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EXHIBIT (f)
EXECUTION COPY
INTERCREDITOR AND SUBORDINATION AGREEMENT
THIS INTERCREDITOR AND SUBORDINATION AGREEMENT (this "AGREEMENT")
is made as of September 20, 2000 by and among BANK OF AMERICA, N.A. ("BANK OF
AMERICA"), in its capacity as agent (and in such capacity, "REVOLVER AGENT"
hereunder) for the Revolver Lenders, as hereinafter defined, Bank of America, in
its capacity as agent (and in such capacity, "BRIDGE AGENT" hereunder), for the
Bridge Lenders (as hereinafter defined), and AIMCO PROPERTIES, L.P., a Delaware
limited partnership ("AIMCO"), AIMCO/Bethesda Holdings, Inc., a Delaware
corporation ("AIMCO/BETHESDA"), NHP Management Company, a District of Columbia
corporation ("NHP MANAGEMENT") (AIMCO, AIMCO/Bethesda and NHP Management
together with their successors and assigns are collectively referred to as
"BORROWER"), with reference to the following facts:
A. Borrower, Bank of America, as agent and as a lender, and
the financial institutions party thereto, executed that certain Credit Agreement
dated as of August 16, 1999, as amended by (i) that certain Amended and Restated
Credit Agreement dated Xxxxx 00, 0000, (xx) that certain First Amendment to
$345,000,000 Amended and Restated Credit Agreement dated as of April 14, 2000,
and (iii) that certain Second Amended and Restated Credit Agreement dated as of
September 20, 2000 (the "AMENDED AND RESTATED REVOLVER") (as so amended, and as
hereafter may be amended from time to time in accordance with this Agreement,
the "REVOLVING CREDIT AGREEMENT"). Pursuant to the Revolving Credit Agreement,
the Revolver Lenders have committed to make loans and certain other credit
facilities to Borrower in the maximum principal amount of $400,000,000 (the
"REVOLVER LOAN").
B. Concurrently herewith, Borrower, Bank of America, as agent
and as a lender, and the financial institutions party thereto, are executing
that certain Interim Credit Agreement (the "BRIDGE CREDIT AGREEMENT") with
respect to an acquisition Bridge Loan to Borrower in a principal amount not to
exceed $302,000,000 (the "BRIDGE LOAN"). Pursuant to the provisions of the
Bridge Credit Agreement, the proceeds of the Bridge Loan will be used to provide
funds for: (i) the acquisition of all stock in Oxford Holding Corporation
("OHC") and Oxford Realty Financial Group, Inc. ("ORFG"; and collectively with
OHC, "OXFORD") and certain corporate interests, general and limited partnership
interests and associated rights held, owned or controlled by Oxford; (ii) the
tender for certain limited partnership interests held by Oxford employees and
institutional investors (the interests and rights described in clauses (i) and
(ii) hereof being referred to herein as the "OXFORD PORTFOLIO"); and (iii)
certain fees and related costs associated with the acquisition of the Oxford
Portfolio pursuant to the Acquisition Agreement (defined below) and as permitted
under the Bridge Credit Agreement. The Bridge Loan is secured by (a) a first
priority lien on the Bridge Collateral (defined below) and (b) a second priority
lien on the Non-Oxford Pledged Collateral (as defined in the Bridge Credit
Agreement).
C. Pursuant to the Amended and Restated Revolver, Revolver
Lenders have
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agreed to consent to the acquisition of the Oxford Portfolio and the Bridge Loan
conditioned upon, among other things, the execution of this Agreement.
D. Revolver Agent, Bridge Agent, and Borrower desire to
execute and deliver this Agreement to evidence, among other things, (1) the
agreement of the parties that the Bridge Loan and the Bridge Loan Documents and
certain rights of Bridge Lenders thereunder, except with respect to Bridge
Collateral and Permitted Proceeds (each as defined below), are and will be
subordinate to the Revolver Loan and the Revolver Loan Documents and all rights
of the Revolver Lenders' thereunder, and (2) that the Revolver Loan and Revolver
Loan Documents and certain rights thereunder except with respect to the Bridge
Collateral and Permitted Proceeds, are and will be senior to the Bridge Loan and
Bridge Loan Documents as specifically set forth herein, and to further set forth
the relative rights and obligations of the parties hereto.
