PAYMENT GUARANTY
This Payment Guaranty ("Guaranty") is made as of January 26, 1998, by
Property Asset Management Services, Inc., a Delaware corporation, Property Asset
Management Services, L.P., a Delaware limited partnership, NHP Management
Company, a District of Columbia corporation, and Property Asset Management
Services-California, L.L.C., a California limited liability company (each of the
foregoing is referred to herein as "Guarantor") in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as the agent for itself and the
lenders ("Lenders") from time to time party to the Credit Agreement (as
hereinafter defined) (in such capacity, the "Agent").
FACTUAL BACKGROUND
The Lenders intend to make a $50,000,000 unsecured revolver to term
credit facility available to AIMCO Properties L.P., a Delaware limited
partnership (the "Borrower") in accordance with the Credit Agreement (the
"Credit Agreement"), dated of even date herewith, by and among Borrower, BofA
(as Agent and as a Lender) and the other Lenders from time to time party
thereto. In connection with the Credit Agreement, the Borrower has obtained
this Guaranty from the Guarantors, and the Guarantors have provided this
Guaranty in return for Borrower's payment of a guarantee fee. Capitalized terms
used but not defined herein will have the meanings set forth in the Credit
Agreement. As used herein, the term "Facility" shall refer individually to each
of the credit facilities available to the Borrower under the Credit Agreement.
GUARANTY
1. GUARANTY OF LOAN. Guarantor absolutely, unconditionally and
irrevocably guaranties to Agent and the Lenders the full payment of the
Indebtedness (as hereinafter defined), and unconditionally agrees to pay to
Agent and the Lenders the full amount of the Indebtedness. This is a guaranty
of payment, not of collection. If Borrower defaults in the payment when due of
the Indebtedness or any part of it, Guarantor will in lawful money of the United
States pay to Agent and the Lenders, on demand, all sums due and owing on the
Indebtedness, including all interest, charges, fees and other sums, costs and
expenses.
2. LOAN. In this Guaranty, the term "Indebtedness" is broadly
defined to mean and include all primary, secondary, direct, indirect, fixed and
contingent obligations of Borrower to pay principal, interest, prepayment
charges, breakage costs, late charges, loan fees and any other fees, charges,
sums, costs and expenses which may be owing at any time under the Loan Documents
(as such term is defined in the Credit Agreement), and shall include, without
limitation, all liabilities and obligations of the Borrower with respect to
Letters of Credit issued
under the Credit Agreement, as any or all of such obligations may from time to
time be modified, amended, extended or renewed. If the amount outstanding under
the Indebtedness is determined by a court of competent jurisdiction or in any
arbitration proceeding described in Section 10.17 of the Credit Agreement, that
determination shall be conclusive and binding on Guarantor, regardless of
whether Guarantor was a party to the proceeding in which the determination was
made or not.
3. RIGHTS OF AGENT AND THE LENDERS. Guarantor authorizes Agent or
any Lender to perform any or all of the following acts at any time in its sole
discretion, all without notice to Guarantor and without affecting Guarantor's
obligations under this Guaranty:
(a) Agent or the Requisite Lenders may alter any terms of the
Indebtedness or any part of it, including renewing, compromising, extending or
accelerating, or otherwise changing the time for payment of, or increasing or
decreasing the rate of interest on, the Indebtedness or any part of it.
(b) Agent or any Lender may take and hold security for the
Indebtedness or this Guaranty, accept additional or substituted security for
either, and subordinate, exchange, enforce, waive, release, compromise, fail to
perfect and sell or otherwise dispose of any such security in accordance with
the terms of the Indebtedness.
(c) Agent or any Lender may direct the order and manner of any
sale of all or any part of any security now or later to be held for the
Indebtedness or this Guaranty, and Agent or any Lender may also bid at any such
sale.
(d) Agent or any Lender may apply any payments or recoveries
from Borrower, Guarantor or any other source, and any proceeds of any security,
to Borrower's obligations under the Loan Documents in such manner, order and
priority as Agent or such Lender may elect, whether or not those obligations are
guarantied by this Guaranty or secured at the time of the application.
