1
EXHIBIT (d)
EXECUTION COPY
--------------------------------------------------------------
INTERIM CREDIT AGREEMENT
among
AIMCO PROPERTIES, L.P.,
AIMCO/BETHESDA HOLDINGS, INC.,
and
NHP MANAGEMENT COMPANY,
as Borrower,
BANK OF AMERICA, N.A.,
as Administrative Agent,
XXXXXX COMMERCIAL PAPER INC.
as Syndication Agent
FLEET NATIONAL BANK,
as Documentation Agent
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
Dated as of September 20, 2000
and
BANC OF AMERICA SECURITIES LLC AND XXXXXX BROTHERS INC.
as
Joint Lead Arrangers and Joint Book Managers
--------------------------------------------------------------
2
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS......................................................8
1.01 Defined Terms.........................................................................8
1.02 Use of Certain Terms.................................................................40
1.03 Accounting Terms.....................................................................40
1.04 Rounding.............................................................................40
1.05 Exhibits and Schedules...............................................................40
1.06 References to Agreements, Exhibits and Laws..........................................41
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT.............................................41
2.01 Committed Loans......................................................................41
2.02 Borrowings, Conversions and Continuations of Committed Loans.........................42
2.03 Prepayments; Mandatory Amortization; Additional Amortization.........................43
2.04 Reduction or Termination of Commitments..............................................44
2.05 Principal and Interest; Default Rate.................................................44
2.06 Fees.................................................................................45
2.07 Computation of Interest and Fees.....................................................45
2.08 Making Payments......................................................................45
2.09 Funding Sources......................................................................46
2.10 Collateral...........................................................................47
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY...............................................47
3.01 Taxes................................................................................47
3.02 Illegality...........................................................................49
3.03 Inability to Determine Rates.........................................................49
3.04 Increased Cost and Reduced Return; Capital Adequacy..................................50
3.05 Breakfunding Costs...................................................................50
3.06 Matters Applicable to all Requests for Compensation..................................51
3.07 Survival.............................................................................51
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT.........................................51
4.01 Conditions of Initial Extension of Credit............................................51
2
3
4.02 Conditions to all Extensions of Credit...............................................54
SECTION 5. REPRESENTATIONS AND WARRANTIES.......................................................55
5.01 Existence and Qualification; Power...................................................55
5.02 Power; Authorization; Enforceable Obligations........................................55
5.03 No Legal Bar.........................................................................56
5.04 Financial Statements; No Material Adverse Effect.....................................56
5.05 Litigation...........................................................................57
5.06 No Default...........................................................................57
5.07 Ownership of Property; Liens.........................................................57
5.08 Taxes................................................................................57
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company
Act; REIT and Tax Status; Stock Exchange Listing.....................................58
5.10 ERISA Compliance.....................................................................58
5.11 Intangible Assets....................................................................60
5.12 Compliance With Laws.................................................................60
5.13 Environmental Compliance.............................................................60
5.14 Insurance............................................................................61
5.15 Omitted..............................................................................61
5.16 Subsidiaries; Interests in Other Entities; Changes in Organizational Structure.......61
5.17 Matters Relating to Pledged Collateral...............................................61
5.18 Disclosure...........................................................................63
SECTION 6. AFFIRMATIVE COVENANTS................................................................63
6.01 Financial Statements.................................................................63
6.02 Certificates, Notices and Other Information..........................................64
6.03 Payment Obligations..................................................................67
6.04 Preservation of Existence............................................................67
6.05 Maintenance of Properties............................................................67
6.06 Maintenance of Insurance.............................................................67
6.07 Compliance With Laws.................................................................68
3
4
6.08 Inspection Rights....................................................................68
6.09 Keeping of Records and Books of Account..............................................68
6.10 Compliance with ERISA................................................................68
6.11 Compliance With Agreements...........................................................69
6.12 Use of Proceeds......................................................................69
6.13 Communication with Accountants.......................................................69
6.14 Maintenance of REIT Status; Stock Exchange Listing...................................69
6.15 Solvency.............................................................................69
6.16 Further Assurances...................................................................69
6.17 Unconsolidated Partnership Distributions.............................................70
SECTION 7. NEGATIVE COVENANTS...................................................................70
7.01 Indebtedness.........................................................................70
7.02 Liens and Negative Pledges...........................................................72
7.03 Fundamental Changes..................................................................73
7.04 Dispositions.........................................................................75
7.05 Investments..........................................................................76
7.06 Lease Obligations....................................................................76
7.07 Restricted Payments..................................................................77
7.08 ERISA................................................................................77
7.09 Change in Nature of Business.........................................................78
7.10 Transactions with Affiliates.........................................................78
7.11 Use of Proceeds......................................................................78
7.12 Transfers of Non-Owned Interests in the Management Entities..........................78
7.13 Limitations on Upstreaming...........................................................79
7.14 Financial Covenants..................................................................79
7.15 Change in Auditors...................................................................80
7.16 Special Covenants Relating to the REIT...............................................80
7.17 Taxation of Borrower.................................................................81
SECTION 8. EVENTS OF DEFAULT AND REMEDIES.......................................................81
8.01 Events of Default....................................................................81
4
5
8.02 Remedies Upon Event of Default.......................................................85
SECTION 9. ADMINISTRATIVE AGENT.................................................................87
9.01 Appointment and Authorization of Administrative Agent................................87
9.02 Delegation of Duties.................................................................87
9.03 Liability of Administrative Agent....................................................87
9.04 Reliance by Administrative Agent.....................................................88
9.05 Notice of Default....................................................................88
9.06 Credit Decision; Disclosure of Information by Administrative Agent...................88
9.07 Indemnification of Administrative Agent..............................................89
9.08 Administrative Agent in Individual Capacity..........................................90
9.09 Successor Administrative Agent.......................................................90
SECTION 10. MISCELLANEOUS........................................................................90
10.01 Amendments; Consents.................................................................90
10.02 Transmission and Effectiveness of Notices and Signatures.............................92
10.03 Attorney Costs, Expenses and Taxes...................................................92
10.04 Binding Effect; Assignment...........................................................93
10.05 Set-Off..............................................................................95
10.06 Sharing of Payment...................................................................95
10.07 No Waiver; Cumulative Remedies.......................................................96
10.08 Usury................................................................................96
10.09 Counterparts.........................................................................96
10.10 Integration..........................................................................97
10.11 Nature of Lenders' Obligations.......................................................97
10.12 Survival of Representations and Warranties...........................................97
10.13 Indemnity by Borrower................................................................97
10.14 Nonliability of Lenders..............................................................98
10.15 No Third Parties Benefited...........................................................99
10.16 Severability.........................................................................99
10.17 Headings.............................................................................99
5
6
10.18 Time of the Essence..................................................................99
10.19 Governing Law........................................................................99
10.20 Waiver of Right to Trial by Jury.....................................................99
10.21 Exclusive Jurisdiction..............................................................100
10.22 Notice of Claims; Claims Bar........................................................100
10.23 Co-Borrower Obligations.............................................................101
6
7
EXHIBITS
FORM OF
A Request for Extension of Credit
B Compliance Certificate
C Committed Loan Note
D Notice of Assignment and Acceptance
E [Intentionally omitted]
F Opinion of Counsel
G Borrower Pledge Agreement
H-1-1 REIT Guaranty Document (REIT and Preferred Stock Subsidiaries-Oxford Guarantors))
H-1-2 REIT Guaranty Document (REIT and Preferred Stock Subsidiaries-Non-Oxford Guarantors)
H-2-1 REIT Guaranty Document (Non-Preferred Stock Subsidiaries-Oxford Guarantors)
H-2-2 REIT Guaranty Document (Non-Preferred Stock Subsidiaries-Non-Oxford Guarantors)
I Intra-Company Subordination Agreement
J Intercreditor Agreement
SCHEDULES
1.01A GP Loans
1.01B Guarantors
1.01C Management Entities
1.01D Construction/Renovation Properties
1.01E Collateral
4.01(d) HUD Escrowed Oxford Assets
4.01(f) Oxford Pledged Collateral Liens
5.03-A Transfer Restrictions in Organization Documents
5.03-B Transfer Restrictions in Contractual Obligations
5.05 Litigation
5.08 Taxes
5.10 ERISA Compliance
5.13 Environmental Compliance
5.16 Organizational Chart
7.01(d) Existing Recourse Indebtedness
7.01(e) Existing Secured Indebtedness Subject To Pledge Restrictions
7.01(i) Other Existing Indebtedness
7.01(k) Existing Bond Indebtedness
7.01(m) Existing Cross-Collateralized and Cross-Defaulted Indebtedness
10.02 Offshore and Domestic Lending Offices, Addresses for Notices
7
8
INTERIM CREDIT AGREEMENT
This INTERIM CREDIT AGREEMENT ("Agreement") is entered into as of
September 20, 2000, by and among 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") (collectively, AIMCO, AIMCO/Bethesda, and NHP
Management are defined as "Borrower"), each lender from time to time party
hereto (collectively, "Lenders" and individually, a "Lender"), BANK OF AMERICA,
N.A. ("Bank of America"), as Administrative Agent ("Administrative Agent"),
XXXXXX COMMERCIAL PAPER INC. ("LCPI"), as a Lender and Syndication Agent and
FLEET NATIONAL BANK, as a Lender and Documentation Agent.
RECITAL
WHEREAS, Borrower and the other Persons party thereto have entered into
the Acquisition Agreement (as hereinafter defined) pursuant to which Borrower
will acquire certain assets, rights and interests, including, without
limitation, certain corporate interests, general and limited partnership
interests, and other real and personal property assets of Oxford Holding
Corporation, Oxford Realty Financial Group, Inc. and other related entities; and
WHEREAS, the Lenders have agreed to provide a term loan facility of up
to $302,000,000 to Borrower to (i) finance the acquisition of the Oxford (as
hereinafter defined) entities and assets, (ii) fund fees and related costs
associated with the acquisition of the Oxford assets and entities, and (iii)
provide funds (excluding fees and related expenses) to finance the tender of
certain limited partnership interests held by Oxford employees and institutional
investors.
NOW, THEREFORE, in consideration of the mutual covenants and agreements
herein contained, the parties hereto covenant and 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:
"AIMCO" is defined in the preamble.
"AIMCO/Bethesda" is defined in the preamble.
"Acquisition Agreement" means that certain Acquisition Agreement dated
as of June 28, 2000 by and among Apartment Investment and Management Company,
AIMCO Properties, L.P., 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.
8
9
"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, Borrower's, the Guarantors'
and their respective Affiliates' pro-rata share of Net Operating Income,
including the Borrower's, Guarantors' and their respective Affiliates' pro-rata
share of Net Operating Income from unconsolidated Persons, less the Capital
Expenditure Reserve as of the last day of 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 on Schedule 10.02, or such other
address or account as Administrative Agent hereafter may designate by written
notice to Borrower 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 Credit Agreement, as amended, restated,
extended, supplemented or otherwise modified in writing from time to time.
"Allocation Letter" means a letter from Administrative Agent to each
Lender setting forth such Lender's Pro Rata Share and its Commitment and certain
fees payable thereto, as the same may be modified from time to time pursuant to
this Agreement.
"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 Borrower as a provider of Ancillary Services and acceptable to
Administrative Agent in its reasonable discretion.
"Applicable Margin" means, during the period from the Closing Date to
the Maturity Date, the following amounts per annum:
9
10
----------------------------------------------------------------------------------------------------------------------
APPLICABLE MARGIN
(IN BASIS POINTS PER ANNUM)
----------------------------------------------------------------------------------------------------------------------
APPLICABLE PERIOD BASE RATE OFFSHORE RATE
----------------------------------------------------------------------------------------------------------------------
Closing Date to and including 12 months 100 400
following the Closing Date
----------------------------------------------------------------------------------------------------------------------
13 months following the Closing Date to and 150 450
including 18 months following the Closing Date
----------------------------------------------------------------------------------------------------------------------
19 months following the Closing Date to and 200 500
including 24 months following the Closing Date
----------------------------------------------------------------------------------------------------------------------
"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.
"Audited Financial Statements" means the audited consolidated balance
sheets of the REIT and Borrower, in each case for the fiscal year ended December
31, 1999, and the related consolidated statements of income and cash flows for
such fiscal year of the REIT and Borrower.
"Bank of America" means Bank of America, N.A.