E. Revolver Agent, Bridge Agent, and Borrower desire to
execute and deliver this Agreement to evidence, among other things, (1) the
agreement of the parties that the Revolver Loan and the Revolver Loan Documents
and certain rights of Revolver Lenders thereunder, with respect only to the
Bridge Collateral and Permitted Proceeds, are and will be subordinate to the
Bridge Loan and the Bridge Loan Documents and certain rights of the Bridge
Lenders' thereunder, and (2) that the Bridge Loan and Bridge Loan Documents and
certain rights thereunder with respect only to the Bridge Collateral and
Permitted Proceeds, are and will be senior to the Revolver Loan and Revolver
Loan Documents as specifically set forth herein.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby conclusively acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS: Capitalized terms used in this Agreement without definition have
the meanings given to them in the Revolving Credit Agreement or the Bridge
Credit Agreement, as applicable. As used in this Agreement, the following terms
will have the following meanings:
"Acquisition Agreement" means that certain Acquisition Agreement
dated as of June 28, 2000, by and among Apartment Investment and Management
Company, Aimco Properties, L.P., NHP Management Company and Aimco/NHP
Properties, Inc., as buyers, and Xxx X. Xxxxxxx, Xxxxxxx X. Xxxxx, Xxxxxx X.
Xxxxxxx, Xxxx X. Xxxxxxxx, Xxxx X. Xxxxxx, and Xxxxxxx X. Xxxxxxxxx, as sellers,
together with any amendments or modifications thereto approved by Administrative
Agent in writing.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, that Person. A Person shall be deemed to be "controlled by"
any other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully
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diluted basis) having ordinary voting power for the election of directors or
managing general partners; or (b) to direct or cause the direction of the
management and policies of such Person whether by contract or otherwise.
"Agreement" is defined in the first paragraph.
"Amended and Restated Revolver" is defined in Recital A.
"Bank of America" is defined in the first paragraph.
"Bankruptcy Code" means the United State Bankruptcy Code, 11
U.S.C. Sections 101 et seq.
"Blockage Notice" is defined in Section 6.A.
"Borrower" is defined in the first paragraph.
"Bridge Agent" is defined in the first paragraph.
"Bridge Collateral" means "Oxford Pledged Collateral" as
defined in the Bridge Credit Agreement; provided, however, that in all events
Bridge Collateral shall not include proceeds of Bridge Collateral, if any, which
constitute Management EBITDA, Net Operating Income or other ordinary course
operating revenues or cash flow generated by or attributable to the use,
ownership, operation, or management of the Bridge Collateral.
"Bridge Credit Agreement" is defined in Recital A.
"Bridge Default" means the occurrence of an Event of Default
under the Bridge Loan Documents.
"Bridge Deficiency" means, without duplication and with
respect to the Bridge Indebtedness, (a) any portion thereof remaining unpaid
after receipt of Permitted Proceeds, whether as a result of any Proceeding or
otherwise, and/or (b) the amount of any claims of Bridge Lenders in a bankruptcy
Proceeding which are determined to constitute an unsecured claim.
"Bridge Guarantor" means collectively the "Oxford Guarantors"
as defined in and existing from time to time pursuant to the Bridge Credit
Agreement.
"Bridge Indebtedness" means, collectively, all (i) the
principal indebtedness under the Bridge Credit Agreement, (ii) interest
(including interest at any default rate of interest provided for in the Bridge
Loan Documents on the principal indebtedness under the Bridge Loan Documents,
interest, fees, expenses, charges or other amounts accruing on or after the
filing of any petition in bankruptcy or for reorganization at the rate or in the
amount otherwise applicable thereto, whether or not any such interest, fees,
expenses, charges or other amounts is an allowed claim), (iii) all premiums and
fees (including post-petition fees and costs, including
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attorneys fees), if any, and other amounts, indebtedness, obligations and
liabilities of Borrower and its Subsidiaries or Affiliates, whether now existing
or hereafter incurred or created, payable, owing or due to Bridge Lenders under
or with respect to the Bridge Loan Documents, and (iv) the amount of any Bridge
Protective Advances.
