extensions of Credit requested on such date and all
payments, repayments and prepayments made on such date, during the period from
the Closing Date through and including the Maturity Date, the aggregate
outstanding principal amount of all Loans.
"OXFORD" means Oxford Holding Corporation, Oxford Realty
Financial Group, Inc., Oxford Tax Exempt Fund II, L.P. and other Affiliates or
related entities thereof acquired by Borrowers and/or their Affiliates as
provided in the Oxford Acquisition Agreement from time to time, collectively.
"OXFORD ACQUISITION AGREEMENT" means that certain Acquisition
Agreement dated as of June 28, 2000, by and among the REIT, AIMCO, NHP
Management Company and Aimco/NHP Properties, Inc., as buyers, and Xxx X.
Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X. Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxx,
and Xxxxxxx X. Xxxxxxxxx, as sellers, together with any amendments or
modifications thereto approved by Administrative Agent in writing.
"OXFORD ASSETS" means any and all assets, rights and
interests, including, without limitation, all corporate interests, general and
limited partnership interests comprising Oxford, and all other Property and
associated rights held or controlled by Oxford acquired on or to be acquired
after September 20, 2000, including, without limitation, pursuant to the Oxford
Acquisition Agreement and the interests to be acquired pursuant to the "SLP
Offer Agreement,"
26
the "ILPI and BAC Agreement" and the "Option Sale Agreement" (as the
foregoing terms are defined in the Oxford Acquisition Agreement); PROVIDED,
HOWEVER, "Oxford Assets" shall not include any assets, rights or interests in
Oxford held by Borrowers, their Subsidiaries or Affiliates prior to September
20, 2000.
"PARK LA BREA" means AIMCO Park La Brea Inc. and its direct
and indirect Subsidiaries and their respective real estate Properties.
"PARK LA BREA AND WESTWOOD VILLAGE PROPERTIES LOANS" means
those loans to XYZ Holdings, LLC in the aggregate principal amount at any time
outstanding not to exceed $70,000,000 to finance the development, construction
and stabilization of the Park La Brea and Westwood Village Properties as
contemplated in the Casden Merger Agreement, provided that such loans shall be
represented by the Park La Brea and Westwood Village Properties Notes which
shall be pledged on a first-priority basis to Collateral Agent pursuant to the
Borrowers Pledge Agreement.
"PARK LA BREA AND WESTWOOD VILLAGE PROPERTIES NOTES" means,
collectively, that certain Mezzanine Loan Secured Note issued by XYZ Holdings
LLC in favor of AIMCO Investment Services, Inc. in the principal amount of
$26,200,000 (Casden Park La Brea A), that certain Mezzanine Loan Secured Note
issued by XYZ Holdings LLC in favor of AIMCO Investment Services, Inc. in the
principal amount of $32,100,000 (Casden Park La Brea B), that certain Mezzanine
Loan Secured Note issued by XYZ Holdings LLC in favor of AIMCO Investment
Services, Inc. in the principal amount of $9,300,000 (Casden Park La Brea C) and
that certain Mezzanine Loan Secured Note issued by XYZ Holdings LLC in favor of
AIMCO Investment Services, Inc. in the principal amount of $32,400,000
(Westwood) (each a "Park La Brea and Westwood Village Properties Note" and
collectively the "Park La Brea and Westwood Village Properties Notes", the
aggregate principal amount at any time outstanding under the Park La Brea and
Westwood Village Properties Notes not to exceed $70,000,000.
"PARTICIPANT" is defined in SECTION 10.04.
"PARTNERSHIP UNITS" means the units of limited partnership
interest in the Borrowers or any of their Subsidiaries, as the case may be,
issued and outstanding from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto established under ERISA.
"PENSION PLAN" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by Borrowers
or any ERISA Affiliates or to which any Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five plan years.
"PERMITTED JOINT VENTURE" means a joint venture, partnership,
limited liability company or other similar arrangement, whether in corporate,
partnership or other legal form
27
(i) which is formed by or an interest in which is acquired by any of the
Borrowers or its Subsidiaries in the Ordinary Course of Business, (ii) which
complies with SECTION 7.09, and (iii) in which any of the Borrowers' or their
Subsidiaries' equity or other beneficial interests is held at all times,
directly or indirectly, by a Borrower and/or Guarantor.
"PERMITTED PREFERRED STOCK REDEMPTIONS" means the (A)
purchase, redemption, retirement or other acquisition for value of any
Redeemable Preferred Stock, in an amount up to 100% of the Net Issuance Proceeds
from any issuance of common or preferred Stock by the Borrowers, the Guarantors
or their Subsidiaries occurring after April 15, 2003 including the transactions
set forth on SCHEDULE 1.01G attached hereto, (B) purchase, redemption,
retirement or other acquisition for value of any Redeemable Preferred Stock in
an amount up to not more than 75% of the Net Disposition Proceeds from
Dispositions occurring after April 15, 2003 including the transactions set forth
on SCHEDULE 1.01G attached hereto; PROVIDED, THAT, all such purchases or
redemptions of Redeemable Preferred Stock under this clause (B) may not exceed
$250,000,000 in the aggregate in any one calendar year and $400,000,000 in the
aggregate in any two consecutive calendar years, or (C) purchase, redemption,
retirement or other acquisition for value of any Redeemable Preferred Stock with
Free Corporate Cash Flow.
"PERSON" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority, or other entity.
"PLAN" means any employee benefit plan that is (or was within
the last 5 years) maintained or contributed to by a Borrower Party or by any
trade or business (whether or not incorporated) under common control with a
Borrower Party as defined in Section 4001(b) of ERISA and insured by the PBGC
under Title IV of ERISA.
"PLEDGED COLLATERAL" means any and all Property upon which a
Lien is purported to be created by any Collateral Document to secure the
Collective Obligations of the Borrowers pursuant to the Collateral Documents and
subject to the Intercreditor Agreement. The Pledged Collateral existing on the
Closing Date is listed on Schedule 1.01E.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Combined Commitments set forth opposite the name of that
Lender on SCHEDULE 2.01, as may be amended from time to time.
"PROPERTY" means any estate or interest in any kind of
property or asset, whether real, personal or mixed, and whether tangible or
intangible.
"QUALIFIED PLAN" means a pension plan (as defined in Section
3(2) of ERISA) intended to be tax-qualified under Section 401(a) of the Code and
which any member of the Controlled Group sponsors, maintains, or to which it
makes, is making or is obligated to make contributions, or in the case of a
multiemployer plan (as described in Section 4064(a) of ERISA) has made
contributions and any time during the immediately preceding period covering at
least five (5) plan years, but excluding any Multi-employer Plan.
28
"REAL ESTATE COMPANY" means each of Xxxxxx Xxxxxxx LLC, Xxxxxx
Park La Brea A LLC, Casden Park La Brea B LLC and Casden Park La Brea C LLC, and
"REAL ESTATE COMPANIES" means all of such companies collectively.
"REAL PROPERTY ASSETS UNDER DEVELOPMENT" means, as of any date
of determination, Property owned by a Person and which, as of such date, is in
whole or part the subject of Construction/Renovation. Any such asset shall be
included in "REAL PROPERTY ASSETS UNDER DEVELOPMENT" only until the earlier of
(a) the date such property becomes Stabilized and (b) six months after the
completion of construction of such asset.
"RECOURSE" means, with respect to any Indebtedness or Guaranty
Obligation of any Person, that such Indebtedness or Guaranty Obligation is
recourse to the assets and/or properties of such Person (except as provided
below); PROVIDED, HOWEVER, that with respect to nonrecourse Indebtedness secured
by real property which contains limitations to the nonrecourse nature of the
obligation, such limited nonrecourse obligations shall be deemed "Recourse" if
and to the extent the nonrecourse exceptions are for liability of such Person
for any of the following under any applicable loan documentation and any such
events or circumstances described in clauses (a) through (j) have occurred: (a)
fraud, waste, material misrepresentation, or willful misconduct; (b)
indemnification with respect to environmental matters or failure to comply with
Hazardous Materials laws; (c) failure to maintain required insurance policies;
(d) misapplication of insurance proceeds, condemnation awards and tenant
security deposits; (e) breach of covenants relating to unpermitted transfers or
encumbrances of real property or other collateral; (f) misappropriation or
misapplication of property income; (g) breach of covenants relating to
unpermitted transfers of interests in a Person; (h) failure to deliver books and
records; (i) failure to pay transfer fees or charges; or (j) other matters
substantially the same as those set forth in clauses (a) through (i) above. An
obligation of a Person that is without Recourse to the assets and/or properties
of such Person shall not be considered a "RECOURSE" obligation unless any of the
events or circumstances described in clauses (a) through (j) above have
occurred. Indebtedness of a Single Purpose Entity secured by that Single Purpose
Entity's real Property assets shall not be considered a "Recourse" obligation
provided the Indebtedness is recourse only to such Single Purpose Entity's
assets. A Guaranty Obligation with respect to the events or circumstances
described in clauses (a) through (j) above of a Single Purpose Entity shall not
be deemed a "Recourse" obligation if such events or circumstances have not
occurred.
"REDEEMABLE PREFERRED STOCK" means (i) the preferred
Partnership Units and (ii) the preferred Stock, in each case of the Borrowers,
the Guarantors or their Subsidiaries which is redeemable in accordance with its
terms.
"REGISTER" is defined in Section 10.04(c).
"REIT" is defined in the preamble to this Agreement.
"REIT STATUS" means, with respect to any Person, (a) the
qualification of such Person as a real estate investment trust under Sections
856 through 860 of the Code, and (b) the applicability to such Person and its
shareholders of the method of taxation provided for in Sections 857 ET SEQ. of
the Code.
29
"RELATED FUND" means, with respect to any Lender which is a
fund that invests in loans, any other fund that invests in loans and is
managed or advised by the same investment advisor as such Lender or by an
Affiliate of such Lender or such investment advisor.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, a withdrawal from a
Plan described in Section 4063 of ERISA, or a cessation of operations
described in Section 4062(e) of ERISA.
"REQUEST FOR EXTENSION OF CREDIT" means a written request
substantially in the form of EXHIBIT A duly completed and signed by a
Responsible Officer, or a telephonic request followed by such a written
request, in each case delivered to Administrative Agent by Requisite Notice.
"REQUISITE LENDERS" means (a) as of any date of
determination if the Commitments are then in effect, Lenders having in the
aggregate more than 50% of the Combined Commitments then in effect and (b) as
of any date of determination if the Commitments have then been terminated and
there are Loans outstanding, Lenders holding Loans aggregating more than 50%
of the aggregate outstanding principal amount of the Loans.
"REQUISITE NOTICE" means, unless otherwise provided herein,
(a) irrevocable written notice to the intended recipient or (b) irrevocable
telephonic notice to the intended recipient, promptly followed by a written
notice to such recipient by way of facsimile and by way of mail. Such notices
shall be (i) delivered to such recipient at the address or telephone number
specified on SCHEDULE 10.02 or as otherwise designated by such recipient by
Requisite Notice to each other party hereto, and (ii) if made by any Borrower
Party, given or made by a Responsible Officer of such Borrower Party. Any
written notice delivered in connection with any Loan Document shall be in the
form, if any, prescribed in the applicable section hereof or thereof and may
be delivered as provided in SECTION 10.02. Any notice sent by other than
hardcopy shall be promptly confirmed by a telephone call to the recipient
and, if requested by Administrative Agent, by a manually-signed hardcopy
thereof.
"REQUISITE TIME" means, with respect to any of the actions
listed below, the time and date set forth below opposite such action (all
times are local time (standard or daylight) as observed in the Governing
State):
=================================================== ================ =============================================
TYPE OF ACTION TIME DATE OF ACTION
--------------------------------------------------- ---------------- ---------------------------------------------
Delivery of Request for Extension of Credit for,
or notice for:
--------------------------------------------------- ---------------- ---------------------------------------------
Borrowing of, prepayment of, or Conversion into, 9:00 a.m. 1 Business Day prior to such Borrowing,
Base Rate Loans prepayment or Conversion
--------------------------------------------------- ---------------- ---------------------------------------------
Borrowing of, prepayment of, Continuation of, or 10:00 a.m. 3 Business Days prior to such Borrowing,
Conversion into, Offshore Rate Loans prepayment, Conversion or Continuation
--------------------------------------------------- ---------------- ---------------------------------------------
30
--------------------------------------------------- ---------------- ---------------------------------------------
Payments by Lenders or Borrowers to 11:00 a.m. On date payment is due
Administrative Agent
=================================================== ================ =============================================
"RESPONSIBLE OFFICER" means the president, chief financial
officer, treasurer or assistant treasurer of a Borrower Party. Any document
or certificate hereunder that is signed by a Responsible Officer of a
Borrower Party shall be conclusively presumed to have been authorized by all
necessary corporate, partnership and/or other action on the part of such
Borrower Party and such Responsible Officer shall be conclusively presumed to
have acted on behalf of such Borrower Party.
"RESTRICTED CASH" means any Cash pledged to other lenders
by Borrowers or any of their respective Subsidiaries or any other Person in
which Borrowers or any of their respective Subsidiaries have any equity
interest, as indicated in the line item for "restricted cash" in the REIT's
balance sheet from time to time, and Borrowers' or their Subsidiaries' pro
rata shares of "restricted cash" of unconsolidated partnerships and
unconsolidated subsidiaries.
"RESTRICTED PAYMENT" means:
(a) the declaration or payment of any dividend or
distribution by any Borrower or any of its Subsidiaries, either in cash
or property, on any shares of the capital stock of any class of such
Borrower or any of its Subsidiaries (except dividends or other
distributions payable solely in shares of capital stock of any Borrower
or any of its Subsidiaries or payable by a Subsidiary to any Borrower
or another wholly-owned Subsidiary of any Borrower or payable by any
Borrower to another Borrower);
(b) the purchase, redemption, including depositary
shares, or retirement by Borrowers or any of their Subsidiaries of any
shares of their capital stock of any class or any warrants, rights or
options to purchase or acquire any shares of their capital stock,
whether directly or indirectly;
(c) any other payment or distribution by any Borrower or
any of its Subsidiaries in respect of their capital stock, including
depositary shares, either directly or indirectly (except payments or
other distributions to Borrowers or any of their Subsidiaries or
payable in shares of the capital Stock of Borrowers or any of their
Subsidiaries); and
(d) any Investment other than an Investment otherwise
permitted under any Loan Document.
"REVOLVER CREDIT AGREEMENT" means that certain Fourth
Amended and Restated Credit Agreement, dated as of March 11, 2002, among the
Borrowers, the lenders named therein, Bank of America, as administrative
agent, issuing lender and a co-agent, Fleet National Bank, as a co-lead agent
and syndication agent, and First Union National Bank, as documentation agent,
as amended by that certain Consent and Waiver, dated as of June 12, 2002,
that certain Second Amendment to Fourth Amended and Restated Credit
Agreement, dated as of August 5, 2002, that certain Fifth Amended and
Restated Credit Agreement, dated as of February 14, 2003, and
31
that certain First Amendment to Fifth Amended and Restated Credit Agreement,
dated as of May 9, 2003 and as hereafter may be amended from time to time in
accordance with the Intercreditor Agreement and pursuant to the Revolver
Credit Agreement Amendment.
"REVOLVER CREDIT AGREEMENT AMENDMENT" means that certain
Second Amendment to Fifth Amended and Restated Credit Agreement dated of even
date herewith.
"REVOLVER LENDERS" means the lenders from time to time
party to the Revolver Credit Agreement.
"REVOLVER LOAN DOCUMENTS" means the Revolver Credit
Agreement and the "Loan Documents" as defined therein, as amended from time
to time in accordance with the Intercreditor Agreement.
"S&P" shall mean Standard & Poor's Ratings Group and its
successors and assigns.
"SCHEDULED AMORTIZATION" means, with respect to any Person,
the sum, as of any date of determination, of all regularly scheduled
amortization payments paid or accrued on such Person's Indebtedness
(exclusive of balloon payments).
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
"SEC REPORT" means all filings on Form 10-K, Form 10-Q or
Form 8-K with the SEC made by the REIT pursuant to the Exchange Act and
delivered to Administrative Agent prior to the date hereof.
"SECURITIES ACT" means the Securities Act of 1933, as
amended from time to time, and any successor statute.
"SINGLE PURPOSE ENTITY" means a Person which is created or
existing solely to own a specific real Property asset and which has no
Indebtedness other than in conjunction with the acquisition, operation and
maintenance of such real Property asset (including normal and customary trade
payables) and which engages in no business other than the ownership,
operation and maintenance of such real Property asset.
"SOLE LEAD ARRANGER" means BAS, in its capacity as lead
arranger hereunder.
"SOLVENT" means, as to any Person at any time, that (a) the
fair value of the Property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for
purposes of Section 101(31) of the Bankruptcy Code of the United States of
America and, in the alternative, for purposes of the Uniform Fraudulent
Transfer Act; (b) the present fair saleable value of the Property of such
Person is not less than the amount that will be required to pay the probable
liability of such Person on its debts as they become absolute and matured;
(c) such Person is able to realize upon its Property and pay its debts and
other liabilities (including disputed, contingent and unliquidated
liabilities) as they mature in the normal course
32
of business; (d) such Person does not intend to, and does not believe that it
will, incur debts or liabilities beyond such Person's ability to pay as such
debts and liabilities mature; and (e) such Person is not engaged in business
or a transaction, and is not about to engage in business or a transaction,
for which such Person's property would constitute unreasonably small capital.
"STABILIZED" means, with respect to any Property and as of
any date of determination, the date on which the occupancy level is at least
eighty-five percent (85%) for the most recent complete quarter.
"STOCK" means all shares, options, warrants, interests,
participations or other equivalents (regardless of how designated) of or in a
corporation or equivalent entity, whether voting or nonvoting, including
common stock, preferred stock, perpetual preferred stock or any other "equity
security" (as such term is defined in Rule 3a11-1 of the General Rules and
Regulations promulgated by the SEC under the Exchange Act).
"SUBSIDIARY" means, with respect to any Person, a
corporation, partnership, joint venture, limited liability company or other
business entity of which a majority of the shares of securities or other
interests having ordinary voting power for the election of directors or other
governing body (other than securities or interests having such power only by
reason of the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or indirectly
through one or more intermediaries, or both, by such Person.
"SUPERMAJORITY LENDERS" means (a) as of any date of
determination if the Commitments are then in effect, Lenders having in the
aggregate more than 66-2/3% of the Combined Commitments then in effect and
(b) as of any date of determination if the Commitments have then been
terminated and there are Loans outstanding, Lenders holding Loans aggregating
more than 66-2/3% of the aggregate outstanding principal amount of the Loans.
"SWAP AGREEMENT" means (a) any and all rate swap
transactions, basis swaps, forward rate transactions, commodity swaps,
commodity options, forward commodity contracts, equity or equity index swaps
or options, bond or bond price or bond index swaps or options or forward bond
or forward bond price or forward bond index transactions, interest rate
options, forward foreign exchange transactions, cap transactions, floor
transactions, collar transactions, currency swap transactions, cross-currency
rate swap transactions, currency options, or any other similar transactions
or any combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is governed
by or subject to any master agreement, or (b) any and all transactions of any
kind, and the related confirmations, which are subject to the terms and
conditions of, or governed by, any form of master agreement published by the
International Swaps and Derivatives Association, Inc., or any other master
agreement (any such master agreement, together with any related schedules, as
amended, restated, extended, supplemented or otherwise modified in writing
from time to time, a "MASTER AGREEMENT"), including but not limited to any
such obligations or liabilities under any Master Agreement.
33
"TERM LENDERS" means the lenders from time to time party to
this Agreement.
"THRESHOLD AMOUNT" means $5,000,000.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the fact or
situation described therein is known by such Person (or, in the case of a
Person other than a natural Person, known by any officer of such Person)
making the representation, warranty or other statement, or with the exercise
of reasonable due diligence under the circumstances (in accordance with the
standard of what a reasonable Person in similar circumstances would have
done) would have been known by such Person (or, in the case of a Person other
than a natural Person, would have been known by an officer of such Person).
"TOTAL COMBINED DEBT" means, as of any date of
determination and without double counting any item, the sum of (a) the
aggregate amount of all Indebtedness of Borrowers, and their respective
consolidated Subsidiaries as of such date, PLUS (b) the Borrowers' and their
Subsidiaries' pro-rata share of all Indebtedness of any unconsolidated Person
in which they have an equity interest. Notwithstanding the foregoing,
Intra-Company Debt, accounts payable, security deposits, accrued liabilities
and prepaid rents shall be excluded from the calculation of "TOTAL COMBINED
DEBT."
"TOTAL CORPORATE EBITDA" means, for any period, the sum of
(a) Consolidated Operations EBITDA for such period, PLUS (b) Unconsolidated
Subsidiaries EBITDA for such period, PLUS (c) Unconsolidated Partnerships
EBITDA for such period.
"TOTAL CORPORATE NOI" means, for any period, and without
double counting any item, the sum of Net Operating Income of the Borrowers,
the Guarantors, their respective Subsidiaries and any Person that owns an
apartment Property and in which the Borrowers, the Guarantors or their
respective Subsidiaries owns an equity or beneficial interest.
"TOTAL INTEREST EXPENSE" means for any period, without
double counting any item, the sum of (a) Consolidated Interest Expense of the
Borrowers, the Guarantors and their respective Subsidiaries for such period,
PLUS (b) the Borrowers', the Guarantors' and their respective Subsidiaries'
pro-rata share of Interest Expense for such period of unconsolidated Persons
in which they have any equity interest.
"TOTAL OBLIGATIONS" means as of any date, the sum of (a)
Total Combined Debt and (b) the aggregate liquidation preference of all
preferred Stock issued by Borrowers and Guarantors.
"TOTAL PRO RATA NOI" means, for any period, and without
double counting any item, the Borrowers', the Guarantors' and their
respective downstream Affiliates' pro-rata share of Net Operating Income,
including the Borrowers', the Guarantors' and their respective downstream
Affiliates' pro-rata share of Net Operating Income from unconsolidated
Persons.
"TOTAL SCHEDULED AMORTIZATION" means, for any period of
determination, and without double counting any item, the sum of (a) the
Scheduled Amortization for Borrowers, the
34
Guarantors and their respective Subsidiaries for such period on a
consolidated basis PLUS (b) the Borrowers', the Guarantors' and their
respective Subsidiaries' pro-rata share of Scheduled Amortization for such
period in respect of any unconsolidated Person in which they have an equity
interest.
"TRI-PARTY AGREEMENT" means, collectively, the four
Tri-Party and Construction Completion Agreements each dated as of March 11,
2002 among each of the Real Estate Companies and the REIT, AIMCO, XYZ
Holdings LLC and DevCo.
"TRUST BASED CONVERTIBLE PREFERRED SECURITIES" means the
6.5% trust based convertible preferred securities due September 30, 2016 with
an aggregate liquidation value of $149.5 million, or such lesser amount as
may be outstanding.
"TYPE", when used with respect to any Loan, means the
designation of whether such Loan is a Base Rate Loan or an Offshore Rate Loan.
"UNCONSOLIDATED PARTNERSHIPS EBITDA" means, for any period,
an amount equal to the sum of the Borrowers' and the Guarantors' pro-rata
share of each of the following: (a) the net income (or loss) for such period
taken as a single accounting period, PLUS (b) Interest Expense for such
period, PLUS (c) total depreciation and amortization expense for such period,
PLUS (d) other non-cash items or non-cash charges reducing net income arising
in the ordinary course of business (including impairment charges against
goodwill) LESS other non-cash items increasing net income arising in the
ordinary course of business during such period MINUS (e) any gains with
respect to the sale of any Properties, all of the foregoing as determined in
conformity with GAAP for the unconsolidated partnerships in which any
Borrower or any Guarantor has an equity interest.
"UNCONSOLIDATED SUBSIDIARIES EBITDA" means, for any period,
an amount equal to the sum of the Borrowers' and the Guarantors' pro-rata
share of each of the following: (a) the net income (or loss) for such period
taken as a single accounting period, PLUS (b) Interest Expense for such
period, PLUS (c) provisions for taxes based on income for such period, PLUS
(d) total depreciation and amortization expense for such period, PLUS (e)
other non-cash items or non-cash charges reducing net income arising in the
ordinary course of business (including impairment charges against goodwill)
LESS other non-cash items increasing net income arising in the ordinary
course of business during such period MINUS (f) any gains with respect to the
sale of any Properties, all of the foregoing as determined in conformity with
GAAP for the unconsolidated subsidiaries in which any Borrower or any
Guarantor has an equity interest.
"UNFUNDED PENSION LIABILITY" means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the
current value of that Pension Plan's assets, determined in accordance with
the assumptions used for funding the Pension Plan pursuant to Section 412 of
the Code for the applicable plan year.
"UNSECURED DEBT" means Indebtedness which is not secured by
any Lien; PROVIDED, HOWEVER, that for purposes of SECTION 7.14, Indebtedness
that consists of Loans shall constitute "Unsecured Debt".