"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 specific in the public announcement of such change.
"Base Rate Loan" means a Loan which bears interest based on the Base
Rate.
"Borrower" has the meaning set forth in the introductory paragraph
hereto. Any reference to Borrower herein shall be deemed to refer to each Person
constituting Borrower, 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; provided, however,
that the obligations of Borrower with respect to delivery of reports, financial
10
11
statements and certifications, may be performed by AIMCO for or on behalf of
either or both of AIMCO/Bethesda or NHP Management, as applicable.
"Borrower Party" means Borrower or any Person other than Lenders and
any Affiliates of Lenders, Administrative Agent, Syndication Agent,
Documentation Agent, or any Joint Lead Arranger from time to time party to a
Loan Document.
"Borrower Pledge Agreement" means the Borrower Pledge Agreement
executed and delivered by the Borrower Parties on the Closing Date,
substantially in the form of Exhibit G annexed hereto, as such Borrower 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.
"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 Borrower,
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 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 the
Borrower's, any Guarantor's and their respective Subsidiaries' proportionate
ownership interest of actual Capital Expenditures, excluding Enhancements and
Initial Capital
11
12
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.
"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 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
Borrower, the REIT 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 the Borrower, REIT or any Subsidiary held by any Lender or lenders under the
Revolving Credit Agreement, 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 Xxxxx'x 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.
12
13
"Collateral Documents" means the Borrower Pledge Agreement and all
other instruments or documents delivered by Borrower, the REIT, 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 Lenders, a Lien on any
real, personal or mixed property of that Person as security for the Obligations.
"Combined Commitments" has the meaning assigned to such term in the
definition of "Commitment." The maximum Combined Commitments on the Closing Date
are $302,000,000.
"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 in each such Lender's Allocation Letter at any one time
outstanding, as such amount may be reduced or adjusted from time to time in
accordance with this Agreement (collectively, the "Combined Commitments.")
"Commitments Reduction Amount" means an amount, if any, equal to the
excess of (a) the aggregate amount of the Net Disposition Proceeds received by
the REIT, Borrower or the Guarantors or any of their Subsidiaries from July 31,
2000 through and including the Closing Date, over (b) $100,000,000.
"Committed Loan" means a Loan of any type made to Borrower by Lenders
in accordance with its Pro Rata Share, except as otherwise provided herein.
"Committed Loan Note" means a promissory note made by Borrower 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 Borrower.
"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 Borrower's and its 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 REIT, Borrower and their respective Subsidiaries on
a consolidated basis determined in conformity with GAAP.
13
14
"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 reducing Consolidated Net Income arising in the ordinary
course of business less other non-cash items increasing Consolidated Net Income
arising in the ordinary course of business minus (g) the sum of (1) Borrower's
and its Subsidiaries' earnings or losses from unconsolidated partnerships and
unconsolidated subsidiaries plus (2) income from Borrower's and its
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 Borrower and its Subsidiaries in
conformity with GAAP.
"Construction/Renovation" means any New Construction or any substantial
rehabilitation, renovation and/or expansion by Borrower or any of its
Subsidiaries or unconsolidated subsidiaries of any multi-family Property which,
in the case of rehabilitation, 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 1.01D attached to the Revolving Credit Agreement.
"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 Borrower and all Persons (whether or not
incorporated) under common control or treated as a single employer with Borrower
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.
"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 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.
14
15
"Default" means any event that, with the giving of any notice, the
passage of time, or both, would be an Event of Default.
"Default Rate" means an interest rate equal to the Base Rate plus the
Applicable Margin applicable to Base Rate Loans 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 (including any Applicable Margin) otherwise
applicable to such Loan plus 3.0% per annum.
"Designated Deposit Account" means a deposit account to be maintained
by Borrower with Bank of America, as from time to time designated by Borrower by
written notification to Administrative Agent.
"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 REIT, Borrower or any Subsidiary thereof.
"Documentation Agent" means, as of the Closing Date, Fleet National
Bank. Documentation Agent shall have no responsibilities or duties in addition
to those of a Lender as provided under this Agreement.
"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 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), 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
15
16
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, and that is (i) a Subsidiary of a Lender, (ii) a Subsidiary of a Person
of which a Lender is a Subsidiary, or (iii) a Person of which a Lender is a
Subsidiary; (d) another Lender; and (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 Borrower 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) Borrower's, 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 Borrower, 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.
16
17
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control with 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).
"ERISA Event" means (a) a Reportable Event with respect to a Pension
Plan; (b) a withdrawal by 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 Borrower or any ERISA Affiliate
from a Multiemployer Plan or notification that a Multiemployer Plan is in
reorganization; (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 liability under Title IV of ERISA, other than PBGC
premiums due but not delinquent under Section 4007 of ERISA, upon 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.
"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").
"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.
"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
17
18
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 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.
"Fee Letters" means those certain side letters dated as of even date
herewith by and between Borrower and Administrative Agent, and Borrower and
Syndication Agent and/or Affiliates thereof.
"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 Borrower pursuant to that certain Redemption
Agreement, dated as of April 15, 1996, between the REIT and Borrower, 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,
plus (iii) dividends accrued (whether or not declared or payable) on the
preferred Stock and/or preferred Partnership Units of the REIT, Borrower 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) Borrower's, the Guarantors' and their respective Subsidiaries' pro-rata
share of all repayments of principal of Indebtedness (excluding principal
amortization in respect of the Obligations) during such period, plus (c)
Borrower's, 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 REIT, Borrower or any of their Subsidiaries during such period,
plus (e) an amount equal to 95% 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 upon current financial results for the period
determined in accordance
18
19
with the 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 has been
Disposed of by Borrower, the REIT or any Subsidiary thereof, or any
unconsolidated partnership or subsidiary thereof.
"Funds From Operations" means, with respect to Borrower, the REIT, 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 Borrower, 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, consistently applied.
"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 Borrower.
"GP Loans" means that certain Indebtedness, whether secured or
unsecured, evidenced by promissory notes in an aggregate principal amount of
approximately $291,218,668 outstanding as of June 30, 2000 and such Indebtedness
is set forth in more detail on Schedule 1.01A hereto.
"Gross Asset Value" means as of any date of determination, the sum of
the following, determined for Borrower, 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 Borrower, the
Guarantors or their respective Subsidiaries as of such date of
determination;
19
20
(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 9.5%;
(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 9.5%;
(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.
"Guarantor Subsidiary" means each Preferred Stock Subsidiary and each
other Subsidiary of Borrower and the REIT that executes and delivers a
counterpart of the REIT Guaranty Documents on the Closing Date or from time to
time thereafter pursuant to Section 6.16(c), and collectively are referred to
herein as the "Guarantor Subsidiaries."
"Guarantors" means, collectively, the REIT, the Guarantor Subsidiaries
and the Oxford Guarantors, and each is a "Guarantor." The Oxford Guarantors as
of the Closing Date are set forth on Part B of Schedule 1.01B and all other
Guarantors as of the Closing Date are set forth in Part A of Schedule 1.01B
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
20
21
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 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 Borrower 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, is, or upon the happening of any event
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 has, or upon the happening of an event or passage of time would have, a
redemption or similar payment due, before the date which is the one (1) year
anniversary of the then effective Maturity Date, (excluding, however, any such
preferred Stock which is
21
22
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 and any prepaid rent
(as such terms are defined under GAAP).
"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.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement entered into as of the date hereof between Borrower and Bank of
America in its capacity as Administrative Agent and in its capacity as Revolver
Administrative Agent, attached hereto as Exhibit J, as amended from time to
time.
"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 Borrower, the REIT 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.
22
23
"Interest Payment Date" means (a) as to any Base Rate Loan, the first
Business 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 one month, interest shall also be paid on the date which falls
every month 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 Borrower; 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 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 ten (10) Interest Periods in effect at any time.
"Intra-Company Debt" means all Indebtedness (whether book-entry or
evidenced by a term, demand or other note or other instrument) owed by Borrower,
any Guarantor or any of their respective Subsidiaries to Borrower, any Guarantor
or any of their respective Subsidiaries; provided that all such Intra-Company
Debt owed by Borrower or any Guarantor shall be subordinated in right of payment
to the payment in full of the Obligations pursuant to 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 party to an Allocation Letter and Borrower.
"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
23
24
thereof), without adjustment for subsequent increases or decreases in the value
of such Investment.
"IRS" means the Internal Revenue Service.
"Joint Lead Arrangers" means Banc of America Securities LLC and Xxxxxx
Brothers Inc., in their capacity as joint lead arrangers hereunder.
"Knowledge of Borrower" means the actual knowledge (after reasonable
inquiry) of any of the officers of Borrower or the REIT and each other Person
with executive responsibility for any aspect of Borrower's or the REIT'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.
"Lender" means each lender from time to time party hereto.
"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 Borrower 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.
"Loan" means any advance made by any Lender to Borrower as provided in
Section 2 (collectively, the "Loans").
"Loan Documents" means this Agreement, the Collateral Documents, the
REIT Guaranty Documents, 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 Borrower and its
Subsidiaries attributable to their management of multi-family apartment projects
or other real estate projects or provision of Ancillary Services
24
25
during such period, plus (y) Unconsolidated Subsidiaries EBITDA generated by the
Management Entities.
"Management Entity" means any Subsidiary of Borrower and/or the REIT
(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 1.01C.
"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 the validity or enforceability of any Loan Document, or
(b) materially impairs or could reasonably be expected to materially impair the
ability of the Borrower Parties, taken as whole, to pay and/or perform the
Obligations.
"Material Entity" means any Person in which the REIT, Borrower or any
of their Subsidiaries owns any equity interest which generates 1.5% or more of
Total Corporate EBITDA.
"Maturity Date" means July 31, 2002, as it may be earlier terminated in
accordance with the terms hereof.
"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
---------------------------------------------------------------------------------------
Borrowing, prepayment of, or Conversion $2,000,000 $ 500,000
into, Base Rate Loans
---------------------------------------------------------------------------------------
Borrowing, prepayment of, Continuation of, $5,000,000 $1,000,000
or Conversion into, Offshore Rate Loans
---------------------------------------------------------------------------------------
Reduction in Commitments $5,000,000 $1,000,000
---------------------------------------------------------------------------------------
Assignments (other than with respect to $5,000,000 $1,000,000
the entire amount of a Lender's
Commitment, in which event the Minimum
Amount shall be such Commitment amount)
---------------------------------------------------------------------------------------
Assignment by a Lender to (i) an Affiliate $1,000,000 $1,000,000
of the assigning Lender, or (ii) another
Lender
---------------------------------------------------------------------------------------
25
26
"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.
"Net Disposition Proceeds" means, with respect to any Disposition of
any Property (including as a result of casualty or condemnation), 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, 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 Indebtedness Proceeds" means, in respect of the incurrence of any
Indebtedness (other than Debt Securities, Refinancing Indebtedness, or proceeds
of Indebtedness permitted pursuant to Section 7.01) by Borrower, the REIT or any
of their respective Subsidiaries, the proceeds received in Cash or Cash
Equivalents by Borrower, the REIT or any of their respective Subsidiaries upon
or substantially simultaneously with such incurrence, net of (a) the direct
costs of such Indebtedness then payable by the recipient of such proceeds
(excluding amounts payable to Borrower, the REIT or any Affiliate of Borrower or
the REIT) and (b) fees, underwriting discounts, premiums, unpaid accrued
interest and other costs and expenses incurred in connection with such.
"Net Issuance Proceeds" means, in respect of any issuance of Stock,
Partnership Units or Debt Securities by Borrower, the REIT or any of their
respective Subsidiaries, the proceeds in Cash or Cash Equivalents (or, for
purposes of Section 7.14(g), in the case of any issuance of Partnership Units in
exchange for Property, the fair market value of the Property so acquired)
received by Borrower, the REIT or any of their respective Subsidiaries upon or
substantially simultaneously with such issuance, net of (a) the direct costs of
such issuance then payable by the recipient of such proceeds (excluding amounts
payable to Borrower, the REIT or any Affiliate of Borrower or the REIT), (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
26
27
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 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.
"Net Refinancing Proceeds" means the aggregate amount of any
Refinancing Indebtedness incurred in excess of the aggregate principal amount
(or if issued with original issue discount, an aggregate issue price) then
outstanding of the Indebtedness being refinanced by such Refinancing
Indebtedness, plus fees, underwriting discounts, premiums, unpaid accrued
interest and other costs and expenses incurred in connection with such
Refinancing Indebtedness.
