EXHIBIT 10.6
FIFTH AMENDMENT, dated as of May 30, 2003 (this
"AMENDMENT"), to the INTERIM CREDIT AGREEMENT, dated as of March 11, 2002 (as
amended by the First Amendment and Waiver, dated as of June 12, 2002, the
Second Amendment, dated as of August 2, 2002, the Third Amendment, dated as
of February 14, 2003, and the Fourth Amendment, dated as of May 9, 2003, and
as further amended, restated, extended, supplemented or otherwise modified in
writing from time to time, the "CREDIT AGREEMENT"), among AIMCO Properties,
L.P., a Delaware limited partnership ("AIMCO"), NHP MANAGEMENT COMPANY, a
District of Columbia corporation ("NHP MANAGEMENT"), and APARTMENT INVESTMENT
AND MANAGEMENT COMPANY, a Maryland corporation (the "REIT") (AIMCO, NHP
Management and the REIT are collectively referred to herein as "BORROWERS"),
XXXXXX COMMERCIAL PAPER INC., as Administrative Agent (in such capacity, the
"ADMINISTRATIVE AGENT"), as Syndication Agent and as a Lender, each lender
from time to time party thereto and XXXXXX BROTHERS INC., as Sole Lead
Arranger and Bookrunner.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, pursuant to the Credit Agreement, the Lenders have
agreed to make, and have made, certain Loans and other extensions of credit
to the Borrowers;
WHEREAS, the Borrower has requested that the Lenders agree
to make certain amendments to the Credit Agreement;
WHEREAS, the Lenders have agreed to make such amendments
solely upon the terms and conditions provided for in this Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
1. DEFINED TERMS. Unless otherwise noted herein, terms
defined in the Credit Agreement and used herein shall have the meanings given
to them in the Credit Agreement.
2. AMENDMENTS TO SECTION 1.01 OF THE CREDIT AGREEMENT
(DEFINED TERMS).
(a) Section 1.01 of the Credit Agreement is hereby amended
by inserting the following new definitions in the appropriate alphabetical
order:
"COLLATERAL AGENT" means Bank of America, in its capacity as
Collateral Agent under the Intercreditor Agreement and the Borrowers
Pledge Agreement, or any successor Collateral Agent pursuant to
Section 11.01(g).
"COLLECTIVE OBLIGATIONS" means, collectively, the Obligations
owing under this Agreement, the obligations owing under the Revolving
Credit Agreement and the obligations owing under the Term Loan Credit
Agreement.
"FIFTH AMENDMENT" means the Fifth Amendment to the Interim
Credit Agreement, dated as of May 30, 2003, among Borrowers, Lenders
and the Administrative Agent.
"FIFTH AMENDMENT EFFECTIVE DATE" means the "Effective Date"
as defined in the Fifth Amendment.
"LENDER GROUP" means, collectively, the Lenders, the Term
Lenders and the Lenders (as defined in the Revolving Credit
Agreement).
"OMNIBUS BORROWERS PLEDGE AGREEMENT" means the Borrowers
Pledge Agreement executed and delivered by the Borrower Parties
party thereto in connection with this Agreement, the Revolving
Credit Agreement and the Term Loan Credit Agreement, substantially
in the form of EXHIBIT G-2 annexed hereto, as such Borrowers Pledge
Agreement may thereafter be amended, supplemented or otherwise
modified from time to time.
"TERM LENDERS" means the lenders from time to time party to
the Term Loan Credit Agreement.
"TERM LOAN CREDIT AGREEMENT" means that certain Term Loan
Credit Agreement, dated as of May 30, 2003, by and among Borrowers,
Bank of America, N.A., as administrative agent, and the other
financial institutions party thereto.
"TERM LOAN DOCUMENTS" means the Term Loan Credit Agreement
and the "Loan Documents" as defined therein, as amended from time
to time in accordance with the Intercreditor Agreement.
(b) Section 1.01 of the Credit Agreement is hereby further
amended by deleting each defined term listed below in its entirety and
replacing it with its respective new definition, as follows:
"2003 TERM LOAN" means a term credit facility provided to
the Borrowers and AIMCO/Bethesda Holdings, Inc. pursuant to that
certain Term Loan Credit Agreement, dated as of May 30, 2003, by
and among Borrowers, AIMCO/Bethesda Holdings, Inc., Bank of
America, as administrative agent, and the financial institutions
party thereto. The intercreditor relationship between the lenders
under the 2003 Term Loan, the lenders under the Revolving Credit
Agreement and the Lenders shall be governed by the Intercreditor
Agreement.
"ADJUSTED TOTAL NOI" means, for any period, Borrowers', the
Guarantors' and their respective downstream Affiliates' pro-rata
share of Net Operating Income, including the Borrowers',
Guarantors' and their respective downstream Affiliates' pro-rata
share of Net Operating Income from unconsolidated Persons, LESS the
Capital Expenditure Reserve as of the last day of such period.
"BORROWER PARTY" means Borrowers or any Person from time to
time party to a Loan Document other than (x) Lenders and any
Affiliates of Lenders, Administrative Agent, Collateral Agent,
Syndication Agent, or the Lead Arranger; (y) the Lenders (as
defined in the Revolving Credit Agreement) party to the Revolving
Credit Agreement; and (z) the Term Lenders party to the Term Loan
Credit Agreement.
2
"BORROWERS PLEDGE AGREEMENT" means collectively (i) the
Borrowers Pledge Agreement executed and delivered by the Borrower
Parties party thereto on March 11, 2002, substantially in the form
of EXHIBIT G annexed to the Credit Agreement, and (ii) the Ominibus
Borrowers Pledge Agreement, as such borrowers pledge agreements may
thereafter be amended, supplemented or otherwise modified from time
to time.
"COLLATERAL DOCUMENTS" means the Borrowers Pledge Agreement
and all other instruments or documents delivered by Borrowers or
any of their Subsidiaries pursuant to this Agreement or any of the
other Loan Documents in order to grant to Administrative Agent on
behalf of the Lenders, or Collateral Agent, on behalf of Lender
Group, a Lien on any real, personal or mixed property of that
Person as security for all or a portion of the Collective
Obligations.