(e) Agent or any Lender may release Borrower of its liability
for the Indebtedness or any part of it.
(f) Agent or any Lender may substitute, add or release any one
or more Guarantors, other guarantors or endorsers.
(g) In addition to the Indebtedness, Agent or any Lender may
extend other credit to Borrower, and may take and hold security for the credit
so extended, all without affecting Guarantor's liability under this Guaranty.
4. GUARANTY TO BE ABSOLUTE. Guarantor expressly agrees that until
the Indebtedness is paid and performed in full and each and every term, covenant
and condition of this Guaranty is fully performed, Guarantor shall not be
released by or because of:
(a) Any act or event which might otherwise discharge, reduce,
limit or modify Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of Agent or any Lender, or its failure to proceed promptly
or otherwise as against Borrower, Guarantor or any security;
(c) Any action, omission or circumstance which might increase
the likelihood that Guarantor may be called upon to perform under this Guaranty
or which might affect the rights or remedies of Guarantor as against Borrower;
(d) Any dealings occurring at any time between Borrower and
Agent or any Lender, whether relating to the Indebtedness or otherwise; or
(e) Any action of Agent or any Lender described in Section 3
above.
Guarantor hereby acknowledges that absent this Section 4,
Guarantor might have a defense to the enforcement of this Guaranty as a result
of one or more of the foregoing acts, omissions, agreement, waivers or matters.
Guarantor hereby expressly waives and surrenders any defense to its liability
under this Guaranty based upon any of the foregoing acts, omissions, agreements,
waivers or matters. It is the purpose and intent of this Guaranty that the
obligations of Guarantor under it shall be absolute and unconditional under any
and all circumstances.
5. GUARANTOR'S WAIVERS. Guarantor waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against Guarantor by Agent or any Lender, to the fullest
extent permitted by law;
(b) Any right it may have to require Agent or any Lender to
proceed against Borrower, proceed against or exhaust any security held from
Borrower, or pursue any other remedy in Agent's or any Lender's power to pursue;
(c) Any defense based on any claim that Guarantor's obligations
exceed or are more burdensome than those of Borrower;
(d) Any defense based on: (i) any legal disability of Borrower,
(ii) any release, discharge, modification, impairment or limitation of the
liability of Borrower to Agent or any Lender from any cause, whether consented
to by Agent or any Lender or arising by operation of law or from any bankruptcy
or other voluntary or involuntary proceeding, in or out of court, for the
adjustment of debtor-creditor relationships ("Insolvency Proceeding"), and (iii)
any rejection or disaffirmance of the Indebtedness, or any part of it, or any
security held for it, in any such Insolvency Proceeding;
(e) Any defense based on any action taken or omitted by Agent or
any Lender in any Insolvency Proceeding involving Borrower, including any
election to have Agent's or that Lender's claim allowed as being secured,
partially secured or unsecured, any extension of credit by Lender to Borrower in
any Insolvency Proceeding, and the taking and holding by Agent or any Lender of
any security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty and of the existence, creation, or incurring of new
or additional indebtedness, and demands and notices of every kind except for any
demand or notice by Agent or any Lender to Guarantor expressly provided for in
Section 1;
(g) Any defense based on or arising out of any defense that
Borrower may have to the payment or performance of the Indebtedness or any part
of it; and
(h) Any defense based on or arising out of any action of Agent
or any Lender described in Sections 3 or 4 above.