"New Construction" means the development and construction of any new
multi-family Property by 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 Borrower and/or its Wholly Owned Subsidiaries.
"Non-Oxford Pledged Collateral" means any and all collateral pledged to
secure the Obligations of Borrower under the Revolving Loan Documents and which
does not constitute Oxford Pledged Collateral, as listed on Part B of Schedule
1.01E.
"Notes" means, collectively, the Committed Loan Notes.
"Notice of Assignment and Acceptance" means a Notice of Assignment and
Acceptance substantially in the form of Exhibit D.
"NYSE" means the New York Stock Exchange.
27
28
"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
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 Borrowing" means any Loan or portion thereof designated or
redesignated by the Company as an Offshore Borrowing pursuant to Section 2.
28
29
"Offshore Rate Loan" means a Committed Loan bearing interest based on
the Offshore Rate.
"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;
(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 Borrower or its Subsidiary determine in good faith that the
failure to replace such equipment will not be detrimental to the
business of Borrower or such Subsidiary;
(d) Dispositions of assets or Property by any Subsidiary of
Borrower or the REIT to Borrower or another Wholly-Owned Subsidiary of
Borrower or the REIT; and
(e) Dispositions of Property or Properties which generate Net
Disposition Proceeds of less than $1,000,000, provided the aggregate
amount of Net Disposition Proceeds generated by all such Dispositions
shall not exceed $1,000,000 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 Borrower and its Subsidiaries for travel,
entertainment, relocation and analogous ordinary business purposes;
(c) Investments of Borrower in any of its Subsidiaries and
Investments of any Subsidiary of Borrower in Borrower or another
Subsidiary of Borrower;
29
30
(d) Investments consisting of or evidencing the extension of
credit to customers or suppliers of Borrower and its 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
is 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 and 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 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.
30
31
"Ordinary Course of Business" means, in respect of any transaction
involving a Person, the ordinary course of such Person's business, substantially
as intended to be conducted by any such Person as of the Closing Date, and
undertaken by such Person in good faith and not for purposes of evading any
covenant or restriction in any Contractual Obligation of such Person.
"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 REIT, Borrower, 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.
"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 Borrower and/or its Affiliates as provided in the
Acquisition Agreement from time to time, collectively.
"Oxford Acquisition" means the acquisition of the Oxford Assets
contemplated under the Acquisition Agreement, including, without limitation, the
"SLP Offer Agreement", the "ILPI and BAC Agreement" and the "Option Sale
Agreement" (as the foregoing terms are defined in the Acquisition Agreement).
"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 the
Closing Date, including, without limitation, pursuant to the Acquisition
Agreement and the interests to be acquired pursuant to the "SLP Offer
Agreement", the "ILPI and BAC Agreement", and the "Option Sale Agreement" (as
the foregoing terms are defined in the Acquisition Agreement); provided, however
"Oxford Assets" shall not include any assets, rights or interests in Oxford held
by Borrower, its Subsidiaries, or Affiliates prior to the Closing Date.
"Oxford Guarantors" means Oxford Holding Corporation, Oxford Realty
Financial Group, Inc. and any Person formed or to be formed by the Borrowing
Parties, as part of the Oxford Acquisition, or any Person comprising Oxford,
which Person is required to guaranty the Obligations pursuant to Section
6.16(c). As of the Closing Date, the Oxford Guarantors are set forth on Part B
of Schedule 1.01B.
31
32
"Oxford Management EBITDA" means Management EBITDA of or directly
attributable to Oxford.
"Oxford Pledged Collateral" means the Oxford Assets directly acquired
(or to be directly acquired) by the Borrower Parties or their Affiliates,
including, without limitation, pursuant to the Acquisition Agreement, now
existing, in the future existing, or existing on the Closing Date, including,
without limitation, the Oxford Assets listed on Part A of Schedule 1.01E.
"Partnership Tenders" means the tender by any of the Borrower Parties
or their Affiliates for any partnership or other interests in a Person
comprising Oxford and contemplated in the Acquisition Agreement, whether
pursuant to the "SLP Offer Agreement," the "ILPI and BAC Agreement" and/or the
Option Sale Agreement (as the foregoing terms are defined in the Acquisition
Agreement).
"Partnership Units" means the units of limited partnership interest in
the REIT, Borrower 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 Borrower or any
ERISA Affiliates or to which 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.
"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 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 the Oxford Pledged Collateral and/or the
Non-Oxford Pledged Collateral, as applicable.
"Preferred Stock Subsidiary" means any Person so identified as a
Preferred Stock Subsidiary by Borrower in the Organizational Chart, and
"Preferred Stock Subsidiaries" means all such Persons, collectively.
"Pro Rata Share" means, with respect to each Lender, the percentage of
the Combined Commitments set forth in such Lender's Allocation Letter, as may be
amended from time to time.
32
33
"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.
"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 circumstances or events have not
occurred.
"Refinancing Indebtedness" means Indebtedness that is incurred to
refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness described in Sections 7.01
(d), (e), (h) and (i).
"REIT" means Apartment Investment and Management Company, a Maryland
corporation.
33
34
"REIT Guaranty Documents" means a guaranty of the Obligations, in the
form of Exhibit X-0-0, X-0-0, X-0-0 xxx X-0-0 attached hereto, and any documents
relating to the guaranty as Administrative Agent requires, duly executed by the
REIT and the Guarantor Subsidiaries, together with the guaranties delivered
pursuant to Section 6.16(c).
"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.
"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 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(b)
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, irrevocable
written notice to the intended recipient or 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):
34
35
------------------------------------------------------------------------------------------------------------------
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, 1 Business Day prior to such Borrowing,
Base Rate Loans 9:00 a.m. prepayment or Conversion
------------------------------------------------------------------------------------------------------------------
Borrowing of, prepayment of, Continuation of, or 3 Business Days prior to such Borrowing,
Conversion into, Offshore Rate Loans 10:00 a.m. prepayment, Conversion or Continuation
------------------------------------------------------------------------------------------------------------------
Voluntary reduction in or termination of 5 Business Days prior to such reduction or
Commitments 10:00 a.m. termination
------------------------------------------------------------------------------------------------------------------
Payments by Lenders or Borrower to Administrative 11:00 a.m. On date payment is due
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 Borrower,
the REIT or any of their respective Subsidiaries or any other Person in which
Borrower, the REIT 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 Borrower's, the REIT's 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 Borrower or any of its Subsidiaries, either in cash or property, on
any shares of the capital stock of any class of Borrower or any of its
Subsidiaries (except dividends or other distributions payable solely in
shares of capital stock of Borrower or any of its Subsidiaries or
payable by a Subsidiary to Borrower or another wholly-owned Subsidiary
of Borrower);
(b) the purchase, redemption or retirement by Borrower or any
of its Subsidiaries of any shares of its capital stock of any class or
any warrants, rights or options to purchase or acquire any shares of
its capital stock, whether directly or indirectly;
(c) any other payment or distribution by Borrower or any of
its Subsidiaries in respect of its capital stock, either directly or
indirectly; and
(d) any Investment other than an Investment otherwise
permitted under any Loan Document.
35
36
"Revolver Administrative Agent" means the Administrative Agent under
the Revolving Loan Documents.
"Revolving Credit Agreement" means that certain Credit Agreement
between Borrower and the lenders party thereto dated as of August 16, 1999, as
amended by that certain Amended and Restated Credit Agreement dated as of March
15, 2000, as amended by that certain First Amendment to Amended and Restated
Credit Agreement dated as of April 14, 2000, and as further amended by that
certain Second Amended and Restated Credit Agreement dated as of the Closing
Date with respect to the Revolving Loan, as further amended from time to time in
accordance with the Intercreditor Agreement.
"Revolving Loan" means the revolving credit facility in the maximum
principal amount of $400,000,000 pursuant to the Revolving Credit Agreement.
"Revolving Loan Documents" means the Revolving 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 and
any amortization payments made pursuant to Section 2.03(c)).
"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 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.
"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
36
37
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 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 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.
"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.
"Syndication Agent" means, as of the Closing Date, Xxxxxx Commercial
Paper Inc. The Syndication Agent shall have no responsibilities or duties in
addition to those of a Lender as provided under this Agreement.
37
38
"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 Borrower, the REIT and their respective consolidated
Subsidiaries as of such date, plus (b) the Borrower's, REIT's 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 Interest Expense" means for any period, without double counting
any item, the sum of (a) Consolidated Interest Expense of the Borrower, the
Guarantors and their respective Subsidiaries for such period, plus (b) the
Borrower's, 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 the preferred Stock issued
by Borrower and Guarantors; provided that the $75,000,000 in Class B preferred
stock (or such lesser amount as is then outstanding) issued by the REIT shall be
excluded from the calculation of Total Obligations as at any date that such
Class B preferred stock remains fully convertible to Borrower's common Stock at
the option of the holder and Borrower's common Stock traded at a market price
during the five (5) trading days preceding such date that exceeds $30.45 per
share.
"Total Scheduled Amortization" means, for any period of determination,
and without double counting any item, the sum of (a) the Scheduled Amortization
for Borrower, the Guarantors and their respective Subsidiaries for such period
on a consolidated basis plus (b) the Borrower's, 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.
38
39
"Transition Period" means the period beginning on the Closing Date and
ending 180 days thereafter.
"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 Borrower's 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 reducing net income arising in the ordinary course of business 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 Borrower or any Guarantor has an equity
interest.
"Unconsolidated Subsidiaries EBITDA" means, for any period, an amount
equal to the sum of the Borrower's 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 reducing net income arising in the ordinary course of business 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 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 under the
Revolver Loan shall constitute "Unsecured Debt."
"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.
39
40
"Wholly-Owned Subsidiary" means a Subsidiary of Borrower and/or the
REIT 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 (A) Borrower and/or (B) the REIT; 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.
Masculine terms also apply to females; feminine terms also apply to males. The
term "including" is by way of example and not limitation.
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.
1.04 ROUNDING.
Any financial ratios required to be maintained by Borrower 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.
40
41
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
Borrower on the Closing Date, and, pursuant to Section 2.01(c), from time to
time thereafter. 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 Borrower 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, Borrower may Convert,
Continue, and prepay Loans until the Maturity Date as set forth herein without
premium or penalty. Loans that are repaid or prepaid may not be reborrowed.
(b) Up to $266,000,000 of the Combined Commitments shall be
available for Borrowing to fund the cash portion of the Oxford Acquisition on
the Closing Date, provided the Closing Date does not occur later than September
30, 2000. Up to $13,000,000 of the Combined Commitments will be available for
Borrowing on the Closing Date to fund the fees and related costs associated with
the Oxford Acquisition upon submission by Borrower to Administrative Agent of a
schedule of such fees and related costs reasonably acceptable to Administrative
Agent.
(c) Subject to Section 2.04 below, up to $23,000,000 of the
Combined Commitments will be available for Borrowing from and after the Closing
Date to finance the Partnership Tenders (excluding any fees and expenses in
connection therewith), to be made, in no more than two Borrowings of at least
$10,000,000 each, at any time on or after the Closing Date up to the date which
is ninety (90) days after the Closing Date but no later than December 15, 2000.
(d) 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. Such Lender's Loans shall be evidenced by one or more Notes,
instead of or 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
41
42
failure so to record or any error in doing so shall not, however, limit or
otherwise affect the obligation of Borrower to pay any amount owing with respect
to the Loans.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) Borrower 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, Borrower 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 Loans 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 Borrower in like funds received.
(c) Administrative Agent shall promptly notify Borrower 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 Borrower and shall continue
so long as such Default or Event of Default continues to exist.
(e) If a Loan is to be made on the same date that another Loan
is due and payable, Borrower or Lenders, as the case may be, shall make
available to Administrative Agent the net amount of funds giving effect to both
such Loans and the effect for purposes of this Agreement shall be the same as if
separate transfers of funds had been made with respect to each such Loan.
(f) 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.