"GP LOANS" means that certain Indebtedness loaned by AIMCO
to its Affiliates, whether secured or unsecured, evidenced by GP
Loan Notes in an aggregate principal amount of approximately
$469,558,455 outstanding as of March 31, 2003 and such Indebtedness
is set forth in more detail on SCHEDULE 1.01B hereto.
"INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor and Collateral Agency Agreement entered into as of
May 30, 2003 between Borrowers, Administrative Agent, borrowers to
the Term Loan Credit Agreement, Bank of America, N.A., in its
capacity as administrative agent under the Term Loan Credit
Agreement, borrowers party to the Revolving Credit Agreement, and
Revolver Administrative Agent, and Collateral Agent, attached
hereto as Exhibit L, as amended from time to time, as provided
therein. The Intercreditor Agreement shall be binding on and inure
to the benefit of each lender in the Lender Group.
"PLEDGED COLLATERAL" means any and all Property upon which
a Lien is purported to be created by any Collateral Document to
secure the Collective Obligations of the Borrowers pursuant to the
Collateral Documents and subject to the Intercreditor Agreement.
(c) Section 1.01 of the Credit Agreement is hereby
further amended by deleting the following definitions in their entirety:
(i) "CASDEN PLEDGED COLLATERAL";
(ii) "PARK LA BREA CONSTRUCTION DEBT";
(iii) "PARK VISTA CONSTRUCTION FINANCING"; and
(iv) "VILLA AZURE CONSTRUCTION FINANCING".
(d) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the word "2000" from the definition of "AUDITED FINANCIAL
STATEMENTS" and replacing it with the word "2002".
3
(e) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the "(i)" and the words "or (ii) which, after giving
effect to the Transaction, will be directly or indirectly owned by Borrowers
or any of their Subsidiaries as a result of or in connection with the
Transaction" from the definition of "CASDEN".
(f) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the words "(other than any balances of the Borrowers 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)" from the definition of "CASH EQUIVALENTS"
and replacing them with the words "(other than any balances of the Borrowers
or any Subsidiary held by any Lender, any Lender (as defined in the Revolving
Credit Agreement) or any Term Lender, so long as such balances are maintained
in compliance with SECTIONS 10.05 and 10.06 herein)".
(f) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the words "principal amortization in respect of the
Obligations, (ii)" in their entirety from the definition of "FREE CORPORATE
CASH FLOW", and by deleting the word "(iii)" and replacing it with the word
"(ii)".
(g) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the words "EXHIBITS H-1 or H-2" from the definition of
"GUARANTY" and replacing them with the words "EXHIBIT H".
(i) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the words "pursuant to the Intra-Company Loan
Subordination Agreement" from the definition of "INTRA-COMPANY DEBT" and
replacing them with the words "in accordance with the terms of the
Intra-Company Loan Subordination Agreement".
(j) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the words "forfeiture and" from clause (g) of the
definition of "ORDINARY COURSE LIENS" and replacing them with "forfeiture or"
(k) Section 1.01 of the Credit Agreement is hereby further
amended by deleting the word "Casden" from the definition of "PARK LA BREA"
and replacing it with the word "AIMCO".
3. AMENDMENT TO SECTION 2.03 OF THE CREDIT AGREEMENT.
Section 2.03(d) shall be amended by adding a new Section 2.03(d)(iii) which
shall read as follows:
Notwithstanding anything to the contrary contained herein,
upon the occurrence of a Payment Default (as defined in the
Intercreditor Agreement) and during the continuation thereof, each
payment received pursuant to this SECTION 2.03 shall be applied in
accordance with and subject to the provisions of the Intercreditor
Agreement.
4. AMENDMENT TO SECTION 5.03 OF THE CREDIT AGREEMENT.
Section 5.03 shall be amended by adding the words ", the Term Loan Documents"
immediately before the words "and the Revolver Loan Documents" at the end
thereof.
4
5. AMENDMENTS TO SECTION 5.17 OF THE CREDIT AGREEMENT.
(a) Section 5.17(a) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting in lieu therefor the
following:
(a) CREATION, PERFECTION AND PRIORITY OF LIENS. The
execution and delivery of the Collateral Documents and the
Intercreditor Agreement by Borrowers and the other applicable
Borrower Parties, together with (i) the actions taken on or prior
to the Fifth Amendment Effective Date pursuant to Section
4.01(a)(xii) and/or Section 24 of the Fifth Amendment, and (ii) the
delivery to Collateral Agent of any Pledged Collateral together
with any required stock powers or endorsements not previously
delivered to Collateral Agent are effective to create in favor of
Collateral Agent for the benefit of Lender Group, as security for
the respective Collective Obligations, a valid and perfected first
priority Lien on all of Pledged Collateral, and all filings and
other actions necessary or desirable to perfect and maintain the
perfection and applicable priority status of such Liens have been
duly made or taken and remain in full force and effect, other than
the filing or recording of any UCC financing statements delivered
to Collateral Agent for filing (but not yet filed) and the periodic
filing of UCC continuation statements in respect of UCC financing
statements filed by or on behalf of Collateral Agent.
(b) Section 5.17(b) of the Credit Agreement is hereby
amended by deleting the words "Administrative Agent" in clauses (i) and (ii)
thereof and replacing them with the words "Collateral Agent".