35
"UNSECURED DEBT SERVICE COVERAGE RATIO" means, as of any
date of determination, the ratio of (a) the sum of (i) Adjusted Total NOI
from all unencumbered (other than Ordinary Course Liens) real property assets
PLUS (ii) Management EBITDA, in each case for the period of the four prior
fiscal quarters ending on such date TO (b) Total Interest Expense relating to
Unsecured Debt during such period.
"WESTWOOD VILLAGE" means Xxxxxx Xxxxxxx Member LLC and its
direct and indirect Subsidiaries and their respective real estate Properties.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of AIMCO
and/or the REIT and/or AIMCO/Bethesda and/or NHP Management of which one
hundred percent (100%) of the Stock or other equity or other beneficial
interests (in the case of Persons other than corporations) is owned directly
or indirectly by Borrowers; PROVIDED, HOWEVER, that where such term is
qualified with respect to a specific Person (e.g., "Wholly Owned Subsidiary
of the REIT") such term means a Subsidiary of which one hundred percent
(100%) of the Stock or other equity or other beneficial interests (in the
case of Persons other than corporations) is owned directly or indirectly by
the specified Person.
1.02 USE OF CERTAIN TERMS.
(a) All terms defined in this Agreement shall have the
defined meanings when used in any certificate or other document made or
delivered pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires
otherwise, the masculine, feminine and neuter genders and the singular and
plural include one another.
(c) The words "herein" and "hereunder" and words of
similar import when used in this Agreement shall refer to this Agreement as a
whole and not to any particular provision of this Agreement. The word
"including" when used herein is not intended to be exclusive and means
"including, without limitation." References herein to a Section, subsection or
clause shall refer to the appropriate Section, subsection or clause in this
Agreement.
(d) The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
1.03 ACCOUNTING TERMS.
All accounting terms not specifically or completely defined
in this Agreement shall be construed in conformity with, and all financial
data required to be submitted by this Agreement shall be prepared in
conformity with, GAAP, as in effect on the date hereof, EXCEPT as otherwise
specifically prescribed herein.
Notwithstanding anything to the contrary contained herein,
the Borrowers acknowledge and agree that in determining EBITDA and Net
Operating Income for the Borrowers and their Subsidiaries, any items of net
income (or net loss) on account of the operations of an Institutional Joint
Venture shall not be included in the determination of
36
EBITDA and/or Net Operating Income unless the Cash or Cash Equivalents
related thereto have been distributed to Borrowers or their Wholly-Owned
Subsidiaries which are Guarantors or are otherwise available to be so
distributed without restriction, excluding ordinary course restrictions which
limit distributions to a quarterly or more frequent basis.
1.04 ROUNDING.
Any financial ratios required to be maintained by Borrowers
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than
the number of places by which such ratio is expressed in this Agreement and
rounding the result up or down to the nearest number (with a round-up if
there is no nearest number) to the number of places by which such ratio is
expressed in this Agreement.
1.05 EXHIBITS AND SCHEDULES.
All exhibits and schedules to this Agreement, either as
originally existing or as the same may from time to time be supplemented,
modified or amended, are incorporated herein by this reference. A matter
disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 REFERENCES TO AGREEMENTS, EXHIBITS AND LAWS.
Unless otherwise expressly provided herein, (a) references
to agreements (including the Loan Documents) and other contractual
instruments shall include all amendments and other modifications thereto
(unless prohibited by any Loan Document), and (b) references to any statute
or regulation shall include all statutory and regulatory provisions
consolidating, amending, replacing, supplementing or interpreting the statute
or regulation.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 COMMITTED LOANS.
(a) Subject to the terms and conditions set forth in
this Agreement, each Lender severally agrees to make term loans (each a
"Loan") to the Borrowers on the Closing Date and such Loans shall be made in
one draw on the Closing Date and to the extent such Loans are repaid or
prepaid they may not be reborrowed. Subject to the terms and conditions set
forth in this Agreement, each Lender severally agrees to Convert and Continue
Loans until the Maturity Date as Borrowers may from time to time request in
an amount not to exceed the amount of the Commitment of such Lender, and the
aggregate of all commitments shall not exceed the Combined Commitments at any
time. Subject to the foregoing and the other terms and conditions hereof,
Borrowers may Convert, Continue, and prepay Loans until the Maturity Date as
set forth herein without premium or penalty.
(b) Loans made by each Lender shall be evidenced by one
or more loan accounts or records maintained by such Lender in the Ordinary
Course of Business. Upon request of a Lender, such Lender's Loans shall be
evidenced by one or more Notes, instead of or
37
in addition to loan accounts. Each such Lender may attach schedules to its
Note(s) and endorse thereon the date, amount and maturity of its Committed
Loans and payments with respect thereto. Such loan accounts, records or Notes
shall be conclusive absent manifest error of the amount of such Loans and
payments thereon. Any failure so to record or any error in doing so shall
not, however, limit or otherwise affect the obligation of Borrowers to pay
any amount owing with respect to the Loans.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) From time to time, Borrowers may irrevocably request
a Borrowing, Conversion or Continuation of Committed Loans in a Minimum
Amount therefor by delivering a Request for Extension of Credit therefor by
Requisite Notice to Administrative Agent not later than the Requisite Time
therefor. Immediately after any telephonic notice of a Borrowing, Borrowers
shall provide Administrative Agent with a written notice thereof, signed by a
Responsible Officer. All Borrowings, Conversions and Continuations shall
constitute Base Rate Loans unless properly and timely otherwise designated as
set forth in the prior sentence.
(b) Following receipt of a Request for Extension of
Credit, Administrative Agent shall promptly notify each Lender of its Pro
Rata Share thereof by Requisite Notice. In the case of a Borrowing of Loans,
each Lender shall make the funds for its Loan available to Administrative
Agent at Administrative Agent's Office not later than the Requisite Time
therefor on the Business Day specified in such Request for Extension of
Credit. Upon satisfaction of the applicable conditions set forth in SECTION
4, all funds so received shall be made available to Borrowers in like funds
received.
(c) Administrative Agent shall promptly notify Borrowers
and Lenders of the interest rate applicable to any Loan other than a Base
Rate Loan upon determination of same.
(d) Except as otherwise provided herein, an Offshore
Rate Loan may be Continued or Converted only on the last day of the Interest
Period for such Offshore Rate Loan. No Loans may be requested as, Converted
into or Continued as Offshore Rate Loans during the existence of a Default or
Event of Default. During the existence of a Default or Event of Default, the
Requisite Lenders may demand that any or all of the then outstanding Offshore
Rate Loans be converted into Base Rate Loans on the last day of the
applicable Interest Period. Such Conversion shall be effective upon the last
day of the applicable Interest Period and after notice has been given to
Borrowers and shall continue so long as such Default or Event of Default
continues to exist.
(e) The failure of any Lender to make any Loan on any
date shall not relieve any other Lender of any obligation to make a Loan on
such date, but no Lender shall be responsible for the failure of any other
Lender to so make its Loan.
2.03 PREPAYMENTS.
(a) Voluntary Prepayments. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrowers
may at any time and from time to time prepay the Loans, in whole or in part,
in at least the Minimum Amount therefor or in full without
38
premium or penalty. Administrative Agent will promptly notify each Lender
thereof and of such Lender's Pro Rata Share of such prepayment. Any
prepayment of an Offshore Rate Loan shall be accompanied by all accrued
interest thereon, together with the costs set forth in Section 3.05.
(b) Application of Prepayments.
(i) Unless otherwise instructed by Borrowers,
any prepayments pursuant to SECTION 2.03(a) made (1) on a day other than the
last day of an Interest Period for any Loan shall be applied first to any Base
Rate Loans then outstanding and then to any Offshore Rate Loans then
outstanding, in the forward order of such Offshore Rate Loans' stated
maturities and (2) on the last day of an Interest Period for any Offshore
Rate Loan shall be applied first to such maturing Offshore Rate Loan, then to
any Base Rate Loans outstanding, and then to any other Offshore Rate Loans
then outstanding, in the forward order of such Offshore Rate Loans' stated
maturities.
(ii) Notwithstanding anything to contrary
contained herein, upon the occurrence of a Payment Default (as defined in the
Intercreditor Agreement) and during the continuation thereof, each payment
received pursuant to this SECTION 2.03 shall be applied in accordance with
and subject to the provisions of the Intercreditor Agreement.
2.04 [INTENTIONALLY OMITTED].
2.05 PRINCIPAL AND INTEREST; DEFAULT RATE.
(a) If not sooner paid (including prepayments pursuant
to SECTION 2.03), Borrowers agree to pay the outstanding principal amount of
each Loan on the Maturity Date.
(b) Subject to subsection (e) below, Borrowers shall pay
interest on the unpaid principal amount of each Loan (before, during and
after a Default or an Event of Default, before and after maturity, before and
after judgment, and before and after the commencement of any proceeding under
any Debtor Relief Laws) from the date borrowed until paid in full (whether by
acceleration or otherwise) on each applicable Interest Payment Date at a rate
per annum equal to the interest rate determined in accordance with the
definition of such type of Loan.
(c) Each Offshore Rate Loan shall bear interest for each
day during the Interest Period with respect thereto at a rate per annum equal
to the Offshore Rate determined for such day plus 275 basis points per annum.
(d) Each Base Rate Loan shall bear interest at a rate
per annum equal to the Base Rate plus 105 basis points per annum.
(e) If any amount payable by any Borrower Party under
any Loan Document is not paid when due (without regard to any applicable
grace periods), it shall thereafter bear interest (after as well as before
entry of judgment thereon to the extent permitted by law) at a fluctuating
interest rate per annum at all times equal to the Default Rate. Accrued and
unpaid interest on past due amounts (including, without limitation, interest
on past due interest) shall be payable upon demand.
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2.06 FEES.
Borrowers shall pay to Administrative Agent certain fees as
and when designated in the certain fee letters by and between Borrowers and
Administrative Agent.
2.07 COMPUTATION OF INTEREST AND FEES.
Computation of interest on Offshore Rate Loans and all fees
shall be calculated on the basis of a year of 360 days and the actual number of
days elapsed, which results in a higher yield to Lenders than a method based on
a year of 365 or 366 days. Interest on all Base Rate Loans shall be calculated
on the basis of a year of 365/366 days and the actual number of days elapsed.
Interest shall accrue on each Loan for the day on which the Loan is made, and
shall not accrue on a Loan, or any portion thereof, for the day on which the
Loan or such portion is paid, PROVIDED that any Loan that is repaid on the same
day on which it is made shall bear interest for one day.
2.08 MAKING PAYMENTS.
(a) Except as otherwise provided herein, all payments by
Borrowers or any Lender shall be made to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time for such type of payment. All
payments received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America. All payments by Borrowers
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.
(b) Upon satisfaction of any applicable terms and
conditions set forth herein, Administrative Agent shall promptly make any
amounts received in accordance with the prior subsection available in like funds
received as follows: (i) if payable to Borrowers, by crediting the Designated
Deposit Account, and (ii) if payable to any Lender, by wire transfer to such
Lender at the address specified in Schedule 10.02, as amended from time to time
by such Lender.
(c) Subject to the definition of "Interest Period," if
any payment to be made by any Borrower Party shall come due on a day other than
a Business Day, payment shall instead be considered due on the next succeeding
Business Day.
(d) Unless a Borrower or any Lender has notified
Administrative Agent prior to the date any payment to be made by it is due, that
it does not intend to remit such payment, Administrative Agent may, in its
discretion, assume that Borrowers or Lender, as the case may be, have timely
remitted such payment and may, in its discretion and in reliance thereon, make
available such payment to the Person entitled thereto. If such payment was not
in fact remitted to Administrative Agent in immediately available funds, then:
(i) if Borrowers failed to make such payment,
each Lender shall forthwith on demand repay to Administrative Agent the amount
of such assumed payment made available to such Lender, together with interest
thereon in respect of each day from and including
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the date such amount was made available by Administrative Agent to such
Lender to the date such amount is repaid to Administrative Agent at the
Federal Funds Rate; and
(ii) if any Lender failed to make such payment,
Administrative Agent shall be entitled to recover such corresponding amount on
demand from such Lender. If such Lender does not pay such corresponding amount
forthwith upon Administrative Agent's demand therefor, Administrative Agent
promptly shall notify Borrowers, and Borrowers shall pay such corresponding
amount to Administrative Agent. Administrative Agent also shall be entitled to
recover from such Lender interest on such corresponding amount in respect of
each day from the date such corresponding amount was made available by
Administrative Agent to Borrowers to the date such corresponding amount is
recovered by Administrative Agent, at a rate per annum equal to the daily
Federal Funds Rate. Nothing herein shall be deemed to relieve any Lender from
its obligation to fulfill its Commitment or to prejudice any rights which
Administrative Agent or Borrowers may have against any Lender as a result of any
default by such Lender hereunder.
2.09 FUNDING SOURCES.
Nothing in this Agreement shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.10 COLLATERAL.
The payment and performance of the Obligations are and shall
be secured by the Pledged Collateral subject to and in accordance with the
provisions of the Borrowers Pledge Agreement and the Intercreditor Agreement.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by Borrowers to or for the
account of Administrative Agent or any Lender under any Loan Document shall be
made free and clear of and without deduction for any and all present or future
taxes, duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, excluding, in the case of Administrative Agent
and any Lender, taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the Laws of which Administrative Agent or such Lender
is organized, maintains a Lending Office or otherwise does business, or any
political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as a "Tax" or "Taxes"). If Borrowers shall be required by any Laws
to deduct any Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), each of
the Administrative Agent and such Lender
41
receives an amount equal to the sum it would have received had no such
deductions been made (such increase, an "Additional Amount"); (ii) Borrowers
shall make such deductions, (iii) Borrowers shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable Laws, and (iv) Borrowers shall furnish to Administrative
Agent (who shall forward the same to such Lender) the original or a certified
copy of a receipt evidencing payment thereof.
(b) In addition, Borrowers agree to pay any and all
present or future stamp or documentary taxes and any other excise or property
taxes or charges or similar levies which arise from any payment made under any
Loan Document or from the execution or delivery of, or otherwise with respect
to, any Loan Document (hereinafter referred to as "OTHER TAXES").
(c) Borrowers agree to indemnify Administrative Agent and
each Lender for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by Administrative Agent and such Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted unless and except to the extent such Taxes or Other Taxes
were imposed solely as a result of the gross negligence or willful misconduct of
Administrative Agent or Lender, as the case may be.
(d) Each Lender that is not a "United States person"
within the meaning of Section 7701(a)(30) of the Code (a "FOREIGN LENDER")
agrees that:
(i) such Lender shall deliver to the
Administrative Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest herein), two duly
signed completed copies of either IRS Form W-8BEN ("Form W-8BEN") or any
successor thereto (relating to such Person and entitling it to an exemption
from, or reduction of, withholding tax on all payments to be made to such Person
by the Borrowers pursuant to this Agreement) or IRS Form W-8ECI ("Form W-8ECI")
or any successor thereto (relating to all payments to be made to such Person by
the Borrowers pursuant to this Agreement) or such other evidence satisfactory to
the Borrowers and the Administrative Agent that such Person is entitled to an
exemption from, or reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (A) promptly submit to the Administrative Agent
such additional duly completed and signed copies of one of such forms (or such
successor forms as shall be adopted from time to time by the relevant United
States taxing authorities) as may then be available under then current United
States laws and regulations to avoid, or such evidence as is satisfactory to the
Borrowers and the Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of all payments to be
made to such Person by the Borrowers pursuant to this Agreement, (B) promptly
notify the Administrative Agent of any change in circumstances which would
modify or render invalid any claimed exemption or reduction, and (C) take such
steps as shall not be materially disadvantageous to it, in the reasonable
judgment of such Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement of applicable
Laws that the Borrowers make any deduction or withholding for taxes from amounts
payable to such Person. If such Person fails to deliver the above forms or other
documentation,
42
then the Administrative Agent may withhold from any interest payment to such
Person an amount equivalent to the applicable withholding tax imposed by
Sections 1441 and 1442 of the Code, without reduction.
(ii) such Lender shall, before or promptly after
the occurrence of any event (including the passing of time but excluding any
event mentioned in (i) above) requiring a change in or renewal of the most
recent Form W-8BEN or Form W-8ECI previously delivered by such Lender, deliver
to Borrowers through Administrative Agent two (2) accurate and complete original
signed copies of Form W-8BEN or Form W-8ECI, as appropriate, in replacement of
the forms previously delivered by such Lender; and
(iii) such Lender shall, promptly upon Borrowers'
reasonable request to that effect, deliver to Borrowers such other forms or
similar documentation as may be required from time to time by any applicable
law, treaty, rule or regulation in order to establish such Lender's tax
status for withholding purposes.
(e) Borrowers shall not be required to pay any Additional
Amounts in respect of United States Federal or state income tax pursuant to this
Section 3.01 to any Lender or any duly appointed assignee for the account of any
Lending Office of such Lender or assignee:
(i) if the obligation to pay such Additional Amounts
arises as a result of a failure by such Lender or assignee to comply with its
obligations under this Section 3.01 in respect of such Lending Office;
(ii) if such Lender or assignee shall have delivered to
Borrowers a Form W-8BEN in respect of such Lending Office pursuant to this
Section 3.01, and such Lender or assignee shall not at any time be entitled to
exemption from deduction or withholding of United States Federal income tax in
respect of payments by Borrowers hereunder for any reason other than a change in
United States law or regulations or in the official interpretation of such law
or regulations by any governmental authority charged with the interpretation or
administration thereof (whether or not having the force of law) after the date
of delivery of such Form W-8BEN; or
(iii) if such Lender or assignee shall have delivered to
Borrowers a Form W-8ECI in respect of such Lending Office pursuant to this
Section 3.01, and such Lender or assignee shall not at any time be entitled to
reduction, partial exemption or exemption from deduction or withholding of
United States federal income tax in respect of payments by Borrowers hereunder
for the account of such Lending Office for any reason other than a change in
United States law or regulations or any applicable tax treaty or regulations or
in the official interpretation of such law, treaty or regulations by any
governmental authority charged with the interpretation or administration thereof
(whether or not having the force of law) after the date of delivery of such Form
W-8ECI.
Notwithstanding the foregoing, an assignee subject to U.S. withholding taxes
shall be entitled to receive Additional Amounts pursuant to Section 3.01(a) to
the same extent that such assignee's assignor was entitled to receive such
Additional Amounts.
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(f) If, at any time, Borrowers request any Lender to
deliver any forms or other documentation pursuant to this Section 3.01, then
Borrowers shall, on demand of such Lender, through Administrative Agent
reimburse such Lender for any costs and expenses (including Attorney Costs)
reasonably incurred by such Lender in the preparation or delivery of such forms
or other documentation.
(g) If Borrowers are required to pay Additional Amounts
to Administrative Agent or any Lender pursuant to this Section 3.01, then such
Lender shall use its reasonable best efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending Office so as
to eliminate any such additional payment by Borrowers which may thereafter
accrue if such change in the judgment of such Lender is not otherwise
disadvantageous to such Lender.
3.02 ILLEGALITY.
If any Lender determines that any Laws have made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Offshore Rate
Loans, or materially restricts the authority of such Lender to purchase or sell,
or to take deposits of, Dollars in the applicable offshore Dollar market, or to
determine or charge interest rates based upon the Offshore Rate, then, on notice
thereof by Lender to Borrowers through Administrative Agent, any obligation of
that Lender to make Offshore Rate Loans shall be suspended until Lender notifies
Administrative Agent and Borrowers that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, Borrowers shall,
upon demand from such Lender (with a copy to Administrative Agent), prepay or
Convert all Offshore Rate Loans of that Lender, either on the last day of the
Interest Period thereof, if Lender may lawfully continue to maintain such
Offshore Rate Loans to such day, or immediately, if Lender may not lawfully
continue to maintain such Offshore Rate Loans. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES.
If, in connection with any Extension of Credit involving any
Offshore Rate Loan, Administrative Agent determines that (a) Dollar deposits are
not being offered to banks in the applicable offshore Dollar market for the
applicable amount and Interest Period of the requested Offshore Rate Loan, (b)
adequate and reasonable means do not exist for determining the underlying
interest rate for such Offshore Rate Loan, or (c) such underlying interest rate
does not adequately and fairly reflect the cost to Lender of funding such
Offshore Rate Loan, Administrative Agent will promptly notify Borrowers and all
Lenders. Thereafter, the obligation of all Lenders to make or maintain such
Offshore Rate Loan shall be suspended until Administrative Agent revokes such
notice. Upon receipt of such notice, Borrowers may revoke any pending request
for a Borrowing of Offshore Rate Loans or, failing that, be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.
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3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that any Laws:
(i) subject such Lender to any Tax, duty, or other charge
with respect to any Offshore Rate Loans or its obligation to make Offshore Rate
Loans, or change the basis on which Taxes are imposed on any amounts payable to
such Lender under this Agreement in respect of any Offshore Rate Loans;
(ii) shall impose or modify any reserve, special
deposit, or similar requirement (other than the reserve requirement utilized
in the determination of the Offshore Rate) relating to any extensions of
credit or other assets of, or any deposits with or other liabilities or
commitments of, such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the offshore
Dollar interbank market any other condition affecting this Agreement or any
of such extensions of credit or liabilities or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Offshore Rate Loans, then from time to time upon demand of
such Lender (with a copy of such demand to Administrative Agent), Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender determines that any change in or the
interpretation of any Laws have the effect of reducing the rate of return on the
capital of such Lender or compliance by such Lender (or its Lending Office) or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy to Administrative Agent), Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
3.05 BREAKFUNDING COSTS.
Upon demand of any Lender (with a copy to Administrative
Agent) from time to time, Borrowers shall promptly compensate such Lender for
and hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any Continuation, Conversion, payment or prepayment
of any Offshore Rate Loan on a day other than the last day of the Interest
Period for such Loan (whether voluntary, mandatory, automatic, by reason of
acceleration, or otherwise); or
(b) any failure by any Borrower (for a reason other than
the failure of such Lender to make a Loan) to prepay, borrow, Continue or
Convert any Offshore Rate Loan on the date or in the amount notified by such
Borrower;
45
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such
Offshore Rate Loan or from fees payable to terminate the deposits from which
such funds were obtained. Borrowers shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
A certificate of Administrative Agent claiming compensation
under this SECTION 3 and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of clearly demonstrable
error. In determining such amount, Administrative Agent may use any reasonable
averaging and attribution methods. For purposes of this SECTION 3, a Lender
shall be deemed to have funded each Offshore Rate Loan at the Offshore Base Rate
used in determining the Offshore Rate for such Loan by a matching deposit or
other borrowing in the offshore Dollar interbank market, whether or not such
Offshore Rate Loan was in fact so funded.
3.07 SURVIVAL.
All of Borrowers' obligations under this SECTION 3 shall
survive termination of the Commitments and payment in full of all Obligations.
SECTION 4.
CONDITIONS TO EFFECTIVENESS
4.01 CONDITIONS TO INITIAL EXTENSION OF CREDIT.
The obligation of each Lender to make the Initial Extension of
Credit is subject to satisfaction of the following conditions precedent:
(a) Unless waived by all Lenders (or by Administrative
Agent with respect to immaterial matters, or items specified in subsections
(iii) or (iv) below, that the Borrowers have given assurances satisfactory to
Administrative Agent that they will be delivered promptly following the Closing
Date), Administrative Agent's receipt of the following, each of which shall be
originals unless otherwise specified, each properly executed by a Responsible
Officer, each dated on or about the Closing Date and each in form and substance
satisfactory to Administrative Agent and its legal counsel:
(i) (a) executed counterparts of this Agreement and each
other Loan Document, sufficient in number for distribution to Administrative
Agent, Lenders and Borrowers, and (b) an Acknowledgement and Consent in the form
attached to the Borrowers Pledge Agreement, executed and delivered by any issuer
of the Pledged Collateral that is not a Borrower Party;
(ii) Committed Loan Notes executed by Borrowers in
favor of each Lender requesting a Committed Loan Note, each in a principal
amount equal to that Lender's Pro Rata Share;
46
(iii) such certificates of resolutions or other action,
incumbency certificates and/or other certificates of Responsible Officers of
each Borrower Party as Administrative Agent may require to establish the
identities of and verify the authority and capacity of each Responsible
Officer thereof authorized to act as a Responsible Officer thereof;
(iv) such evidence as Administrative Agent may
reasonably require to verify that each Borrower Party is duly organized or
formed, validly existing, in good standing and qualified to engage in
business in each jurisdiction in which it is required to be qualified to
engage in business, including, without limitation, certified copies of each
Borrower Party's Organization Documents, certificates of good standing and/or
qualification to engage in business, tax clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of
Borrowers certifying that (A) the conditions specified in Sections 4.01(c) and
4.01(d) have been satisfied and (B) there has been no event or circumstances
since the date of the Audited Financial Statements which has a Material Adverse
Effect;
(vi) an opinion of counsel to Borrowers
substantially in the form of Exhibit F hereto;
(vii) evidence satisfactory to Administrative Agent
that (A) the Casden Credit Agreement and all other Casden Loan Documents have
been modified as set forth in the Casden Credit Agreement Amendment to eliminate
any priority status as to the Pledged Collateral and/or recourse from the
Guarantors and (B) the Revolver Credit Agreement and all other Revolver Loan
Documents have been modified as set forth in the Revolver Credit Agreement
Amendment to eliminate any priority status as to the Pledged Collateral and/or
recourse from the Guarantors;
(viii) evidence satisfactory to Administrative Agent
that Borrowers shall have taken or caused to be taken all such actions, executed
and delivered or caused to be executed and delivered all such agreements,
documents and instruments, and made or caused to be made all such filings and
recordings and deliveries that may be necessary or, in the opinion of
Administrative Agent, desirable in order to create in favor of Collateral Agent,
for the benefit of the Lender Group, a valid and (upon such filing and recording
and delivery) perfected first priority security interest in the Pledged
Collateral. Such actions shall include the following:
(A) delivery to Collateral Agent of
accurate and complete schedules to all of the applicable Collateral Documents;
and
(B) delivery to Collateral Agent of (a)
certificates (which certificates shall be accompanied by irrevocable undated
stock powers, duly endorsed in blank and otherwise satisfactory in form and
substance to Collateral Agent) representing all capital stock constituting
Pledged Collateral pledged pursuant to the Borrowers Pledge Agreement and (b)
all promissory notes or other instruments (duly endorsed, where appropriate, in
a manner satisfactory to Collateral Agent) constituting Pledged Collateral
evidencing any Pledged Collateral.