42
43
2.03 PREPAYMENTS; MANDATORY AMORTIZATION; ADDITIONAL AMORTIZATION.
(a) Voluntary Prepayments. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrower may
at any time and from time to time prepay the Loans, in whole or in part in the
Minimum Amount therefor or in full without 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) Mandatory Amortization. Borrower shall make mandatory
amortization payments, each in the amount of $15,000,000, beginning on the last
day of the third month following the Closing Date, and continuing every three
(3) months thereafter, until the one (1) year anniversary of the first scheduled
amortization payment. Beginning on the last day of the third month following the
one year anniversary of the Closing Date, Borrower shall make mandatory
amortization payments, each in the amount of $30,000,000 and continuing every
three (3) months thereafter until the Maturity Date.
(c) Additional Mandatory Amortization.
(i) Net Issuance Proceeds. Subject to the terms of
the Intercreditor Agreement, no later than the fifth Business
Day after the date of receipt by the REIT, Borrower, the
Guarantors or any of their Subsidiaries of Net Issuance
Proceeds after the Closing Date, Borrower shall prepay the
Loans in an aggregate amount equal to 100% of such Net
Issuance Proceeds.
(ii) Net Disposition Proceeds. Subject to the terms
of the Intercreditor Agreement, no later than the fifth
Business Day after the date of receipt by the REIT, Borrower,
the Guarantors or any of their Subsidiaries of Net Disposition
Proceeds from any Disposition which is not an Ordinary Course
Disposition after the Closing Date, Borrower shall prepay the
Loans in an aggregate amount equal to 100% of such Net
Disposition Proceeds.
(1) Treatment of Net Disposition Proceeds
Through December 31, 2000. Notwithstanding anything
which may be construed to the contrary in this
Section 2.03(c)(ii), if no Event of Default has
occurred or is then existing under the Loans, then
for the period from the day after the Closing Date
through and including December 31, 2000, no
amortization payment shall be required under this
Section 2.03(c)(ii) with respect to Net Disposition
Proceeds in an aggregate amount equal to the lesser
of (a) $100,000,000 or (b) the aggregate amount of
Net Disposition Proceeds received by the REIT,
Borrower or the Guarantors or any of their
subsidiaries from July 31, 2000 through and including
December 31, 2000.
(2) Treatment of Net Disposition Proceeds
Through June 30, 2001. Notwithstanding anything which
may be construed to the contrary in this Section
2.03(c)(ii), if no Event of Default has occurred or
is then existing under the Loans, then for the period
from the date, if any, on which the aggregate
outstanding principal amount of the Loans plus the
undrawn amount of the Combined Commitments permitted
to be drawn hereunder are equal to or less than
$205,000,000 through and including June 30, 2001,
amortization required under this Section 2.03(c)(ii),
shall only be an amount equal to 75% of Net
Disposition Proceeds generated by Dispositions,
43
44
(iii) Net Refinancing Proceeds. Subject to the terms
of the Intercreditor Agreement, no later than the fifth
Business Day after the date of receipt by the REIT, Borrower
or any of their Subsidiaries of Net Refinancing Proceeds after
the Closing Date, Borrower shall prepay the Loans in an
aggregate amount equal to 100% of such Net Refinancing
Proceeds; and
(iv) Net Indebtedness Proceeds. Subject to the terms
of the Intercreditor Agreement, no later than the fifth
Business Day after the date of receipt by the REIT, Borrower
or any of their Subsidiaries of Net Indebtedness Proceeds from
any Indebtedness after the Closing Date, Borrower shall prepay
the Loans in an aggregate amount equal to 100% of such Net
Indebtedness Proceeds.
(d) Application of Prepayments.
(i) Unless otherwise instructed by Borrower, any
prepayments pursuant to Section 2.03(a), (b) or (c) 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) Each payment received pursuant to this Section
2.03(d) shall be applied to reduce the scheduled installments
of principal of the Loans in inverse order of maturity.
2.04 REDUCTION OR TERMINATION OF COMMITMENTS.
(a) On the Closing Date, the Combined Commitments shall be
reduced by an amount equal to the Commitments Reduction Amount and each Lender's
Commitment shall be reduced by an amount equal to such Lender's Pro Rata Share
of such amount.
(b) If Borrower does not Borrow, or fails to satisfy the
conditions for Borrowing the amounts described in Section 2.01(c) on or before
December 15, 2000, the Combined Commitments shall automatically be reduced by
$23,000,000 (or the undrawn amount, if less) and each of the unfunded
Commitments of Lenders, if any, shall be reduced by an amount equal to such
Lender's Pro Rata Share, if any, of such amount; provided, however, that any
Lender receiving an assignment of a Loan, without any obligation to fund on
account of a Commitment shall have no reduction in its Pro Rata Share, to the
extent applicable.
2.05 PRINCIPAL AND INTEREST; DEFAULT RATE.
(a) If not sooner paid (including repayments pursuant to
Section 2.03), Borrower agrees to pay the outstanding principal amount of each
Loan on the Maturity Date.
(b) Subject to subsection (e) below, Borrower 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
44
45
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, plus the Applicable Margin.
(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 the Applicable Margin. Borrower will
have the option of Offshore Rate Loans with terms of 1, 2, 3 or 6 month, and
Borrower will be allowed a maximum of ten (10) Offshore Rate Loans at any one
time.
(d) Each Base Rate Loan shall bear interest at a rate per
annum equal to the Base Rate plus the Applicable Margin.
(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.
2.06 FEES.
Borrower shall pay to Administrative Agent certain fees as and when
designated in the Fee Letters. The Borrower shall pay to Administrative Agent
for the ratable benefit of the Lenders, an unused fee of 50 basis points per
annum, calculated on the average daily unused portion of the Combined
Commitments commencing on the Closing Date and payable monthly in arrears;
provided, however, no such unused fee shall be payable to those Lenders
described in the last proviso of Section 2.04(c).
2.07 COMPUTATION OF INTEREST AND FEES.
Computation of all types of interest 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 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
Borrower 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
45
46
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 Borrower 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 Borrower, 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, and such extension of time shall be reflected in computing
interest and fees.
(d) Unless 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 Borrower or Lender, as the case may be, has 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 Borrower 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 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 Borrower, and Borrower 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 Borrower 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 Borrower 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.
46
47
2.10 COLLATERAL.
The payment and performance of the Obligations are and shall be secured
by the Pledged Collateral.
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY.
3.01 TAXES.
(a) Any and all payments by Borrower 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 Borrower 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), Administrative Agent
and such Lender receives an amount equal to the sum it would have received had
no such deductions been made (such increase, an "Additional Amount"), (ii)
Borrower shall make such deductions, (iii) Borrower shall pay the full amount
deducted to the relevant taxation authority or other authority in accordance
with applicable Laws, and (iv) Borrower 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, Borrower agrees 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) Borrower agrees 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.
(d) Each Lender which is a foreign Person (i.e., a Person
other than a United States Person for United States Federal income tax purposes)
agrees that:
47
48
(i) such Lender shall, no later than the Closing Date
(or, in the case of a Lender which becomes a party hereto
after the Closing Date, the date upon which such Lender
becomes a party hereto), deliver to Borrower through
Administrative Agent two (2) accurate and complete signed
originals of Internal Revenue Service Form 4224 or any
successor thereto ("Form 4224"), or two (2) accurate and
complete signed originals of Internal Revenue Service Form
1001 or any successor thereto ("Form 1001"), as appropriate,
in each case indicating that the Lender is on the date of
delivery thereof entitled to receive payments of principal,
interest and fees under this Agreement free from withholding
of United States Federal income tax;
(ii) if at any time such Lender makes any changes
necessitating a new form, such Lender shall with reasonable
promptness deliver to Borrower through Administrative Agent in
replacement for, or in addition to, the forms previously
delivered by such Lender hereunder, two (2) accurate and
complete signed originals of Form 4224, or two (2) accurate
and complete signed originals of Form 1001, as appropriate, in
each case indicating that such Lender is on the date of
delivery thereof entitled to receive payments of principal,
interest and fees under this Agreement free from withholding
of United States Federal income tax;
(iii) such Lender shall, before or promptly after the
occurrence of any event (including the passing of time but
excluding any event mentioned in (ii) above) requiring a
change in or renewal of the most recent Form 4224 or Form 1001
previously delivered by such Lender, deliver to Borrower
through Administrative Agent two (2) accurate and complete
original signed copies of Form 4224 or Form 1001, as
appropriate, in replacement of the forms previously delivered
by such Lender; and
(iv) such Lender shall, promptly upon Borrower's
reasonable request to that effect, deliver to Borrower 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) Borrower 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 Borrower a Form 4224 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 Borrower 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 4224; or
48
49
(iii) if such Lender or assignee shall have delivered
to Borrower a Form 1001 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 Borrower
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 1001.
(f) If, at any time, Borrower requests any Lender to deliver
any forms or other documentation pursuant to this Section 3.01, then Borrower
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 Borrower is 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 Borrower 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 Borrower through Administrative Agent, any obligation of
that Lender to make Offshore Rate Loans shall be suspended until Lender notifies
Administrative Agent and Borrower that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, Borrower 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
49
50
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
Borrower 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, Borrower 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.
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), Borrower 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), Borrower
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, Borrower shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:
50
51
(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 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 Borrower;
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. Borrower 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 Borrower's obligations under this Section 3 shall survive
termination of the Commitments and payment in full of all Obligations.
SECTION 4. CONDITIONS PRECEDENT TO EXTENSIONS OF CREDIT.
4.01 CONDITIONS OF 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 (iv) or
(v) below, that the Borrower has 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:
51
52
(i) Executed counterparts of this Agreement and each other
Loan Document, sufficient in number for distribution to Administrative
Agent, Lenders and Borrower;
(ii) Committed Loan Notes executed by Borrower in favor of
each Lender requesting a Committed Loan Note, each in a principal
amount equal to that Lender's Pro Rata Share;
(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 Borrower
certifying that (A) the conditions specified in Sections 4.01(e),
4.01(f) and 4.01(g) 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) Opinions of Counsel to the Borrower Parties substantially
in the form of Exhibit F hereto;
(vii) Execution and delivery of the Second Amended and
Restated Credit Agreement with respect to the Revolving Credit
Agreement satisfactory to Administrative Agent;
(viii) Execution and delivery of the Intercreditor Agreement;
(ix) Audited consolidated financial statements of the
Borrower, the REIT for fiscal years 1998 and 1999 and of Preferred
Stock Subsidiaries for fiscal year 1999 only, and unaudited interim
consolidated financial statements of the Borrower, the REIT and
Preferred Stock Subsidiaries for each fiscal quarter following December
31, 1999, as available, which shall be reasonably satisfactory to
Lenders;
(x) Written business plans for Borrower's fiscal years
2000-2002 in such detail as reasonably required by Administrative Agent
including, among other things, written analysis of the business and
prospects of the Borrower and its Subsidiaries for the period from the
Closing Date through the Maturity Date, which shall be reasonably
satisfactory to Lenders;
(xi) A certification and written analysis of the chief
financial officer or treasurer of Borrower which, to Lender's
satisfaction, evidences that Borrower and its Subsidiaries are, and
shall remain through and including the Maturity Date, Solvent after
giving effect to the Loans, the Oxford Acquisition, and the other
transactions contemplated thereby;
52
53
(xii) Borrower shall have certified to Administrative Agent,
and provided Administrative agent with evidence satisfactory to
Administrative Agent of, the aggregate amount of Net Disposition
Proceeds, Net Refinancing Proceeds, Net Issuance Proceeds and Net
Indebtedness Proceeds generated from and after July 31, 2000 to and
immediately prior to the Closing Date;
(xiii) Evidence satisfactory to Administrative Agent that
Borrower 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 that may be necessary or, in the
opinion of Administrative Agent, desirable in order to create in favor
of Administrative Agent, for the benefit of Lenders, a valid and (upon
such filing and recording) perfected first priority security interest
in the Pledged Collateral comprising the Oxford Pledged Collateral and
a perfected second priority security interest in the Pledged Collateral
comprising the Non-Oxford Pledged Collateral. Such actions shall
include the following:
(1) Delivery to Administrative Agent of accurate and
complete schedules to all of the applicable Collateral
Documents; and
(2) Delivery to Administrative 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 Administrative
Agent) representing all capital stock pledged pursuant to the
Borrower Pledge Agreement and (b) all promissory notes or
other instruments (duly endorsed, where appropriate, in a
manner satisfactory to Administrative Agent) evidencing any
Pledged Collateral;
(xiv) Evidence reasonably satisfactory to Administrative Agent
of the prohibitions or restrictions on assignment, hypothecation,
pledging or other encumbrance with respect to the Oxford Pledged
Collateral, if any;
(xv) 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; and
(xvi) A pro forma consolidated balance sheet of the Borrower
as of June 30, 2000, adjusted to give effect to the closing of the
Oxford Acquisition and the financings contemplated thereby as if such
transactions had occurred as of such date.