(c) Section 5.17(c) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting in lieu therefor the
following:
ABSENCE OF THIRD-PARTY FILINGS. Except such as may have
been filed in favor of Collateral Agent as contemplated by Section
5.17(a) and as filed in favor of Administrative Agent or Revolver
Administrative Agent on or before the Closing Date, no effective
UCC financing statement, fixture filing or other instrument similar
in effect covering all or any part of the Pledged Collateral is on
file in any filing or recording office;
6. AMENDMENTS TO SECTION 6.02 OF THE CREDIT AGREEMENT.
(a) The preamble to Section 6.02 of the Credit Agreement is
hereby amended by deleting it in its entirety and substituting in lieu
therefor the following:
Deliver to Administrative Agent and each Lender, or
Collateral Agent (with respect to Collateral matters set forth in
clause (b)), in form and detail satisfactory to Administrative
Agent and the Requisite Lenders, and/or Collateral Agent (as
applicable):
(b) Section 6.02(b) of the Credit Agreement is hereby
amended by deleting clauses (3), (4) and (5) in their entirety and
substituting in lieu therefor the following:
(3) an updated SCHEDULE 1.01B (GP Loans), which updated
schedule will identify each GP Loan and, with respect to each such
GP Loan, its original amount, carrying
5
value, write-off amount, pro rata share owned (directly or
indirectly) by Borrowers and such other information as
Administrative Agent and Collateral Agent may reasonably request
(upon each delivery of an updated SCHEDULE 1.01B (GP Loans), the
representations and warranties contained in Section 5.17(a) hereof
shall be deemed to have been re-made by each Borrower as of the
date of such delivery, and Borrowers shall deliver to Collateral
Agent concurrently with the delivery of such updated SCHEDULE 1.01B
(GP Loans) such Pledged Collateral and the Pledge Amendment (as
defined in the Borrowers Pledge Agreement) to cause Borrowers to be
in compliance with Section 5.17(a) hereof as of the date of such
delivery), (4) an updated SCHEDULE 1.01C (Guarantors), which
updated schedule will identify each Guarantor and such Guarantor's
pro rata share of Total Pro Rata NOI (PROVIDED that the Management
Entities' pro rata shares of Total Pro Rata NOI may be combined for
purposes of this updated SCHEDULE 1.01C), (5) an updated SCHEDULE
1.01E (Collateral), which updated schedule will identify all
Pledged Collateral as of the period covered by such Compliance
Certificate,
7. AMENDMENTS TO SECTION 6.16 OF THE CREDIT AGREEMENT.
(a) Section 6.16(c) of the Credit Agreement is hereby
amended by deleting the words "(A) indicate whether such Person is a Casden
Guarantor, and (B)" and "-1 or H-2, as applicable".
(b) Section 6.16(e) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting in lieu therefor the
following:
ADDITIONAL PLEDGED COLLATERAL. With respect to any new
Guarantor created or acquired after the Fifth Amendment Effective
Date by the Borrowers or any of their Affiliates, within a
reasonable time, not to exceed twenty (20) days, following the
delivery of any guaranty required pursuant to Section 6.16(c), the
Borrowers or their Affiliates, as applicable, shall execute and
deliver to the Collateral Agent such amendment to the Borrower
Pledge Agreement as the Collateral Agent deems reasonably necessary
or desirable to grant to the Collateral Agent, for the benefit of
the Lender Group, a perfected first priority security interest in
the Stock or other equity interest of such new Guarantor in
accordance with the Borrower Pledge Agreement and deliver to the
Collateral Agent the certificates representing such Stock or equity
interests, together with undated stock powers, in blank, executed
and delivered by a duly authorized officer of the Borrowers or
their respective Affiliates, as applicable.
8. AMENDMENTS TO SECTION 7.01 OF THE CREDIT AGREEMENT.
(a) Section 7.01(d) of the Credit Agreement is hereby
amended by deleting the words "Fourth Amendment Effective Date" and replacing
them with the words "Fifth Amendment Effective Date".
(b) Section 7.01(e) of the Credit Agreement is hereby
amended by deleting the words "; PROVIDED, HOWEVER, that with respect to any
real Property which is owned by a Person comprising the Casden Pledged
Collateral, such Secured Indebtedness entered into after
6
the Closing Date shall not contain provisions prohibiting or restricting the
pledge of the Pledged Collateral required under the Loan Documents" in their
entirety.
9. AMENDMENTS TO SECTION 7.02 OF THE CREDIT AGREEMENT.
(a) Section 7.02(i) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting in lieu therefor the
following:
(x) Liens pursuant to the Collateral Documents in favor of
the Collateral Agent, for the benefit of the Lender Group, (y)
Liens under the Revolving Loan Documents, and (z) Negative Pledges
pursuant to this Agreement, the Revolving Credit Agreement, the
Term Loan Agreement, the other Loan Documents, the other Term Loan
Documents and the Revolver Loan Documents, and the Contingent
Acquisition Notes;
(b) Section 7.02(j) of the Credit Agreement is hereby
further amended by deleting the period at the end thereof and replacing it
with ";".
(a) Section 7.02 of the Credit Agreement is hereby further
amended by adding a new clause (k) at the end thereof which shall read as
follows:
Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Borrowers and
their Subsidiaries.
10. AMENDMENT TO SECTION 7.03(D) OF THE CREDIT AGREEMENT.
Section 7.03(d) of the Credit Agreement is hereby amended by inserting the
words "in accordance with this SECTION 7.03" immediately after the words
"changes in the equity structure of Subsidiaries".
11. AMENDMENT TO SECTION 7.04(C)(II) OF THE CREDIT
AGREEMENT. Section 7.04(c)(ii) of the Credit Agreement is hereby amended by
deleting the words "Administrative Agent" and replacing it with the words
"Collateral Agent".
12. AMENDMENT TO SECTION 7.07(A) OF THE CREDIT AGREEMENT.
Section 7.07(a) of the Credit Agreement is hereby amended by inserting the
words "(i) that the Net Issuance Proceeds or Net Disposition Proceeds
referred to in the definition of "Permitted Preferred Stock Redemptions" have
been, or will be, applied as and to the extent required under Section 2.06 of
the Revolving Credit Agreement, and (ii)" immediately after the words
"PROVIDED, THAT, prior to making any Permitted Preferred Stock Redemptions,
Borrowers shall first certify in writing to Administrative Agent ".