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(ix) a pro forma Compliance Certificate for the
succeeding two years after the Closing Date, which shall be in form and
substance satisfactory to Administrative Agent;
(x) execution and delivery of the Intercreditor
Agreement; and
(xi) a certification and written analysis of the
chief financial officer or treasurer of Borrowers which, to Administrative
Agent's satisfaction, evidences that Borrowers and their Subsidiaries are, and
shall remain through and including the Maturity Date, Solvent after giving
effect to the Loans, and the other transactions contemplated hereby.
(b) Any fees required to be paid on or before the Closing
Date shall have been paid, including all fees referred to in SECTION 2.06.
(c) The representations and warranties made by Borrowers
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, shall be correct on and as of the Closing Date (other than any
representations and warranties made as of a specified date, which shall only be
required to be correct as of such specified date).
(d) Each Borrower Party shall be in compliance with all
the terms and provisions of the Loan Documents to which it is a party and any
other material document relating to any other material financial obligation, and
no Default or Event of Default shall have occurred and be continuing.
(e) Unless waived by Administrative Agent, Borrowers
shall have paid all Attorney Costs of Administrative Agent to the extent
invoiced prior to or on the Closing Date, plus such additional amounts of
Attorney Costs as shall constitute Administrative Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between Borrowers and Administrative Agent).
(f) If required by Administrative Agent, the results of a
recent lien search in each relevant jurisdiction indicating that there are no
Liens on the Pledged Collateral except for Liens securing the Collective
Obligations of the Lender Group pursuant to the Collateral Documents and in
accordance with the Intercreditor Agreement or Liens otherwise permitted under
this Agreement; provided, that Administrative Agent may elect to have such
search conducted after the Closing Date.
(g) Administrative Agent shall have received evidence
reasonably satisfactory to it that all conditions to the closing and
consummation of the Revolver Credit Agreement Amendment shall have been
irrevocably satisfied or irrevocably waived.
(h) Administrative Agent shall have received evidence
satisfactory to it that all conditions to the closing and consummation of the
Casden Credit Agreement Amendment shall have been irrevocably satisfied or
irrevocably waived.
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(i) Such other assurances, certificates, documents,
consents or opinions as Administrative Agent, or the Requisite Lenders
reasonably may require.
(j) No Default or Event of Default exists, or
would result from such proposed Extension of Credit.
(k) Administrative Agent shall have timely received a
Request for Extension of Credit by Requisite Notice by the Requisite Time
therefor.
Each Request for an Extension of Credit by Borrowers shall be
deemed to be a representation and warranty that the conditions specified in
SECTIONS 4.01(c) and 4.01(j) have been satisfied and on and as of the date of
such Extension of Credit.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to Administrative Agent
and Lenders that:
5.01 EXISTENCE AND QUALIFICATION; POWER.
Each Borrower Party is a corporation, partnership, real estate
investment trust or limited liability company duly organized or formed, validly
existing and in good standing under the Laws of the state of its incorporation
or organization, has the power and authority and the legal right, and all
governmental licenses, authorizations, consents and approvals, to own and
operate its Properties, to lease the Properties it operates and to conduct its
business, is duly qualified and licensed and in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of Properties or the
conduct of its business requires such qualification, except, with respect to
Borrower Parties that are not Management Entities, where a failure to be so
qualified or to obtain such licenses, consents and approvals would not
reasonably be expected to have a Material Adverse Effect.
5.02 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Borrower Party has the power and authority and the legal
right to make, deliver and perform each Loan Document to which it is a party and
each Borrower has the power and authority to borrow hereunder and has taken all
necessary action to authorize the borrowings on the terms and conditions of this
Agreement and to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents to which any of them is a party. No
approval, consent, exemption or authorization of, filing with, notice to or
other act by or in respect of any Governmental Authority is necessary or
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents. The Loan Documents have been duly executed and
delivered by each Borrower Party party thereto, and constitute a legal, valid
and binding obligation of such Borrower Party, enforceable against such Borrower
Party in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
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5.03 NO LEGAL BAR.
The execution, delivery, and performance by each Borrower
Party of the Loan Documents to which it is a party and compliance with the
provisions thereof have been duly authorized by all requisite action on the part
of such Borrower Party and do not and will not (a) violate or conflict with, or
result in a breach of, or require any consent under (i) any Organization
Documents of such Borrower Party or any of its Subsidiaries except (1) with
respect to the transfer or pledging of the Oxford Assets, as disclosed To The
Best Knowledge of Borrowers on Schedule 5.03A, or (2) with respect to the
transfer or pledging of the Casden Assets, (ii) any applicable material Laws,
rules, or regulations or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator (except for governmental consents required
in connection with the realization on the Pledged Collateral which is subject to
regulation by applicable Governmental Authorities), or (iii) any Contractual
Obligation of such Borrower Party or any of its Subsidiaries or by which any of
them or any of their property is bound or subject except (1) with respect to the
transfer or pledging of the Oxford Assets, as disclosed To The Best Knowledge of
Borrowers on Schedule 5.03B, or (2) with respect to the transfer or pledging of
the Casden Assets, (b) constitute a default under any such agreement or
instrument (except for non-monetary defaults concerning the Casden Assets or
Oxford Assets), or (c) result in, or require, the creation or imposition of any
Lien on any of the Properties of such Borrower Party or any of its Subsidiaries,
except as required under the Loan Documents, the Revolver Loan Documents and the
Casden Loan Documents.
5.04 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP, except as otherwise expressly noted therein; (ii) are
complete and accurate and fairly present the financial condition of the REIT as
of the date thereof and the results of operations for the period covered thereby
in accordance with GAAP, except as otherwise expressly noted therein; and (iii)
together with the Form 10-K and Form 10-Q filings of the REIT, show all material
indebtedness and other liabilities, direct or contingent, of Borrowers and their
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments, Contractual Obligations and Indebtedness in accordance with GAAP or
which are required to be disclosed under SEC rules and regulations.
(b) Since the date of the Audited Financial Statements,
there has been no event or circumstance which has had a Material Adverse Effect.
5.05 LITIGATION.
Except as disclosed in SCHEDULE 5.05, no action, suit,
litigation, investigation or proceeding of or before an arbitrator or
Governmental Authority is pending or, to the Knowledge of Borrowers, threatened
by or against any Borrower Party or any of its Subsidiaries or against any of
their Properties or revenues which (a) purports to affect or pertain to this
Agreement, or any other Loan Document, or any of the transactions contemplated
hereby or thereby, or (b) would reasonably be expected to have a Material
Adverse Effect. No injunction, writ, temporary restraining order or any other
order of any nature has been issued by any court or other
50
Governmental Authority purporting to enjoin or restrain the execution,
delivery and performance of this Agreement or any other Loan Document, or
directing that the transactions provided for herein or therein not be
consummated as herein or therein provided.
5.06 NO DEFAULT.
Neither any Borrower Party nor any of their respective
Subsidiaries are in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such other defaults,
would reasonably be expected to have a Material Adverse Effect, and no Default
or Event of Default has occurred and is continuing or will result from the
consummation of this Agreement or any of the other Loan Documents, or the making
of the Extension of Credit hereunder.
5.07 OWNERSHIP OF PROPERTY; LIENS.
Each Borrower Party and its Subsidiaries have valid fee or
leasehold interests in all real property necessary or used in the ordinary
conduct of their respective businesses, taken as a whole, and each Borrower
Party and their respective Subsidiaries have good and marketable title to all
their other Property, and none of such Property is subject to any Lien, in each
case EXCEPT as permitted in SECTION 7.02 and for such defects in title which,
individually or in the aggregate, would not reasonably be expected to have a
Material Adverse Effect.
5.08 TAXES.
Borrowers and their Subsidiaries have filed all Federal and
other material tax returns and material reports that are required to be filed,
except where the failure to make any such filing would not reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the SEC
Report, (i) all tax returns filed by Borrowers and their Subsidiaries are
complete and correct in all material respects, except where any such
incompleteness or inaccuracy would not reasonably be expected to have a Material
Adverse Effect; (ii) Borrowers and their Subsidiaries, have paid all material
taxes, assessments, fees and other governmental charges for which they are
liable and that are due and payable and have fully satisfied any material taxes,
assessments, fees, and other governmental charges levied or imposed upon them or
their Properties, income or assets or otherwise due and payable, except those
which are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP and no material
"notice of lien" or similar document or instrument has been filed or recorded,
except with respect to any taxes not yet due or payable; (iii) there is no
proposed tax assessment against Borrowers or any of their Subsidiaries which, if
the assessment were made, would reasonably be expected to have a Material
Adverse Effect; and (iv) Borrowers and their Subsidiaries have no primary,
secondary or other liability for taxes of any kind, arising with respect to any
individual, trust, corporation, partnership or other entity as to which
Borrowers or any of their Subsidiaries are directly or indirectly liable for
taxes of any kind incurred by such individual or entity either as a transferee,
or pursuant to Treasury Regulations section 1.1502-6, or pursuant to any other
Law. None of Borrowers nor any of their Affiliates is (nor has it ever been) a
party to any tax sharing agreement other than as disclosed on SCHEDULE 5.08.
51
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING COMPANY
ACT; REIT AND TAX STATUS; STOCK EXCHANGE LISTING.
(a) No Borrower Party is engaged principally or as one of
its important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" "margin stock" within the respective meanings of each
of the quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. No part of the
proceeds of any Extensions of Credit hereunder will be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of Regulations U or X of such
Board of Governors.
(b) No Borrower Party or any of its Subsidiaries (i) is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
(ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940 or (iii) is subject to regulations under the
Federal Power Act, the Interstate Commerce Act, any state public utilities code,
or any other federal or state statute or regulation limiting its ability to
incur Indebtedness.
(c) None of Borrowers nor any Wholly-Owned Subsidiary is
a "foreign person" within the meaning of Section 1445(f)(3) of the Code.
(d) The REIT currently has REIT Status and has maintained
REIT Status on a continuous basis since its formation. AIMCO is not an
association taxable as a corporation under the Code. The shares of common Stock
of the REIT are listed on the NYSE.
5.10 ERISA COMPLIANCE.
(a) Schedule 5.10 lists all Plans and separately
identifies Plans intended to be Qualified Plans and Multiemployer Plans. All
written descriptions thereof provided to Administrative Agent and the Lenders
are true and complete in all material respects.
(b) Each Plan, and To The Best Knowledge Of Borrowers
each Multiemployer Plan, is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law,
including all requirements under the Code or ERISA for filing reports (which are
true and correct in all material respects as of the date filed), and benefits
have been paid in accordance with the provisions of the Plan.
(c) Each Qualified Plan and, and To The Best Knowledge Of
Borrowers, Multiemployer Plan has been determined by the IRS to qualify under
Section 401 of the Code, and the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the Code, and To
The Best Knowledge Of Borrowers nothing has occurred which would cause the loss
of such qualification or tax-exempt status.
(d) Except as disclosed in Schedule 5.10, none of
Borrowers nor any ERISA Affiliate has any outstanding liability under Title IV
of ERISA with respect to any Plan
52
maintained or sponsored by Borrowers or any ERISA Affiliate, nor To The Best
Knowledge Of Borrowers, with respect to any Multiemployer Plan to which
Borrowers or any ERISA Affiliate contributes or is obligated to contribute.
(e) Except as disclosed in Schedule 5.10, no Plan, and To
The Best Knowledge Of Borrowers, no Multiemployer Plan has any Unfunded Pension
Liability.
(f) Except as disclosed in Schedule 5.10, no member of
the Controlled Group has ever represented, promised or contracted (whether in
oral or written form) to any current or former employee (either individually or
to employees as a group) that such current or former employee(s) would be
provided, at any cost to any member of the Controlled Group, with life insurance
or employee welfare plan benefits (within the meaning of section 3(1) of ERISA)
following retirement or termination of employment. To the extent that any member
of the Controlled Group has made any such representation, promise or contract,
such member has expressly reserved the right to amend or terminate such life
insurance or employee welfare plan benefits with respect to claims not yet
incurred.
(g) Members of the Controlled Group have complied in all
material respects with the notice and continuation coverage requirements of
Section 4980B of the Code.
(h) Except as disclosed in Schedule 5.10, no ERISA Event
has occurred or is reasonably expected to occur with respect to any Plan, or, To
The Best Knowledge Of Borrowers, any Multiemployer Plan.
(i) There are no pending or, to the Knowledge of
Borrowers, threatened claims, actions or lawsuits, other than routine claims for
benefits in the usual and ordinary course, asserted or instituted against (i)
any Plan maintained or sponsored by Borrowers or their assets, (ii) any member
of the Controlled Group with respect to any Plan, or (iii) any fiduciary with
respect to any Plan for which any Borrower may be directly or indirectly liable,
through indemnification obligations or otherwise.
(j) Except as disclosed in Schedule 5.10, none of
Borrowers nor any ERISA Affiliate has incurred nor reasonably expects to incur
(i) any liability (and no event has occurred which, with the giving of notice
under Section 4219 of ERISA, would result in such liability) under Section 4201
or 4243 of ERISA with respect to a Multiemployer Plan or (ii) any liability
under Title IV of ERISA (other than premiums due and not delinquent under
Section 4007 of ERISA) with respect to a Plan.
(k) Except as disclosed in Schedule 5.10, none of
Borrowers nor any ERISA Affiliate has transferred any Unfunded Pension Liability
to a Person other than a Borrower or an ERISA Affiliate or otherwise engaged in
a transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(l) No member of the Controlled Group has engaged,
directly or indirectly, in a non-exempt prohibited transaction (as defined in
Section 4975 of the Code or Section 406 of ERISA) in connection with any Plan
which would reasonably be expected to have a Material Adverse Effect.
53
5.11 INTANGIBLE ASSETS.
Each Borrower Party and its Subsidiaries own, or possess the
right to use, all trademarks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intangible assets that are used in the conduct of
their respective businesses as now operated, and none of such items, To The Best
Knowledge Of Borrowers, conflicts with the valid trademark, trade name,
copyright, patent, patent right or intangible asset of any other Person to the
extent that such conflict would reasonably be expected to have a Material
Adverse Effect.
5.12 COMPLIANCE WITH LAWS.
Each Borrower Party and its Subsidiaries are in substantial
compliance in all material respects with all Laws that are applicable to them.
5.13 ENVIRONMENTAL COMPLIANCE.
(a) Environmental Laws. Except as disclosed in Schedule
5.13 or in the SEC Report, the operations and Properties of Borrowers, the
Management Entities and their Subsidiaries comply in all respects with all
Environmental Laws, except such non-compliance affecting any Properties as would
not result in liability which would reasonably be expected to result in a
Material Adverse Effect.
(b) Environmental Permits. Except as described in
Schedule 5.13 or in the SEC Report, Borrowers, the Management Entities and their
Subsidiaries have obtained and maintained all material licenses, permits,
authorizations and registrations required under any Environmental Law
("Environmental Permits"), other than such Environmental Permits the failure to
obtain or maintain which would not reasonably be expected to cause a Material
Adverse Effect. All such Environmental Permits are in good standing, and each
such Person is in compliance with all terms and conditions thereof, except, with
respect to Persons that are not Management Entities, where the failure to be in
compliance would not reasonably be expected to have a Material Adverse Effect.
(c) Orders. Except as specifically disclosed in Schedule
5.13 or in the SEC Report, there are no outstanding written orders from or
agreements with any Governmental Authority nor any judicial or docketed
administrative proceedings respecting any Environmental Law, Environmental Claim
or Hazardous Material to which any Borrower, any Management Entity, any of their
Subsidiaries, or any of such Person's Properties or operations is bound that
would reasonably be expected to have a Material Adverse Effect.
(d) Hazardous Materials. Except as disclosed in Schedule
5.13 or in the SEC Report, there are no Hazardous Materials or other conditions
or circumstances existing with respect to any Property, or arising from
operations prior to the Closing Date, that would reasonably be expected to have
a Material Adverse Effect. In addition, (i) there are not located on the
Properties underground storage tanks (x) that are not properly registered or
permitted under applicable Environmental Laws, or (y) that are leaking or
emitting Hazardous Materials whether on-or off-site, and (ii) Borrowers, the
Management Entities and their Subsidiaries have notified all of their employees
of the existence, if any, of any health hazard arising from the
54
conditions of their employment to the extent required under any Environmental
Laws and have met all notification requirements under Title III of The
Comprehensive Environmental Response, Compensation and Liability Act and all
other Environmental Laws that would in each case reasonably be expected to
have a Material Adverse Effect.
5.14 INSURANCE.
The properties of each Borrower Party and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of Borrowers, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar Properties in localities where such Borrower Party or such Subsidiary
operates.
5.15 GP LOANS.
All GP Loans are evidenced by a GP Loan Note which has been
delivered to Collateral Agent in accordance with the provisions of this
Agreement.
5.16 SUBSIDIARIES; INTERESTS IN OTHER ENTITIES; CHANGES IN
ORGANIZATIONAL STRUCTURE.
None of Borrowers, nor any of their respective Subsidiaries
has any interest in any corporation, partnership or other entity, EXCEPT (i) as
disclosed in the Organizational Chart set forth as SCHEDULE 5.16 (other than
nondisclosures which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect), and (ii) for interests acquired
after the date of this Agreement in compliance with SECTIONS 7.03, 7.04 and 7.05
hereof.
5.17 MATTERS RELATING TO PLEDGED COLLATERAL.
(a) Creation, Perfection and Priority of Liens. The
execution and delivery of the Collateral Documents and the Intercreditor
Agreement by Borrowers and the other applicable Borrower Parties, together with
(i) the actions taken on or prior to the date hereof pursuant to Section
4.01(a)(viii), and (ii) the delivery to Collateral Agent of any Pledged
Collateral, together with any required stock powers or endorsements not
previously delivered to Collateral Agent are effective to create in favor of
Collateral Agent for the benefit of the Lender Group, as security for the
Collective Obligations, a valid and perfected first priority Lien on all of the
Pledged Collateral, and all filings and other actions necessary or desirable to
perfect and maintain the perfection and applicable priority status of such Liens
have been duly made or taken and remain in full force and effect, other than the
filing or recording of any UCC financing statements delivered to Collateral
Agent for filing (but not yet filed) and the periodic filing of UCC continuation
statements in respect of UCC financing statements filed by or on behalf of
Collateral Agent.
(b) Governmental Authorizations. No authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for either (i) the
pledge or grant by Borrowers or any other Borrower Party of the Liens
purported to be created in favor of Collateral Agent pursuant to any of the
Collateral Documents or (ii) the
55
exercise by Collateral Agent of any rights or remedies in respect of any
Pledged Collateral (whether specifically granted or created pursuant to any of
the Collateral Documents or created or provided for by applicable law), except
for filings or recordings contemplated by Section 5.17(a) and except as may be
required, in connection with the disposition of any Pledged Collateral, by laws
generally affecting the offering and sale of securities or, to the extent
applicable, HUD or other approvals required in connection with the foreclosure
on or other realization with respect to Oxford Assets or Casden Assets which
directly or indirectly involve real Property encumbered by HUD mortgages or
regulatory agreements or properties regulated by HUD or a state housing finance
agency, or laws generally affecting the operation of properties as nursing homes
or assisted living facilities.
(c) Absence of Third-Party Filings. Except such as may
have been filed in favor of Collateral Agent as contemplated by Section 5.17(a)
and as filed in favor of administrative agent under the Revolver Credit
Agreement or the administrative agent under the Casden Credit Agreement on or
before the Closing Date, no effective UCC financing statement, fixture filing or
other instrument similar in effect covering all or any part of the Pledged
Collateral is on file in any filing or recording office.
(d) Margin Regulations. The pledge of the Pledged
Collateral pursuant to the Collateral Documents does not violate Regulation T, U
or X of the Board of Governors of the Federal Reserve System.
(e) Information Regarding Pledged Collateral. All
information supplied to Administrative Agent by or on behalf of any Borrower
Party with respect to the Pledged Collateral is accurate and complete in all
material respects.
5.18 DISCLOSURE.
None of the representations or warranties made by any Borrower
Party in the Loan Documents as of the date such representations and warranties
are made or deemed made, and none of the statements contained in each exhibit,
report, statement or certificate furnished by or on behalf of any such Person in
connection with the Loan Documents, contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
are made, not misleading. There is no fact, To The Best Knowledge Of Borrowers,
which materially and adversely affects the business, operations, properties,
assets or condition (financial or otherwise) of Borrowers, the Management
Entities, and the Subsidiaries, taken as a whole, that has not been disclosed
herein, in the SEC Reports, or in other documents, certificates and statements
furnished to Administrative Agent and each Lender (to the extent required
hereunder) hereunder or pursuant hereto. The copies of all documents delivered
to Administrative Agent and/or the Lenders from time to time in connection with
this Agreement are and shall be true and complete copies of the originals
thereof and have not been or shall not be amended except as disclosed to
Administrative Agent and/or the Lenders, as applicable.
56
5.19 TAX SHELTER REGULATIONS.
The Borrowers do not intend to treat the Loans as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4). In the event the Borrowers determine to take any action inconsistent
with such intention, they will promptly notify the Administrative Agent thereof.
If the Borrowers so notify the Administrative Agent, the Borrowers acknowledge
that one or more of the Lenders may treat its Loans as part of a transaction
that is subject to Treasury Regulation Section 301.6112-1, and such Lender or
Lenders, as applicable, will maintain the lists and other records required by
such Treasury Regulation.
SECTION 6.
AFFIRMATIVE COVENANTS
So long as any Extension of Credit remains unpaid, or any
other Obligation remains unpaid or unperformed, or any portion of the
Commitments remains outstanding, each Borrower shall, and shall (except in the
case of Borrowers' reporting covenants), cause each of its Subsidiaries to:
6.01 FINANCIAL STATEMENTS.
Deliver to Administrative Agent and each Lender, in form and
detail satisfactory to Administrative Agent and the Requisite Lenders:
(a) as soon as available, but in any event within ninety
(90) days after the end of each fiscal year, consolidated balance sheets of the
Borrowers on a combined basis, in each case as at the end of such fiscal year,
and the related consolidated statements of income and cash flows for such fiscal
year, including the REIT's and AIMCO's SEC Form 10-K for such period, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail, audited and accompanied by a report and unqualified
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Requisite Lenders, which report and
opinion shall be prepared in accordance with GAAP and shall not be subject to
any qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions not reasonably acceptable to the Requisite
Lenders;
(b) as soon as available, but in any event within
forty-five (45) days after the end of each of the first three fiscal quarters of
each fiscal year, unaudited consolidated balance sheets of the Borrowers on a
combined basis, in each case as at the end of such fiscal quarter, and the
related consolidated statements of income and cash flows for such fiscal quarter
and for the portion of the Borrowers' fiscal year then ended, as the case may
be, including the REIT's and AIMCO's SEC Form 10-Q for such period, all in
reasonable detail and certified by at least two Responsible Officers of the
Borrowers, as the case may be, that such financial statements are complete and
correct and fairly present the financial condition, results of operations and
cash flows of the Borrowers, as the case may be, in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes;
57
(c) as soon as available, but in any event not less than
ninety (90) days after the beginning of each fiscal year, copies of AIMCO's and
the REIT's business plan for such fiscal year in form and substance satisfactory
to Administrative Agent; and
(d) as soon as available, but in any event not less than
forty-five (45) days after the end of each fiscal quarter, the REIT's
consolidated financial projections for the current and the succeeding three
fiscal quarters, as prepared by the REIT's Chief Financial Officer and in a
format and with such detail as Administrative Agent may require.
6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION.