6. WAIVERS OF SUBROGATION AND OTHER RIGHTS.
(a) During the existence of an Event of Default by Borrower,
Agent or any Lender, without prior notice to or consent of Guarantor, may elect
to: (i) foreclose either judicially or nonjudicially against any real or
personal property security it may hold for the Indebtedness, (ii) accept a
transfer of any such security in lieu of foreclosure, (iii) compromise or adjust
the Indebtedness or any part of it or make any other accommodation with Borrower
or Guarantor, or (iv) exercise any other remedy against Borrower or any
security. No such action by Agent or any Lender shall release or limit the
liability of Guarantor, who shall remain liable under this Guaranty after the
action, even if the effect of the action is to deprive Guarantor of any
subrogation rights, rights of indemnity, or other rights to collect
reimbursement from Borrower for any sums paid to Agent or any Lender, whether
contractual or arising by operation of law or otherwise. Guarantor expressly
agrees that under no circumstances shall it be deemed to have any right, title,
interest or claim in or to any real or personal property to be held by Agent or
any Lender or any third party after any foreclosure or transfer in lieu of
foreclosure of any security for the Indebtedness.
(b) Regardless of whether Guarantor may have made any payments
to Lender, Guarantor hereby waives: (i) all rights of subrogation, all rights of
indemnity, and any other rights to collect reimbursement from Borrower for any
sums paid to Agent or any Lender, whether contractual or arising by operation of
law (including the United States Bankruptcy Code or any successor or similar
statute) or otherwise, (ii) all rights to enforce any remedy that Lender may
have against Borrower, and (iii) all rights to participate in any security now
or later to be held by Agent or any Lender for the Indebtedness, in each case
until the full and indefeasible payment and performance of all Indebtedness, and
all obligations of the Guarantors hereunder.
(c) Guarantor waives all rights and defenses arising out of an
election of remedies by the Agent or any Lender, even though that election of
remedies may affect Guarantor's rights of subrogation and reimbursement against
the Borrower by the operation of law or otherwise. In addition, Guarantor
waives all rights and defenses that Guarantor may have because the Borrower's
indebtedness is secured by real property. This means, among other things:
(1) Agent and the Lenders may collect from Guarantor without
first foreclosing on any real or personal property collateral pledged by the
Borrower.
(2) If Agent forecloses on any real property collateral pledged
by the Borrower:
(A) The amount of the indebtedness may be reduced only by
the price for which that collateral is sold at the foreclosure sale, even if the
collateral is worth more than the sale price.
(B) Agent and the Lenders may collect from Guarantor even
if Agent or any Lender, by foreclosing on the real property collateral, has
destroyed or affected any right Guarantor may have to collect from the Borrower.
This is an unconditional and irrevocable waiver of any rights and
defenses Guarantor may have because the Borrower's indebtedness is secured by
real property.
7. REVIVAL AND REINSTATEMENT. If Agent or any Lender is required to
pay, return or restore to Borrower or any other person any amounts previously
paid on the Indebtedness because of any Insolvency Proceeding of Borrower, any
stop notice or any other reason, the obligations of Guarantor shall be
reinstated and revived and the rights of Agent and such Lender shall continue
with regard to such amounts, all as though they had never been paid.
8. INFORMATION REGARDING OWNER. Before signing this Guaranty,
Guarantor investigated the financial condition and business operations of
Borrower and such other matters as Guarantor deemed appropriate to assure itself
of Borrower's ability to discharge its obligations under the Loan Documents.
Guarantor assumes full responsibility for that due diligence, as well as for
keeping informed of all matters which may affect Borrower's ability to pay and
perform its obligations to the Agent and the Lenders. Neither Agent nor any
Lender has any duty to disclose to Guarantor any information which such party
may have or receive about Borrower's financial condition, business operations,
or any other circumstances bearing on its ability to perform.
9. SUBORDINATION. Any rights of Guarantor, whether now existing or
later arising, to receive payment on account of any indebtedness (including
interest) owed to it by Borrower or any Subsidiary thereof or to receive any
payment from Borrower or any such Subsidiary other than those payments or
distributions permitted under Sections 7.9(b) and 7.10 of the Credit Agreement
shall at all times be subordinate as to lien and time of payment and in all
other respects to the full and prior repayment of the Indebtedness. Guarantor
shall not be entitled to enforce or receive payment of any sums hereby
subordinated until the Indebtedness has been paid and performed in full and any
such sums received in violation of this Guaranty shall be received by Guarantor
in trust for the Agent and the Lenders.