(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) Administrative Agent shall have received evidence
satisfactory to it that the fees and related costs incurred in connection with
the Loan, the Oxford Acquisition, and all other transactions contemplated
thereby have not, and are not reasonably expected to, exceed $13,000,000 in the
aggregate unless Borrower shall pay amounts in excess of $13,000,000 with funds
other than Loan proceeds;
53
54
(d) Administrative Agent shall have received evidence
satisfactory to it that HUD has approved the transfer of Oxford Assets
contemplated by the Acquisition Agreement to occur on the Closing Date, to the
extent HUD's approval is required; provided, however, that such approval shall
not be required with respect to the Oxford Assets which are subject to a
post-closing escrow pursuant to the Acquisition Agreement, which Oxford Assets
are set forth on Schedule 4.01(d);
(e) The representations and warranties made by Borrower
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);
(f) The results of a recent lien search in each relevant
jurisdiction indicating that there are no Liens on the Oxford Pledged Collateral
except for Liens securing Indebtedness listed on Schedules 7.01(d), (i), (k), or
(m), or Indebtedness or Liens otherwise permitted under this Agreement or
described on Schedule 4.01(f);
(g) 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 except as
disclosed To The Best Knowledge of Borrower on Schedule 5.03-B attached hereto,
and no Default or Event of Default shall have occurred and be continuing;
(h) Unless waived by Administrative Agent, Borrower 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 its 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 Borrower and
Administrative Agent);
(i) Administrative Agent shall have received evidence
reasonably satisfactory to it that all conditions to the closing and
consummation of the Oxford Acquisition (other than with respect to the Oxford
Assets subject to a post-closing escrow pursuant to the Acquisition Agreement,
which Oxford Assets are set forth on Schedule 4.01(d), or the Partnership
Tenders) shall have been irrevocably satisfied or irrevocably waived.
(j) Such other assurances, certificates, documents, consents
or opinions as Administrative Agent, or the Requisite Lenders reasonably may
require.
4.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to any applicable conditions precedent set forth elsewhere
in this Section 4 or in Section 2, the obligation of each Lender to make any
Extension of Credit is subject to the following conditions precedent:
(a) the representations and warranties of Borrower contained
in Section 5, 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 date of such Extension of
54
55
Credit, except to the extent that such representations and warranties
specifically refer to any earlier date.
(b) no Default or Event of Default exists, or would result
from such proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request
for Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) With respect to any Extension of Credit related to the
Partnership Tenders, Administrative Agent shall have received a written
certification reasonably satisfactory to Administrative Agent from a Responsible
Officer of Borrower describing in reasonable detail the costs incurred or to be
incurred in connection with such Partnership Tenders and the proposed
application of the Loan proceeds requested in connection therewith.
Each request for an Extension of Credit by Borrower shall be deemed to
be a representation and warranty that the conditions specified in Sections
4.02(a) and 4.02(b) have been satisfied and on and as of the date of such
Extension of Credit.
SECTION 5. REPRESENTATIONS AND WARRANTIES.
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 Borrower
has 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 it is a party. All approvals, consents, exemptions
or authorizations of, filings with, notices to or other acts by or in respect of
any Governmental Authority which are necessary or required in connection with
the Oxford Acquisition, the Borrowings hereunder or with the execution,
delivery, performance, validity or
55
56
enforceability of this Agreement or any of the other Loan Documents, or are
advisable within the reasonable discretion of Administrative Agent, have been
obtained, except where (i) the failure to obtain such approval will not have a
Material Adverse Effect and (ii) all applicable waiting periods have expired
without any enforcement action being taken or threatened by any such
Governmental Authority. The Loan Documents have been duly executed and delivered
by each Borrower Party, and constitute a legal, valid and binding obligation of
each Borrower Party, enforceable against each 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.
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 with respect to the transfer
or pledging of the Oxford Assets, as disclosed To The Best Knowledge Of Borrower
on Schedule 5.03-A, (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 with respect to the transfer or
pledging of the Oxford Assets, as disclosed To The Best Knowledge Of Borrower on
Schedule 5.03-B, or (b) constitute a default under any such agreement or
instrument (except for non-monetary defaults concerning the Oxford Assets and
third party and governmental consents required in connection with the exercise
of remedies under the Loan Documents), 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
and the Revolver 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 Borrower and its
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.
56
57
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 Borrower, threatened by or against any
Borrower Party or any of its Subsidiaries or against any of their Properties or
revenues which (a) purport 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 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
Extensions 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.
Borrower and its Subsidiaries have filed all Federal and other material
tax returns and material reports that are required to be filed, except with
respect to the Oxford Assets during the Transition Period and 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 Borrower and its Subsidiaries are complete and correct in all material
respects, except during the Transition Period with respect to the Oxford Assets
where any such incompleteness or inaccuracy would not reasonably be expected to
have a Material Adverse Effect; (ii) Borrower and its Subsidiaries, with respect
to the Oxford Assets only during the Transition Period, To The Best Knowledge Of
Borrower, 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
57
58
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 Borrower or any of its
Subsidiaries which, if the assessment were made, would reasonably be expected to
have a Material Adverse Effect; and (iv) Borrower and its Subsidiaries have no
primary, secondary or other liability for taxes of any kind, with respect to the
Oxford Assets only during the Transition Period, To The Best Knowledge Of
Borrower, arising with respect to any individual, trust, corporation,
partnership or other entity as to which Borrower or any of its Subsidiaries is
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. Neither Borrower nor any of its
Affiliates is (nor has it ever been) a party to any tax sharing agreement other
than as disclosed on Schedule 5.08.
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) Neither Borrower 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. Borrower 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.
58
59
(b) Each Qualified Plan, and To The Best Knowledge Of Borrower
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
Borrower, 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 Borrower nothing has occurred which would cause the loss
of such qualification or tax-exempt status.
(d) Except as disclosed in Schedule 5.10, neither Borrower nor
any ERISA Affiliate has any outstanding liability under Title IV of ERISA with
respect to any Qualified Plan maintained or sponsored by Borrower or any ERISA
Affiliate, nor To The Best Knowledge Of Borrower, with respect to any
Multiemployer Plan to which Borrower or any ERISA Affiliate contributes or is
obligated to contribute.
(e) Except as disclosed in Schedule 5.10, no Qualified Plan
subject to Title IV of ERISA, and To The Best Knowledge Of Borrower, 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 Qualified Plan,
or, To The Best Knowledge Of Borrower, any Multiemployer Plan.
(i) There are no pending or, to the Knowledge of Borrower,
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 Borrower or its assets, (ii) any member of the
Controlled Group with respect to any Qualified Plan, or (iii) any fiduciary with
respect to any Plan for which Borrower may be directly or indirectly liable,
through indemnification obligations or otherwise.
59
60
(j) Except as disclosed in Schedule 5.10, neither Borrower 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, neither Borrower nor
any ERISA Affiliate has transferred any Unfunded Pension Liability to a Person
other than 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.
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, or with
respect to the Oxford Assets only, are necessary for, the conduct of their
respective businesses as now operated, and none of such items, To The Best
Knowledge Of Borrower, 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 it.
5.13 ENVIRONMENTAL COMPLIANCE.
(a) Environmental Laws. Except as disclosed in Schedule 5.13
or in the SEC Report, the operations and Properties of Borrower, the REIT, 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, Borrower, the REIT, 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
60
61
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 Borrower, the REIT, any Management Entity, any of their
Subsidiaries, or any of such Person's Properties or operations 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) Borrower, the REIT, the
Management Entities and their Subsidiaries have notified all of their employees
of the existence, if any, of any health hazard arising from the conditions of
their employment to the extent required under any Environmental Laws and have
met all notification requirements under Title III of CERCLA and all other
Environmental Laws that in each case would 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
Borrower, 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, provided that with respect to the Oxford Assets the foregoing
representation is limited to The Best Knowledge Of Borrower.
5.15 OMITTED.
5.16 SUBSIDIARIES; INTERESTS IN OTHER ENTITIES; CHANGES IN
ORGANIZATIONAL STRUCTURE.
Neither Borrower, nor the REIT, 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 by Borrower and the other applicable
Borrower Parties, together with (i) the actions
61
62
taken on or prior to the date hereof pursuant to Section 4.01(xiii), and (ii)
the delivery to Administrative Agent of any Pledged Collateral not delivered to
Administrative Agent at the time of execution and delivery of the Borrower
Pledge Agreement (all of which Pledged Collateral has been so delivered) are
effective to create in favor of Administrative Agent for the benefit of Lenders,
as security for the respective Secured Obligations (as defined in the Borrower
Pledge Agreement in respect of any Pledged Collateral), a valid and perfected
first priority Lien on all of the Oxford Pledged Collateral and a valid and
perfected second priority lien on all of the Non-Oxford 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 Administrative 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 Administrative 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 Borrower or
any other Borrower Party of the Liens purported to be created in favor of
Administrative Agent pursuant to any of the Collateral Documents or (ii) the
exercise by Administrative 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 which directly or
indirectly involve real Property encumbered by HUD mortgages or regulatory
agreements or properties regulated by HUD, 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 (i) Administrative Agent as contemplated by Section
5.17(a), or (ii) in connection with the Revolving Loan Documents or as
identified in Schedule 4.01(f), 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.
62
63
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 Borrower,
which materially and adversely affects the business, operations, properties,
assets or condition (financial or otherwise) of Borrower, the REIT, 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.
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, Borrower shall, and shall (except in the case of Borrower's
reporting covenants), cause each of its Subsidiaries or the REIT, as the case
may be, 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 REIT,
Borrower and of the Preferred Stock Subsidiaries 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 REIT, Borrower and of
the Preferred Stock Subsidiaries 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 REIT's, Borrower's
or such Preferred Stock
63
64
Subsidiaries' 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 REIT, Borrower or such
Preferred Stock Subsidiaries, 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 REIT, Borrower or such Preferred Stock
Subsidiaries, as the case may be, in accordance with GAAP, subject only to
normal year-end audit adjustments and the absence of footnotes;
(c) as soon as available, but in any event not less than
ninety (90) days after the beginning of each fiscal year, copies of Borrower'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, in form and detail
satisfactory to Administrative Agent and the Requisite Lenders:
(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) concurrently with the delivery of the financial statements
referred to in Sections 6.01(a) and (b), (1) a duly completed Compliance
Certificate signed by a Responsible Officer of Borrower, with such supporting
information as may be requested by Administrative Agent, (2) an updated Schedule
1.01A (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 Borrower and such other
information as Administrative Agent may reasonably request, (3) an updated
Schedule 1.01B (Guarantors), which updated schedule will identify each Guarantor
and Oxford Guarantor and such Guarantor's pro rata share of Total Corporate
EBITDA (provided that the Management Entities' pro rata shares of Total
Corporate EBITDA may be combined for purposes of this updated Schedule 1.01B,
(4) an updated Schedule 1.01-D (Construction/Renovation Properties), which
updated schedule will identify all information regarding the aggregate book
value of all Construction/Renovation (separating New Construction from
renovation, rehabilitations and expansions) and all Real Property Assets Under
Development, in each case including information with respect to the aggregate
expenditures made to date, (5) an updated Schedule 1.01E (Collateral), which
updated schedule will identify all Oxford Pledged Collateral and Non-Oxford
Pledged Collateral as of the period covered by such Compliance Certificate, (6)
an
64
65
updated Schedule 7.01(m) (Existing Cross-Collateralized and Cross-Defaulted
Indebtedness), which updated schedule will identify all cross-collateralized and
cross-defaulted Indebtedness of the REIT, Borrower and their Subsidiaries and
the aggregate outstanding principal amount thereof, and (7) an updated Schedule
I to the Borrower Pledge Agreement, together with the delivery of such Pledged
Collateral and the Pledge Amendment (defined in the Borrower Pledge Agreement)
to cause Borrower to be in compliance with Section 5.17 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, 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;
(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 Borrower or any member of its 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 Borrower or any member of its 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 liabilities; or
65
66
(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 Borrower or any of its 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 Borrower, the
REIT, 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 Borrower, the
REIT, 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 Borrower, the REIT, 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 Borrower, the
REIT, any Management Entity or any of their Subsidiaries of any default under
any Indebtedness or Guaranty Obligation described in Section 8.01(f), notice of
such default; and
(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.