Deliver to Administrative Agent and each Lender, or Collateral
Agent (with respect to Collateral matters set forth in clause (b)), in form and
detail satisfactory to Administrative Agent and the Requisite Lenders, and/or
Collateral Agent (as applicable):
(a) concurrently with the delivery of the financial
statements referred to in Section 6.01(a), a certificate of its independent
certified public accountants certifying such financial statement and stating
that in making the examination necessary therefor no knowledge was obtained of
any Default or Event of Default hereunder or, if any such Default or Event of
Default shall exist, stating the nature and status of such event;
(b) not more than forty-five (45) days after the end of
each fiscal quarter, (1) a duly completed Compliance Certificate signed by a
Responsible Officer of Borrowers, with such supporting information as may be
requested by Administrative Agent, (2) an updated SCHEDULE 1.01A
(Construction/Renovation), which updated schedule will identify the aggregate
book value of all Construction/Renovation (separating New Construction from
renovations, rehabilitations and expansions) and all Real Property Assets Under
Development, in each case including information with respect to the aggregate
expenditures made to date, (3) an updated SCHEDULE 1.01B (GP Loans), which
updated schedule will identify each GP Loan and, with respect to each such GP
Loan, its original amount, carrying value, write-off amount, pro rata share
owned (directly or indirectly) by Borrowers and such other information as
Administrative Agent and Collateral Agent may reasonably request (upon each
delivery of an updated SCHEDULE 1.01B (GP Loans), the representations and
warranties contained in Section 5.17(a) hereof shall be deemed to have been
re-made by each Borrower as of the date of such delivery, and Borrowers shall
deliver to Collateral Agent concurrently with delivery of such updated SCHEDULE
1.01B (GP Loans) such Pledged Collateral and the Pledge Amendment (as defined in
the Borrowers Pledge Agreement) to cause Borrowers to be in compliance with
Section 5.17(a) hereof as of the date of such delivery), (4) an updated SCHEDULE
1.01C (Guarantors), which updated schedule will identify each Guarantor, and
such Guarantor's pro rata share of Total Pro Rata NOI (provided that the
Management Entities' pro rata shares of Total Pro Rata NOI may be combined for
purposes of this updated SCHEDULE 1.01C), (5) an updated SCHEDULE 1.01E
(Collateral), which updated schedule will identify all Pledged Collateral as of
the period covered by such Compliance Certificate, (6) an updated SCHEDULE
7.01(M) (Existing Cross-Pledged Collateralized and Cross-Defaulted
Indebtedness), which updated schedule will identify all cross-collateralized and
cross-defaulted Indebtedness of the Borrowers and their Subsidiaries and the
aggregate outstanding principal amount thereof, and (7) an updated SCHEDULE I to
the
58
Borrowers Pledge Agreement, together with such documentation and actions as
may be necessary to cause Borrowers to be in compliance with Section 5.17(a)
hereof as of the date of such Compliance Certificate;
(c) promptly after delivery by the Person providing the
same, copies of any detailed audit reports, management letters or
recommendations submitted to the board of directors (or the audit committee of
the board of directors) of the REIT by independent accountants in connection
with the accounts or books of the REIT or any of its Subsidiaries, or any audit
of any of them;
(d) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of the REIT, and copies of all annual, regular,
periodic and special reports and registration statements which the REIT may file
or be required to file with the SEC under Sections 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to
Administrative Agent pursuant hereto;
(e) promptly after the occurrence thereof, (i) notice of
any Default or Event of Default, and the occurrence or existence of any event or
circumstance that is likely to become a Default or Event of Default and each
such notice shall describe with particularity the clause or provision of this
Agreement or other Loan Document that has been breached or violated, (ii) notice
of any "Default" or "Event of Default" under the Revolver Credit Agreement, and
(iii) notice of any "Default" or "Event of Default" under the Casden Credit
Agreement;
(f) promptly after the commencement thereof, notice of
any litigation, investigation or proceeding affecting any Borrower Party (i)
where the amount involved exceeds the Threshold Amount, (ii) in which injunctive
relief or similar relief is sought, which relief, if granted, would reasonably
be expected to have a Material Adverse Effect; (iii) in which the relief sought
is an injunction or other stay of the performance of any Loan Document or (iv)
required to be reported to the SEC pursuant to the Exchange Act;
(g) promptly after the occurrence of any of the following
ERISA Events affecting Borrowers or any member of their Controlled Group,
together with a copy of any notice with respect to such event that may be
required to be filed with any Governmental Authority and any notice delivered by
a Governmental Authority to Borrowers or any member of their Controlled Group
with respect to such event, notice of any of the following:
(i) an ERISA Event where the aggregate liability is
likely to exceed $1,000,000;
(ii) the adoption of any new Plan that is subject to
Title IV of ERISA or Section 412 of the Code by any member of the Controlled
Group;
(iii) the adoption of any amendment to a Plan that is
subject to Title IV of ERISA or Section 412 of the Code, if such amendment
results in a material increase in benefits or Unfunded Pension Liabilities; or
59
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is subject to Title IV of
ERISA or Section 412 of the Code;
(h) promptly after the occurrence thereof, notice of
any Material Adverse Effect;
(i) notice of any material change in accounting
policies or financial reporting practices by Borrowers or any of their
Subsidiaries;
(j) promptly after the occurrence thereof, notice of
(i) any and all material enforcement, cleanup, removal or other governmental
or regulatory actions instituted, completed or threatened against Borrowers,
any Management Entity or any of their Subsidiaries or any of their Properties
pursuant to any Environmental Laws, (ii) all other material Environmental
Claims, and (iii) any environmental or similar condition on any real property
adjoining or in the vicinity of the Properties of Borrowers, any Management
Entity or any of their Subsidiaries that could reasonably be anticipated to
cause such Properties (or any portion thereof) to be subject to any material
restrictions on ownership, occupancy, transferability or use under any
Environmental Laws, in each case only to the extent any of the foregoing
would reasonably be expected to have a Material Adverse Effect;
(k) promptly after the occurrence thereof, notice of
the consummation of any material Investment or Disposition, of any material
issuance of Stock of the REIT (other than upon the tender of any Partnership
Units for redemption or the conversion of any employee stock options) or
Partnership Units, of any incurrence of material Indebtedness or of any other
material transaction entered into, by Borrowers, any Management Entity or any
of their Subsidiaries; and change in any executive officer of the REIT;
(l) promptly after the occurrence thereof, notice of
the failure of the REIT to maintain REIT Status or of any existing Subsidiary
of the REIT to maintain its status as a qualified REIT subsidiary under the
Code, if and to the extent required by applicable law;
(m) upon the request of Administrative Agent, any
subsequent revisions to the Organizational Chart;
(n) promptly after receipt of any notice by Borrowers,
any Management Entity or any of their Subsidiaries of any default under any
Indebtedness or Guaranty Obligation described in Section 8.01(g), notice of
such default;
(o) promptly, such other data and information as from
time to time may be reasonably requested by Administrative Agent, or, through
Administrative Agent or any Lender; and
(p) promptly after the Borrowers have notified the
Agent of any intention by the Borrowers to treat the Loans as being a
"reportable transaction" (within the meaning of Treasury Regulation Section
1.6011-4), a duly completed copy of IRS Form 8886 or any successor form;
60
Each notice pursuant to SECTIONS 6.02(e) through (l) and
(n) shall be accompanied by a statement of two (2) Responsible Officers of
Borrowers, setting forth details of the occurrence referred to therein and,
if applicable, the provisions of this Agreement affected, and stating what
action Borrowers have taken and propose to take with respect thereto.
6.03 PAYMENT OBLIGATIONS.
Pay and discharge as the same shall become due and payable
and otherwise comply with all their respective obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges,
Ordinary Course Liens or levies imposed on any Borrower Party or its
Subsidiaries or on its income or profits or any of its Properties, EXCEPT for
any such tax, assessment, charge or levy which is (i) an Ordinary Course Lien
under Subsection (b) of the definition of such term or (ii) being contested
in good faith by appropriate proceedings and adequate reserves in accordance
with GAAP are being maintained by Borrowers or such Person, (b) all lawful
claims which, if unpaid, would by law become a Lien upon any Property of any
Borrower Party or its Subsidiaries, (c) all Indebtedness, as and when due and
payable, but subject to any subordination provisions contained in any
instrument or agreement evidencing such Indebtedness, and (d) payment and/or
performance of all Contractual Obligations (including any payments of
preferred stock dividends); PROVIDED, HOWEVER, with respect to any Person
that is not a Management Entity, then only to the extent the failure to do
any of the foregoing could reasonably be expected to have a Material Adverse
Effect.
6.04 PRESERVATION OF EXISTENCE.
Preserve and maintain in full force and effect (i) its
partnership, corporate or other organizational existence and good standing
under the laws of its state or jurisdiction of organization, and (ii) its
licenses, permits, rights, franchises and privileges necessary or desirable
in the normal conduct of its business, except where failure to do so does not
have a Material Adverse Effect; PROVIDED, HOWEVER, that with respect to any
Person that is not a Management Entity, then only to the extent that the
failure to do any of the foregoing would reasonably be expected to have a
Material Adverse Effect.
6.05 MAINTENANCE OF PROPERTIES.
Maintain, preserve and protect all of its material
Properties and equipment necessary in the operation of its business in good
order and condition in accordance with Borrowers' past practices, subject to
wear and tear in the ordinary course of business, and not permit any waste of
its Properties.
6.06 MAINTENANCE OF INSURANCE.
Maintain, with financially sound and reputable independent
insurers, insurance with respect to their Properties and business against
loss or damage of the kinds customarily insured against by Persons engaged in
the same or a similar business, of such types and in such amounts as are
customarily carried under similar circumstances by such other Persons,
including liability insurance specifically insuring Borrowers and their
Wholly Owned Subsidiaries from any tort, legal or other liability resulting
from their participation as general partners in
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partnerships which own Property, workers' compensation insurance, public
liability and property and casualty insurance (which amount shall not be
reduced in the absence of 30 days' prior notice to Administrative Agent), and
upon the request of Administrative Agent, furnish Administrative Agent, with
sufficient copies for each Lender, at reasonable intervals (but not more than
twice per calendar year) a certificate signed by at least two (2) Responsible
Officers of Borrowers (and, if requested by Administrative Agent, any
insurance broker of Borrowers) setting forth the nature and extent of all
insurance maintained by Borrowers, the Management Entities and each of their
Subsidiaries in accordance with this SECTION 6.06 (and which, in the case of
a certificate of a broker, was placed through such broker).
6.07 COMPLIANCE WITH LAWS.
(a) Comply, in all material respects, with the
requirements of all applicable Laws and orders of any Governmental Authority,
noncompliance with which has a Material Adverse Effect.
(b) Conduct its operations and keep and maintain its
Properties in compliance in all material respects with all Environmental
Laws, and upon the written request of Administrative Agent or any Lender,
submit to Administrative Agent and the Lenders, at Borrowers' sole cost and
expense, at reasonable intervals, a report providing an update of the status
of any environmental, health or safety compliance, hazard or liability issue
identified in any notice or report required pursuant to SECTION 6.02(j) that
could, individually or in the aggregate, result in liability in excess of
$10,000,000.
6.08 INSPECTION RIGHTS.
At any time during regular business hours and as often as
reasonably requested, upon no less than forty-eight (48) hours advance notice
to Borrowers, permit Administrative Agent or any Lender, or any employee,
agent or representative thereof, to examine, audit and make copies and
abstracts from the Borrower Parties' records and books of account and to
visit and inspect their properties and to discuss their affairs, finances and
accounts with any of their officers and key employees, and, upon request,
furnish promptly to Administrative Agent or any Lender true copies of all
financial information and internal management reports made available to their
senior management, all at the expense of Borrowers; PROVIDED, HOWEVER, that
when an Event of Default exists, Administrative Agent may visit and inspect
at the expense of Borrowers such Properties at any time during business hours
and without advance notice.
6.09 KEEPING OF RECORDS AND BOOKS OF ACCOUNT.
Keep adequate records and books of account reflecting all
financial transactions in conformity with GAAP, and in material conformity
with all applicable requirements of any Governmental Authority having
regulatory jurisdiction over Borrowers or any of their Subsidiaries.
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6.10 COMPLIANCE WITH ERISA.
Cause, and cause each of its ERISA Affiliates to: (a)
maintain each Plan in compliance in all material respects with the applicable
provisions of ERISA, the Code and other federal or state law; and (b) make
all required contributions to any Plan subject to Section 412 of the Code.
6.11 COMPLIANCE WITH AGREEMENTS.
Comply and cause each Guarantor to comply with their
respective Organization Documents. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases
and/or instruments to which any one or more of them is a party, EXCEPT for
any such Contractual Obligations (a) the performance of which would cause a
Default, (b) then being contested by any of them in good faith by appropriate
proceedings, or (c) if the failure to comply therewith does not have a
Material Adverse Effect.
6.12 USE OF PROCEEDS.
Use the proceeds of Extensions of Credit to only repay
outstanding Indebtedness under the Revolver Credit Agreement and shall not
use the proceeds of Extensions of Credit to repay any other Indebtedness
regardless of any contrary provision of the Intercreditor Agreement.
6.13 COMMUNICATION WITH ACCOUNTANTS.
While any Event of Default is continuing, authorize
Administrative Agent and any Lender to communicate directly with Borrowers'
independent accountants and authorize such accountants to disclose to such
Persons any and all financial statements and other information of any kind,
including the substance of any oral information or conversation that such
accountants may have with respect to the business, financial condition and
other affairs of Borrowers.
6.14 MAINTENANCE OF REIT STATUS; STOCK EXCHANGE LISTING.
With respect to the REIT, maintain its REIT Status and
maintain its common Stock listing on the NYSE, American Stock Exchange or
Nasdaq Stock Exchange.
6.15 SOLVENCY.
Remain Solvent; PROVIDED, THAT, this Section 6.15 shall
apply only to Borrower Parties and any Material Entities.
6.16 FURTHER ASSURANCES.
(a) FULL DISCLOSURE. Ensure that all other written
information, exhibits and reports furnished to Administrative Agent or any
Lender by Borrowers, any Management Entity or any of their Subsidiaries do
not contain any untrue statement of a material fact and do not and
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will not omit to state any material fact or any fact necessary to make the
statements contained therein not misleading in light of the circumstances in
which made, and will promptly disclose to Administrative Agent and the
Lenders and correct any defect or error that may be discovered therein or in
any Loan Document or in the execution, acknowledgment or recordation thereof.
(b) FURTHER ACTS. Promptly upon request by
Administrative Agent or the Requisite Lenders, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register, any and
all such further acts, deeds, conveyances, security agreements, mortgages,
deeds of trust, assignments, estoppel certificates, financing statements and
continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments that Administrative
Agent or such Lenders, as the case may be, may reasonably require from time
to time in order (i) to carry out more effectively the purposes of this
Agreement or any other Loan Document, and (ii) to better assure, convey,
grant, assign, transfer, preserve, protect and confirm to Administrative
Agent and Lenders the rights granted or now or hereafter intended to be
granted under any Loan Document, or any other document executed in connection
herewith or therewith.
(c) ADDITIONAL GUARANTORS. Promptly upon (i) the
formation by the Borrowers of any Person which is a Material Entity, (ii) any
Subsidiary becoming a Material Entity or (iii) the acquisition by the
Borrowers of any Subsidiary which constitutes a Material Entity after giving
effect to such acquisition, in each case after the Closing Date, Borrowers
shall cause such Person (so long as such Person is not prohibited from doing
so by law, Organization Documents or Contractual Obligations not prohibited
by this Agreement) to deliver to Administrative Agent for the ratable benefit
of the Lenders a guaranty of the Obligations in the form attached hereto as
Exhibit H. Concurrently with the delivery of such guaranty, Borrowers shall
deliver to Administrative Agent with respect to such Person the same
documents and other instruments required to be delivered pursuant to clauses
(iii) and (iv) of Section 4.01(a) and an opinion of counsel, in form and
substance satisfactory to Administrative Agent. In all events, if all such
agreements, documents and other instruments required to be delivered to
Administrative Agent pursuant to this Section 6.16(c) have not been delivered
prior to the date of the next required Compliance Certificate, then such
items shall be delivered collectively at the same time a Compliance
Certificate is delivered to Administrative Agent pursuant to Section 6.02(b).
Additionally and notwithstanding any provision of this Section 6.16(c) to the
contrary, in all events and at all times, Borrowers shall cause the
Guarantors and Borrowers to collectively represent not less than 75% of Total
Pro Rata NOI for the immediately preceding fiscal quarter.
(d) ADDITIONAL PLEDGED COLLATERAL. With respect to any
new Guarantor created or acquired after the Closing Date by the Borrowers or
any of their Affiliates, within a reasonable time, not to exceed twenty (20)
days, following the delivery of any guaranty required pursuant to SECTION
6.16(c), the Borrowers or their Affiliates, as applicable, shall execute and
deliver to the Collateral Agent such amendment to the Borrowers Pledge
Agreement as the Collateral Agent deems reasonably necessary or desirable to
grant to the Collateral Agent, for the benefit of the Lender Group, a
perfected first priority security interest in the Stock or other equity
interest of such new Guarantor in accordance with the Borrowers Pledge
Agreement and deliver to the Collateral Agent the certificates representing
such Stock or equity interests,
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together with undated stock powers, in blank, executed and delivered by a
duly authorized officer of the Borrowers or their respective Affiliates, as
applicable.
6.17 UNCONSOLIDATED PARTNERSHIP DISTRIBUTIONS.
Use its reasonable best efforts to cause any Person in
which any Borrower, any Guarantor or any of their respective Subsidiaries
holds an equity interest to make regular distributions of Net Operating
Income of such Person, subject to compliance with applicable law and such
Person's Organization Documents and in the Ordinary Course of Business.
SECTION 7.
NEGATIVE COVENANTS
So long as any Extension of Credit remains unpaid, or any
other Obligations remain unpaid or unperformed, or any portion of the
Commitments remains outstanding, each Borrower shall not, and shall not
permit any of its respective Subsidiaries to, directly or indirectly:
7.01 INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness,
EXCEPT:
(a) Ordinary Course Indebtedness;
(b) Accounts payable to trade creditors for goods and
services and current operating liabilities (not the result of the borrowing
of money) incurred in the Ordinary Course of Business in accordance with
customary terms and paid within the specified time, unless contested in good
faith by appropriate proceedings and reserved for in accordance with GAAP;
(c) Intra-Company Debt;
(d) Indebtedness of Borrowers, the Guarantors and
their Subsidiaries (whether secured or unsecured) which is Recourse to
Borrowers, the Guarantors or any of their Subsidiaries (but excluding
Indebtedness under the Revolver Loan Documents and this Agreement and the
outstanding Indebtedness under the Casden Loan on the Closing Date, as
reduced from time to time) in an aggregate principal amount not to exceed at
any time an amount equal to the sum of (x) $250,000,000, plus (y) while the
Lincoln Place Construction Financing is outstanding, the lesser of
$151,000,000 or any portion of the Lincoln Place Construction Financing which
constitutes Recourse Indebtedness. Such Recourse Indebtedness outstanding on
the Closing Date is listed on Schedule 7.01(d);
(e) Secured Indebtedness of Borrowers, the Guarantors
and their Subsidiaries which is not Recourse to Borrowers, the Guarantors or
any of their Subsidiaries;
(f) Endorsements for collection or deposit in the
Ordinary Course of Business;
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(g) Unsecured Swap Agreements entered into by any
Borrower with respect to variable rate Indebtedness permitted hereunder;
(h) Indebtedness of the Borrowers and their
Subsidiaries consisting of "exceptions to nonrecourse" guaranties of
non-Recourse Indebtedness otherwise permitted under this Section 7.01 or of
other Indebtedness permitted under this Section 7.01; provided that
"exceptions to non-recourse" shall include the types of additional exceptions
customarily required by Federal National Mortgage Association or Federal Home
Loan Mortgage Corporation from time to time in its standard form loan
documentation;
(i) Indebtedness (other than any Indebtedness
otherwise permitted under clauses (a) through (h) of this Section 7.01)
outstanding on the date hereof and listed on Schedule 7.01(i);
(j) Any refinancings, refundings, renewals or
extensions of any Indebtedness permitted under Sections 7.01(e) or (i);
provided, however, that any such refinancing, refunding, renewal or extension
shall not cause the financial or other material covenants, when taken as a
whole, to be significantly more restrictive than (A) those existing in the
applicable credit documentation prior to such renewal, refinancing or
extension or (B) the comparable covenants in this Agreement;
(k) Indebtedness in respect of performance bonds, bid
bonds, appeal bonds, surety bonds and similar obligations and trade-related
letters of credit, in each case provided in the Ordinary Course of Business,
and any extension, renewal or refinancing thereof to the extent not provided
to secure the repayment of other Indebtedness which Indebtedness existing on
the date hereof is listed on Schedule 7.01(k);
(l) Variable rate Indebtedness (but excluding such
variable rate Indebtedness that is covered by unsecured Swap Agreements
permitted under Section 7.01(g) and Indebtedness under the Loan Documents) in
an aggregate principal amount not to exceed 30% of Total Combined Debt at any
time; provided, however, that such variable rate Indebtedness shall otherwise
be Indebtedness permitted under Sections 7.01(d) and (e);
(m) Indebtedness which is cross-collateralized with or
cross-defaulted to any other Indebtedness; provided that (x) the aggregate
principal amount of all cross collateralized or cross-defaulted Indebtedness
(other than the aggregate principal amount of Indebtedness permitted under
Sections 7.01(n) or (o)) shall not exceed 15% of Total Combined Debt at any
time and (y) all cross-collateralized and cross-defaulted Indebtedness shall
otherwise be Indebtedness permitted under Sections 7.01(d), (e), (n) and (o)
and provided further that all such cross-collateralized and cross-defaulted
Indebtedness existing on the date hereof shall be listed on Schedule 7.01(m)
and such existing cross-collateralized and cross-defaulted Indebtedness shall
be satisfactory to Administrative Agent;
(n) Indebtedness of Borrowers, the Guarantors and
their Subsidiaries pursuant to the Loan Documents, the Casden Loan Documents
and the Revolver Loan Documents, including any Guaranty Obligations in
connection therewith; and
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(o) Indebtedness in respect of the Contingent
Acquisition Note.
Nothing contained in this SECTION 7.01 shall be deemed to
excuse any lack of compliance by Borrowers or any Subsidiary with the terms
of SECTION 7.14.
7.02 LIENS AND NEGATIVE PLEDGES.
Incur, assume or suffer to exist, any Lien or Negative
Pledge upon any of its Property, assets or revenues, whether now owned or
hereafter acquired, EXCEPT:
(a) Liens and Negative Pledges existing on the date
hereof and any renewals or extensions thereof;
(b) Ordinary Course Liens;
(c) Liens arising solely by virtue of any statutory or
common law provision relating to banker's liens, rights of setoff or similar
rights and remedies as to deposit accounts or other funds maintained with a
creditor depository institution; provided that (i) such deposit account is
not a dedicated cash collateral account and is not subject to restrictions
against access by the depositor in excess of those set forth by regulations
promulgated by the Federal Reserve Board, and (ii) such deposit account is
not intended by the depositor to provide collateral to the depository
institution;
(d) Liens and Negative Pledges securing Indebtedness
permitted under Section 7.01(d), (e), (h) or (i) on real and personal
Properties, together with refinancings, refundings, renewals or extensions of
such Indebtedness as and to the extent permitted under Section 7.01(j), and
not constituting ownership interests in Borrowers or any of the Subsidiaries
of Borrowers; provided that no such Lien is spread to cover any additional
Property and that the amount of Indebtedness secured thereby is not increased;
(e) Liens and Negative Pledges supporting purchase
options and Guaranty Obligations permitted by this Agreement;
(f) Liens and Negative Pledges on Property of a Person
which becomes a Subsidiary of any Borrower or any of their respective
Subsidiaries after the date hereof securing Indebtedness permitted by Section
7.01(d) or (e); provided that (i) such Liens existed at the time such Person
becomes a Subsidiary of any Borrower or any of their respective Subsidiaries
and were not incurred or otherwise created in anticipation thereof, and (ii)
any such Lien is not expanded to cover any other Property of such Person
after the time such Person becomes a Subsidiary of any Borrower or any of
their respective Subsidiaries;
(g) Licenses, leases or subleases granted to other
Persons in the Ordinary Course of Business not materially interfering with
the conduct of the business of the Borrower Parties taken as a whole;
(h) Liens and Negative Pledges arising from Capital
Leases entered into by the Borrower Parties;
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(i) (x) Liens pursuant to the Collateral Documents in
favor of the Collateral Agent, for the benefit of the Lender Group and Liens
pursuant to the Revolver Credit Agreement and the other Revolver Loan
Documents to the extent securing cash collateral supporting any outstanding
letters of credit thereunder, (y) Liens under the Casden Loan Documents and
Revolver Loan Documents, and (z) Negative Pledges pursuant to this Agreement,
the Casden Credit Agreement, the Revolver Credit Agreement, the other Loan
Documents, the other Casden Loan Documents and the other Revolver Loan
Documents, and the Contingent Acquisition Note;
(j) Liens and Negative Pledges (x) pursuant to the
Organization Documents of the Institutional Joint Ventures listed on Schedule
1.01F attached hereto and permitted under Section 7.05(f) hereof; provided,
that, the Liens and Negative Pledges only encumber or restrict Liens on the
Property owned by such Institutional Joint Venture and/or the equity
interests in such Institutional Joint Venture; provided, further, in all
cases such equity interests are owned directly or indirectly by a Guarantor
and/or Borrower, and (y) pursuant to customary provisions in the Organization
Documents of any other Permitted Joint Venture; provided, that, the Liens
only encumber the Property owned by such Permitted Joint Venture and the
Negative Pledges only restrict Liens on the Property owned by such Permitted
Joint Venture and the transferability of the managing member or general
partner interest in such Permitted Joint Venture; and
(k) Liens arising from precautionary UCC financing
statement filings regarding operating leases entered into by the Borrowers
and their Subsidiaries.