13. AMENDMENT TO SECTION 7.13(A) OF THE CREDIT AGREEMENT.
Section 7.13(a) of the Credit Agreement is hereby amended by inserting the
words ", the Term Loan Documents" immediately before the words "or the
Revolving Loan Documents".
14. AMENDMENT TO SECTION 7.16(A) OF THE CREDIT AGREEMENT.
Section 7.16(a) of the Credit Agreement is hereby amended by deleting it in
its entirety and substituting in lieu therefor the following:
7
Make any disposition of or encumber, pledge or hypothecate,
whether directly or indirectly, all or any portion of its interest
in AIMCO or any Subsidiary at any time or any rights to
distributions or dividends therefrom other than to AIMCO or a
Wholly-Owned Subsidiary, other than any pledges of equity interests
pursuant to the Collateral Documents in connection with this
Agreement, the Term Loan Credit Agreement and the Revolving Credit
Agreement, in each case subject to the terms of the Intercreditor
Agreement;
15. AMENDMENT TO SECTION 10.03 OF THE CREDIT AGREEMENT.
Section 10.03 of the Credit Agreement is hereby amended by deleting it in its
entirety and substituting in lieu therefor the following:
Borrowers agree (a) to pay or reimburse Administrative
Agent and Collateral Agent for all reasonable costs and expenses
incurred in connection with the development, preparation,
negotiation and execution of the Loan Documents, and the
development, preparation, negotiation and execution of any
amendment, waiver, consent, supplement or modification to, any Loan
Documents, and any other documents prepared in connection herewith
or therewith, and the consummation and administration of the
transactions contemplated hereby and thereby, including, without
limitation, all Attorney Costs and the charges of Intralinks or any
other electronic document distribution service; PROVIDED, HOWEVER,
that Administrative Agent shall not seek more than $10,000 from
Borrowers for reimbursement of travel and travel-related expenses
through and including the Closing Date; and (b) to pay or reimburse
Administrative Agent, Collateral Agent and each Lender for all
costs and expenses incurred in connection with any refinancing,
restructuring, reorganization (including a bankruptcy
reorganization) and enforcement or attempted enforcement, or
preservation of any rights under any Loan Documents, and any other
documents prepared in connection herewith or therewith, or in
connection with any refinancing, or restructuring of any such
documents in the nature of a "workout" or of any insolvency or
bankruptcy proceeding, including, without limitation, Attorney
Costs. The foregoing costs and expenses shall include all search,
filing, recording, title insurance and appraisal charges and fees
and taxes related thereto, and other out-of-pocket expenses
incurred by Administrative Agent and the cost of independent public
accountants and other outside experts retained by Administrative
Agent, Collateral Agent or any Lender. Such costs and expenses
shall also include administrative costs of Administrative Agent and
Collateral Agent reasonably attributable to the administration of
the Loan Documents, among other things, in connection with the
matters described in clause (b) above. Any amount payable by
Borrowers under this Section shall bear interest from the second
Business Day following the date of demand for payment at the
Default Rate, unless waived by Administrative Agent. The agreements
in this Section shall survive repayment of all Obligations.
16. AMENDMENT TO SECTION 10.06 OF THE CREDIT AGREEMENT.
Section 10.06 of the Credit Agreement is hereby amended by deleting the word
"Each" at the beginning thereof and replacing it with the words "Subject to
the terms of the Intercreditor Agreement, each".
8
17. AMENDMENT TO SECTION 10.12 OF THE CREDIT AGREEMENT.
Section 10.12 of the Credit Agreement is hereby amended by deleting the words
"and 10.06" thereof and replacing them with the words ", 10.06 and 11.01(F)".
18. AMENDMENT TO SECTION 10.13(A) OF THE CREDIT AGREEMENT.
Section 10.13(a) of the Credit Agreement is hereby amended by deleting the
word "Casden" immediately before the words "Pledged Collateral".
19. AMENDMENTS TO SECTION 10.22 OF THE CREDIT AGREEMENT.
(a) Section 10.22(b) of the Credit Agreement is hereby
amended by deleting it in its entirety and substituting in lieu therefor the
following:
RIGHTS OF ADMINISTRATIVE AGENT AND COLLATERAL AGENT.
Administrative Agent, or Collateral Agent, as applicable in each
case, on behalf of the Lenders, may do the following acts or
omissions from time to time without notice to or consent of any
Borrower and without receiving payment or other value, nor shall
the following acts or omissions affect, delay or impair any of the
obligations pursuant to the Loan Documents or any or all liens and
encumbrances: (i) Collateral Agent may obtain collateral or
additional collateral; (ii) Collateral Agent may substitute for any
or all collateral regardless of whether the same type or greater or
lesser value; (iii) Collateral Agent may release any or all
collateral; (iv) Collateral Agent may compromise, delay
enforcement, fail to enforce, release, settle or waive any rights
or remedies of Administrative Agent as to any or all collateral;
(v) Collateral Agent may sell or otherwise dispose of any
collateral in such manner or order as Collateral Agent determines
in accordance with the Collateral Documents and the Intercreditor
Agreement; (vi) Collateral Agent may fail to perfect, fail to
protect the priority of, and fail to ensure any or all liens or
encumbrances; (vii) Collateral Agent may fail to inspect, insure,
maintain, preserve or protect any or all collateral; (viii)
Administrative Agent may obtain additional obligors for any or all
obligations pursuant to the Loan Documents; (ix) Administrative
Agent may increase or decrease any or all obligations or otherwise
change terms of any or all obligations in accordance with the Loan
Documents; (x) Administrative Agent may release any Borrower; (xi)
Administrative Agent or Collateral Agent may compromise, delay
enforcement, fail to enforce, release, settle or waive any
obligations of any Borrower with the agreement of that Borrower;
(xii) Administrative Agent may make advances, or grant other
financial accommodations to any Borrower; (xiii) Administrative
Agent or Collateral Agent may fail to file or pursue a claim in any
bankruptcy, insolvency, reorganization or other proceeding as to
any or all liens and encumbrances or any or all obligations; (xiv)
Administrative Agent or Collateral Agent may amend, modify, extend,
renew, restate, supplement or terminate in whole or in part the
obligation of any Borrower with the agreement of that Borrower;
(xv) Administrative Agent or Collateral Agent may take or fail to
take any other action with respect to any Loan Document or any
Borrower; and (xvi) Administrative Agent or Collateral Agent may do
any other acts or make any other omissions that result in the
extinguishment of the obligation of any Borrower.