"Bridge Lenders" means collectively Bridge Agent and the
"Lenders" as defined in the Bridge Credit Agreement.
"Bridge Loan" is defined in Recital B.
"Bridge Loan Documents" means the Bridge Credit Agreement, any
notes executed in connection therewith, and any other document, agreement or
instrument now, heretofore or hereafter executed and delivered by or on behalf
of Borrower or any Borrower Party (as defined in the Bridge Credit Agreement)
with or in favor of Bridge Lenders in connection with the Bridge Loan, together
with any supplement, modification, amendment, restatement, extension or renewal
of any such document, agreement or instrument.
"Bridge Protective Advances" is defined in Section 3.
"Business Day" means any day other than a Saturday, Sunday, or
other day on which commercial banks are authorized to close under the laws of,
or are in fact closed in, the state where any Revolver Lenders' lending office
is located.
"Concurrent Default" is defined in Section 6.D.
"Lender Parties" means Revolver Lenders and Bridge Lenders.
"Loan" means, with respect to Revolver Lenders, the Revolver
Loan, and with respect to Bridge Lenders, the Bridge Loan.
"Loan Documents" means, with respect to Revolver Lenders, the
Revolver Loan Documents, and with respect to Bridge Lenders, the Bridge Loan
Documents.
"Loans" means, collectively, the Revolver Loan and the Bridge
Loan.
"Negative Pledges" is defined in the Revolving Credit
Agreement.
"OHC" is defined in Recital B.
"ORFG" is defined in Recital B.
"Oxford" is defined in Recital B.
"Oxford Portfolio" is defined in Recital B.
"Permitted Proceeds" means Cash, Cash Equivalents or other
Property paid or
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distributed or required to be distributed to Bridge Lenders on account of the
Bridge Indebtedness from the liquidation of, realization against or other
collection with respect to the Bridge Collateral and recourse to the Bridge
Guarantors (including any Property owned by such Bridge Guarantors), as
applicable.
"Person" means any individual, trustee partnership,
corporation, limited liability company, business trust, joint stock company,
trust, unincorporated association, bank, business association firm, joint
venture, governmental authority or other entity.
"Proceeding" means any insolvency, bankruptcy, receivership,
custodianship action, proceeding or case, assignment for the benefit of
creditors, liquidation, reorganization, readjustment, composition or other
similar action, proceeding, or case, whether under any bankruptcy,
reorganization or insolvency law or laws, federal or state, or any law, federal
or state, relating to relief of debtors, readjustment of indebtedness,
reorganization, composition or extension, or any proceeding for any partial or
total liquation, liquidating distribution, dissolution or other winding-up,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings.
"Requisite Notice" means, unless otherwise provided herein,
(a) irrevocable written notice to the intended recipient or (b) irrevocable
telephonic notice to the intended recipient, promptly followed by a written
notice to such recipient by way of facsimile and by way of mail. Such notices
must be delivered to such recipient at the address or telephone number specified
herein or as otherwise designated by such recipient by Requisite Notice to each
other party hereto. Any written notice delivered in connection herewith must be
in the form, if any, prescribed in the applicable section hereof and may be
delivered as provided herein. Any notice sent by other than hardcopy must be
promptly confirmed by a telephone call to the recipient and, if requested by
either Revolver Agent or Bridge Agent, as applicable, by a manually-signed
hardcopy thereof
"Revolver Agent" is defined in the first paragraph.
"Revolver Borrower Notice" is defined in Section 8.F.
"Revolver Default" means the occurrence of an Event of Default
under the Revolver Loan Documents.