7.03 FUNDAMENTAL CHANGES.
(a) Merge or consolidate with or into any Person or
liquidate, wind-up or dissolve itself, or permit or suffer any liquidation or
dissolution, EXCEPT, that so long as no Default or Event of Default exists or
would result therefrom:
(i) Subsidiaries of Borrowers may merge or
consolidate with or into, or convey, transfer, lease or otherwise dispose
(whether in one transaction or in a series of transactions) of all or
substantially all of any of their Properties (whether now owned or hereafter
acquired) to, or in favor of, Borrowers or another Subsidiary of Borrowers;
(ii) Subsidiaries of Borrowers may be liquidated,
wound up or dissolved following any conveyance, transfer, lease or other
disposition (whether in one transaction or a series of transactions) of all
or substantially all of their Properties permitted under SECTION 7.03(A)(I);
(iii) Subsidiaries of Borrowers may engage in
reverse mergers or internal reorganizations whereby a Subsidiary or
Subsidiaries merge into or with one or more Subsidiaries of the Borrowers or
any Guarantor or any combination thereof; and
(iv) Borrowers or any Subsidiary of Borrowers may
merge, or consolidate with another Person; PROVIDED that each of the
following conditions are satisfied: (1) at the inception of the transaction,
Borrowers or such Subsidiary are intended to be and will be the surviving
Person after the consummation of the contemplated transaction; (2) To The
Best Knowledge of Borrowers, prior to the consummation of the transaction,
the transaction will not
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cause Borrowers to be in breach of the representations and warranties of this
Agreement and the other Loan Documents; (3) the transaction will not cause
Borrowers to be in breach of the covenants of this Agreement and the other
Loan Documents, including financial covenants after the consummation thereof;
and (4) Borrowers provide Administrative Agent with a pro-forma Compliance
Certificate that demonstrates that after the consummation of the proposed
transaction the Borrowers will be in compliance with the financial covenants
of this Agreement.
(v) Borrowers may acquire additional equity
interests in the managing members of the Real Estate Companies as
contemplated by the Casden Merger Agreement.
Notwithstanding the foregoing, no Subsidiary shall merge,
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or
substantially all of its Properties (whether now owned or hereafter acquired)
to or in favor of another Subsidiary if such transaction would result in a
violation of any covenant in this Agreement.
(b) Amend its Organization Documents in any respect
which is, in the opinion of the Requisite Lenders, materially adverse to the
interests of the Lenders. Without limiting the foregoing, under no
circumstances (i) shall the Organization Documents of the Borrowers be
changed so as to eliminate the transferability of Partnership Units of AIMCO
for common Stock in the REIT on a one-to-one basis (subject to adjustment as
provided in the Organization Documents of AIMCO) or (ii) shall the
Organization Documents of a Management Entity be changed so as to eliminate
or reduce any obligation to pay preferred Stock dividends, without the prior
consent of the Requisite Lenders; PROVIDED, HOWEVER, that consent shall not
be required for the foregoing solely to the extent any such changes or
amendments are required in connection with the consolidation or merger of any
Management Entity into a Wholly-Owned Subsidiary of the Borrowers and such
new or surviving Person provides a Guaranty to the Lenders in accordance with
the requirements of SECTION 6.16(c).
(c) Issue any preferred Stock or preferred Partnership
Units; PROVIDED, HOWEVER, the REIT or any of its Subsidiaries may issue
preferred Stock and/or preferred Partnership Units so long as (i) if such
preferred Stock or preferred Partnership Units has any mandatory redemption
feature or has a redemption feature which is exercisable at the option of the
holder thereof (other than a change of control put feature), then the face
amount of such preferred Stock or preferred Partnership Units shall be deemed
Unsecured Debt for all purposes of this Agreement; and (ii) any distributions
with respect thereto shall comply with the provisions of this Agreement
(including, without limitation, SECTION 7.07).
(d) Change the organizational structure of Borrowers
or any of their respective Subsidiaries from that which is reflected in the
Organizational Chart which is, in the reasonable opinion of the Requisite
Lenders, materially adverse to any Management Entity, without the prior
written consent of the Requisite Lenders, EXCEPT for mergers and changes in
the equity structure of Subsidiaries and the formation or acquisition of
Subsidiaries in accordance with this SECTION 7.03; PROVIDED, HOWEVER, that
consent shall not be required for the foregoing solely to the extent any such
changes are required in connection with the consolidation or merger of any
Management Entity into a Wholly-Owned Subsidiary of the Borrowers and such
new or
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surviving Person provides a Guaranty to the Lenders in accordance with the
requirements of SECTION 6.16(c).
(e) Terminate the employment of Xxxxx X. Xxxxxxxxx
and/or Xxxxx X. Xxxxxxxxx as Chief Executive Officer and President of the
REIT, respectively, or remove either or both of them from such positions
without the prior written consent of Requisite Lenders (other than in the
event of death or permanent disability). (f) Other
than the Casden Acquisition and the acquisition of additional equity
interests in the managing members of the Real Estate Companies as
contemplated by the Casden Merger Agreement, acquire by purchase or otherwise
all or substantially all of the business or Property of, or Stock or other
evidence of beneficial ownership of, any Person or any division or line of
business of any Person, where such business, Property, Stock or other
evidence of beneficial ownership and/or division or line of business to be
acquired has a fair market value in excess of 20% of the Gross Asset Value in
effect immediately prior to such acquisition, without the prior written
consent of Requisite Lenders.
7.04 DISPOSITIONS.
Make any Dispositions, EXCEPT:
(a) Ordinary Course Dispositions;
(b) Dispositions permitted by Section 7.03; and
(c) Dispositions of Property or Properties which
generate Net Disposition Proceeds of $1,000,000 or more; PROVIDED that (i)
the consideration received for such Property or Properties shall be in an
amount at least equal to the fair market value thereof; and (ii) any
consideration received for such Property or Properties in the form of
promissory notes shall be pledged to Collateral Agent pursuant to the
Borrowers Pledge Agreement.
7.05 INVESTMENTS.
Make or maintain any Investments, EXCEPT:
(a) Investments existing on the date hereof;
(b) Ordinary Course Investments;
(c) Investments permitted by SECTION 7.03;
(d) Investments in Intra-Company Debt permitted under
SECTION 7.01(c);
(e) Investments in unsecured Swap Agreements permitted
under SECTION 7.01(g);
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(f) Investments in multi-family apartment projects
(including those with de minimis commercial aspects) in fee simple or
leasehold interests therein or partnership, joint venture interests or other
Investments (including capital contributions or partner loans) in Persons
that own, directly or indirectly, multi-family apartment projects (including
those with de minimis commercial aspects); PROVIDED, HOWEVER, Investments in
Institutional Joint Ventures in addition to those listed on SCHEDULE 1.01F
shall not be permitted if and to extent any such additional Institutional
Joint Venture causes or is expected to cause all Institutional Joint Ventures
to generate more than 15% of Total Corporate NOI;
(g) Investments in Management Entities;
(h) Investments in unimproved land with an aggregate
book value not to exceed 5% of the Gross Asset Value then in effect;
(i) Investments in Stock and Partnership Units with an
aggregate book value not to exceed 5% of the Gross Asset Value then in
effect; PROVIDED, HOWEVER, any Investment in Stock and Partnership Units made
in connection with the Casden Acquisition or pursuant to any other provision
of this SECTION 7.05, shall not be subject to this Section 7.05(i);
(j) Investments in GP Loans provided all such loans
are evidenced by GP Loan Notes and other mortgage loans with an aggregate
book value not to exceed 10% of the Gross Asset Value then in effect;
(k) Investments in New Construction with an aggregate
undepreciated book value not to exceed 5% of the Gross Asset Value then in
effect;
(l) Investments in real property not constituting
multi-family apartment projects (each a "TEMPORARY INVESTMENT") acquired as
part of any Investment in any multi-family apartment project permitted under
SECTION 7.05(f); PROVIDED that any such Temporary Investment shall be sold or
otherwise disposed of as soon as commercially reasonable after its
acquisition;
(m) the Casden Acquisition, including (i) the Park La
Brea and Westwood Village Properties Loans, and (ii) Investments in an
aggregate amount not exceeding $50,000,000 (plus any return received in
respect of such Investments) to acquire a 20% membership interest in DevCo
and pay additional capital contributions in connection therewith, in each
case as contemplated by the Casden Merger Agreement; and
(n) Investments in the direct or indirect Stock or
Partnership Units of the Park La Brea or Westwood Village Properties as
contemplated in the Casden Merger Agreement.
7.06 LEASE OBLIGATIONS.
Create or suffer to exist any obligations for the payment
of rent for any Property under lease or agreement to lease, EXCEPT:
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(a) leases in existence on the date hereof and any
renewal, extension or refinancing thereof; and
(b) leases (other than Capital Leases) entered into or
assumed by Borrowers or any of their Subsidiaries after the date hereof in
the Ordinary Course of Business.
7.07 RESTRICTED PAYMENTS.
(a) (i) Declare or make any Restricted Payment or any
distribution of any Properties (including cash, rights, obligations,
partnership interests or Partnership Units, on account of any partnership
interests, Partnership Units or Stock) to any Person (other than Borrowers or
a Wholly-Owned Subsidiary), or (ii) purchase, redeem or otherwise acquire for
value any of its partnership interests, Partnership Units or Stock, now or
hereafter outstanding, from any Person (other than Borrowers or a
Wholly-Owned Subsidiary) (all of the foregoing set forth in clauses (i) and
(ii), collectively, being "distributions"), EXCEPT for the following: (A) the
exchange of common Stock of the REIT for Partnership Units; (B) if no Default
or Event of Default exists under SECTION 8.01(a), (b) or (c) as a result of a
breach of SECTION 7.14, then the Borrowers and all such Subsidiaries may make
"distributions" during any four consecutive fiscal quarter period in an
amount in the aggregate which does not exceed the greater of (1) (x) 88% of
Funds From Operations for each four consecutive fiscal quarter period ending
on June 30, 2003, September 30, 2003, December 31, 2003 and March 31, 2004,
(y) 85% of Funds From Operations for each four consecutive fiscal quarter
period ending on June 30, 2004 and September 30, 2004, or (z) 80% of Funds
From Operations for each four consecutive fiscal quarter period ending on the
last day of each fiscal quarter thereafter, or (2) such amount as may be
necessary to maintain REIT Status ("distributions" under this clause (B)
shall not include any "distributions" under clauses (A) or (C)); and (C) that
if no Default or Event of Default exists, the Borrowers and all such
Subsidiaries may undertake Permitted Preferred Stock Redemptions; PROVIDED,
THAT, prior to making any Permitted Preferred Stock Redemptions, Borrowers
shall first certify in writing to Administrative Agent (i) that the Net
Issuance Proceeds or Net Disposition Proceeds referred to in the definition
of "Permitted Preferred Stock Redemptions" have been, or will be, applied as
and to the extent required under Section 2.06 of the Revolver Credit
Agreement, and (ii) that the use of funds to make such Permitted Preferred
Stock Redemptions shall not cause a Default or an Event of Default under this
Agreement; PROVIDED, HOWEVER, that nothing in this SECTION 7.07 shall
prohibit (A) any Borrower or any Subsidiary of Borrower from making tenders
for or otherwise acquiring for value any partnership interest, Partnership
Units or Stock, now or hereafter outstanding, of any Borrower or any
Subsidiary of any Borrower which were not issued by such acquiring Borrower
or Subsidiary or (B) any distribution of Property by any Borrower Party, or
any Affiliate thereof, in the Ordinary Course of Business and pursuant to
such Borrower Party's or Affiliate's Organization Documents, including (x)
any distribution of proceeds from Dispositions permitted under SECTION 7.04,
(y) any distribution of proceeds from Dispositions in the Ordinary Course of
Business and (z) any distribution by a non-Wholly-Owned Subsidiary to any
Borrower, any of Borrowers' Subsidiaries or to any other Person holding an
equity interest in such non-Wholly-Owned Subsidiary.
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(b) (i) Permit any Subsidiary to make a demand under
any Intra-Company Debt which is payable upon demand at any time after the
Maturity Date, or (ii) permit any payment with respect to Intra-Company Debt
while any Event of Default is continuing.
7.08 ERISA.
At any time (a) engage in a transaction which could be
subject to Sections 4069 or 4212(c) of ERISA, or (b) permit any Plan to (i)
engage in any non-exempt "prohibited transaction" (as defined in Section 406
of ERISA and Section 4975 of the Code); (ii) fail to comply with ERISA, the
Code or any other applicable Laws; or (iii) incur any material "accumulated
funding deficiency" (as defined in Section 412 of the Code or Section 302 of
ERISA), which, with respect to each event listed above, has a Material
Adverse Effect, (c) terminate any Plan so as to result in any material (in
the opinion of Administrative Agent) liability to Borrowers or any ERISA
Affiliate (i.e., $1,000,000 or more), (d) permit to exist any ERISA Event or
any other event or condition, which presents the risk of a material (in the
opinion of Administrative Agent) liability to any member of the Controlled
Group, (e) make a complete or partial withdrawal (within the meaning of ERISA
Section 4201) from any Multiemployer Plan so as to result in any material (in
the opinion of Administrative Agent) liability to Borrowers or any ERISA
Affiliate, (f) enter into any new Plan or modify any existing Plan so as to
increase its obligations thereunder which could result in any material (in
the opinion of Administrative Agent) liability to any member of the
Controlled Group, or (g) permit the present value of all nonforfeitable
accrued benefits under any Plan (using the actuarial assumptions utilized by
the PBGC upon termination of a Plan) materially (in the opinion of
Administrative Agent) to exceed the fair market value of Plan assets
allocable to such benefits, all determined as of the most recent valuation
date for each such Plan.
7.09 CHANGE IN NATURE OF BUSINESS.
Make any change in the nature of the business of any
Borrower Party as conducted and as proposed to be conducted as of the date
hereof; PROVIDED, HOWEVER, that the foregoing shall not restrict the
Borrowers' development of related lines of business which are complimentary
to its existing core multifamily rental operations and such other changes as
are necessary to comply with applicable laws and the Code, and to enable the
REIT to maintain its REIT status.
7.10 TRANSACTIONS WITH AFFILIATES.
Enter into any transaction with any Affiliate of Borrowers
(other than a Wholly-Owned Subsidiary or a Management Entity), except (a) as
permitted by this Agreement, (b) in the Ordinary Course of Business and
pursuant to the reasonable requirements of the business of Borrowers, and in
each case of (a) and (b), upon fair and reasonable terms no less favorable to
such Person than would obtain in a comparable arm's length transaction with a
Person not such an Affiliate, (c) transactions between or among Borrowers and
their respective Subsidiaries, (d) employment, compensation and
indemnification arrangements with officers and directors of Borrowers and
their respective Subsidiaries, (e) fees payable in connection with directors'
fees and services rendered to the Board of Directors of Borrowers or their
respective Subsidiaries, or
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(f) loans and advances to officers and directors of Borrowers and their
respective Subsidiaries, (g) Park La Brea and Westwood Village Properties
Loans, and (h) transactions contemplated by the Casden Merger Agreement and
the other documents executed in connection therewith, including the DevCo LLC
Agreement.
7.11 USE OF PROCEEDS.
Use any proceeds of any Extensions of Credit, directly or
indirectly, (a) to purchase or carry Margin Stock, (b) to repay or otherwise
refinance indebtedness of Borrowers or others incurred to purchase or carry
Margin Stock, (c) to extend credit for the purpose of purchasing or carrying
any Margin Stock, (d) for any purpose other than those permitted by SECTION
6.12, or (e) in connection with the acquisition of a voting interest of five
percent (5%) or more in any Person if such acquisition is opposed by the
board of directors or management of such Person UNLESS (i) Borrowers have
given Administrative Agent (who shall promptly notify each Lender) five
Business Days' prior notice thereof and (ii) no Lender shall have, within
that period, notified Administrative Agent (who shall promptly notify
Borrowers) not consented to the use of the proceeds of such Extension of
Credit for that purpose.
7.12 INTENTIONALLY OMITTED.
7.13 LIMITATIONS ON UPSTREAMING.
Agree to any restriction or limitation on the making of
Restricted Payments from any Subsidiary of Borrower to a Borrower, the making
of any loans or advances to Borrowers or any other Subsidiary of Borrowers,
the repayment or prepayment of any Indebtedness owed by any Subsidiary of
Borrowers to any Borrower or any other Subsidiary of Borrowers, or the
transferring of assets from any Subsidiary of Borrowers to any Borrower or
any other Subsidiary of Borrowers, EXCEPT for such restrictions existing or
by reason of (a) any restrictions existing under the Loan Documents, the
Revolver Loan Documents or the Casden Loan Documents or any other
Indebtedness permitted under Section 7.01 (except as provided in clause (f)
below), (b) customary provisions in leases, subleases, licenses and other
contracts restricting the assignment thereof, (c) applicable law, (d)
Intra-Company Debt, (e) ordinary course restrictions in or contemplated by a
Permitted Joint Venture's Organization Documents (subject to SECTION 6.17),
(f) ordinary course restrictions in mortgage loan documents evidencing
Indebtedness permitted under SECTION 7.01 and consisting of, among other
things (i) provisions requiring funding and maintaining of reserves, (ii)
restrictions on the transfer or assignment of the obligor's real or personal
Property, and (iii) limitations on distributions of the obligor's net
revenues, or (g) restrictions in contracts for sales or Dispositions of
Property permitted hereby; PROVIDED, THAT, such restrictions relate only to
the Property being disposed of.
7.14 FINANCIAL COVENANTS.
(a) Permit the Fixed Charge Coverage Ratio as of the
end of any fiscal quarter to be less than 1.50:1.00.
(b) Permit the Adjusted Fixed Charge Coverage Ratio
as of the end of any fiscal quarter to be less than 1.45:1.00.
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(c) Permit the Interest Coverage Ratio as of the end
of any fiscal quarter to be less than 2.25:1.00.
(d) Permit the Unsecured Debt Service Coverage Ratio
as of the end of any fiscal quarter to be less than 3.00:1.00.
(e) Permit the ratio of Total Combined Debt to Gross
Asset Value to exceed 0.55:1.00 at any time; PROVIDED, HOWEVER, that for
purposes of this SECTION 7.14(e), Gross Asset Value shall be reduced by an
amount equal to the excess, if any, of (x) the sum of the amounts, as on the
date of determination, from clauses (ii), (vi) and (vii) set forth in the
definition of "GROSS ASSET VALUE" OVER (y) 15% of the sum of the amounts, as
on such date of determination, from clauses (i), (iii), (iv) and (v) set
forth in the definition of "GROSS ASSET VALUE".
(f) Permit the ratio of Total Obligations to Gross
Asset Value to exceed 0.65:1.00; PROVIDED, HOWEVER, that for purposes of this
SECTION 7.14(f), Gross Asset Value shall be reduced by an amount equal to the
excess, if any, of (x) the sum of the amounts, as on the date of
determination, from clauses (ii), (vi) and (vii) set forth in the definition
of "GROSS ASSET VALUE" OVER (y) 15% of the sum of the amounts, as on such
date of determination, from clauses (i), (iii), (iv) and (v) set forth in the
definition of "GROSS ASSET VALUE".
(g) Permit the Encumbered Property Debt Coverage Ratio
as of the end of any fiscal quarter to be less than 1.60:1.00.
(h) Permit the Consolidated Net Worth of the REIT and
its Subsidiaries on a consolidated basis to be less at any time than the sum
of (x) $3,230,456,000 PLUS (y) 85% of the Net Issuance Proceeds of all
issuances of Stock or Partnership Units from and after September 30, 2002.
7.15 CHANGE IN AUDITORS.
Change the certified public accountants auditing the books
of Borrowers without the consent of Requisite Lenders, other than changes to
Ernst & Young LLP, PricewaterhouseCoopers LLP and Deloitte & Touche LLP.
7.16 SPECIAL COVENANTS RELATING TO THE REIT.
In the case of the REIT:
(a) Make any disposition of or encumber, pledge or
hypothecate, whether directly or indirectly, all or any portion of its
interest in AIMCO or any Subsidiary at any time or any rights to
distributions or dividends therefrom other than to AIMCO or a Wholly-Owned
Subsidiary, other than any pledges of equity interests pursuant to the
Collateral Documents in connection with this Agreement, the Revolver Credit
Agreement and the Casden Credit Agreement, in each case subject to the terms
of the Intercreditor Agreement;
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(b) At any time and for any reason, fail to own,
either directly or through one or more Wholly-Owned Subsidiaries of the REIT,
more than 50% of the aggregate outstanding partnership interests in AIMCO;
(c) Fail for any reason whatsoever, whether
voluntarily or involuntarily, either directly or through one or more
Wholly-Owned Subsidiaries of the REIT, to be the sole general partner of
AIMCO at any time;
(d) Use Net Issuance Proceeds for any purpose other
than to make capital contributions to GP Corp and LP Corp immediately upon
the receipt thereof by the REIT for immediate contribution thereof to AIMCO;
(e) Cease to have its Common Stock listed on the NYSE,
the American Stock Exchange, or the Nasdaq Stock Exchange; or
(f) Cease to have REIT Status or fail to comply with
the requirements of the Code relating to qualified REIT subsidiaries in
respect of its ownership of any Subsidiary of the REIT to the extent required
under the Code and applicable law.
7.17 TAXATION OF BORROWERS.
In the case of AIMCO, become an association taxable as a
corporation and not be taxed as a partnership under the Code.
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an
Event of Default:
(a) Borrowers fail to pay any principal on any
Extension of Credit as and on the date when due; or
(b) Borrowers fail to pay any interest on any
Extension of Credit, or any fees due hereunder or amount payable to
Administrative Agent or any Lender under any Loan Document within five days
after the date due; or
(c) Any default occurs in the observance or
performance of any agreement contained in Sections 6.12, 6.14, 6.16(d) or 7;
or
(d) Intentionally omitted; or
(e) The occurrence of an Event of Default (as such
term is or may hereafter be specifically defined in any other Loan Document)
under any other Loan Document; or any Borrower Party fails to perform or
observe any other covenant or agreement (not specified above) contained in
any Loan Document on its part to be performed or observed and such failure
76
continues for 20 days after the earlier of (i) the date upon which a
Responsible Officer knew or received written notice of such failure or (ii)
the date upon which written notice thereof is given to Borrowers by
Administrative Agent or any Lender; or
(f) Any representation or warranty in any Loan
Document or in any certificate, agreement, instrument or other document made
or delivered by any Borrower Party or any Responsible Officer pursuant to or
in connection with any Loan Document proves to have been incorrect in any
material respect when made or deemed made; or
(g) Borrowers, the Guarantors, any of their respective
Subsidiaries or any Person in which they have a controlling equity interest
shall fail, after any applicable cure period:
(A) to make any payment when due, whether
by scheduled maturity, required prepayment, acceleration, demand, or
otherwise, (and which failure is continuing) in respect of any Indebtedness
of Borrowers, any Guarantor or any of their respective Subsidiaries which is
Recourse to the assets of any such Person or Persons and that, together with
all other such Recourse Indebtedness for which the applicable Person has
failed to make any such payment when due during the prior twelve (12) month
period, equals or exceeds $5,000,000 in the aggregate (other than any
payments with respect to Intra-Company Debt where the obligee has not
commenced pursuing its remedies); or
(B) to make any payment when due, whether
by scheduled maturity, required prepayment, acceleration, demand, or
otherwise, (and which failure is continuing) in respect of any Indebtedness
(other than the Indebtedness described in Section 8.01(g)(A) above) of
Borrowers, any Guarantor, any of their respective Subsidiaries or any other
Person in which Borrowers, any Guarantor or any such Subsidiary has a
controlling equity interest (each such Person being a "Nonrecourse Debt
Obligor") and that equals or exceeds (x) $25,000,000 individually or (y)
together with all other such Indebtedness for which Borrowers, any Guarantor
or their respective Subsidiaries or any Nonrecourse Debt Obligor has failed
to make any payment when due during the prior twelve (12) month period,
$50,000,000 in the aggregate (in either case, other than any payments with
respect to Intra-Company Debt where the obligee has not commenced pursuing
its remedies); provided, however, that in determining the amount of such
Indebtedness subject to this Section 8.01(g)(B), the amount of such
Indebtedness shall include (I) 100% of such Indebtedness (provided that
Borrowers, any Guarantor or any of their respective Subsidiaries shall own a
50% or greater equity interest in the Nonrecourse Debt Obligor), and (II) any
Borrower's, any Guarantor's or any of their Subsidiaries' pro rata share of
such Indebtedness of a Nonrecourse Debt Obligor. For purposes of this clause
(B)(II), "pro rata share" of Indebtedness of a Person means the greater of
(1) the amount of such Indebtedness allocated by the Nonrecourse Debt Obligor
to the Person on the books or records of the Nonrecourse Debt Obligor or (2)
any Borrower's, any Guarantor's or any Subsidiaries' ownership percentage of
the Nonrecourse Debt Obligor, multiplied by the outstanding amount of such
Indebtedness, as of any date of determination; or
(C) to perform or observe any other
condition or covenant, or any other event shall occur or condition exist,
under any agreement or instrument relating to any such Indebtedness or
Guaranty Obligation described in Section 8.01(g)(A) or (B), if the effect of
77
such failure, event or condition is to cause, or to permit the holder or
holders of such Indebtedness or the beneficiary or beneficiaries of such
Indebtedness (or a trustee or agent on behalf of such holder or holders or
beneficiary or beneficiaries) to cause, such Indebtedness to be declared to
be due and payable prior to its stated maturity, or such Guaranty Obligation
to become payable or cash collateral in respect thereof to be demanded;
provided, however, that, with respect to any Indebtedness or Guaranty
Obligation encumbering or directly affecting any real Property which is owned
by a Person constituting any part of Oxford Assets or Casden Assets
(excluding any such assets to the extent the Oxford Assets or Casden Assets
have been refinanced since the date of the Oxford Acquisition Agreement or
the Casden Acquisition, as applicable), then any such failure, event or
condition shall only be the basis for a default under this Section 8.01(g)(C)
if, because of such failure, event or condition, the holder of such
Indebtedness or Guaranty Obligations causes an acceleration of the
Indebtedness prior to its stated maturity or a liquidation of the Guaranty
Obligation; or
(D) to perform or observe any condition
or covenant of the Intra-Company Loan Subordination Agreement; or
(E) to perform or observe any condition
or covenant under any Indebtedness which is Recourse to the assets of any
Management Entity within any applicable cure or grace periods; or
(It being understood that, for purposes of clauses (A), (B) and (C)
above, no failure by the Borrowers or any of their Subsidiaries to pay
or perform any obligation with respect to an item of Intra-Company Debt
shall be deemed a breach or default hereunder if such failure to pay or
perform is in compliance with the Intra-Company Loan Subordination
Agreement.)