10. FINANCIAL INFORMATION. Guarantor shall keep true and correct
financial books and records, using generally accepted accounting principles
consistently applied, or such other accounting principles as the Requisite
Lenders in their reasonable judgment may find acceptable from time to time.
Guarantor represents, warrants and covenants to Agent and the Lenders that all
financial information with respect to the Guarantor delivered or to be delivered
to Agent and the Lenders by the Borrower with respect to Guarantor under Section
6.1 of the Credit Agreement is or shall be true and correct and fairly presents
or will fairly present the financial position of the Guarantor for the
applicable period. Guarantor shall promptly provide Agent and the Lenders with
any additional audited financial information that Guarantor may obtain, and such
other information concerning its affairs and properties as Agent or any Lender
may reasonably request, including, without limitation, signed copies of any tax
returns if requested by Agent or the Lenders.
11. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents
and warrants that:
(a) All financial statements delivered to Agent or the Lenders
were or will be prepared in accordance with generally accepted accounting
principles, or such other accounting principles as may be acceptable to the
Requisite Lenders at the time of their preparation, consistently applied;
(b) There has been no material adverse change in Guarantor's
financial condition since the dates of the statements most recently furnished to
Agent and the Lenders; and
(c) All representations and warranties given on behalf of or
with respect to Guarantor contained in Article V of the Credit Agreement and in
any other Loan Document or certification made in connection with the Credit
Agreement are true and correct.
12. COVENANTS OF GUARANTOR. Guarantor covenants and agrees that it
shall comply with and perform all covenants given on behalf of or with respect
to Guarantor (whether expressly or as a Subsidiary) contained in Articles VI and
VII of the Credit Agreement and in all other Loan Documents.
13. INTENTIONALLY OMITTED.
14. REFERENCE AND ARBITRATION.
(a) MANDATORY ARBITRATION. Any controversy or claim between or
among the parties, including those arising out of or relating to this Guaranty
or the Loan Documents and any claim based on or arising from an alleged tort,
shall at the request of any party be determined by arbitration. The arbitration
shall be conducted in Los Angeles, California, in accordance with the United
States Arbitration Act (Title 9, U.S. Code), notwithstanding any choice of law
provision in this Guaranty, and under the Commercial Rules of the American
Arbitration Association (the "AAA"). The arbitrator(s) shall give effect to
statutes of limitation in determining any claim. Any controversy concerning
whether an issue is arbitrable shall be determined by the arbitrator(s).
Judgment upon the arbitration award may be entered in any court having
jurisdiction. The institution and maintenance of an action for judicial relief
or pursuit of a provisional or ancillary remedy shall not constitute a waiver of
the right of any party, including the plaintiff, to submit the controversy or
claim to arbitration if any other party contests such action for judicial
relief.
(b) PROVISIONAL REMEDIES, SELF-HELP AND FORECLOSURE. No
provision of this Section 14 shall limit the right of any party to exercise
self-help remedies such as setoff, foreclosure against or sale of any real or
personal property collateral or security, or to obtain provisional or ancillary
remedies from a court of competent jurisdiction before, after, or during the
pendency of any arbitration.
15. AUTHORIZATION; NO VIOLATION. Guarantor is authorized to execute,
deliver and perform under this Guaranty, which is a valid, binding, and
enforceable obligation of Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditor's rights generally. The
execution, delivery and performance of this Guaranty are not in violation of any
applicable law, regulation or ordinance, or any order or ruling of any court or
governmental agency applicable to the Guarantor. The Guaranty does not conflict
with, or constitute a breach or default under, any agreement to which Guarantor
is a party.