Each notice pursuant to Sections 6.02(e) through (l) and (n) shall be
accompanied by a statement of two (2) Responsible Officers of Borrower or the
REIT, as the case may be, setting forth details of the occurrence referred to
therein and, if applicable, the provisions of this Agreement affected, and
stating what action Borrower or the REIT, as the case may be, has taken and
proposes to take with respect thereto.
66
67
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 Borrower 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 Borrower's 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 Borrower and its Wholly Owned Subsidiaries from any tort,
legal or other liability resulting from their participation as general partners
in 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
67
68
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 Borrower (and, if requested by Administrative Agent, any insurance
broker of Borrower or the REIT) setting forth the nature and extent of all
insurance maintained by Borrower, the REIT, 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 Borrower's 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 Borrower,
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 Borrower; provided, however, that when an Event of Default
exists, Administrative Agent may visit and inspect at the expense of Borrower
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 Borrower or any of its Subsidiaries.
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.
68
69
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 for funding the costs of the
Oxford Acquisition and Partnership Tenders as permitted under this Agreement.
6.13 COMMUNICATION WITH ACCOUNTANTS.
While any Event of Default is continuing, authorize Administrative
Agent and any Lender to communicate directly with Borrower's independent
accountants and authorizes 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 Borrower.
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.
6.16 FURTHER ASSURANCES.
(a) Full Disclosure. Ensure that all other written
information, exhibits and reports furnished to Administrative Agent or any
Lender by Borrower, the REIT, any Management Entity or any of their Subsidiaries
do not contain any untrue statement of a material fact and do not and 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
69
70
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 REIT and/or Borrower of any Person which is a Material Entity, (ii) any
Person in which the REIT and/or Borrower owns any equity interest becoming a
Material Entity or (iii) the acquisition by the REIT and/or Borrower of any
Person which constitutes a Material Entity after giving effect to such
acquisition, in each case after the Closing Date, Borrower shall indicate if
such Person is an Oxford Guarantor, and shall cause such Person (so long as such
Person is not prohibited from doing so by law or contractual obligations) to
deliver to Administrative Agent for the ratable benefit of the Lenders a
guaranty of the Obligations in the form attached hereto as Exhibit X-0-0, X-0-0,
X-0-0 xx X-0-0, as applicable. Concurrently with the delivery of such guaranty,
Borrower 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. All such agreements, documents
and other instruments required to be delivered to Administrative Agent pursuant
to this Section 6.16(c) shall be delivered collectively at the same time a
Compliance Certificate is delivered to Administrative Agent pursuant to Section
6.02(b). Additionally, Borrower shall cause such additional Subsidiaries of the
REIT and/or Borrower and/or such other Persons in which the REIT and/or Borrower
owns any equity interest to become a Guarantor pursuant to this Section 6.16(c)
so that at all times the Guarantors (together with AIMCO/Bethesda and NHP
Management), collectively, represent not less than 75% of Total Corporate EBITDA
for the immediately preceding fiscal quarter.
6.17 UNCONSOLIDATED PARTNERSHIP DISTRIBUTIONS.
Cause the REIT, each Guarantor or their respective Subsidiaries with an
equity interest in any Person to use its best efforts to cause such Person to
make regular distributions of Net Operating Income of such Person in accordance
with such Person's partnership, operating or incorporation agreements and sound
business practices.
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, Borrower shall not, and shall not permit any of the other
Borrower Parties nor any of their respective Subsidiaries to, directly or
indirectly:
7.01 INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness, except:
(a) Ordinary Course Indebtedness;
70
71
(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 Borrower, the Guarantors and their
Subsidiaries (whether secured or unsecured) which is outstanding on the date
hereof and is listed on Schedule 7.01(d), and is Recourse to Borrower, the
Guarantors or any of their Subsidiaries (but excluding Indebtedness under the
Loan Documents and the Revolving Loan Documents) in an aggregate principal
amount not to exceed at any time the lesser of (i) $120,000,000 and (ii) the
maximum amount permitted to be drawn under any such Recourse Indebtedness
existing on the date hereof which amount is listed on Schedule 7.01(d);
provided, however that once any such debt permitted pursuant to this Section
7.01(d) is repaid, Borrower, the Guarantors and their Subsidiaries will not be
permitted to refinance, restructure or otherwise incur any additional Recourse
Indebtedness in respect thereof;
(e) Secured Indebtedness of Borrower, the Guarantors and their
Subsidiaries which is not Recourse to Borrower, the Guarantors or any of their
Subsidiaries; provided, however, that with respect to any real Property which is
owned by a Person comprising the Oxford Pledged Collateral, such Secured
Indebtedness entered into after the Closing Date shall not contain provisions
prohibiting or restricting the pledge of the Pledged Collateral required under
the Loan Documents; provided further, however, that, notwithstanding the
foregoing, in all events the Indebtedness listed on Schedule 7.01(e) shall be
permitted;
(f) Endorsements for collection or deposit in the Ordinary
Course of Business;
(g) Unsecured Swap Agreements entered into by Borrower with
respect to variable rate Indebtedness permitted hereunder;
(h) Indebtedness of the REIT, Borrower 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(d), (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
71
72
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 in an aggregate principal amount not
to exceed 15% of Total Combined Debt at any time; provided, however, that such
cross-collateralized or cross-defaulted Indebtedness shall otherwise be
Indebtedness permitted under Sections 7.01(d) and (e); provided further that all
cross-collateralized and cross-defaulted Indebtedness existing on the date
hereof shall be listed on Schedule 7.01(m) and such cross-collateralized and
cross-defaulted Indebtedness shall be satisfactory to Administrative Agent; and
(n) Indebtedness under the Revolving Loan Documents, including
any Guaranty Obligations in connection therewith, and the Loan Documents.
Nothing contained in this Section 7.01 shall be deemed to excuse any
lack of compliance by Borrower, the REIT, 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;
72
73
(d) Liens securing Indebtedness permitted under Sections
7.01(d), (e), (h) or (i) on real and personal Properties and not constituting
ownership interests in Borrower or any of the Subsidiaries of Borrower or the
REIT;
(e) Liens supporting purchase options and Guaranty Obligations
permitted by this Agreement;
(f) Liens on Property of a Person which becomes a Subsidiary
of the REIT, Borrower or any of their respective Subsidiaries after the date
hereof securing Indebtedness permitted by Sections 7.01(d) or (e); provided that
(i) such Liens existed at the time such Person become a Subsidiary of the REIT,
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 the REIT, 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 arising from Capital Leases entered into by the
Borrower Parties; and
(i) Liens and Negative Pledges existing on the date hereof and
any renewals or extensions thereof pursuant to the Revolving Credit Agreement
and the other Revolving Loan Documents and the Intercreditor Agreement or the
Loan Documents.
Except with respect to specific property encumbered to secure payment
of particular Indebtedness, neither Borrower nor any of its Subsidiaries shall
enter into any agreement prohibiting the creation or assumption of any Lien upon
any of its Properties or any stock or assets, whether now owned or hereafter
acquired. Except as provided (i) in this Agreement, (ii) with respect to
Indebtedness permitted under Section 7.01, (iii) in acquisition agreements, and
(iv) with respect to non-assignment provisions of leases, subleases, licenses
and sublicenses, Borrower will not, and will not permit any of its Subsidiaries
to, create or otherwise cause or suffer to exist or become effective any
consensual encumbrance or restriction of any kind on the ability of any such
Subsidiary to (A) pay dividends or make any other distributions on any of such
Subsidiary's capital stock owned by Borrower or any other Subsidiary of
Borrower, (B) repay or prepay any Indebtedness owed by such Subsidiary to
Borrower or any other Subsidiary of Borrower, (C) make loans or advances to
Borrower or any other Subsidiary of Borrower, or (D) transfer any of its
property or assets to Borrower or any other Subsidiary of Borrower.
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:
73
74
(i) Subsidiaries of Borrower or of the REIT 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, Borrower, the REIT or another Subsidiary of Borrower
or of the REIT;
(ii) Subsidiaries of Borrower or of the REIT 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 Borrower or of the REIT may
engage in reverse mergers or internal reorganizations whereby
a Subsidiary or Subsidiaries merge into or with one or more
Subsidiaries of the Borrower or any Guarantor or any
combination thereof; and
(iv) Borrower, the REIT or any Subsidiary may merge,
or consolidate with another Person; provided that each of the
following conditions are satisfied: (1) at the inception of
the transaction, Borrower, the REIT or Subsidiary are intended
to be and will be the surviving Person after the consummation
of the contemplated transaction; (2) to the best Knowledge of
Borrower, prior to the consummation of the transaction, the
transaction will not cause Borrower to be in breach of the
representations and warranties of this Agreement and the other
Loan Documents; (3) the transaction will not cause Borrower to
be in breach of the covenants of this Agreement and the other
Loan Documents, including financial covenants after the
consummation thereof; and (4) Borrower provides Administrative
Agent with a pro-forma Compliance Certificate that
demonstrates that after the consummation of the proposed
transaction the Borrower will be in compliance with the
financial covenants of this 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 REIT and Borrower be changed so as to
eliminate the transferability of Partnership Units of Borrower for common Stock
in the REIT on a one-to-one basis (subject to adjustment as provided in the
Organization Documents of the Borrower) 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 Borrower or the REIT and such new or surviving Person provides
a Guaranty to the Lenders in accordance with the requirements of Section
6.16(c).
74
75
(c) Issue any preferred Stock or preferred Partnership Units;
provided, however, the REIT or any of its Subsidiaries may issue preferred Stock
so long as (i) if such Stock 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 Stock
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 Borrower, the REIT
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 Borrower or the REIT and such new or 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 Oxford Acquisition, 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; (ii) any consideration received for such Property
or Properties in the form of promissory notes shall be pledged to Administrative
Agent pursuant to the Borrower Pledge Agreement; and (iii) the Net Disposition
Proceeds of such Dispositions shall be applied as required by Section
2.03(c)(ii).
75
76
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);
(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);
(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 Oxford 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 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; and
(m) the Oxford Acquisition and the Partnership Tenders
following the Closing Date.
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:
76
77
(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 Borrower or any of its 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 Borrower, the REIT 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 Borrower, the REIT or a
Wholly-Owned Subsidiary) (all of the foregoing set forth in clauses (i) and
(ii), collectively, being "distributions"), except (i) for the exchange of
common Stock of the REIT for Partnership Units; and (ii) that if no Default or
Event of Default exists under Sections 8.01(a), (b) or (c) as a result of a
breach of Section 7.14, the REIT, Borrower 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 80% of Funds From Operations
for such period or such amount as may be necessary to maintain REIT Status;
provided, however, that nothing in this Section 7.07 shall prohibit any
distribution of Property by any Borrower Party, or an Affiliate thereof, in the
Ordinary Course of Business, pursuant to such Borrower Party's or Affiliate's
Organization Documents.
(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 Pension Plan to (i) engage
in any non-exempt "prohibited transaction" (as defined in Section 4975 of the
Code); (ii) fail to comply with ERISA or any other applicable Laws; or (iii)
incur any material "accumulated funding deficiency" (as defined in Section 302
of ERISA), which, with respect to each event listed above, has a Material
Adverse Effect, (c) terminate any Plan subject to Title IV of ERISA so as to
result in any material (in the opinion of Administrative Agent) liability to
Borrower 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 Borrower 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
77
78
(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 Borrower's 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 enable the REIT to maintain its REIT
status.
7.10 TRANSACTIONS WITH AFFILIATES.
Enter into any transaction with any Affiliate of Borrower (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 Borrower, 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 Borrower, the REIT and their respective
Subsidiaries, (d) employment, compensation and indemnification arrangements with
officers and directors of Borrower, the REIT and their respective Subsidiaries,
(e) fees payable in connection with directors' fees and services rendered to the
Board of Directors of Borrower, the REIT or their respective Subsidiaries, or
(f) loans and advances to officers and directors of Borrower, the REIT and their
respective Subsidiaries.
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 Borrower 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) Borrower has 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 Borrower) not consented to the use of the proceeds of
such Extension of Credit for that purpose.