(b) Section 10.22(f)(v) of the Credit Agreement is hereby
amended by deleting the last sentence thereof it in its entirety
and substituting in lieu therefor "The
9
joint and several liability of each Borrower hereunder shall
continue in full force and effect notwithstanding any absorption,
merger, amalgamation or any other change whatsoever in the name,
constitution or place of formation of any of the Borrowers or
Administrative Agent or Lenders."
(c) Section 10.22(f)(vii) of the Credit Agreement is hereby
amended by deleting the words "without requirement on the part of
the Administrative Agent, the Lender, or any" in the first sentence
thereof and substituting in lieu therefor "without requirement on
the part of Administrative Agent, or any Lender, or any".
(d) Section 10.22(f)(viii) of the Credit Agreement is
hereby amended by deleting the word "Borrower therefor" at the end
thereof and substituting in lieu therefor "Borrowers therefor".
20. AMENDMENT TO SECTION 10.23 OF THE CREDIT AGREEMENT.
Section 10.23 of the Credit Agreement is hereby further amended by adding a
paragraph at the end thereof which shall read as follows:
Notwithstanding anything herein to the contrary, the
information subject to this SECTION 10.23 shall not include, and
the Administrative Agent and each Lender (and each employee,
representative or other agent of such Administrative Agent or such
Lender) may disclose to any and all persons without limitation of
any kind, any information with respect to the "tax treatment" and
"tax structure" (in each case, within the meaning of Treasury
Regulation Section 1.6011-4) of the transactions contemplated
hereby and all materials of any kind (including opinions or other
tax analyses) that are provided to the Administrative Agent or such
Lender relating to such tax treatment and tax structure; provided
that with respect to any document or similar item that in either
case contains information concerning the tax treatment or tax
structure of the transactions as well as other information, this
sentence shall only apply to the extent such document or similar
item relates to the tax treatment or tax structure of the Loans and
transactions contemplated hereby.
21. AMENDMENTS TO SECTION 10.25 OF THE CREDIT AGREEMENT.
(a) Section 10.25(a) is hereby amended by adding the words
"cause the Collateral Agent to" immediately after the words "(without notice
to, or vote or consent of, any Lender)".
(b) Section 10.25(b) is hereby amended by deleting it in
its entirety and substituting in lieu therefor the following:
Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations have been paid in
full and all Commitments have terminated or expired, upon request
of Borrowers, the Administrative Agent shall (without notice to, or
vote or consent of, any Lender) cause the Collateral Agent to (i)
take such actions as shall be required to release its security
interest in all Pledged Collateral (on behalf of the Lenders only),
and (ii) to release all guarantee obligations under any Loan
Document (on behalf of the Lenders only). Any such release of
10
guarantee obligations under any Loan Document (on behalf of the
Lenders only). Any such release of guarantee obligations shall be
deemed subject to the provision that such guarantee obligations shall
be reinstated if after such release any portion of any payment in
respect of the Obligations guaranteed thereby shall be rescinded or
must otherwise be restored or returned upon the insolvency, bankruptcy,
dissolution, liquidation or reorganization of Borrowers or any
Guarantor, or upon or as a result of the appointment of a receiver,
intervenor or conservator of, or trustee or similar officer for,
Borrowers or any Guarantor or any substantial part of its property, or
otherwise, all as though such payment had not been made.
22. ADDITION OF SECTION 11 OF THE CREDIT AGREEMENT. A new
Section 11 shall be added which shall read as follows:
SECTION XI. COLLATERAL AGENT.
11.01. COLLATERAL AGENT.
(a) Each Lender hereby irrevocably appoints, designates
and authorizes Bank of America, N.A. as Collateral Agent under the
Intercreditor Agreement and the Collateral Documents with such powers
as are specifically granted to the Collateral Agent by the terms
thereof, together with such other powers as are reasonably incidental
thereto, and expressly authorizes the Collateral Agent as its agent to
execute, deliver and perform the Collateral Documents and the
Intercreditor Agreement and to act as Collateral Agent under the
Collateral Documents (subject to and in accordance with the
Intercreditor Agreement) and the Intercreditor Agreement and Bank of
America, N.A. in its individual capacity, accepts such appointment as
Collateral Agent thereunder by executing the Borrowers Pledge
Agreement, which appointment is coupled with an interest. Each Lender
hereby agrees to be bound by provisions of the Intercreditor Agreement
applicable to a "Lender" therein.
(b) Notwithstanding any provision to the contrary
contained elsewhere in this Agreement or the Collateral Documents,
Collateral Agent shall not have any duties or responsibilities, except
those expressly set forth in this Section 11.01, the Collateral
Documents and the Intercreditor Agreement, nor shall Collateral Agent
have or be deemed to have any fiduciary relationship with any Lender,
and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or
otherwise exist against Collateral Agent. Without limiting the
generality of the foregoing sentence, the use of the term "agent" in
the Collateral Documents with reference to Collateral Agent is not
intended to connote any fiduciary or other implied (or express)
obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is
intended to create or reflect only an administrative relationship
between independent contracting parties.
(c) Collateral Agent may execute any of its duties under
the Collateral Documents and the Intercreditor Agreement by or through
agents, employees or attorneys-in-fact and shall be entitled to advice
of counsel concerning all matters pertaining to such duties. Collateral
Agent shall not be responsible for the negligence or misconduct of any
agent or attorney-in-fact that it selects with reasonable care.