16. ADDITIONAL AND INDEPENDENT OBLIGATIONS. Guarantor's obligations
under this Guaranty are in addition to its obligations under any future
guaranties, each of which shall remain in full force and effect until it is
expressly modified or released in a writing signed by Agent and consented to by
the Lenders. Guarantor's obligations under this Guaranty are independent of
those of Borrower on the Indebtedness. Agent or the Lenders may bring a
separate action, or commence a separate arbitration proceeding against Guarantor
without first proceeding against Borrower, any other person or any security that
Agent or any Lender may hold, and without pursuing any other remedy. None of
Agent's or any Lender's rights under this Guaranty shall be exhausted by any
action by Agent or any Lender until the Indebtedness has been paid and performed
in full in cash.
17. NO WAIVER; CONSENTS; CUMULATIVE REMEDIES. Each waiver by Agent
or the Lenders must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from Agent's or any Lender's
delay in exercising or failure to exercise any right or remedy against Borrower,
Guarantor or any security. Consent by Agent or the Lenders to any act or
omission by Borrower or Guarantor shall not be construed as a consent to any
other or subsequent act or omission, or as a waiver of the requirement for
Agent's or the Lenders' consent to be obtained in any future or other instance.
All remedies of Agent and each Lender against Borrower and Guarantor are
cumulative.
18. NO RELEASE. Except as otherwise provided in Section 1, Guarantor
shall not be released, in whole or in part, from its obligations under this
Guaranty except by a writing signed by Agent and all the Lenders.
19. HEIRS, SUCCESSORS AND ASSIGNS; PARTICIPATIONS. The terms of this
Guaranty shall bind and benefit the heirs, legal representatives, successors and
assigns of Agent, the Lenders and Guarantor; provided, however, that Guarantor
may not assign this Guaranty, or assign or delegate any of its rights or
obligations under this Guaranty, without the prior written consent of Agent in
each instance. Without notice to or the consent of Guarantor, Agent and any
Lender may disclose any and all information in its possession concerning
Guarantor, this Guaranty and any security for this Guaranty to any actual or
prospective purchaser of any securities issued or to be issued by Agent or such
Lender, and to any actual or prospective purchaser or assignee of any
participation or other interest in the Indebtedness and this Guaranty.
20. NOTICES.
(a) DELIVERY. All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the context
expressly otherwise provides, telegraphic, telex, facsimile transmission or
cable communication) and mailed, telegraphed, telexed or delivered to its
address specified on the signature pages hereof, or to such other address as
shall be designated by such party in a written notice to the other party.
(b) RECEIPT. All such notices and communications shall, when
transmitted by overnight delivery, telegraphed, telecopied by facsimile, telexed
or cabled, be effective when delivered for overnight delivery or to the
telegraph company, transmitted by telecopier, confirmed by telex answerback or
delivered to the cable company, respectively, or if delivered, upon delivery.
(c) RELIANCE. Agent and each Lender shall be entitled to rely on the
authority of any person purporting to be a person authorized by Guarantor to
give such notice, and neither Agent nor any Lender shall have any liability to
Guarantor or any other person on account of any action taken or not taken by
Agent or such Lender in reliance upon such telephonic or facsimile notice. The
obligation of Guarantor hereunder shall not be affected in any way or to any
extent by any failure by Lender to receive written confirmation of any
telephonic or facsimile notice or the receipt by Agent or a Lender of a
confirmation which is at variance with the terms understood by Agent or such
Lender to be contained in the telephonic or facsimile notice.
21. RULES OF CONSTRUCTION. In this Guaranty, the word "Borrower"
includes both the named Borrower and any other person who at any time assumes or
otherwise becomes primarily liable for all or any part of the obligations of the
named Borrower on the Indebtedness. The word "person" includes any individual,
company, trust or other legal entity of any kind. If this Guaranty is executed
by more than one person, the word "Guarantor" includes all such persons. The
word "include(s)" means "include(s), without limitation," and the word
"including" means "including, but not limited to." When the context and
construction so require, all words used in the singular shall be deemed to have
been used in the plural and vice versa. No listing of specific instances, items
or matters in any way limits the scope or generality of any language of this
Guaranty. All headings appearing in this Guaranty are for convenience only and
shall be disregarded in construing this Guaranty.