"Revolver Deficiency" means, with respect to the Revolver
Indebtedness, after any Proceeding, any portion thereof remaining unpaid,
including without limitation the amount of any claims of Revolver Lenders in a
bankruptcy Proceeding which are determined to constitute an unsecured claim.
"Revolver Guarantor" means collectively the "Guarantors" as
defined in and existing from time to time pursuant to the Revolving Credit
Agreement, excluding the Bridge Guarantors.
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"Revolver Indebtedness" means, collectively, all (i) the
principal indebtedness under the Revolving Credit Agreement, including the
amount of any letters of credit issued thereunder, (ii) interest (including
interest at any default rate of interest provided for in the Revolver Loan
Documents on the principal indebtedness under the Revolver Loan Documents,
interest, fees, expenses, charges or other amounts accruing on or after the
filing of any petition in bankruptcy or for reorganization at the rate or in the
amount otherwise applicable thereto, whether or not any such interest, fees,
expenses, charges or other amounts is an allowed claim), (iii) all premiums and
fees (including post-petition fees and costs, including attorneys fees), if any,
and other amounts, indebtedness, obligations and liabilities of Borrower and its
Subsidiaries or Affiliates, whether now existing or hereafter incurred or
created, payable, owing or due to Revolver Lenders under or with respect to the
Revolver Loan Documents, and (iv) the amount of any Revolver Protective
Advances.
"Revolver Lenders" means collectively Revolver Agent and the
"Lenders" as defined in the Revolving Credit Agreement.
"Revolver Loan Documents" means the Revolving Credit
Agreement, any notes executed in connection therewith, and any other document,
agreement or instrument now, heretofore or hereafter executed and delivered by
or on behalf of Borrower or any Borrower Party (as defined in the Revolving
Credit Agreement) with or in favor of Revolver Lenders in connection with the
Revolver Loan, together with any supplement, modification, amendment,
restatement, extension or renewal of any such document, agreement or instrument.
"Revolver Notice" is defined in Section 8.F.
"Revolver Payment Default" means a Revolver Default under
Sections 8.01(a) and/or (b) of the Revolving Credit Agreement and/or a Revolver
Default pursuant to which Revolver Lenders have accelerated the Revolving Loan
pursuant to Section 8.02 of the Revolving Credit Agreement.
"Revolver Protective Advances" is defined in Section 3.
"Revolving Credit Agreement" is defined in Recital A.
2. SUBORDINATION OF BRIDGE LOAN TO REVOLVER LOAN EXCEPT WITH RESPECT TO BRIDGE
COLLATERAL AND BRIDGE GUARANTORS; SUBORDINATION OF REVOLVER LOAN ONLY WITH
RESPECT TO BRIDGE COLLATERAL AND BRIDGE GUARANTORS.
A. Notwithstanding any provision contained in the Bridge Loan Documents
that could be construed to the contrary, and except as limited by Section
2.B, the Bridge Loan Documents, any liens and security interests now
existing or that may in the future be created in connection therewith, and
all of Bridge Lenders' rights and remedies under the Bridge Loan Documents
(including Bridge Lenders' rights to receive payment of the Bridge
Indebtedness) are hereby expressly made, and at all times will be, subject
and subordinate in all respects to the Revolver Loan Documents, any liens
and security
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interests now existing or that may in the future be created in connection
therewith, all of Revolver Lenders' rights and remedies under the Revolver
Loan Documents (including Revolver Lenders' right to receive payment of the
Revolver Indebtedness), any Revolver Protective Advances and any other
advances made by Revolver Lenders in connection with the Revolver Loan.
Without the prior written consent of the Revolver Lenders while any portion
of the Revolver Indebtedness is outstanding, the Bridge Lenders shall not
be entitled to realize on any of the Non-Oxford Pledged Collateral (as
defined in the Bridge Credit Agreement) or seek recourse against any of the
Revolver Guarantors.