11
(d) None of Collateral Agent-Related Persons (defined
below) shall (i) be liable for any action taken or omitted to be taken
by any of them under or in connection with the Collateral Documents or
the Intercreditor Agreement or the transactions contemplated thereby
(except for its own gross negligence or willful misconduct), or (ii) be
responsible in any manner to any of Lenders for any recital, statement,
representation or warranty made by Borrowers or any Subsidiary or
Affiliate of Borrowers, or any officer thereof, contained in this
Agreement, or in any certificate, report, statement or other document
referred to or provided for in, or received by Collateral Agent under
or in connection with, this Agreement, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, or for
any failure of Borrowers or any other party to any Loan Document to
perform their obligations hereunder or thereunder. No Collateral
Agent-Related Person shall be under any obligation to any Lender to
ascertain or to inquire as to the observance or performance of any of
the agreements contained in, or conditions of, this Agreement, or to
inspect the Properties, books or records of any Borrower or any of
Borrowers' Subsidiaries or Affiliates. "Collateral Agent-Related
Persons" means Collateral Agent (including any successor agent),
together with its Affiliates (including, in the case of Collateral
Agent, Banc of America Securities LLC), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
(e) Collateral Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or
telephone message, statement or other document or conversation believed
by it to be genuine and correct and to have been signed, sent or made
by the proper Person or Persons, and upon advice and statements of
legal counsel (including counsel to Borrowers), independent accountants
and other experts selected by Collateral Agent. Collateral Agent shall
be fully justified in failing or refusing to take any action under this
Agreement unless it shall first receive such advice or concurrence of
the Requisite Lenders as it deems appropriate and, if it so requests,
it shall first be indemnified to its satisfaction by Lenders against
any and all liability and expense which may be incurred by it by reason
of taking or continuing to take any such action. Collateral Agent shall
in all cases be fully protected in acting, or in refraining from
acting, under the Collateral Documents and the Intercreditor Agreement
in accordance with a request or consent of the Requisite Lenders, and
such request and any action taken or failure to act pursuant thereto
shall be binding upon all Lenders.
(f) Whether or not the transactions contemplated hereby
are consummated, Lenders shall indemnify upon demand each Collateral
Agent-Related Person (to the extent not reimbursed by or on behalf of
Pledgors (as defined in the Borrowers Pledge Agreement) and without
limiting the obligation of Pledgors to do so), pro rata, and hold
harmless each Collateral Agent-Related Person from and against any and
all Indemnified Liabilities incurred by it; PROVIDED, HOWEVER, that no
Lender shall be liable for the payment to any Collateral Agent-Related
Person of any portion of such Indemnified Liabilities resulting from
such Person's gross negligence or willful misconduct; PROVIDED,
HOWEVER, that no action taken in accordance with the provisions of the
Intercreditor Agreement shall be deemed to constitute gross negligence
or willful misconduct for purposes of this Section. Without limitation
of the foregoing, each Lender shall
12
reimburse Collateral Agent upon demand for its ratable share of any
costs or out-of-pocket expenses (including Attorney Costs) incurred by
Collateral Agent after the Closing Date in connection with the
preparation, execution, delivery, administration, modification,
amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, the Collateral Documents or the Intercreditor
Agreement, or any document contemplated by or referred to therein, to
the extent that Collateral Agent is not reimbursed for such expenses by
or on behalf of Borrower Parties. The undertaking in this subsection
shall survive the payment of all Obligations hereunder and the
resignation or replacement of Collateral Agent.
(g) Collateral Agent may, and at the request of more than
66 2/3% of the Benefited Parties (as defined in the Intercreditor
Agreement) shall, resign as Collateral Agent upon thirty (30) days'
notice to Lenders. If Collateral Agent resigns under the Collateral
Documents and Intercreditor Agreement, the Majority Benefited Parties
shall appoint from among the Lenders, Lenders (as defined in the
Revolving Credit Agreement) or Term Lenders, a successor collateral
agent, and, so long as no Default or Event of Default has occurred and
is continuing, such successor collateral agent shall require the
approval of Borrowers (which approval shall not be unreasonably
withheld, conditioned or delayed); provided that if no successor
collateral agent is appointed prior to the effective date of the
resignation of Collateral Agent, Collateral Agent may appoint, after
consulting with such Lenders and Borrowers, a successor collateral
agent from among such Lenders. Upon the acceptance of its appointment
as successor collateral agent under the Collateral Documents and the
Intercreditor Agreement, such successor Collateral Agent shall succeed
to all the rights, powers and duties of the retiring Collateral Agent
and the term "Collateral Agent" shall mean such successor collateral
agent and the retiring Collateral Agent's appointment, powers and
duties as Collateral Agent under the Collateral Documents and the
Intercreditor Agreement shall be terminated. After any retiring
Collateral Agent's resignation under the Collateral Documents and the
Intercreditor Agreement as the collateral agent, the provisions of this
subsection shall inure to its benefit as to any actions taken or
omitted to be taken by it while it was Collateral Agent under the
Collateral Documents and the Intercreditor Agreement. If no successor
collateral agent has accepted appointment as Collateral Agent by the
date which is thirty (30) days following a retiring Collateral Agent's
notice of resignation, the retiring Collateral Agent's resignation
shall nevertheless thereupon become effective and Majority Benefited
Parties shall perform all of the duties of Collateral Agent hereunder
until such time, if any, as the Majority Benefited Parties appoint a
successor collateral agent as provided for above.
23. AMENDMENT TO EXHIBITS TO THE CREDIT AGREEMENT. The
Exhibits to the Credit Agreement are hereby amended by (i) replacing EXHIBIT G
with a new EXHIBIT G, attached as ANNEX I hereto; (ii) replacing EXHIBITS H-1
and H-2 with a new EXHIBIT H, attached as ANNEX II hereto; (iii) replacing
EXHIBIT I with a new EXHIBIT I, attached as ANNEX III hereto; and (iv) replacing
EXHIBIT J with a new EXHIBIT J, attached as ANNEX IV hereto.