(h) Any Loan Document, at any time after its execution
and delivery and for any reason other than the agreement of all Lenders or
satisfaction in full of all the Obligations, ceases to be in full force and
effect (other than in accordance with its terms) or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
respect; or any Borrower Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or
rescind any Loan Document to which it is a party; or
(i) A final judgment against any Borrower Party is
entered for the payment of money (for a liability not covered by insurance)
in excess of the Threshold Amount, or any non-monetary final judgment is
entered against any Borrower Party which has a Material Adverse Effect and,
in each case if such judgment remains unsatisfied without procurement of a
stay of execution within 30 calendar days after the date of entry of judgment
or, if earlier, five days prior to the date of any proposed sale, or any writ
or warrant of attachment or execution or similar process is issued or levied
against all or any material part of the Property of any such Person and is
not released, vacated or fully bonded within 30 calendar days after its issue
or levy; or
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(j) Any Borrower Party or any of its Material Entities
institutes or consents to the institution of any proceeding under Debtor
Relief Laws with respect to itself or its assets, or makes an assignment for
the benefit of creditors; or applies for or consents to the appointment of
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer for it or for all or any material part of its property; or
any receiver, trustee, custodian, conservator, liquidator, rehabilitator or
similar officer is appointed without the application or consent of that
Person and the appointment continues undischarged or unstayed for 60 calendar
days; or any proceeding under Debtor Relief Laws relating to any such Person
or to all or any part of its property is instituted without the consent of
that Person and continues undismissed or unstayed for 60 calendar days, or an
order for relief is entered in any such proceeding; or
(k) (i) A member of the Controlled Group shall fail to
pay when due, after the expiration of any applicable grace period, any
installment payment with respect to its withdrawal liability under a
Multiemployer Plan; (ii) a Borrower or an ERISA Affiliate shall fail to
satisfy its contribution requirements under Section 412(c)(11) of the Code,
whether or not it has sought a waiver under Section 412(d) of the Code; (iii)
in the case of an ERISA Event involving the withdrawal from a Plan of
Borrowers or any ERISA Affiliate which is a "substantial employer" (as
defined in Section 4001(a)(2) or Section 4062(e) of ERISA), the withdrawing
employer's proportionate share of that Plan's Unfunded Pension Liabilities is
more than $5,000,000; (iv) in the case of an ERISA Event involving the
complete or partial withdrawal of Borrowers or an ERISA Affiliate from a
Multiemployer Plan, the withdrawing employer has incurred a withdrawal
liability in an aggregate amount exceeding $5,000,000; (v) in the case of an
ERISA Event not described in clause (iii) or (iv), the Unfunded Pension
Liabilities of the relevant Plan or Plans exceed $5,000,000; (vi) a Plan that
is intended to be qualified under Section 401(a) of the Code shall lose its
qualification, and the loss can reasonably be expected to impose on members
of the Controlled Group liability (for additional taxes, to Plan
participants, or otherwise) in the aggregate amount of $5,000,000 or more;
(vii) the commencement or increase of contributions to, or the adoption of or
the amendment of a Plan by, a member of the Controlled Group shall result in
a net increase in unfunded liabilities to the Controlled Group in excess of
$5,000,000; (viii) any member of the Controlled Group engages in or otherwise
becomes liable for a non-exempt prohibited transaction and the initial tax or
additional tax under section 4975 of the Code relating thereto might
reasonably be expected to exceed $5,000,000; (ix) a violation of section 404
or 405 of ERISA or the exclusive benefit rule under section 401(a) of the
Code if such violation might reasonably be expected to expose a member or
members of the Controlled Group to monetary liability in excess of
$5,000,000; (x) any member of the Controlled Group is assessed a tax under
section 4980B of the Code in excess of $5,000,000; or (xi) the occurrence of
any combination of events listed in clauses (iii) through (x) that involves a
potential liability, net increase in aggregate Unfunded Pension Liabilities,
unfunded liabilities, or any combination thereof, in excess of $5,000,000; or
(l) [Intentionally Omitted]
(m) [Intentionally Omitted]
(n) (i) Any provision of any Guaranty shall for any
reason (other than pursuant to the terms thereof) cease to be valid and
binding on or enforceable against Borrowers
79
or other Persons party thereto (except to the extent that the same results
solely from an act or omission of Administrative Agent or the Lenders), or
Borrowers or such Person shall so state in writing or bring an action to
limit its obligations or liabilities thereunder; or (ii) any party to any
Guaranty (other than the Administrative Agent or Lenders) shall fail to
perform or observe any term, covenant or agreement in Sections 1, 9, or 12,
of such Guaranty or incorporated into such Guaranty from SECTIONS 6.12 and
6.14 and ARTICLE 7 of this Agreement, or (B) any other term, covenant or
agreement in any Guaranty, and such failure shall continue unremedied for a
period of 20 days after the earlier of (I) the date upon which a Responsible
Officer of Borrowers knew or received written notice of such failure or (II)
the date upon which written notice thereof is given to Borrowers (or any
Subsidiary party thereto) by Administrative Agent; or (iii) any Guaranty
shall for any reason be partially (including with respect to future advances)
or wholly revoked or invalidated, or otherwise cease to be in full force and
effect; or (iv) any Guarantor shall contest in any manner the validity or
enforceability thereof or deny that such Guarantor has any further liability
or obligation thereunder; or
(o) (i) Any "Person", or a "group" of related
"Persons" (as such terms are used for purposes of Sections 13(d) and 14(d) of
the Exchange Act whether or not applicable), shall acquire (a) beneficial
ownership of in excess of 50% of the outstanding voting Stock of the REIT or
other voting interest having ordinary voting power to elect a majority of the
directors, managers or trustees of the REIT (irrespective of whether at the
time stock of any other class or classes shall have or might have voting
power by reason of the happening of any contingency) or (b) all or
substantially all of the Properties of Borrowers, or (ii) a majority of the
Board of Directors of the REIT, at any time, shall be composed of Persons
other than (a) Persons who were members of the Board of Directors on the date
of this Agreement, or (b) Persons who subsequently become members of the
Board of Directors and who either (x) are appointed or recommended for
election with the affirmative vote of a majority of the directors in office
as of the date of this Agreement or (y) are appointed or recommended for
election with the affirmative vote of a majority of the Board of Directors of
the REIT then in office; or
(p) Borrowers, any Guarantor, or any of their
respective Subsidiaries shall lose, through suspension, termination,
impoundment, revocation, failure to renew or otherwise, any license or permit
material to Borrowers, Guarantors and their respective Subsidiaries, taken as
a whole; or
(q) Borrowers, any Guarantor, or any of their
respective Subsidiaries or any of their respective Properties shall become
subject to one or more Liens for costs or damages in excess of $5,000,000,
individually or in the aggregate, and in each case under any Environmental
Law and such Liens shall remain in place for thirty (30) days after the
creation thereof; or
(r) If at any time after the incurrence of any
Intra-Company Debt, a Borrower or any of its Subsidiaries is not the holder
of such Intra-Company Debt; or if any modification or amendment with respect
to the payment terms of any Intra-Company Debt is entered into without the
prior written consent of the Requisite Lenders; or if, at any time after the
Maturity Date, the holder of any Intra Company Debt demands any payment
whatsoever thereon in violation of the Intra-Company Loan Subordination
Agreement; or
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(s) Any event not otherwise described in this SECTION
8.01 occurs which has a Material Adverse Effect; or
(t) If at any time Xxxxx X. Xxxxxxxxx and Xxxxx X.
Xxxxxxxxx and their respective immediate family members and/or affiliated
trusts fail to directly or indirectly own in the aggregate the lesser of (i)
at least 2% of the aggregate ordinary voting power represented by the issued
and outstanding equity of the REIT as diluted from time to time or (ii)
600,000 shares of common voting Stock thereof or Partnership Units; or
(u) The occurrence of an "Event of Default" under any
of the Casden Loan Documents or the Revolver Loan Documents.
8.02 REMEDIES UPON EVENT OF DEFAULT.
Without limiting any other rights or remedies of
Administrative Agent or Lenders provided for elsewhere in this Agreement, or
the other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) upon the occurrence, and during the continuance,
of any Event of Default other than an Event of Default described in Section
8.01(j), Supermajority Lenders may request Administrative Agent to, and
Administrative Agent thereupon shall, terminate the Commitments and/or
declare all or any part of the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under the Loan
Documents to be forthwith due and payable, whereupon the same shall become
and be forthwith due and payable, without protest, presentment, notice of
dishonor, demand or further notice of any kind, all of which are expressly
waived by Borrowers;
(b) Upon the occurrence of any Event of Default
described in Section 8.01(j):
(i) the Commitments and all other obligations of
Administrative Agent or Lenders to Borrowers (other than the confidentiality
provisions of Section 10.17, and the Lenders' agreement to change the
jurisdiction of its Lending Office, as provided in Section 3.01(g), and to
designate a different Lending Office, as provided in Section 3.02) shall
automatically terminate without notice to or demand upon Borrowers, which are
expressly waived by Borrowers;
(ii) the unpaid principal of all Loans, all
interest accrued and unpaid thereon and all other amounts payable under the
Loan Documents shall be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of any kind, all of
which are expressly waived by Borrowers;
(c) Upon the occurrence of any Event of Default,
Lenders and Administrative Agent, or any of them, without notice to (except
as expressly provided for in any Loan Document) or demand upon Borrowers,
which are expressly waived by Borrowers (except as to notices expressly
provided for in any Loan Document), may proceed to (but only with the consent
of Supermajority Lenders) protect, exercise and enforce their rights and
remedies under
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the Loan Documents against any Borrower Party and such other rights and
remedies as are provided by Law or equity, subject to the terms of the
Intercreditor Agreement; and
(d) Except as permitted by Section 10.05, no Lender
may exercise any rights or remedies with respect to the Obligations without
the consent of Supermajority Lenders in their sole discretion, subject to the
terms of the Intercreditor Agreement. The order and manner in which
Administrative Agent's and Lenders' rights and remedies are to be exercised
shall be determined by Supermajority Lenders in their sole discretion.
Regardless of how a Lender may treat payments for the purpose of its own
accounting, for the purpose of computing the Obligations hereunder, payments
shall be applied FIRST, to costs and expenses (including Attorney Costs)
incurred by Administrative Agent and each Lender, SECOND, to the payment of
accrued and unpaid interest on the Loans to and including the date of such
application, THIRD, to the payment of the unpaid principal of the Loans, and
FOURTH, to the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case paid
pro rata to Administrative Agent and each Lender in the same proportions that
the aggregate Obligations owed to Administrative Agent and each Lender under
the Loan Documents bear to the aggregate Obligations owed under the Loan
Documents to Administrative Agent and all Lenders, without priority or
preference among Administrative Agent and Lenders. No application of payments
will cure any Event of Default, or prevent acceleration, or continued
acceleration, of amounts payable under the Loan Documents, or prevent the
exercise, or continued exercise, of rights or remedies of Administrative
Agent and Lenders hereunder or thereunder or at Law or in equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
Each Lender hereby irrevocably (subject to SECTION 9.09)
appoints, designates and authorizes Administrative Agent to take such action
on its behalf under the provisions of this Agreement and each other Loan
Document and to exercise such powers and perform such duties as are expressly
delegated to it by the terms of this Agreement or any other Loan Document,
together with such powers as are reasonably incidental thereto.
Notwithstanding any provision to the contrary contained elsewhere in this
Agreement or in any other Loan Document, Administrative Agent shall not have
any duties or responsibilities, except those expressly set forth herein, nor
shall Administrative Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or any other Loan Document or otherwise exist against
Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other
implied (or express) obligations arising under agency doctrine of any
applicable law. Instead, such term is used merely as a matter of market
custom, and is intended to create or reflect only an administrative
relationship between independent contracting parties.
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9.02 DELEGATION OF DUTIES.
Administrative Agent may execute any of its duties under
this Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Administrative Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
9.03 LIABILITY OF ADMINISTRATIVE AGENT.
None of Administrative Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful
misconduct), or (ii) be responsible in any manner to any of Lenders for any
recital, statement, representation or warranty made by Borrowers or any
Subsidiary or Affiliate of Borrowers, or any officer thereof, contained in
this Agreement or in any other Loan Document, or in any certificate, report,
statement or other document referred to or provided for in, or received by
Administrative Agent under or in connection with, this Agreement or any other
Loan Document, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement or any other Loan Document, or for any failure
of Borrowers or any other party to any Loan Document to perform their
obligations hereunder or thereunder. No Administrative Agent-Related Person
shall be under any obligation to any Lender to ascertain or to inquire as to
the observance or performance of any of the agreements contained in, or
conditions of, this Agreement or any other Loan Document, or to inspect the
Properties, books or records of any Borrower or any of Borrowers'
Subsidiaries or Affiliates.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely,
and shall be fully protected in relying, upon any writing, resolution,
notice, consent, certificate, affidavit, letter, telegram, facsimile, telex
or telephone message, statement or other document or conversation believed by
it to be genuine and correct and to have been signed, sent or made by the
proper Person or Persons, and upon advice and statements of legal counsel
(including counsel to Borrowers), independent accountants and other experts
selected by Administrative Agent. Administrative Agent may deem and treat the
payee of any Note as the owner thereof for all purposes unless such Note
shall have been transferred in accordance with Section 10.04 and all actions
required by such Section in connection with such transfer shall have been
taken. Administrative Agent shall be fully justified in failing or refusing
to take any action under this Agreement or any other Loan Document unless it
shall first receive such advice or concurrence of the Requisite Lenders as it
deems appropriate and, if it so requests, it shall first be indemnified to
its satisfaction by Lenders against any and all liability and expense which
may be incurred by it by reason of taking or continuing to take any such
action. Administrative Agent shall in all cases be fully protected in acting,
or in refraining from acting, under this Agreement or any other Loan Document
in accordance with a request or consent of the Requisite Lenders or
Supermajority Lenders or all Lenders, if required hereunder, and such request
and any action taken or failure to act pursuant thereto shall be binding upon
all of Lenders.
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(b) For purposes of determining compliance with the
conditions specified in SECTION 4.01, each Lender that has executed this
Agreement shall be deemed to have consented to, approved or accepted or to be
satisfied with, each document or other matter either sent by Administrative
Agent to such Lender for consent, approval, acceptance or satisfaction, or
required thereunder to be consented to or approved by or acceptable or
satisfactory to such Lender.
9.05 NOTICE OF DEFAULT.
Administrative Agent shall not be deemed to have knowledge
or notice of the occurrence of any Default or Event of Default, except with
respect to defaults in the payment of principal, interest and fees required
to be paid to Administrative Agent for the account of Lenders, unless
Administrative Agent shall have received written notice from a Lender or
Borrowers referring to this Agreement, describing such Default or Event of
Default and stating that such notice is a "notice of default". Administrative
Agent will notify Lenders of its receipt of any such notice. Administrative
Agent shall take such action with respect to such Default or Event of Default
as may be requested by the Requisite Lenders in accordance with SECTION 8;
PROVIDED, HOWEVER, that unless and until Administrative Agent has received
any such request, Administrative Agent may (but shall not be obligated to)
take such action, or refrain from taking such action, with respect to such
Default or Event of Default as it shall deem advisable or in the best
interest of Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT.
Each Lender acknowledges that none of Administrative
Agent-Related Persons or Sole Lead Arranger has made any representation or
warranty to it, and that no act by Administrative Agent hereinafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of Borrowers and their Subsidiaries, shall be deemed to constitute
any representation or warranty by any Administrative Agent-Related Person or
the Sole Lead Arranger to any Lender as to any matter, including without
limitation, whether Administrative Agent-Related Persons or the Sole Lead
Arranger, as the case may be, have disclosed material information in their
possession. Each Lender, including any Lender by assignment, represents to
Administrative Agent that it has, independently and without reliance upon any
Administrative Agent-Related Person or the Sole Lead Arranger and based on
such documents and information as it has deemed appropriate, made its own
appraisal of and investigation into the business, prospects, operations,
property, financial and other condition and creditworthiness of Borrowers and
their Subsidiaries, and all applicable bank regulatory laws relating to the
transactions contemplated hereby, and made its own decision to enter into
this Agreement and to extend credit to Borrowers hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person or the Sole Lead Arranger and based on
such documents and information as it shall deem appropriate at the time,
continue to make its own credit analysis, appraisals and decisions in taking
or not taking action under this Agreement and the other Loan Documents, and
to make such investigations as it deems necessary to inform itself as to the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers. Except for notices, reports and other
documents expressly herein required to be furnished to Lenders by
Administrative Agent herein,
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Administrative Agent shall not have any duty or responsibility to provide any
Lender with any credit or other information concerning the business,
prospects, operations, property, financial and other condition or
creditworthiness of Borrowers or any of their Subsidiaries which may come
into the possession of any of Administrative Agent-Related Persons or the
Sole Lead Arranger.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are
consummated, Lenders shall indemnify upon demand each Administrative
Agent-Related Person (to the extent not reimbursed by or on behalf of
Borrowers and without limiting the obligation of Borrowers to do so), pro
rata, and hold harmless each Administrative Agent-Related Person from and
against any and all Indemnified Liabilities incurred by it; PROVIDED,
HOWEVER, that no Lender shall be liable for the payment to any Administrative
Agent-Related Person of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct; PROVIDED, HOWEVER,
that no action taken in accordance with the directions of the Requisite
Lenders shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section. Without limitation of the foregoing, each
Lender shall reimburse Administrative Agent upon demand for its ratable share
of any costs or out-of-pocket expenses (including Attorney Costs) incurred by
Administrative Agent after the Closing Date in connection with the
preparation, execution, delivery, administration, modification, amendment or
enforcement (whether through negotiations, legal proceedings or otherwise)
of, or legal advice in respect of rights or responsibilities under, this
Agreement, any other Loan Document, or any document contemplated by or
referred to herein, to the extent that Administrative Agent is not reimbursed
for such expenses by or on behalf of Borrowers. The undertaking in this
Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of Administrative Agent.
9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY.
Administrative Agent and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire
equity interests in and generally engage in any kind of banking, trust,
financial advisory, underwriting or other business with Borrowers and their
Subsidiaries and Affiliates as though it were not Administrative Agent
hereunder and without notice to or consent of Lenders. Lenders acknowledge
that, pursuant to such activities, Administrative Agent or its Affiliates may
receive information regarding Borrowers or their Affiliates (including
information that may be subject to confidentiality obligations in favor of
such Borrower or such Affiliate) and acknowledge that Administrative Agent
shall be under no obligation to provide such information to them. With
respect to its Loans, Administrative Agent shall have the same rights and
powers under this Agreement as any other Lender and may exercise the same as
though it were not Administrative Agent, and the terms "Lender" and "Lenders"
shall include Administrative Agent in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may, and at the request of the
Supermajority Lenders shall, resign as Administrative Agent upon thirty (30)
days' notice to Lenders. If Administrative
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Agent resigns under this Agreement, the Requisite Lenders shall appoint from
among Lenders a successor administrative agent for Lenders, and, so long as
no Default or Event of Default has occurred and is continuing, such successor
administrative agent shall require the approval of Borrowers (which approval
shall not be unreasonably withheld, conditioned or delayed). If no successor
administrative agent is appointed prior to the effective date of the
resignation of Administrative Agent, Administrative Agent may appoint, after
consulting with Lenders and Borrowers, a successor administrative agent from
among Lenders. Upon the acceptance of its appointment as successor
administrative agent hereunder, such successor administrative agent shall
succeed to all the rights, powers and duties of the retiring Administrative
Agent and the term "ADMINISTRATIVE AGENT" shall mean such successor
administrative agent and the retiring Administrative Agent's appointment,
powers and duties as Administrative Agent shall be terminated. After any
retiring Administrative Agent's resignation hereunder as Administrative
Agent, the provisions of this SECTION 9 and SECTIONS 10.03 and 10.13 shall
inure to its benefit as to any actions taken or omitted to be taken by it
while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and Lenders shall perform all of the
duties of Administrative Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor agent as provided for above.
SECTION 10.
MISCELLANEOUS
10.01 AMENDMENTS; CONSENTS.
No amendment, modification, supplement, extension,
termination or waiver of any provision of this Agreement or any other Loan
Document, no approval or consent thereunder, and no consent to any departure
by any Borrower Party therefrom shall be effective unless in writing signed
by Administrative Agent and Requisite Lenders, and each such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; PROVIDED, HOWEVER, that, except as otherwise
expressly provided herein, (i) without the approval in writing of
Administrative Agent and Supermajority Lenders, no amendment, modification,
supplement, termination, waiver or consent may be effective to amend the
provisions of SECTION 7.14 while all or any portion of the Casden Loan is
outstanding, SECTIONS 7.14(a), (c), (e) or (f) after repayment of the Casden
Loan in full, or SECTION 8 or to amend any provision of this Agreement that
expressly requires the consent or approval of Supermajority Lenders, and (ii)
without the approval in writing of Administrative Agent and all Lenders, no
amendment, modification, supplement, termination, waiver or consent may be
effective to the extent it involves a material change to any material
provision of the Intercreditor Agreement or causes any of the following to
occur:
(a) To reduce the amount of any scheduled payment of
principal, principal prepayments or the rate of interest payable on, any
Loan, or the amount of any fee or other amount payable to any Lender under
the Loan Documents (unless such modification is consented to by each Lender
entitled to receive such fee ) or to waive an Event of Default consisting of
the failure of Borrowers to pay when due principal, interest or any
commitment fee; or
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(b) To postpone any date fixed for any scheduled
payment of principal of, prepayment of principal of, or any installment of
interest on, any Loan or any installment of any commitment fee, to extend the
term of, or increase the amount of, any Lender's Commitment (it being
understood that a waiver of an Event of Default shall not constitute an
extension or increase in the Commitment of any Lender) or modify the Pro Rata
Share of any Lender; or
(c) To amend the provisions of the definition of
"Requisite Lenders", "Supermajority Lenders", SECTION 9 or this SECTION
10.01; or
(d) To amend any provision of this Agreement that
expressly requires the consent or approval of all Lenders; or
(e) To (i) release Liens granted in favor of
Collateral Agent with respect to any material portion of the Pledged
Collateral, other than in connection with dispositions of such Pledged
Collateral permitted under this Agreement or the Collateral Documents and
provided that the proceeds of any such disposition are applied as required to
be applied under this Agreement, or (ii) release any Guarantor which is a
Material Entity from its obligations under the applicable Guaranty, provided
that such Guarantor may be released by Administrative Agent in the event (1)
such Guarantor is dissolved, merged, consolidated, liquidated, or wound-up as
specifically provided in SECTIONS 6.04 or 7.03 and after giving effect to
such dissolution, merger, consolidation, liquidation or winding-up, Borrowers
remain in compliance with the other terms and provisions of this Agreement,
or (2) there is a sale of the Stock of such Guarantor which complies with the
terms of this Agreement, and after giving effect to such sale, Borrowers
remain in compliance with the terms and provisions of this Agreement;
PROVIDED, HOWEVER, that any fee letter may be amended, or rights or
privileges thereunder waived, in a writing executed by the parties thereto.