B. Notwithstanding anything to the contrary herein or to any provision
contained in the Revolver Loan Documents that could be construed to the
contrary, solely with respect to any liens and security interests existing
as of the date hereof or that may in the future be created in the Bridge
Collateral or Permitted Proceeds, as applicable, pursuant to the Bridge
Loan Documents and any recourse to the Bridge Guarantors (including
Property owned by such Guarantors), the Revolver Loan Documents and all of
Revolver Lenders' rights and remedies under the Revolver Loan Documents
(including Revolver Lenders' rights to receive payment of the Revolver
Indebtedness) are hereby expressly made, and at all times will be, subject
and subordinate to the Bridge Loan Documents, all of Bridge Lenders' rights
and remedies under the Bridge Loan Documents (including Bridge Lenders'
right to receive payment of the Bridge Indebtedness), any Bridge Protective
Advances and any other advances made by Bridge Lenders in connection with
the Bridge Loan. Notwithstanding any provision of this Agreement or any of
the Bridge Loan Documents to the contrary, it is the express agreement of
the parties hereto, that in all circumstances the entire amount of any
Bridge Deficiency shall be subject to and subordinate to the entire amount
of any and all Revolver Deficiency and that in the event of a Revolver
Deficiency, the provisions of Section 9 shall apply. Without the prior
written consent of the Bridge Lenders while any portion of the
Bridge Indebtedness remains outstanding, the Revolver Lenders shall not be
entitled to realize on any of the Bridge Collateral or seek recourse
against any of the Bridge Guarantors.
3. PROTECTIVE ADVANCES.
A. Revolver Lenders will be entitled, but not obligated, to make, without
obtaining the consent of Bridge Lenders, "protective advances," whether
made before or after any acceleration of the Revolver Indebtedness,
including any sums advanced by Revolver Lenders, whether or not pursuant to
the Revolver Loan Documents, to pay (i) expenses incurred to uphold or
enforce any of the Revolver Loan Documents (including the expenses of any
litigation to prosecute or defend the rights created by any of the Revolver
Loan Documents) or to otherwise protect or defend the Revolver
Indebtedness; (ii) any other amount, cost or charge to which Revolver
Lenders become subrogated, upon payment, whether under recognized
principles of law or equity, or under express statutory authority; (iii)
any advances under any of the other Revolver
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Loan Documents; and (iv) any other direct or indirect cost incurred in
connection with any action that Revolver Lenders reasonably deem necessary
to protect or defend the Revolver Indebtedness (collectively, "REVOLVER
PROTECTIVE ADVANCES"); provided, however, that Revolver Lenders shall only
be subrogated with respect to the rights of Bridge Lenders under the Bridge
Loan Documents upon the indefeasible payment in full in Cash or Cash
Equivalents of all Bridge Indebtedness, including without limitation the
amount of any Bridge Deficiency.
B. Bridge Lenders will be entitled, but not obligated, to make, without
obtaining the consent of Revolver Lenders, "protective advances," whether
made before or after any acceleration of the Bridge Indebtedness, including
any sums advanced by Bridge Lenders, whether or not pursuant to the Bridge
Loan Documents, to pay (i) expenses incurred to uphold or enforce any of
the Bridge Loan Documents (including the expenses of any litigation to
prosecute or defend the rights created by any of the Bridge Loan Documents)
or to otherwise protect or defend the Bridge Indebtedness; (ii) any other
amount, cost or charge to which Bridge Lenders become subrogated, upon
payment, whether under recognized principles of law or equity, or under
express statutory authority; (iii) any advances under any of the other
Bridge Loan Documents; and (iv) any other direct or indirect cost incurred
in connection with any action that Bridge Lenders reasonably deem necessary
to protect or defend the Bridge Indebtedness (collectively, "BRIDGE
PROTECTIVE ADVANCES"); provided, however, that Bridge Lenders shall only be
subrogated with respect to the rights of Revolver Lenders under the
Revolver Loan Documents upon the indefeasible payment in full in Cash or
Cash Equivalents of all Revolver Indebtedness, including without limitation
the amount of any Revolver Deficiency.