7.12 TRANSFERS OF NON-OWNED INTERESTS IN THE MANAGEMENT ENTITIES.
Sell, transfer, encumber or hypothecate, voluntarily or involuntarily,
all or any portion of the interests in the Management Entities or any rights
therein that are not held directly or indirectly by Borrower without the prior
written consent of the Requisite Lenders, except for transfers by executive
officers resulting from the death or disability of any such executive officer
78
79
or occurring after such executive officer is no longer an employee of Borrower,
the REIT, or any of their Subsidiaries; provided, however, that consent shall
not be required for the transfers of interests in a Management Entity solely to
the extent any such transfer is required in connection with the consolidation or
merger of any Management Entity into a Wholly-Owned Subsidiary of the Borrower
or the REIT and such new or surviving Person provides a Guaranty to the Lenders
in accordance with the requirements of Section 6.16(c).
7.13 LIMITATIONS ON UPSTREAMING.
Agree to any restriction or limitation on the making of Restricted
Payments or transferring of assets from any Subsidiary of Borrower to Borrower,
except for such restrictions existing or by reason of (a) any restrictions
existing under the Loan Documents or the Revolving Loan Documents, (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 joint venture agreements limiting the payment of
distributions to the joint venturers (subject to Section 6.17), (f) ordinary
course restrictions existing 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) provisions
restricting transfer or assignment of the obligor's real or personal Property,
(iii) provisions limiting distributions of the obligor's net revenues and (iv)
such other provisions reasonably approved by Administrative Agent, and (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 Interest Coverage Ratio as of the end of any
fiscal quarter to be less than 2.25:1.00.
(c) Permit the Unsecured Debt Service Coverage Ratio as of the
end of any fiscal quarter to be less than 3.00:1.00.
(d) 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(d), 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".
(e) Permit the ratio of Total Obligations to Gross Asset Value
to exceed 0.68:1.00 at any time from the Closing Date through and including
September 30, 2000, nor permit the ratio of Total Obligations to Gross Asset
Value to exceed 0.65:1.00 at any time thereafter; provided, however, that for
purposes of this Section 7.14(e), Gross Asset Value shall
79
80
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 Encumbered Property Debt Coverage Ratio as of
the end of any fiscal quarter to be less than 1.60:1.00.
(g) 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)
$2,242,215,000 plus (y) 85% of the Net Issuance Proceeds of all issuances of
Stock or Partnership Units from and after June 30, 2000.
7.15 CHANGE IN AUDITORS.
Change the certified public accountants auditing the books of Borrower
without the consent of Requisite Lenders, other than changes to Ernst & Young
LLP, Pricewaterhouse Coopers LLP, Xxxxxx Xxxxxxxx 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 Borrower or any Subsidiary at any time or any rights to distributions or
dividends therefrom other than to Borrower or a Wholly-Owned Subsidiary;
(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 Borrower;
(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 Borrower 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 Borrower;
(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.
80
81
7.17 TAXATION OF BORROWER.
In the case of Borrower, 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) Borrower fails to pay any principal on any Extension of
Credit as and on the date when due; or
(b) Borrower fails 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 or 7; or
(d) 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 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 Borrower 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) Borrower, the Guarantors, any of their respective
Subsidiaries or any Person in which they have an 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 Borrower, 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
81
82
(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 Borrower, any Guarantor, any of
their respective Subsidiaries or any other
Person in which Borrower, any Guarantor or
any such Subsidiary has an 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
Borrower, 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 Borrower, any
Guarantor or any of their respective
Subsidiaries shall own a 50% or greater
equity interest in the Nonrecourse Debt
Obligor), and (II) the 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) the
Borrower's, any Guarantors' 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 Sections
8.01(g)(A) or (B), if the effect of 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 the
Oxford Assets, 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 the Indebtedness or Guaranty
Obligation 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
82
83
(It is being understood that, for purposes of clauses (A), (B)
and (C) above, no failure by the REIT, Borrower or any Subsidiary 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 Supermajority 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
(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) 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 Borrower 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 Borrower 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
83
84
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 Borrower or other Person party thereto (except to the extent
that the same results solely from an act or omission of Administrative Agent or
the Lenders), or Borrower 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 or covenant contained in such Guaranty, and such
failure shall continue uncured for a period of 20 days after the earlier of (A)
the date upon which a Responsible Officer of Borrower knew or received written
notice of such failure or (B) the date upon which written notice thereof is
given to Borrower by Administrative Agent, or any other event or condition shall
occur or exist under a Guaranty that constitutes an "Event of Default" as
defined therein; or (iii) the REIT or any Guarantor Subsidiary shall fail to
perform or observe (A) any term, covenant or agreement in Sections 1, 9, or
12(a) through (g), inclusive, of the guaranty in the REIT Guaranty or
incorporated from Sections 6.12 and 6.14 and Article 7 of this Agreement into
Section 12(h) of such guaranty, or (B) any other term, covenant or agreement in
the REIT 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 knew or
received written notice of such failure or (II) the date upon which written
notice thereof is given to Borrower or the REIT (or any Subsidiary party
thereto) by Administrative Agent; or the REIT 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 the REIT (or
any Subsidiary party thereto) shall contest in any manner the validity or
enforceability thereof or deny that the REIT (or any Subsidiary party thereto)
has any further liability or obligation thereunder; or
84
85
(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 Borrower or the REIT, 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) Borrower, 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
Borrower, Guarantors and their respective Subsidiaries, taken as a whole; or
(q) Borrower, 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, Borrower, the REIT, or any Subsidiary 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; or
(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 the
Revolving Credit Agreement or any of the other Revolving 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:
85
86
(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),
Requisite 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 Borrower.
(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 shall automatically terminate
without notice to or demand upon Borrower, which are expressly
waived by Borrower; and
(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
Borrower.
(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 Borrower, which are expressly
waived by Borrower (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 the Loan Documents
against any Borrower Party and such other rights and remedies as are provided by
Law or equity.
(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 Requisite Lenders in their sole discretion. The order and manner in
which Administrative Agent's and Lenders' rights and remedies are to be
exercised shall be determined by Requisite 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.
86
87
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.
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 Borrower or any Subsidiary or Affiliate of
Borrower, 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 Borrower or any other party to
any Loan Document to perform its 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 Borrower or any of
Borrower's Subsidiaries or Affiliates.
87
88
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 Borrower),
independent accountants and other experts selected by Administrative Agent.
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.
(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 Borrower 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 Joint Lead Arrangers 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
88
89
the affairs of Borrower and its Subsidiaries, shall be deemed to constitute any
representation or warranty by any Administrative Agent-Related Person or any
Joint Lead Arranger to any Lender as to any matter, including without
limitation, whether Administrative Agent-Related Persons or any Joint 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 any Joint 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 Borrower and its
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 Borrower hereunder. Each Lender also
represents that it will, independently and without reliance upon any
Administrative Agent-Related Person or any Joint 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 Borrower. Except for notices, reports and other documents
expressly herein required to be furnished to Lenders by Administrative Agent
herein, 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 Borrower or any of its Subsidiaries which may come into the
possession of any of Administrative Agent-Related Persons or any Joint 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 Borrower and without limiting the
obligation of Borrower 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 Borrower. The undertaking
in this Section shall survive the payment of all Obligations hereunder and the
resignation or replacement of Administrative Agent.
89
90
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 Borrower and its 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 Borrower or its Affiliates (including information that may be subject
to confidentiality obligations in favor of 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.
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 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 be approved by Borrower
(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 Borrower, 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
90
91
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,
(a) 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 as follows:
(i) To amend the provisions of the definition of
"Requisite Lenders," "Supermajority Lenders," Section 9 or
this Section 10.01; or
(ii) To reduce the amount 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
Borrower to pay when due principal, interest or any commitment
fee; or
(iii) To postpone any date fixed for any 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
(iv) To release (i) any Lien granted in favor of
Administrative Agent with respect to all or substantially all
of the Pledged Collateral, or (ii) all or substantially all of
the Guarantors from their obligations under the REIT Guaranty
Documents, in each case other than in accordance with the
terms of the Loan Documents; or
(v) To amend any provision of this Agreement that
expressly requires the consent or approval of all Lenders; and
(b) 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 Sections 7.14(a),
(b), (c), (d), (e), (f), (g) hereof or Section 8.
Notwithstanding anything in this Section 10.01 which may be construed
to the contrary, the Fee Letters 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. Notwithstanding any other provision contained herein to
the contrary, Administrative Agent may charge, for distribution to Lenders, a
reasonable amendment fee for any amendments to this Agreement made pursuant to
this Section 10.01 if such fee is necessary or, in the reasonable opinion of
Administrative Agent, desirable to effectuate any such amendment.
91
92
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
----------------------------------------------------------------------------------------
Fourth Business Day after deposit in U.S. mail first
Mail class postage pre-paid
----------------------------------------------------------------------------------------
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 (d) the terms thereof, as understood by the recipient, varied from
any subsequent related communications provided for herein. Borrower 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.
Borrower agrees (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
92
93
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; provided, however,
that Administrative Agent and LCPI shall not seek more than $50,000 from
Borrower for reimbursement of travel and travel-related expenses through and
including the Closing Date; 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 or any Lender. Such costs and expenses shall also include
administrative costs of Administrative 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 Borrower 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) This Agreement and the other Loan Documents to which
Borrower is a party will be binding upon and inure to the benefit of Borrower,
Administrative Agent, Lenders and their respective successors and assigns,
except that, Borrower may not assign its rights hereunder or thereunder or any
interest herein or therein without the prior written consent of all Lenders and
any such attempted assignment shall be void. Any Lender may at any time pledge
its Note or any other instrument evidencing its rights as a Lender under this
Agreement to (i) a Federal Reserve Bank, or (ii) in the case of any Lender that
is an investment fund, to any holders of obligations (including, without
limitation, investments involving repurchase obligations) owed or securities
issued by such Lender, or to any trustee for, or other representative of such
holders; but no such pledge shall release that Lender from its obligations
hereunder or grant to such Federal Reserve Bank or other pledgee the rights of a
Lender hereunder absent foreclosure of such pledge.
(b) From time to time following the Closing Date, each Lender
may assign to one or more Eligible Assignees all or any portion of its Pro Rata
Share of its Commitment and/or Extensions of Credit; provided that (i) such
assignment, if not to a Lender, an Affiliate of the assigning Lender, or a
Related Fund of the assigning Lender, shall require the approval of Borrower at
all times other than during the existence of a Default or Event of Default and
Administrative Agent (which approval of Borrower or Administrative Agent, shall
not be unreasonably withheld, conditioned or delayed and if Borrower does not
respond during such ten (10) Business Days after receipt of a Notice of
Assignment and Acceptance, such assignment shall be deemed approved), (ii) a
copy of a duly signed and completed Notice of Assignment and Acceptance
93
94
shall be delivered to Administrative Agent, (iii) the assignment shall not
assign a Pro Rata Share equivalent to less than the Minimum Amount therefor, and
(iv) the effective date of any such assignment shall be as specified in the
Notice of Assignment and Acceptance, but not earlier than the date which is five
Business Days after the date Administrative Agent has received the Notice of
Assignment and Acceptance. Upon acceptance by Administrative Agent of such
Notice of Assignment and Acceptance and approval thereto by Administrative Agent
and payment of the requisite fee described below, the Eligible Assignee named
therein shall be a Lender for all purposes of this Agreement, with the Pro Rata
Share therein set forth and, to the extent of such Pro Rata Share, the assigning
Lender shall be released from its further obligations under this Agreement.
Borrower agrees that it shall execute and deliver upon request (against delivery
by the assigning Lender to Borrower of any Note) to such assignee Lender, one or
more Notes evidencing that assignee Lender's Pro Rata Share, and to the
assigning Lender if requested, one or more Notes evidencing the remaining
balance Pro Rata Share retained by the assigning Lender. Administrative Agent's
consent to and acceptance of any assignment shall not be deemed to constitute
any representation or warranty by any Administrative Agent-Related Person as to
any matter.
(c) After receipt of a completed Notice of Assignment and
Acceptance, and receipt of an assignment fee of $2,500 from such Eligible
Assignee, Administrative Agent shall, promptly following the effective date
thereof, provide to Borrower and Lenders a revised Schedule 10.02 giving effect
thereto.