Any amendment, modification, supplement, termination, waiver or consent
pursuant to this Section shall apply equally to, and shall be binding upon,
all Lenders and Administrative Agent.
10.02 TRANSMISSION AND EFFECTIVENESS OF NOTICES AND SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in
any Loan Document, notices, requests, demands, directions, agreements and
documents delivered in connection with the Loan Documents (collectively,
"COMMUNICATIONS") shall be transmitted by Requisite Notice to the number and
address set forth on SCHEDULE 10.02, may be delivered by the following modes
of delivery, and shall be effective as follows:
================================ =======================================================
MODE OF DELIVERY EFFECTIVE ON EARLIER OF ACTUAL RECEIPT AND:
-------------------------------- -------------------------------------------------------
Courier Scheduled delivery date
-------------------------------- -------------------------------------------------------
Facsimile When transmission in legible form complete
-------------------------------- -------------------------------------------------------
Mail Fourth Business Day after deposit in U.S. mail first
class postage pre-paid
-------------------------------- -------------------------------------------------------
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-------------------------------- -------------------------------------------------------
Personal delivery When received
-------------------------------- -------------------------------------------------------
Telephone When conversation completed
================================ =======================================================
; PROVIDED, HOWEVER, that communications delivered to Administrative Agent
pursuant to SECTION 2 shall not be effective until actually received by
Administrative Agent.
(b) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS.
Administrative Agent and Lenders shall be entitled to rely and act on any
communications purportedly given by or on behalf of any Borrower Party even
if such communications (i) were not made in a manner specified herein, (ii)
were incomplete, (iii) were not preceded or followed by any other notice
specified herein, or (iv) the terms thereof, as understood by the recipient,
varied from any subsequent related communications provided for herein.
Borrowers shall indemnify Administrative Agent and Lenders from any loss,
cost, expense or liability as a result of relying on any communications
permitted herein.
(c) EFFECTIVENESS OF ELECTRONIC AND FACSIMILE
SIGNATURES. Signatures on communications may be transmitted by facsimile,
electronic mail or other digital transmission only with the consent of
Administrative Agent in its sole discretion, in each instance. The
effectiveness of any such signatures accepted by Administrative Agent shall,
subject to applicable Law, have the same force and effect as manual
signatures and shall be binding on all Borrower Parties and Administrative
Agent and Lenders. Administrative Agent may also require that any such
signature be confirmed by a manually-signed hardcopy thereof.
10.03 ATTORNEY COSTS, EXPENSES AND TAXES.
Borrowers agree (a) to pay or reimburse Administrative
Agent for all reasonable costs and expenses incurred in connection with the
development, preparation, negotiation and execution of the Loan Documents,
and the development, preparation, negotiation and execution of any amendment,
waiver, consent, supplement or modification to, any Loan Documents, and any
other documents prepared in connection herewith or therewith, and the
consummation and administration of the transactions contemplated hereby and
thereby, including, without limitation, all Attorney Costs and the charges of
Intralinks or any other electronic document distribution service; and (b) to
pay or reimburse Administrative Agent and each Lender for all costs and
expenses incurred in connection with any refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement, or preservation of any rights under any Loan
Documents, and any other documents prepared in connection herewith or
therewith, or in connection with any refinancing, or restructuring of any
such documents in the nature of a "workout" or of any insolvency or
bankruptcy proceeding, including, without limitation, Attorney Costs. The
foregoing costs and expenses shall include all search, filing, recording,
title insurance and appraisal charges and fees and taxes related thereto, and
other out-of-pocket expenses incurred by Administrative Agent and the cost of
independent public accountants and other outside experts retained by
Administrative Agent, Collateral Agent or any Lender. Such costs and expenses
shall also include administrative costs of Administrative
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Agent reasonably attributable to the administration of the Loan Documents,
among other things, in connection with the matters described in clause (b)
above. Any amount payable by Borrowers under this Section shall bear interest
from the second Business Day following the date of demand for payment at the
Default Rate, unless waived by Administrative Agent. The agreements in this
Section shall survive repayment of all Obligations.
10.04 BINDING EFFECT; ASSIGNMENT.
(a) GENERALLY. This Agreement shall be binding upon
and inure to the benefit of and be enforceable by the respective successors
and assigns of the parties hereto; PROVIDED that none of the Borrower Parties
may assign and transfer any of their interests without the prior written
consent of all the Lenders and Administrative Agent; and PROVIDED FURTHER
that the rights of each Lender to transfer, assign or grant participants in
its rights and/or obligations hereunder shall be limited as set forth below
in this Section 10.04.
(b) ASSIGNMENTS. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loans, its
Notes, and its Commitment); PROVIDED HOWEVER, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except (A) in the case of an assignment to
another Lender, (B) in the case of an assignment of all of a Lender's rights
and obligations under this Agreement, or (C) with the consent of the
Administrative Agent and the Borrowers, any such partial assignment shall be
in an amount at least equal to the applicable Minimum Amount (or, if less,
the remaining amount of the Commitment being assigned by such Lender) or an
integral multiple of the applicable Minimum Amount in excess thereof and in
the case of a partial assignment, such assigning Lender shall retain a
minimum Commitment of $500,000;
(iii) each such assignment by a Lender shall be of
a constant, and not varying, percentage of all of its rights and obligations
under this Agreement and the Notes;
(iv) the parties to such assignment shall execute
and deliver to the Administrative Agent and, so long as no Default or Event
of Default has occurred and is continuing, to the Borrowers for their
acceptance an Assignment and Acceptance in substantially the form of Exhibit
D, together with a processing fee from the assignor of $3,500; and
(v) such assignment, if not to a Lender or an
Affiliate of an assigning Lender, shall require the approval of Borrowers at
all times other than during the existence of a Default or Event of Default
and Administrative Agent (which approval of Borrowers or Administrative
Agent, as the case may be, shall not be unreasonably withheld, conditioned or
delayed) and if Borrowers do not respond during such ten (10) Business Days
after receipt of an Assignment and Acceptance, such assignment shall be
deemed approved.
Upon execution, delivery, and acceptance of such
Assignment and Acceptance, the assignee thereunder shall be a party
hereto and, to the extent of such assignment, have the obligations,
rights, and benefits of a Lender hereunder
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and the assigning Lender shall, to the extent of such assignment,
relinquish its rights and be released from its obligations under
this Agreement. Upon the consummation of any assignment pursuant to
this Section 10.04(b), the assignor, the Administrative Agent and
the Borrowers shall make appropriate arrangements so that, if
required, new Notes are issued to the assignor and the assignee. If
the assignee is not incorporated under the laws of the United States
of America or a state thereof, it shall deliver to the Borrowers and
the Administrative Agent certification as to exemption from
deduction or withholding of taxes in accordance with Section 3.01.
By executing and delivering an Assignment and
Acceptance in accordance with this Section 10.04(b), the assigning
Lender thereunder and the assignee thereunder shall be deemed to
confirm to and agree with each other and the other parties hereto as
follows: (A) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear
of any adverse claim and the assignee warrants that it is an Eligible
Assignee; (B) except as set forth in clause (A) above, such assigning
Lender makes no representation or warranty and assumes no
responsibility with respect to any statements, warranties or
representations made in or in connection with this Agreement, any of
the other Loan Documents or any other instrument or document furnished
pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement,
any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto or the financial condition of any
Borrower Party or the performance or observance by any Borrower Party
of any of its obligations under this Agreement, any of the other Loan
Documents or any other instrument or document furnished pursuant hereto
or thereto; (C) such assignee represents and warrants that it is
legally authorized to enter into such Assignment and Acceptance; (D)
such assignee confirms that it has received a copy of this Agreement,
the other Loan Documents and such other documents and information as it
has deemed appropriate to make its own credit analysis and decision to
enter into such assignment agreement; (E) such assignee will
independently and without reliance upon the Administrative Agent, such
assigning Lender or any other Lender, and based on such documents and
information as it shall deem appropriate at the time, continue to make
its own credit decisions in taking or not taking action under this
Agreement and the other Loan Documents; (F) such assignee appoints and
authorizes the Administrative Agent to take such action on its behalf
and to exercise such powers under this Agreement or any other Loan
Document as are delegated to the Administrative Agent by the terms
hereof or thereof, together with such powers as are reasonably
incidental thereto; and (G) such assignee agrees that it will perform
in accordance with their terms all the obligations which by the terms
of this Agreement and the other Loan Documents are required to be
performed by it as a Lender.
(c) REGISTER. The Administrative Agent shall maintain a
copy of each Assignment and Acceptance Agreement delivered to and accepted by it
and a register for the
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recordation of the names and addresses of the Lenders and the Commitment of,
and principal amount of the Loans owing to, each Lender from time to time
(the "REGISTER"). The entries in the Register shall be conclusive and binding
for all purposes, absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note,
shall be effective only upon appropriate entries with respect thereto being
made in the Register (and each Note shall expressly so provide). Any
assignment or transfer of all or part of a Loan evidenced by a Note shall be
registered on the Register only upon surrender for registration of assignment
or transfer of the Note evidencing such Loan, accompanied by a duly executed
Assignment and Acceptance; thereupon one or more new Notes in the same
aggregate principal amount shall be issued to the designated Assignee, and
the old Notes shall be returned by the Administrative Agent to the Borrower
marked "canceled." The Register shall be available for inspection by the
Borrowers at any reasonable time and from time to time upon reasonable prior
notice.
(d) ACCEPTANCE. Upon its receipt of an Assignment and
Acceptance executed by the parties thereto, together with any Note subject to
such assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment Agreement has been completed and is in
substantially the form of EXHIBIT D, (i) accept such Assignment Agreement,
(ii) record the information contained therein in the Register and (iii) give
prompt notice thereof to the parties thereto.
(e) PARTICIPATIONS. Each Lender may, without notice to
or consent of Borrowers or the Administrative Agent, sell participations to
one or more Persons (each a "Participant") in all or a portion of its rights,
obligations or rights and obligations under this Agreement (including all or
a portion of its Commitment and its Loans); PROVIDED, HOWEVER, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the Participant shall be entitled to
the benefit of the right of set-off contained in Section 10.05, (iv) the
Borrowers and Administrative Agent shall continue to deal solely and directly
with such Lender in connection with such Lender's rights and obligations
under this Agreement, and (v) such Lender shall retain the sole right to
enforce the obligations of the Borrowers relating to their Loans and its
Notes and to approve any amendment, modification, or waiver of any provision
of this Agreement (other than amendments, modifications, or waivers
decreasing the amount of principal of or the rate at which interest is
payable on such Loans or Notes, extending any scheduled principal payment
date or date fixed for the payment of interest on such Loans or Notes,
extending its Commitment, releasing all or substantially all of the Pledged
Collateral or releasing the Borrowers or all or substantially all of the
Guarantors from its or their respective obligations under the Loan Documents).
(f) NONRESTRICTED ASSIGNMENTS.
(i) Notwithstanding any other provision set forth
in this Agreement, any Lender may at any time assign and pledge all or any
portion of its Loans and its Notes to any Federal Reserve Bank as collateral
security pursuant to the Regulation A and any Operating
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Circular issued by such Federal Reserve Bank. No such assignment shall
release the assigning Lender from its obligations hereunder.
(ii) Notwithstanding any other provision set forth
in this Agreement, any Lender that is a fund that invests in bank loans may
at anytime assign or pledge all or any portion of its rights under this
Agreement and other documents ancillary thereto to its trustee as security in
support of its obligations to its trustee; PROVIDED, HOWEVER, that any
transfer to any Person upon enforcement of such pledge or security interest
may only be made subject to the assignment provisions of this SECTION 10.04.
10.05 SET-OFF.
In addition to any rights and remedies of Administrative
Agent and Lenders or any assignee or participant of Lenders or any Affiliates
thereof (each, a "PROCEEDING PARTY") provided by law, upon the occurrence and
during the continuance of any Event of Default, each Proceeding Party is
authorized at any time and from time to time, without prior notice to
Borrowers, any such notice being waived by Borrowers to the fullest extent
permitted by law, to proceed directly, by right of set-off, banker's lien, or
otherwise, against any assets of the Borrower Parties which may be in the
hands of such Proceeding Party (including all general or special, time or
demand, provisional or other deposits and other indebtedness owing by such
Proceeding Party to or for the credit or the account of Borrowers) and apply
such assets against the Obligations, irrespective of whether such Proceeding
Party shall have made any demand therefor and although such Obligations may
be unmatured. Each Lender agrees promptly to notify Borrowers and
Administrative Agent after any such set-off and application made by such
Lender; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application.
10.06 SHARING OF PAYMENT.
Subject to the terms of the Intercreditor Agreement, each
Lender severally agrees that if it, through the exercise of any right of
setoff, banker's lien or counterclaim against Borrowers, or otherwise,
receives payment of the Obligations held by it that is ratably more than any
other Lender, through any means, receives in payment of the Obligations held
by that Lender, then, subject to applicable Laws: (a) Lender exercising the
right of setoff, banker's lien or counterclaim or otherwise receiving such
payment shall purchase, and shall be deemed to have simultaneously purchased,
from the other Lenders a participation in the Obligations held by the other
Lenders and shall pay to the other Lenders a purchase price in an amount so
that the share of the Obligations held by each Lender after the exercise of
the right of setoff, banker's lien or counterclaim or receipt of payment
shall be in the same proportion that existed prior to the exercise of the
right of setoff, banker's lien or counterclaim or receipt of payment; and (b)
such other adjustments and purchases of participations shall be made from
time to time as shall be equitable to ensure that all Lenders share any
payment obtained in respect of the Obligations ratably in accordance with
each Lender's share of the Obligations immediately prior to, and without
taking into account, the payment; PROVIDED that, if all or any portion of a
disproportionate payment obtained as a result of the exercise of the right of
setoff, banker's lien, counterclaim or otherwise is thereafter recovered from
the purchasing Lender by Borrowers or
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any Person claiming through or succeeding to the rights of Borrowers, the
purchase of a participation shall be rescinded and the purchase price thereof
shall be restored to the extent of the recovery, but without interest. Each
Lender that purchases a participation in the Obligations pursuant to this
Section shall from and after the purchase have the right to give all notices,
requests, demands, directions and other communications under this Agreement
with respect to the portion of the Obligations purchased to the same extent
as though the purchasing Lender were the original owner of the Obligations
purchased. Borrowers expressly consent to the foregoing arrangements and
agree that any Lender holding a participation in an Obligation so purchased
may exercise any and all rights of setoff, banker's lien or counterclaim with
respect to the participation as fully as if Lender were the original owner of
the Obligation purchased.
10.07 NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure by any Lender or Administrative Agent
to exercise, and no delay by any Lender or Administrative Agent in
exercising, any right, remedy, power or privilege hereunder, shall operate as
a waiver thereof; nor shall any single or partial exercise of any right,
remedy, power or privilege under any Loan Document preclude any other or
further exercise thereof or the exercise of any other right, remedy, power or
privilege.
(b) The rights, remedies, powers and privileges herein
or therein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by Law. Any decision by Administrative Agent
or any Lender not to require payment of any interest (including Default
Interest), fee, cost or other amount payable under any Loan Document or to
calculate any amount payable by a particular method on any occasion shall in
no way limit or be deemed a waiver of Administrative Agent's or such Lender's
right to require full payment thereof, or to calculate an amount payable by
another method that is not inconsistent with this Agreement, on any other or
subsequent occasion.
(c) The terms and conditions of Section 9 are inserted
for the sole benefit of Administrative Agent and Lenders; the same may be
waived in whole or in part, with or without terms or conditions, in respect
of any Extension of Credit without prejudicing Administrative Agent's or
Lenders' rights to assert them in whole or in part in respect of any other
Loan.
10.08 USURY.
Notwithstanding anything to the contrary contained in any
Loan Document, the interest and fees paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest
permitted by applicable Law (the "MAXIMUM RATE"). If Administrative Agent or
any Lender shall receive interest or a fee in an amount that exceeds the
Maximum Rate, the excessive interest or fee shall be applied to the principal
of the Outstanding Obligations or, if it exceeds the unpaid principal,
refunded to Borrowers. In determining whether the interest or a fee
contracted for, charged, or received by Administrative Agent or a Lender
exceeds the Maximum Rate, such Person may, to the extent permitted by
applicable Law, (a) characterize any payment that is not principal as an
expense, fee, or premium rather than interest, (b) exclude voluntary
prepayments and the effects thereof, and (c) amortize, prorate,
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allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.09 COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed signature
page of this Agreement by facsimile transmission shall be effective as
delivery of a manually executed counterpart hereof. A set of the copies of
this Agreement signed by all the parties shall be lodged with Borrowers and
the Administrative Agent.
10.10 INTEGRATION; CONFLICTS WITH OTHER LOAN DOCUMENTS.
This Agreement, together with the other Loan Documents and
any letter agreements referred to herein, comprises the complete and
integrated agreement of the parties on the subject matter hereof and
supersedes all prior agreements, written or oral, on the subject matter
hereof. There are no unwritten oral agreements between the parties hereto. In
the event of any conflict between the provisions of this Agreement and those
of any other Loan Document, the provisions of this Agreement shall control
and govern; PROVIDED that the inclusion of supplemental rights or remedies in
favor of Administrative Agent or Lenders in any other Loan Document shall not
be deemed a conflict with this Agreement. Each Loan Document was drafted with
the joint participation of the respective parties thereto and shall be
construed neither against nor in favor of any party, but rather in accordance
with the fair meaning thereof.
10.11 NATURE OF LENDERS' OBLIGATIONS.
The obligations of Lenders hereunder are several and not
joint or joint and several. Nothing contained in this Agreement or any other
Loan Document and no action taken by Administrative Agent or Lenders or any
of them pursuant hereto or thereto may, or may be deemed to, make Lenders a
partnership, an association, a joint venture or other entity, either among
themselves or with Borrowers or any Affiliate of Borrowers. Each Lender's
obligation to make the initial Loan is conditioned upon the performance by
all other Lenders of their obligations to make initial Loans. A default by
any Lender will not increase the Pro Rata Share attributable to any other
Lender.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in
any Loan Document, certificate or statement delivered pursuant hereto or
thereto or in connection herewith or therewith shall survive the execution
and delivery thereof but shall terminate on the later of (a) when the
Commitments are terminated and (b) when no Obligations remain outstanding
under any Loan Document. Such representations and warranties have been or
will be relied upon by Administrative Agent and each Lender, notwithstanding
any investigation made by Administrative Agent or any Lender or on their
behalf. PROVIDED, HOWEVER, notwithstanding anything in this Agreement or
implied by law to the contrary, the agreements of Borrowers set forth in
SECTION 3 and SUBSECTIONS 10.03, 10.05, 10.13, and 10.14 and the agreements
of Lenders
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set forth in SUBSECTIONS 9.03, 9.07, 10.06 and 11.01(f) shall survive the
payment of the other Obligations and the termination of this Agreement.
10.13 INDEMNITY BY BORROWERS.
Borrowers agree to indemnify, save and hold harmless
Administrative Agent-Related Persons and each Lender and their respective
Affiliates, directors, officers, agents, attorneys and employees, or any
holding company thereof (collectively the "INDEMNITEES") from and against:
(a) any and all claims, demands, actions or causes of action, including,
without limitation, any environmental claims, actions, demands or causes of
action (except a claim, demand, action, or cause of action for Taxes of
Lenders) if the claim, demand, action or cause of action arises out of or
relates to the execution, delivery, enforcement, performance or
administration of this Agreement, the other Loan Documents and any other such
documents, including, without limitation, any act or omission (or alleged act
or omission) of any Borrower Party, its Affiliates or any of their officers,
directors or stockholders relating to the Commitments, the use or
contemplated use of proceeds of any Loan, or the relationship of any Borrower
Party and Lenders under this Agreement, including, without limitation, the
granting of any pledge or security interest in the Pledged Collateral; (b)
any administrative or investigative proceeding by any Governmental Authority
arising out of or related to a claim, demand, action or cause of action
described in subsection (a) above; and (c) any and all liabilities, losses,
damages, penalties, judgments, disbursements, costs or expenses of any kind
whatsoever (including settlement costs or Attorney Costs) that any Indemnitee
suffers or incurs as a result of the assertion of any foregoing claim,
demand, action or cause of action thereto, including those liabilities caused
by an Indemnitee's own negligence (all the foregoing, collectively, the
"INDEMNIFIED LIABILITIES"); PROVIDED that no Indemnitee shall be entitled to
indemnification for any loss caused by its own gross negligence or willful
misconduct or for any loss asserted against it by another Indemnitee. No
Indemnitee shall be liable for any damages arising from the use by
unauthorized persons of Information or other materials sent through
electronic telecommunications or other information transmission systems that
are intercepted by such persons or for any special, indirect, consequential
or punitive damages in connection with the Loans. Without limiting the
foregoing, and to the extent permitted by applicable law, the Borrowers agree
not to assert and to cause their Subsidiaries not to assert, and hereby
waives and agrees to cause their Subsidiaries so to waive, all rights for
contribution or any other rights of recovery with respect to all claims,
demands, penalties, fines, liabilities, settlements, damages, costs and
expenses of whatever kind or nature, under or related to Environmental Laws,
that any of them might have by statute or otherwise against any Indemnitee.
10.14 NONLIABILITY OF LENDERS.
Each Borrower acknowledges and agrees that:
(a) It has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) Any inspections of any Property of Borrowers made
by or through Administrative Agent or Lenders are for purposes of
administration of the Loan Documents only,
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and Borrowers are not entitled to rely upon the same (whether or not such
inspections are at the expense of Borrowers);
(c) By accepting or approving anything required to be
observed, performed, fulfilled or given to Administrative Agent or Lenders
pursuant to the Loan Documents, neither Administrative Agent nor Lenders
shall be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not
constitute a warranty or representation to anyone with respect thereto by
Administrative Agent or Lenders;
(d) The relationship between Borrowers and
Administrative Agent and Lenders is, and shall at all times remain, solely
that of borrowers and lenders; neither Administrative Agent nor Lenders shall
under any circumstance be construed to be partners or joint venturers of
Borrowers or their Affiliates; neither Administrative Agent nor Lenders shall
under any circumstance be deemed to be in a relationship of confidence or
trust or a fiduciary relationship with Borrowers or their Affiliates, or to
owe any fiduciary duty to Borrowers or their Affiliates; neither
Administrative Agent nor Lenders undertake or assume any responsibility or
duty to Borrowers or their Affiliates to select, review, inspect, supervise,
pass judgment upon or inform Borrowers or their Affiliates of any matter in
connection with their Property or the operations of Borrowers or their
Affiliates; Borrowers and their Affiliates shall rely entirely upon their own
judgment with respect to such matters; and any review, inspection,
supervision, exercise of judgment or supply of information undertaken or
assumed by Administrative Agent or Lenders in connection with such matters is
solely for the protection of Administrative Agent and Lenders and none of
Borrowers nor any other Person is entitled to rely thereon; and
(e) Administrative Agent and Lenders shall not be
responsible or liable to any Person for any loss, damage, liability or claim
of any kind relating to injury or death to Persons or damage to Property
caused by the actions, inaction or negligence of Borrowers and/or their
Affiliates and Borrowers hereby indemnify and holds Administrative Agent and
Lenders harmless from any such loss, damage, liability or claim.
10.15 NO THIRD PARTIES BENEFITED.
This Agreement is made for the purpose of defining and
setting forth certain obligations, rights and duties of Borrowers,
Administrative Agent and Lenders in connection with the Loans, and is made
for the sole benefit of Borrowers, Administrative Agent and Lenders, and
Administrative Agent's and Lenders' successors and assigns. Except as
provided in SECTIONS 10.04 and 10.13, no other Person shall have any rights
of any nature hereunder or by reason hereof.
10.16 SEVERABILITY.
Any provision of the Loan Documents that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be
ineffective to the extent of such prohibition or unenforceability without
invalidating the remaining provisions hereof, and any such prohibition
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or unenforceability in any jurisdiction shall not invalidate or render
unenforceable such provision in any other jurisdiction.