22. GOVERNING LAW. This Guaranty shall be governed by, and construed
in accordance with, the laws of the State of Colorado, without regard to its
choice of law rules.
23. COSTS AND EXPENSES. If any lawsuit or arbitration is commenced
which arises out of, or which relates to this Guaranty, the Loan Documents or
the Indebtedness, the prevailing party shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be reasonable
attorneys' fees (including allocated costs for services of in-house counsel) in
the action or proceeding, in addition to costs and expenses otherwise allowed by
law. In all other situations, including any Insolvency Proceeding, Guarantor
agrees to pay all of the Agent's and each Lender's costs and expenses, including
attorneys' fees (including allocated costs for services of the Agent's and each
Lender's in-house counsel) which may be
incurred in any effort to collect or enforce the Indebtedness or any part of it
or any term of this Guaranty. Without limiting any rights of the Agent or
Lenders under the Credit Agreement, all amounts of any kind due and payable
under this Guaranty (whether for principal, interest, and other costs under the
Indebtedness, or for costs, fees, and expenses for which the Guarantors are
directly responsible hereunder, or otherwise) shall accrue interest from the
time the Agent or the Lenders make demand therefor hereunder until paid in full
in cash to such Agent or the Lenders at the Base Rate, as defined in the Credit
Agreement, plus three (3%) percentage points, except to the extent that any such
amounts are then accruing interest under the Indebtedness, in which case such
Base Rate plus 3% interest rate shall not be applied if the effect would be to
compound the interest to which such obligations are subject to under the
Indebtedness.
24. COVENANT. Each Guarantor hereby agrees that it will make
dividend payments on its outstanding preferred stock with its excess cash to the
extent such cash is not required by the Guarantor for its business, consistent
with prudent business practices and its cash requirements.
25. INTEGRATION; MODIFICATIONS. This Guaranty (a) integrates all the
terms and conditions mentioned in or incidental to this Guaranty, (b) supersedes
all oral negotiations and prior writings with respect to its subject matter, and
(c) is intended by Guarantor, Agent and the Lenders as the final expression of
the agreement with respect to the terms and conditions set forth in this
Guaranty and as the complete and exclusive statement of the terms agreed to by
Guarantor, Agent and the Lenders. No representation, understanding, promise or
condition shall be enforceable against any party hereto unless it is contained
in this Guaranty. This Guaranty may not be modified except in a writing signed
by both Agent (with the consent of the Requisite Lenders) and Guarantor. No
course of prior dealing, usage of trade, parol or extrinsic evidence of any
nature shall be used to supplement, modify or vary any of the terms hereof. As
between Agent and the Lenders only, nothing contained in this Guaranty shall
alter the rights and obligations among Agent and the Lenders set forth in the
Credit Agreement.
26. MISCELLANEOUS. The illegality or unenforceability of one or more
provisions of this Guaranty shall not affect any other provision. Time is of
the essence in the performance of this Guaranty by Guarantor. The obligations
of each Guarantor under this Guaranty shall be joint and several.
[Rest of Page Intentionally Left Blank]
IN WITNESS WHEREOF, the undersigned have executed and delivered this
Guaranty as of the date on the first page.
Guarantors:
PROPERTY ASSET MANAGEMENT
SERVICES, INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Address Where Notices to Guarantors are
------------------------- to be Sent:
Its: 0000 Xxxxx Xxxxxxxx Xxxxxx
-------------------------- 00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
PROPERTY ASSET
MANAGEMENT SERVICES, L.P., Address Where Notices to Agent are to be
a Delaware limited liability Sent:
company BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Att'n: Manager - Xxxx #0000
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name: Addresses Where Notices to the Lenders
------------------------- are to be sent:
Its: Per the Credit Agreement
--------------------------
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name:
-------------------------
Its:
--------------------------
PROPERTY ASSET MANAGEMENT SERVICES-CALIFORNIA, L.L.C.,
a California limited liability company
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------------
Name:
-------------------------
Its:
--------------------------