(d) Each Lender may from time to time grant participations to
one or more banks or other financial institutions, or other entities, (including
another Lender or to a special purpose entity in connection with issuances of
collateralized loan obligations or similar securities issuances) all or any
portion of its Pro Rata Share of its Commitment and Extensions of Credit;
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 participating
banks or other financial institutions shall not be a Lender hereunder for any
purpose except, if the participation agreement so provides, for the purposes of
Section 3 (but only to the extent that the cost of such benefits to Borrower
does not exceed the cost which Borrower would have incurred in respect of such
Lender absent the participation) and subject to Sections 10.05 and 10.06, (iv)
Borrower, Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement, (v) the participation shall not restrict an
increase in the Commitment or in granting Lender's Pro Rata Share, so long as
the amount of the participation interest is not affected thereby, and (vi) the
consent of the holder of such participation interest shall not be required for
amendments or waivers of provisions of the Loan Documents; provided, however,
that the assigning Lender may, in any agreement with a participant, give such
participant the right to consent to any matter which (A) extends the Maturity
Date as to such participant or any other date upon which any payment of money is
due to such participant, (B) reduces the rate of interest owing to such
participant, any fee or any other monetary amount owing to such participant, or
(C) reduces the amount of any installment of principal owing to such
participant.
94
95
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 Borrower, any such notice
being waived by Borrower 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 Borrower) 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 Borrower 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.
Each Lender severally agrees that if it, through the exercise of any
right of setoff, banker's lien or counterclaim against Borrower, 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 Borrower or any
Person claiming through or succeeding to the rights of Borrower, 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. Borrower expressly
consents to the foregoing arrangements and agrees 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.
95
96
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 Loans
outstanding or, if it exceeds the unpaid principal, refunded to Borrower. 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,
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.
96
97
10.10 INTEGRATION.
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
Borrower or any Affiliate of Borrower. 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 Borrower set forth in Section 3 and Subsections 10.03, 10.05,
10.13, and 10.14 and the agreements of Lenders set forth in Subsections 9.03,
9.07 and 10.06 shall survive the payment of the other Obligations and the
termination of this Agreement.
10.13 INDEMNITY BY BORROWER.
Borrower agrees 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 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
97
98
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 Oxford 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,
costs or expenses (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.
10.14 NONLIABILITY OF LENDERS.
Borrower acknowledges and agrees that:
(a) Any inspections of any Property of Borrower made by or
through Administrative Agent or Lenders are for purposes of administration of
the Loan Documents only, and Borrower is not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrower);
(b) 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;
(c) The relationship between Borrower 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 Borrower 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
Borrower or its Affiliates, or to owe any fiduciary duty to Borrower or its
Affiliates; neither Administrative Agent nor Lenders undertake or assume any
responsibility or duty to Borrower or its Affiliates to select, review, inspect,
supervise, pass judgment upon or inform Borrower or its Affiliates of any matter
in connection with their Property or the operations of Borrower or its
Affiliates; Borrower and its 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 neither Borrower nor any
other Person is entitled to rely thereon; and
(d) 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 Borrower and/or its Affiliates and
98
99
Borrower hereby indemnifies 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 Borrower, Administrative Agent and
Lenders in connection with the Loans, and is made for the sole benefit of
Borrower, 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 or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.17 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.
10.18 TIME OF THE ESSENCE.
Time is of the essence of the Loan Documents.
10.19 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.
10.20 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
99
100
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.
10.21 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.
10.22 NOTICE OF CLAIMS; CLAIMS BAR.
BORROWER HEREBY AGREES THAT IT SHALL GIVE PROMPT WRITTEN NOTICE TO
ADMINISTRATIVE AGENT OF ANY CLAIM OR CAUSE OF ACTION IT BELIEVES IT HAS, 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
BORROWER SHALL FAIL TO GIVE SUCH PROMPT NOTICE TO ADMINISTRATIVE AGENT WITH
REGARD TO ANY SUCH CLAIM OR CAUSE OF ACTION, BORROWER 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.
100
101
10.23 CO-BORROWER OBLIGATIONS.
(A) NOTWITHSTANDING ANY OTHER PROVISION OF THIS AGREEMENT OR ANY OTHER
LOAN DOCUMENT TO THE CONTRARY, THE PAYMENT AND PERFORMANCE OF NHP MANAGEMENT'S
OBLIGATIONS HEREUNDER AND UNDER ANY OF THE OTHER LOAN DOCUMENTS SHALL BE SUBJECT
TO THE SATISFACTION OF NHP MANAGEMENT'S OBLIGATIONS UNDER THE REVOLVER LOAN AND
THE REVOLVING LOAN DOCUMENTS; PROVIDED, HOWEVER, THAT FOR SO LONG AS NO REVOLVER
PAYMENT DEFAULT (AS DEFINED IN THE INTERCREDITOR AGREEMENT) OCCURS OR IS
CONTINUING, NHP MANAGEMENT, AIMCO AND AIMCO/BETHESDA SHALL BE DIRECTLY, JOINTLY
AND SEVERALLY LIABLE AS BORROWER HEREUNDER AND UNDER THE OTHER LOAN DOCUMENTS.
(B) Without limiting the foregoing Section 10.23(A), each of AIMCO,
AIMCO/Bethesda, and NHP Management (each a "Co-Borrower") represents, warrants,
covenants and agrees as follows:
(a) Defenses. The obligations pursuant to the Loan Documents
shall not be affected by any of the following: (a) the bankruptcy,
disability, dissolution, incompetence, insolvency, liquidation, or
reorganization of any Co-Borrower; (b) 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. Administrative Agent, on
behalf of the Lenders, may do the following acts or omissions from time
to time without notice to or consent of Co-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: (a)
Administrative Agent may obtain collateral or additional collateral;
(b) Administrative Agent may substitute for any or all collateral
regardless of whether the same type or greater or lesser value; (c)
Administrative Agent may release any or all collateral; (d)
Administrative 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; (e) Administrative
Agent may sell or otherwise dispose of any collateral in such manner or
order as Administrative Agent determine in accordance with the Loan
Documents; (f) Administrative Agent may fail to perfect, fail to
protect the priority of, and fail to ensure any or all liens or
encumbrances; (g) Administrative Agent may fail to inspect, insure,
maintain, preserve or protect any or all collateral; (h) Administrative
Agent may obtain additional obligors for any or all obligations
pursuant to the Loan Documents; (i) Administrative Agent may increase
or decrease any or all obligations or otherwise change terms of any or
all obligations in accordance with the Loan Documents; (j)
Administrative Agent may release any Co-Borrower; (k) Administrative
Agent may compromise, delay enforcement, fail to enforce, release,
settle or waive any
101
102
obligations of any Co-Borrower with the agreement of that Co-Borrower;
(l) Administrative Agent may make advances, or grant other financial
accommodations to any Co-Borrower; (m) Administrative 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; (n) Administrative Agent may amend, modify, extend, renew,
restate, supplement or terminate in whole or in part the obligation of
any Co-Borrower with the agreement of that Co-Borrower; (o)
Administrative Agent may take or fail to take any other action with
respect to any Loan Document or Co-Borrowers; and (p) Administrative
Agent may do any other acts or make any other omissions that result in
the extinguishment of the obligation of any Co-Borrower.
(c) Suretyship Waivers. Each Co-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 Co-Borrower.
(d) Information. Each Co-Borrower waives any rights that
require Administrative Agent, and Administrative Agent shall have no
obligation to, provide to Co-Borrowers any information concerning the
performance of any other Co-Borrower, the obligations pursuant to the
Loan Documents, or the ability of any other Co-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 Co-Borrower waives, until payment in full of
the Obligations, any and all present and future claims, remedies and
rights against any other Co-Borrower, any collateral and any other
property, interest in property or rights to property of any other
Co-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 Co-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
Co-Borrower).
[Remainder of page intentionally left blank]
102
103
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be
duly executed as of the date first above written.
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By:
--------------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/BETHESDA HOLDINGS, INC.,
a Delaware corporation
By:
--------------------------------
Xxxxx X. Xxxxxxxxx
President
NHP MANAGEMENT COMPANY
a District of Columbia corporation
By:
--------------------------------
Xxxxxxx Xxxx
Executive Vice President
S-1
104
BANK OF AMERICA, N.A., as Administrative Agent
By:
--------------------------------
Xxxxxx X. Xxxxx
Vice President
BANK OF AMERICA, N.A., as Lender
By:
--------------------------------
Xxxxxx X. Xxxxx
Vice President
S-2
105
XXXXXX COMMERCIAL PAPER, INC., as
Syndication Agent and a Lender
By:
--------------------------------
Name:
Title:
S-3
106
FLEET NATIONAL BANK, as Documentation
Agent and a Lender
By:
--------------------------------
Name:
Title:
S-4
000
XXX XXXX XX XXXX XXXXXX, acting through
its San Francisco Agency, as Lender
By:
--------------------------------
Name:
Title:
S-5
108
CALIFORNIA BANK & TRUST, a California
banking corporation, as a Lender
By:
--------------------------------
Name:
Title:
S-6
109
FIRST UNION NATIONAL BANK, as
Documentation Agent and a Lender
By:
--------------------------------
Name:
Title:
S-7
110
KEYBANK NATIONAL ASSOCIATION, as a Lender
By:
--------------------------------
Name:
Title:
S-8
111
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By:
--------------------------------
Name:
Title:
S-9
112
EXHIBIT A
Form of Request for Extension of Credit
A-1
113
EXHIBIT B
Form of Compliance Certificate
B-1
114
EXHIBIT C
Form of Committed Loan Note
C-1
115
EXHIBIT D
Form of Notice of Assignment and Acceptance
D-1
116
EXHIBIT E
[Intentionally omitted]
E-1
117
EXHIBIT F
Form of Opinions of Counsel
1. Xxxxxxx Xxxx Opinion
2. REIT counsel opinion
3. Xxxx Xxxxxx opinion
4. Colorado opinion
F-1
118
EXHIBIT G
Form of Borrower Pledge Agreement
G-1
119
EXHIBIT H-1
Form of REIT Guaranty Document
(REIT and Preferred Stock Subsidiaries)
H-1
120
EXHIBIT H-2
Form of REIT Guaranty Document
(Non-Preferred Stock Subsidiaries)
H-2
121
EXHIBIT I
Form of Intra-Company Subordination Agreement
I-1
122
EXHIBIT J
Intercreditor Agreement
J-1
123
SCHEDULE 1.01A
GP Loans
1.01A
124
SCHEDULE 1.01B
Guarantors
PART A
GUARANTORS
PART B
OXFORD GUARANTORS
1.01B
125
SCHEDULE 1.01C
Management Entities
1.01C
126
SCHEDULE 1.01D
Construction/Renovation Properties
1.01D
127
SCHEDULE 1.01E
Collateral
PART A
Oxford Collateral
PART B
Non-Oxford Collateral
1.01E
128
SCHEDULE 4.01(d)
HUD Escrow Oxford Assets
4.01(d)
129
SCHEDULE 4.01(f)
Oxford Pledged Collateral Liens
4.01(f)
130
SCHEDULE 5.03-A
Transfer Restrictions in Organization Documents
5.03-A
131
SCHEDULE 5.03-B
Transfer Restrictions in Contractual Obligations
5.03-B
132
SCHEDULE 5.05
Litigation
5.05
133
SCHEDULE 5.08
Taxes
5.08
134
SCHEDULE 5.10
ERISA Compliance
5.10
135
SCHEDULE 5.13
Environmental Compliance
5.13
136
SCHEDULE 5.16
Organizational Chart
5.16
137
SCHEDULE 7.01(d)
Existing Recourse Indebtedness
NEED INFORMATION FOR HUNTERS XXXX
----------------------------
XXXXXXX BEACH
----------------------------
GRAND FLAMINGO
----------------------------
7.01(d)
138
SCHEDULE 7.01 (e)
EXISTING SECURED INDEBTEDNESS SUBJECT TO PLEDGE RESTRICTIONS
7.01(e)
139
SCHEDULE 7.01(i)
Other Existing Indebtedness
7.01(i)
140
SCHEDULE 7.01(k)
Existing Bond Indebtedness
7.01(k)
141
SCHEDULE 7.01(m)
Existing Cross-Collateralized and Cross-Defaulted Indebtedness
7.01(m)
142
SCHEDULE 10.02
Offshore and Domestic Lending Offices, Addresses for Notices
10.02