13
24. CONDITIONS TO EFFECTIVENESS. This Amendment shall
become effective on the date on which all of the following conditions precedent
have been satisfied or waived (the "EFFECTIVE DATE"):
(a) The Administrative Agent shall have received five
counterparts hereof duly executed and delivered by each Borrower.
(b) The Administrative Agent shall have received executed
Lender Consent Letters, substantially in the form of Exhibit A hereto
("LENDER CONSENT LETTERS"), from the Requisite Lenders.
(c) Lenders and their respective counsel shall have
received originally executed copies of one or more favorable written
opinions of counsel for Borrowers, Guarantors and Pledgors in form and
substance satisfactory to Administrative Agent and its counsel, dated
as of the Fifth Amendment Effective Date, with respect to the validity,
binding effect and enforceability of this Amendment, the Borrowers
Pledge Agreement, the Guaranty, the Intra-Company Loan Subordination
Agreement, and the Intercreditor Agreement (collectively, the "AMENDED
DOCUMENTS") and due authorization, execution and delivery thereof, and
as to such other matters as Administrative Agent acting on behalf of
Lenders may request.
(d) On or before the Effective Date, all corporate and
other proceedings taken or to be taken in connection with this
Amendment and each of the Amended Documents and all documents
incidental thereto not previously found acceptable by Administrative
Agent, acting on behalf of Lenders, and its counsel shall be
satisfactory in form and substance to Administrative Agent and such
counsel, and Administrative Agent and such counsel shall have received
all such counterpart originals or certified copies of such documents as
Administrative Agent may reasonably request.
(e) Borrowers shall have paid the fees, costs and
expenses of Administrative Agent's counsel in connection with this
Amendment and each of the Amended Documents.
(f) The Administrative Agent shall have received evidence
satisfactory to it and its counsel that the Revolver Administrative
Agent and the requisite Lenders under the Revolving Credit Agreement
(i) have modified, or concurrently with the Effective Date will modify,
the Revolving Credit Agreement, the Borrowers Pledge Agreement, the
Guaranty, the Intra-Company Loan Subordination Agreement, or the
Intercreditor Agreement (each as defined in the Revolving Credit
Agreement) in a manner satisfactory to the Administrative Agent and the
Requisite Lenders and the Administrative Agent shall have been provided
with true, correct and complete copies of the documents effecting such
modifications to the Revolving Credit Agreement and (ii) have consented
to or waived their right to consent to the Borrowers' and the
Guarantors' execution and delivery of this Amendment and each of the
Amended Documents.
(g) The Administrative Agent shall have received evidence
satisfactory to Administrative Agent that Borrowers shall have taken or
caused to be taken all such
14
actions, executed and delivered or caused to be executed and delivered
all such agreements, documents and instruments, and made or caused to
be made all such filings and recordings and deliveries that may be
necessary or, in the opinion of Administrative Agent, desirable in
order to create in favor of Collateral Agent, for the benefit of Lender
Group, a valid and (upon such filing and recording and delivery)
perfected first priority security interest in the Pledged Collateral.
Such actions shall include the following:
(A) delivery to Collateral Agent of accurate and
complete schedules to all of the applicable Collateral
Documents; and
(B) delivery to Collateral Agent of (a)
certificates (which certificates shall be accompanied by
irrevocable undated stock powers, duly endorsed in blank and
otherwise satisfactory in form and substance to Collateral
Agent) representing all capital stock constituting Pledged
Collateral pledged pursuant to the Borrowers Pledge Agreement
and (b) all promissory notes or other instruments (duly
endorsed, where appropriate, in a manner satisfactory to
Collateral Agent) constituting Pledged Collateral.
(h) The Administrative Agent shall have received 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.
(i) The Administrative Agent shall have received a
certificate signed by a Responsible Officer of Borrowers certifying
that (A) the conditions specified in SECTIONS 4.01(e) and 4.01(g) have
been satisfied as of the date hereof and (B) there has been no event or
circumstances since the date of the Audited Financial Statements which
has a Material Adverse Effect.
(j) The Administrative Agent shall have received a
certification and written analysis of the chief financial officer or
treasurer of Borrowers which, to Administrative Agent's satisfaction,
evidences that Borrowers are, and shall remain through and including
the Maturity Date, Solvent after giving effect to the Term Loans and
the other transactions contemplated hereby.
(k) The Administrative Agent shall have received a fully
executed (and duly delivered) copy of each of (i) the Term Loan Credit
Agreement and all other Term Loan Documents; (ii) a replacement Payment
Guaranty, dated as of even date herewith, duly executed by each
Guarantor in the form attached as ANNEX II hereto, which new Guaranty
shall replace, as of the Fifth Amendment Effective Date, each
Guarantor's existing Payment Guaranty (Non-Casden Guarantors) or
Payment Guaranty (Casden Guarantors) dated as of March 11, 2002 (as
applicable) pursuant to which Guarantors have guarantied the
Obligations; (iii) the Omnibus Borrowers Pledge Agreement, dated as of
even date herewith, duly executed by all parties thereto in the form
attached as ANNEX I hereto,
15
pursuant to which Pledgors have pledged certain Pledged Collateral as
security for the Loan; (iv) an Amended and Restated Intercreditor and
Collateral Agency Agreement, dated as of even date herewith, duly
executed by all parties thereto in the form attached as ANNEX IV
hereto, which Amended and Restated Intercreditor and Collateral Agency
Agreement shall replace, as of the Fifth Amendment Effective Date, that
certain Amended and Restated Intercreditor and Subordination Agreement
dated as of March 11, 2002, by and among Borrowers, Administrative
Agent, borrowers to the Revolving Credit Agreement, and Bank of
America, N.A., in its capacity as administrative agent thereunder and
(v) an Intra-Company Loan Subordination Agreement, dated as of even
date herewith, duly executed by all parties thereto in the form
attached as ANNEX III hereto, which Intra-Company Loan Subordination
Agreement shall replace, as of the Fifth Amendment Effective Date, that
certain Intra-Company Loan Subordination Agreement dated as of March
11, 2002, by and among Borrowers and each of the Intra-Company Lenders
(as defined in the Intra-Company Loan Subordination Agreement).