10.17 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except
that Information may be disclosed (a) to its and its Affiliates' directors,
officers, employees and agents, including accountants, legal counsel and
other advisors (it being understood that the Persons to whom such disclosure
is made will be informed of the confidential nature of such Information and
instructed to keep such Information confidential); (b) to the extent
requested by any regulatory authority; (c) to the extent required by
applicable laws or regulations or by any subpoena or similar legal process;
(d) to any other party to this Agreement; (e) in connection with the exercise
of any remedies hereunder or any suit, action or proceeding relating to this
Agreement or the enforcement of rights hereunder; (f) subject to an agreement
containing provisions substantially the same as those of this Section, to (i)
any Eligible Assignee of or Participant in, or any prospective Eligible
Assignee of or Participant in, any of its rights or obligations under this
Agreement or (ii) any direct or indirect contractual counterparty or
prospective counterparty (or such contractual counterparty's or prospective
counterparty's professional advisor) to any credit derivative transaction
relating to obligations of the Borrowers; (g) with the consent of the
Borrowers; (h) to the extent such Information (i) becomes publicly available
other than as a result of a breach of this Section or (ii) becomes available
to the Administrative Agent or any Lender on a nonconfidential basis from a
source other than the Borrowers; or (i) to the National Association of
Insurance Commissioners or any other similar organization or any nationally
recognized rating agency that requires access to information about a Lender's
or its Affiliates' investment portfolio in connection with ratings issued
with respect to such Lender or its Affiliates. In addition, the
Administrative Agent and the Lenders may disclose the existence of this
Agreement and information about this Agreement to market data collectors,
similar service providers to the lending industry, and service providers to
the Administrative Agent and the Lenders in connection with the
administration and management of this Agreement, the other Loan Documents,
the Commitments, and the Credit Extensions. For the purposes of this Section,
"Information" means all information received from the Borrowers relating to
the Borrowers or their business, other than any such information that is
available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrowers; provided that, in the case of
information received from the Borrowers after the date hereof, such
information is clearly identified in writing at the time of delivery as
confidential. Any Person required to maintain the confidentiality of
Information as provided in this Section shall be considered to have complied
with its obligation to do so if such Person has exercised the same degree of
care to maintain the confidentiality of such Information as such Person would
accord to its own confidential information.
Notwithstanding anything herein to the contrary, the
information subject to this Section 10.17 shall not include, and the
Administrative Agent and each Lender may disclose without limitation of any
kind as required by the Internal Revenue Service, the Code or applicable
treasury regulations, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury Regulation
Section 1.6011-4) of the
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transactions contemplated hereby and all materials of any kind (including
opinions or other tax analyses) that are provided to the Administrative Agent
or such Lender relating to such tax treatment and tax structure; PROVIDED
that with respect to any document or similar item that in either case
contains information concerning the tax treatment or tax structure of the
transactions as well as other information, this sentence shall only apply to
such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans and transactions contemplated hereby.
10.18 HEADINGS.
Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.19 TIME OF THE ESSENCE.
Time is of the essence of the Loan Documents.
10.20 [INTENTIONALLY OMITTED]
10.21 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, the LAW OF THE GOVERNING STATE applicable to agreements made
and to be performed entirely within such State; PROVIDED THAT ADMINISTRATIVE
Agent AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
10.22 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY
RIGHT TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION
ARISING UNDER ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR
INCIDENTAL TO THE DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH RESPECT TO
ANY LOAN DOCUMENT, OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER
NOW EXISTING OR HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR
OTHERWISE; AND EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM,
DEMAND, ACTION OR CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A
JURY, AND THAT ANY PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART
OR A COPY OF THIS SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT
OF THE SIGNATORIES HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
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10.23 NON-EXCLUSIVE JURISDICTION.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS
AGREEMENT OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE
STATE OF THE GOVERNING STATE OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT
OF THE GOVERNING STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH
BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE
COURTS. EACH BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY
WAIVES ANY OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED
ON THE GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO
THE BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF
ANY LOAN DOCUMENT OR OTHER DOCUMENT RELATED HERETO. EACH BORROWER PARTY,
ADMINISTRATIVE AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS,
COMPLAINT OR OTHER PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY
THE LAW OF THE GOVERNING STATE. EACH BORROWER HEREBY IRREVOCABLY AND
UNCONDITIONALLY WAIVES, TO THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY
RIGHT IT MAY HAVE TO CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING
REFERRED TO IN THIS SECTION ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL
DAMAGES.
10.24 NOTICE OF CLAIMS; CLAIMS BAR.
BORROWERS HEREBY AGREE THAT THEY SHALL GIVE PROMPT WRITTEN
NOTICE TO ADMINISTRATIVE AGENT OF ANY CLAIM OR CAUSE OF ACTION THEY BELIEVE
THEY HAVE, OR MAY SEEK TO ASSERT OR ALLEGE AGAINST THE AGENT OR ANY LENDER,
WHETHER SUCH CLAIM IS BASED IN LAW OR EQUITY, ARISING UNDER OR RELATED TO
THIS AGREEMENT OR ANY OF THE OTHER LOAN DOCUMENTS, OR TO THE LOANS, OR ANY
ACT OR OMISSION TO ACT BY ADMINISTRATIVE AGENT OR ANY LENDER WITH RESPECT
HERETO OR THERETO, AND THAT IF BORROWERS SHALL FAIL TO GIVE SUCH PROMPT
NOTICE TO ADMINISTRATIVE AGENT WITH REGARD TO ANY SUCH CLAIM OR CAUSE OF
ACTION, BORROWERS SHALL BE DEEMED TO HAVE WAIVED, AND SHALL BE FOREVER BARRED
FROM BRINGING OR ASSERTING, SUCH CLAIM OR CAUSE OF ACTION IN ANY ARBITRATION
OR ANY SUIT, ACTION OR PROCEEDING IN ANY COURT OR BEFORE ANY GOVERNMENTAL
AGENCY.
10.25 BORROWERS' OBLIGATIONS.
Each of the REIT, AIMCO, AIMCO/Bethesda, and NHP Management
represents, warrants, covenants and agrees as follows:
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(a) Defenses. The obligations pursuant to the Loan
Documents shall not be affected by any of the following: (i) the bankruptcy,
disability, dissolution, incompetence, insolvency, liquidation, or
reorganization of any Borrower; (ii) the discharge, modification of the terms
of, reduction in the amount of, or stay of enforcement of any or all liens and
encumbrances or any or all obligations pursuant to the Loan Documents in any
bankruptcy, insolvency, reorganization, or other legal proceeding or by law,
ordinance, regulation, or rule (federal, state, or local).
(b) Rights of Administrative Agent and Collateral Agent.
Administrative Agent or Collateral Agent, as applicable, in each case on behalf
of the Lenders, may do the following acts or omissions from time to time without
notice to or consent of any Borrower and without receiving payment or other
value, nor shall the following acts or omissions affect, delay or impair any of
the obligations pursuant to the Loan Documents or any or all liens and
encumbrances: (i) Collateral Agent may obtain collateral or additional
collateral; (ii) Collateral Agent may substitute for any or all collateral
regardless of whether the same type or greater or lesser value; (iii) Collateral
Agent may release any or all collateral; (iv) Collateral Agent may compromise,
delay enforcement, fail to enforce, release, settle or waive any rights or
remedies of Administrative Agent as to any or all collateral; (v) Collateral
Agent may sell or otherwise dispose of any collateral in such manner or order as
Collateral Agent determines in accordance with the Collateral Documents and the
Intercreditor Agreement; (vi) Collateral Agent may fail to perfect, fail to
protect the priority of, and fail to ensure any or all liens or encumbrances;
(vii) Collateral Agent may fail to inspect, insure, maintain, preserve or
protect any or all collateral; (viii) Administrative Agent may obtain additional
obligors for any or all obligations pursuant to the Loan Documents; (ix)
Administrative Agent or Collateral Agent may increase or decrease any or all
obligations or otherwise change terms of any or all obligations in accordance
with the Loan Documents; (x) Administrative Agent or Collateral Agent may
release any Borrower; (xi) Administrative Agent or Collateral Agent may
compromise, delay enforcement, fail to enforce, release, settle or waive any
obligations of any Borrower with the agreement of that Borrower; (xii)
Administrative Agent may make advances, or grant other financial accommodations
to any Borrower; (xiii) Administrative Agent or Collateral Agent may fail to
file or pursue a claim in any bankruptcy, insolvency, reorganization or other
proceeding as to any or all liens and encumbrances or any or all obligations;
(xiv) Administrative Agent or Collateral Agent may amend, modify, extend, renew,
restate, supplement or terminate in whole or in part the obligation of any
Borrower with the agreement of that Borrower; (xv) Administrative Agent or
Collateral Agent may take or fail to take any other action with respect to any
Loan Document or any Borrower; and (xvi) Administrative Agent or Collateral
Agent may do any other acts or make any other omissions that result in the
extinguishment of the obligation of any Borrower.
(c) Suretyship Waivers. Each Borrower waives any and all
rights and benefits under California Civil Code Sections 2787-2855, inclusive
and any other statutes or rules now or hereafter in effect and any other
statutes or rules now or hereafter in effect that purport to confer specific
rights upon or make specific defenses or procedures available to each Borrower.
(d) Information. Each Borrower represents and warrants to
the Administrative Agent and Lenders that such Borrower is currently informed of
the financial condition of Borrowers and of all other circumstances which a
diligent inquiry would reveal and
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which bear upon the risk of nonpayment of the Obligations. Each Borrower
further represents and warrants to the Administrative Agent and Lenders that
such Borrower has read and understands the terms and conditions of the Loan
Documents. Each Borrower hereby covenants that such Borrower will continue to
keep informed of Borrowers' financial condition, the financial condition of
other guarantors, if any, and of all other circumstances which bear upon the
risk of nonpayment or nonperformance of the Obligations. Notwithstanding
anything herein which may be construed to the contrary, Administrative Agent
shall have no obligation to provide to any Borrower any information
concerning the performance of any other Borrower, the obligations pursuant to
the Loan Documents, or the ability of any other Borrower to perform the
obligations pursuant to the Loan Documents or any other matter, regardless of
what information Administrative Agent may from time to time have.
(e) Waivers. Each Borrower waives, until payment in full
of the Obligations, any and all present and future claims, remedies and rights
against any other Borrower, any collateral and any other property, interest in
property or rights to property of any other Borrower (A) arising from any
performance hereunder, (B) arising from any application of any collateral, or
any other property, interest in property or rights to property of any Borrower,
or (C) otherwise arising in respect of the Loan Documents, regardless of whether
such claims, remedies and rights arise under any present or future agreement,
document or instrument or are provided by any law, ordinance, regulation or rule
(federal, state or local) (including, without limitation, any and all rights of
contribution, exoneration, indemnity, reimbursement, and subrogation and any and
all rights to participate in the rights and remedies of Lenders against any
Borrower).
(f) Joint and Several Liability of Borrowers.
(i) Each of Borrowers is accepting joint and several
liability hereunder and under the other Loan Documents in consideration of the
financial accommodations to be provided by the Administrative Agent and the
Lenders under this Agreement, for the mutual benefit, directly and indirectly,
of each of Borrowers and in consideration of the undertakings of the other
Borrowers to accept joint and several liability for the Obligations.
(ii) Each of Borrowers, jointly and severally, hereby
irrevocably and unconditionally accepts, not merely as a surety but also as a
co-debtor, joint and several liability with the other Borrowers, with respect to
the payment and performance of all of the Obligations (including, without
limitation, any Obligations arising under this Section 10.25), it being the
intention of the parties hereto that all the Obligations shall be the joint and
several obligations of each Borrower without preferences or distinction among
them.
(iii) If and to the extent that any Borrower shall
fail to make any payment with respect to any of the Obligations as and when due
or to perform any of the Obligations in accordance with the terms thereof, then
in each such event the other Borrower will make such payment with respect to, or
perform, such Obligation.
(iv) The Obligations of each Borrower under the
provisions of this Section 10.25 constitute the absolute and unconditional, full
recourse Obligations of each
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Borrower enforceable against each such Borrower to the full extent of its
properties and assets, irrespective of the validity, regularity or
enforceability of this Agreement or any other circumstances whatsoever.
(v) Except as otherwise expressly provided in this
Agreement, each Borrower hereby waives notice of acceptance of its joint and
several liability, notice of any Loans issued under or pursuant to this
Agreement, notice of the occurrence of any Default, Event of Default, or of any
demand for any payment under this Agreement, notice of any action at any time
taken or omitted by the Administrative Agent or Lenders under or in respect of
any of the Obligations, any requirement of diligence or to mitigate damages and,
generally, to the extent permitted by applicable law, all demands, notices and
other formalities of every kind in connection with this Agreement (except as
otherwise provided in this Agreement). Each Borrower hereby assents to, and
waives notice of, any extension or postponement of the time for the payment of
any of the Obligations, the acceptance of any payment of any of the Obligations,
the acceptance of any partial payment thereon, any waiver, consent or other
action or acquiescence by the Administrative Agent or Lenders at any time or
times in respect of any default by any Borrower in the performance or
satisfaction of any term, covenant, condition or provision of this Agreement,
any and all other indulgences whatsoever by the Administrative Agent or Lenders
in respect of any of the Obligations, and the taking, addition, substitution or
release, in whole or in part, at any time or times, of any security for any of
the Obligations or the addition, substitution or release, in whole or in part,
of any Borrower. Without limiting the generality of the foregoing, each Borrower
assents to any other action or delay in acting or failure to act on the part of
the Administrative Agent or Lender with respect to the failure by any Borrower
to comply with any of its respective Obligations, including, without limitation,
any failure strictly or diligently to assert any right or to pursue any remedy
or to comply fully with applicable laws or regulations thereunder, which might,
but for the provisions of this Section 10.25 afford grounds for terminating,
discharging or relieving any Borrower, in whole or in part, from any of its
Obligations under this Section 10.25, it being the intention of each Borrower
that, so long as any of the Obligations hereunder remain unsatisfied, the
Obligations of such Borrower under this Section 10.25 shall not be discharged
except by performance and then only to the extent of such performance. The
Obligations of each Borrower under this Section 10.25 shall not be diminished or
rendered unenforceable by any winding up, reorganization, arrangement,
liquidation, reconstruction or similar proceeding with respect to any Borrower
or the Administrative Agent or Lender. The joint and several liability of each
Borrower hereunder shall continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change whatsoever in the name,
constitution or place of formation of any of the Borrowers or Administrative
Agent or Lenders.
(vi) The provisions of this Section 10.25 are made
for the benefit of the Administrative Agent, the Lenders and their respective
successors and assigns, and may be enforced by it or them from time to time
against any or all Borrowers as often as occasion therefor may arise and without
requirement on the part of Administrative Agent, or any Lender, successor or
assign first to marshal any of its or their claims or to exercise any of its or
their rights against any Borrower or to exhaust any remedies available to it or
them against any Borrower or to resort to any other source or means of obtaining
payment of any of the Obligations hereunder or to elect any other remedy. The
provisions of this Section 10.25 shall
102
remain in effect until all of the Obligations shall have been paid in full or
otherwise fully satisfied. If at any time, any payment, or any part thereof,
made in respect of any of the Obligations, is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender upon the
insolvency, bankruptcy or reorganization of any Borrower, or otherwise, the
provisions of this Section 10.25 will forthwith be reinstated in effect, as
though such payment had not been made.
(vii) Each Borrower hereby agrees that it will not
enforce any of its rights of contribution or subrogation against any other
Borrower with respect to any liability incurred by it hereunder or under any of
the other Loan Documents, any payments made by it to the Administrative Agent or
Lenders with respect to any of the Obligations or any collateral security
therefor until such time as all of the Obligations have been paid in full in
cash. Any claim which any Borrower may have against the other Borrowers with
respect to any payments to the Administrative Agent or any Lender hereunder or
under any other Loan Documents are hereby expressly made subordinate and junior
in right of payment, including without limitation, as to any increases in the
Obligations arising hereunder or thereunder, to the prior payment in full in
cash of the Obligations and, in the event of any insolvency, bankruptcy,
receivership, liquidation, reorganization or other similar proceeding under the
laws of any jurisdiction relating to any Borrower, its debts or its assets,
whether voluntary or involuntary, all such Obligations shall be paid in full in
cash before any payment or distribution of any character, whether in cash,
securities or other property, shall be made to the other Borrowers therefor.
10.26 LENDER COVENANT.
Each Lender hereby covenants and agrees that it shall notify
Administrative Agent, in writing, immediately upon becoming a Casden Lender
and/or a Revolver Lender and upon any Affiliate becoming a Casden Lender and/or
a Revolver Lender.
10.27 RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.
(a) Notwithstanding anything to the contrary contained
herein or in any other Loan Document, upon request of Borrowers in connection
with any Disposition of Property permitted by the Loan Documents, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender) cause the Collateral Agent to take such actions as shall be required to
release its security interest in any Pledged Collateral being Disposed of in
such Disposition, and to release any guarantee obligations under any Loan
Document of any Person being Disposed of in such Disposition, to the extent
necessary to permit consummation of such Disposition in accordance with the Loan
Documents.
(b) Notwithstanding anything to the contrary contained
herein or any other Loan Document, when all Obligations have been paid in full
and all Commitments have terminated or expired, upon request of Borrowers, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender) cause the Collateral Agent to take such actions as shall be required to
release its security interest in all Pledged Collateral (on behalf of the Term
Lenders only), and to release all guarantee obligations under any Loan Document
(on behalf of the Term Lenders only). Any such release of guarantee obligations
shall be deemed subject to the
103
provision that such guarantee obligations shall be reinstated if after such
release any portion of any payment in respect of the Obligations guaranteed
thereby shall be rescinded or must otherwise be restored or returned upon the
insolvency, bankruptcy, dissolution, liquidation or reorganization of
Borrowers or any Guarantor, or upon or as a result of the appointment of a
receiver, intervenor or conservator of, or trustee or similar officer for,
Borrowers or any Guarantor or any substantial part of its property, or
otherwise, all as though such payment had not been made.
SECTION 11.
COLLATERAL AGENT
11.01 COLLATERAL AGENT.
(a) Each Lender hereby irrevocably appoints, designates
and authorizes Bank of America as Collateral Agent under the Intercreditor
Agreement and the Collateral Documents with such powers as are specifically
granted to the Collateral Agent by the terms thereof, together with such other
powers as are reasonably incidental thereto, and expressly authorizes the
Collateral Agent as its agent to execute, deliver and perform the Collateral
Documents and the Intercreditor Agreement and to act as Collateral Agent under
the Collateral Documents (subject to and in accordance with the Intercreditor
Agreement), and the Intercreditor Agreement and Bank of America, in its
individual capacity, accepts such appointment as Collateral Agent thereunder by
executing the Borrowers Pledge Agreement, which appointment is coupled with an
interest. Each Lender hereby agrees to be bound by the provisions of the
Intercreditor Agreement applicable to a "Lender" therein.
(b) Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or the Collateral Documents, Collateral
Agent shall not have any duties or responsibilities, except those expressly set
forth in this Section 11, the Collateral Documents and the Intercreditor
Agreement, nor shall Collateral Agent have or be deemed to have any fiduciary
relationship with any Lender, and no implied covenants, functions,
responsibilities, duties, obligations or liabilities shall be read into this
Agreement or otherwise exist against Collateral Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in the
Collateral Documents with reference to Collateral Agent is not intended to
connote any fiduciary or other implied (or express) obligations arising under
agency doctrine of any applicable law. Instead, such term is used merely as a
matter of market custom, and is intended to create or reflect only an
administrative relationship between independent contracting parties.
(c) Collateral Agent may execute any of its duties under
the Collateral Documents and the Intercreditor Agreement by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Collateral Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
(d) None of Collateral Agent-Related Persons (defined
below) shall (i) be liable for any action taken or omitted to be taken by any of
them under or in connection with the Collateral Documents or the Intercreditor
Agreement or the transactions contemplated thereby
104
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of Lenders for any recital, statement,
representation or warranty made by Borrowers or any Subsidiary or Affiliate
of Borrowers, or any officer thereof, contained in this Agreement, or in any
certificate, report, statement or other document referred to or provided for
in, or received by Collateral Agent under or in connection with, this
Agreement, or the validity, effectiveness, genuineness, enforceability or
sufficiency of this Agreement, or for any failure of Borrowers or any other
party to any Loan Document to perform their obligations hereunder or
thereunder. No Collateral Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance
of any of the agreements contained in, or conditions of, this Agreement, or
to inspect the Properties, books or records of any Borrower or any of
Borrowers' Subsidiaries or Affiliates. "Collateral Agent-Related Persons"
means Collateral Agent (including any successor agent), together with its
Affiliates (including, in the case of Collateral Agent, Banc of America
Securities LLC), and the officers, directors, employees, agents and
attorneys-in-fact of such Persons and Affiliates.
(e) Collateral Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to
Borrowers), independent accountants and other experts selected by Collateral
Agent. Collateral Agent shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first receive such advice or
concurrence of the Requisite Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, under the
Collateral Documents and the Intercreditor Agreement in accordance with a
request or consent of the Requisite Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all of Lenders.
(f) Whether or not the transactions contemplated hereby
are consummated, Lenders shall indemnify upon demand each Collateral
Agent-Related Person (to the extent not reimbursed by or on behalf of Pledgors
(as defined in the Borrowers Pledge Agreement) and without limiting the
obligation of Pledgors to do so), pro rata, and hold harmless each Collateral
Agent-Related Person from and against any and all Indemnified Liabilities
incurred by it; PROVIDED, HOWEVER, that no Lender shall be liable for the
payment to any Collateral Agent-Related Person of any portion of such
Indemnified Liabilities resulting from such Person's gross negligence or willful
misconduct; PROVIDED, HOWEVER, that no action taken in accordance with the
provisions of the Intercreditor Agreement shall be deemed to constitute gross
negligence or willful misconduct for purposes of this Section. Without
limitation of the foregoing, each Lender shall reimburse Collateral Agent upon
demand for its ratable share of any costs or out-of-pocket expenses (including
Attorney Costs) incurred by Collateral Agent after the Closing Date in
connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, the Collateral Documents or the Intercreditor Agreement,
or any document contemplated by or referred to therein, to the extent that
Collateral
105
Agent is not reimbursed for such expenses by or on behalf of Borrower
Parties. The undertaking in this subsection shall survive the payment of all
Obligations hereunder and the resignation or replacement of Collateral Agent.
(g) Collateral Agent may, and at the request of 66-2/3%
of the Benefited Parties (as defined in the Intercreditor Agreement) shall,
resign as Collateral Agent upon thirty (30) days' notice to Lenders. If
Collateral Agent resigns under the Collateral Documents and Intercreditor
Agreement, the Majority Benefited Parties (as defined in the Intercreditor
Agreement) shall appoint from among the Casden Lenders, Lenders or Revolver
Lenders, a successor collateral agent, and, so long as no Default or Event of
Default has occurred and is continuing, such successor collateral agent shall
require the approval of Borrowers (which approval shall not be unreasonably
withheld, conditioned or delayed); PROVIDED, THAT, if no successor collateral
agent is appointed prior to the effective date of the resignation of Collateral
Agent, Collateral Agent may appoint, after consulting with such Lenders and
Borrowers, a successor collateral agent from among such Lenders. Upon the
acceptance of its appointment as successor collateral agent under the Collateral
Documents and the Intercreditor Agreement, such successor collateral agent shall
succeed to all the rights, powers and duties of the retiring Collateral Agent
and the term "Collateral Agent" shall mean such successor collateral agent and
the retiring Collateral Agent's appointment, powers and duties as Collateral
Agent under the Collateral Documents and Intercreditor Agreement shall be
terminated. After any retiring Collateral Agent's resignation under the
Collateral Documents and the Intercreditor Agreement as the collateral agent,
the provisions of this subsection shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Collateral Agent under the
Collateral Documents and the Intercreditor Agreement. If no successor collateral
agent has accepted appointment as Collateral Agent by the date which is thirty
(30) days following a retiring Collateral Agent's notice of resignation, the
retiring Collateral Agent's resignation shall nevertheless thereupon become
effective and Majority Benefited Parties shall perform all of the duties of
Collateral Agent hereunder until such time, if any, as the Majority Benefited
Parties appoint a successor collateral agent as provided for above.
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SIGNATURE PAGE TO
TERM LOAN CREDIT AGREEMENT
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be duly executed and delivered as of the day and year first written
above.
BORROWERS: APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ XXXXX X. XXXXXXXXX
----------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By: /s/ XXXXX X. XXXXXXXXX
----------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/BETHESDA HOLDINGS INC.,
a Delaware corporation
By: /s/ XXXXX X. XXXXXXXXX
----------------------------
Xxxxx X. Xxxxxxxxx
President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /s/ XXXXXX X. XXXXXX
----------------------------
Xxxxxx X. Xxxxxx
President
S-1
BANK OF AMERICA
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-2
BANK OF AMERICA, N.A.,
as a Lender
By: /s/ XXXXX X. XXXXXX
----------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-3
FLEET NATIONAL BANK,
as a Lender
By: /s/ XXXXXXXX XXXXX
----------------------------
Name: Xxxxxxxx Xxxxx
Title: Director
S-4
KZH STERLING LLC,
as a Lender
By: /s/ XXXXXX XXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-5
KZH CYPRESS TREE-1 LLC,
as a Lender
By: /s/ XXXXXX XXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-6
KZH ING-2 LLC,
as a Lender
By: /s/ XXXXXX XXXXXXX
----------------------------
Name: Xxxxxx Xxxxxxx
Title: Authorized Agent
S-7
