EXHIBIT 10.3
SECOND AMENDMENT, dated as of August 2,2002 (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, 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.
WITNESSETH:
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 amend
Section 7.14(a) of the Credit Agreement;
WHEREAS, the Lenders have agreed to amend such Section solely upon the
terms and conditions provided for in this Amendment;
NOW, THEREFORE, the parties hereto agree as follows:
1. Defined Terms. Terms defined in the Credit Agreement and used herein
shall have the meanings given to them in the Credit Agreement.
2. Amendment to Section 7.14(a) of the Credit Agreement. Section
7.14(a) of the Credit Agreement is hereby amended by deleting it in its entirety
and substituting in lieu therefor the following new Section:
(a) Permit the Fixed Charge Coverage Ratio as at the end of any fiscal
quarter set forth below to be less than the ratio set forth below opposite
such fiscal quarter:
Fixed Charge
Fiscal Quarter Ended Coverage Ratio
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Closing Date to March 31,2002 1.70x
June 30, 2002 to June 30, 2003 1.60x
September 30, 2003 to December 31, 2003 1.65x
March 31, 2004 and thereafter 1.70x
3. 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 each of the Supermajority Lenders.
(c) The Administrative Agent shall have received an executed
Acknowledgment and Consent, in the form of Exhibit X-0, X-0 or B-3, as
applicable, from each Guarantor and each Pledgor other than the Borrowers.
(d) The Administrative Agent shall have received for the account of
each Lender that executes and delivers to the Administrative Agent a
Consent Letter at or prior to 5:00 P.M.,
New York City time, on August
2, 2002, a consent fee equal to 0.20% of the aggregate unpaid principal
amount of such Lender's Loans on such date.
(e) On or before the Effective Date, all corporate and other
proceedings taken or to be taken in connection with this Amendment and all
documents incidental thereto nor 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.
(f) The Administrative Agent shall have received evidence satisfactory
to it and its counsel that the Revolver Administrative Agent and the
Lenders under the Revolving Credit Agreement (i) have modified, or
concurrently with the Effective Date will modify, the Revolving Credit
Agreement in a manner satisfactory to the Administrative Agent and the
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.
4. 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 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
Acknowledgement and Consent, in the form of Exhibit X-0, X-0 or B-3, as
applicab1e, 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 each
Acknowledgement and Consent 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.
(c) The execution, delivery, and performance by each Borrower of this
Amendment and of the Amended Agreement and by each Pledgor and Guarantor of
each Acknowledgement and Consent 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 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 Agreement and by each Pledgor and
Guarantor of each Acknowledgment and Consent 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 Acknowledgment and Consent has been duly
executed and delivered by each Borrower Party party thereto and this
Amendment and each Acknowledgment and Consent 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.
5. Payment of Expenses. The Borrowers jointly and severally agree to
pay or reimburse the Administrative Agent for all of its 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.
6. No Other Amendments or Waivers; 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
amendment and waivers contained herein shall not be construed as an amendment or
waiver 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.
7. 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 Acknowledgment and
Consent 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).
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
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Name: Xxxxx X. Xxxxxxxxx
Title: President
APARTMENT INVESTMENT AND MANAGEMENT
COMPANY
By: /s/ XXXXX X. XXXXXXXXX
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Name: Xxxxx X. Xxxxxxxxx
Title: President
NHP MANAGEMENT COMPANY
By: /s/ XXXXXXX XXXX
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Name: Xxxxxxx Xxxx
Title: Executive Vice President
XXXXXX COMMERCIAL PAPER INC.,
as Administrative Agent
By: /s/
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Name:
Title: Authorized Signatory