(l) Lenders and their respective counsel shall have
received executed 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.
25. REPRESENTATIONS AND WARRANTIES. Each of the Borrowers
hereby represents and warrants to Administrative Agent and each Lender that
(before and after giving effect to this Amendment):
(a) Each Borrower has all requisite corporate or other
entity power and authority to enter into this Amendment and the Amended
Documents and to carry out the transactions contemplated by, and
perform its obligations under, the Credit Agreement as amended by this
Amendment (the "AMENDED AGREEMENT") and each Loan Document. Each
Guarantor and each Pledgor has all requisite corporate or other entity
power and authority to enter into the Amended Documents, and to carry
out the transactions contemplated by, and perform its obligations under
each Loan Document to which it is a party.
(b) The execution and delivery of this Amendment and of
the Amended Documents and the performance of the Amended Agreement and
of each other Loan Document have been duly authorized by all necessary
corporate or other entity action on the part of each Borrower Party
that is a party thereto. Except as set for on SCHEDULE 25(B) hereto,
the organizational documents of the Borrowers, Pledgors and Guarantors
have not been modified in any material respect since May 9, 2003.
(c) The execution, delivery, and performance by each
Borrower of this Amendment and of the Amended Documents to which it is
a party and by each Pledgor and Guarantor of each of the Amended
Documents to which it is a party and compliance with the provisions
thereof do not and will not (i) violate or conflict with, or result in
a breach of, or require any consent under (A) any Organization
Documents of such Borrower Party or any of its Subsidiaries, (B) any
applicable material Laws, rules, or
16
regulations or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator, or (C) 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, or (ii) constitute a
default under any such agreement or instrument, or (iii) 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,
in each case under this clause (c), as provided in SECTION 5.03 of the
Credit Agreement.
(d) The execution, delivery and performance by each
Borrower Party of this Amendment and of the Amended Documents to which
it is a party and by each Pledgor and Guarantor of each of the Amended
Documents to which it is a party do not and will not require any
authorization of a Governmental Authority (other than any
authorizations of a Governmental Authority obtained on or before the
Effective Date and disclosed in writing to the Lenders).
(e) This Amendment and each of the Amended Documents have
been duly executed and delivered by each Borrower Party party thereto
and this Amendment and each of the Amended Documents are the legally
valid and binding obligations of such Borrower Parties party thereto,
enforceable against such Borrower Parties in accordance with their
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting
creditors' rights generally or by equitable principles relating to
enforceability.
(f) The representations and warranties in Section V of
the Credit Agreement are true, correct and complete in all material
respects on and as of the Effective Date to the same extent as though
made on and as of that date (or, to the extent such representations and
warranties specifically relate to an earlier date, were true, correct
and complete in all material respects on and as of such earlier date).
(g) Borrowers and the other Borrower Parties have
performed in all material respects all agreements and satisfied all
conditions which this Amendment, the Credit Agreement and the other
Loan Documents provide shall be performed or satisfied by Borrowers or
the other Borrower Parties on or before the Effective Date.
(h) After giving effect to this Amendment, no Default or
Event of Default has occurred and is continuing, or will result from
the consummation of the transactions contemplated by this Amendment.
26. PAYMENT OF EXPENSES. The Borrowers jointly and
severally agree to pay or reimburse the Administrative Agent for all of its
reasonable out-of-pocket costs and expenses incurred in connection with this
Amendment, any other documents prepared in connection herewith and the
transactions contemplated hereby, including, without limitation, the reasonable
fees and disbursements of counsel to the Administrative Agent.
27. NO OTHER AMENDMENTS; CONFIRMATION. Except as
expressly provided hereby, all of the terms and provisions of the Credit
Agreement and the other Loan Documents are and shall remain in full force and
effect. The amendments contained herein shall not be
17
construed as an amendment of any other provision of the Credit Agreement or the
other Loan Documents or for any purpose except as expressly set forth herein or
a consent to any further or future action on the part of the Borrowers that
would require the waiver or consent of the Administrative Agent or the Lenders.
28. GOVERNING LAW; MISCELLANEOUS. (a) THIS AMENDMENT AND
THE RIGHTS AND OBLIGATIONS OF THE PARTIES HERETO SHALL BE GOVERNED BY AND
CONSTRUED IN ACCORDANCE WITH THE LAW OF THE STATE OF NEW YORK.
(b) On and after the Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein", or
words of like import referring to the Credit Agreement, and each reference in
the other Loan Documents to the "Credit Agreement", "thereunder", "thereof", or
words of like import referring to the Credit Agreement shall mean and be a
reference to the Amended Agreement.
(c) This Amendment may be executed by one or more of the
parties to this Agreement on any number of separate counterparts, and all of
said counterparts taken together shall be deemed to constitute one and the same
instrument. A set of the copies of this Amendment, each Amended Document and the
Lender Consent Letters signed by all the parties shall be lodged with the
Borrowers and the Administrative Agent. This Amendment may be delivered by
facsimile transmission of the relevant signature pages hereof.
(d) The execution and delivery of the Lender Consent
Letter by any Lender shall be binding upon each of its successors and assigns
(including assignees of its Loans in whole or in part prior to effectiveness
hereof).
18
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective proper and duly
authorized officers as of the day and year first above written.
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, INC.
Its: General Partner
By: /S/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /S/ Xxxxx X. Xxxxxxxxx
----------------------------------------
Name: Xxxxx X. Xxxxxxxxx
Title: President
NHP MANAGEMENT COMPANY
By: /S/ Xxxxxx X. Xxxxxx
----------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /S/ XXXXXXX XXXXX
---------------------------------------
Name: Xxxxxxx Xxxxx
Title: Authorized Signatory