4. AMENDMENTS TO THE REVOLVER LOAN DOCUMENTS.
A. Notwithstanding any contrary provision in the Bridge Loan Documents, but
without derogating the provisions of Section 8.A, the subordination of the
Bridge Loan Documents and Bridge Lenders' rights therein provided for in
this Agreement automatically, and without any notice to, consent of, or
action by Bridge Lenders, or any other party whatsoever, will extend to all
modifications (including increases in the amount of the Revolver Loan),
renewals, refinancing, replacements and extensions whatsoever of any of the
Revolver Loan Documents and the Revolver Loan. Any such modification,
renewal, refinancing, replacement, or extension of the Revolver Loan
Documents will not affect the rights and privileges of Revolver Lenders
hereunder with respect to the Revolver Loan Documents, as so modified,
refinanced, replaced or extended.
B. No release or waiver by Revolver Lenders of any rights against any
Person under the Revolver Loan Documents will require notice to or consent
of Bridge Lenders, or any other party, nor will any such release or waiver
operate as a defense to or release of any
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of the obligations of Bridge Lenders or the rights or priority of Revolver
Lenders under the Revolver Loan Documents. In furtherance of and without
limiting the generality of the foregoing provisions of this Section 4,
Bridge Lenders hereby agree and consent that, without notice to or assent
by Bridge Lenders:
(i) Revolver Lenders may exercise or refrain from exercising any
right, remedy or power granted to them under the Revolver Loan
Documents or any other right, remedy or power at law or in equity
or otherwise with respect to the Revolver Indebtedness or any
collateral security or lien (legal or equitable) held, given or
intended to be given therefor (including the right to perfect any
lien or security interest created in connection therewith); and
(ii) Revolver Lenders may, from time to time, release or waive, in
whole or part, any and all collateral, security, funds, accounts
and/or liens (legal or equitable) at any time, present or future,
held, given or intended to be given for the Revolver Indebtedness
without impairing Revolver Lenders' rights hereunder with respect
to any collateral, or liens not so released or waived.
5. AMENDMENTS TO THE BRIDGE LOAN DOCUMENTS.
A. Notwithstanding any provision that could be construed to the contrary in
the Revolver Loan Documents but without derogating the provisions of
Section 7.A, the subordination of the Revolver Loan Documents and Revolver
Lenders' rights therein provided for in this Agreement automatically, and
without any notice to, consent of, or action by Revolver Lenders, or any
other party whatsoever, will extend to all modifications (including
increases in the amount of the Bridge Loan), renewals, replacements and
extensions whatsoever of any of the Bridge Loan Documents. Any such
modification, renewal, replacement, or extension of the Bridge Loan
Documents will not affect the rights and privileges of Bridge Lenders
hereunder with respect to the Bridge Loan Documents, as so modified,
refinanced, replaced or extended.
B. No release or waiver by Bridge Lenders of any rights against any Person
under the Bridge Loan Documents will require notice to or consent of
Revolver Lenders, or any other party, nor will any such release or waiver
operate as a defense to or release of any of the obligations of Revolver
Lenders or the rights or priority of Bridge Lenders under the Bridge Loan
Documents. In furtherance of and without limiting the generality of the
foregoing provisions of this Section 5, Revolver Lenders hereby agree and
consent that, without notice to or assent by Revolver Lenders:
(i) Bridge Lenders may exercise or refrain from exercising any right,
remedy or power granted to them under the Bridge Loan Documents
or any other right, remedy or power at law or in equity or
otherwise with respect to
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the Bridge Indebtedness or any collateral security or lien (legal
or equitable) held, given or intended to be given therefor
(including the right to perfect any lien or security interest
created in connection therewith); and
(ii) Bridge Lenders may, from time to time, release or waive, in whole
or part, any and all collateral, security, funds, accounts and/or
liens (legal or equitable) at any time, present or future, held,
given or intended to be given for the Bridge Indebtedness without
impairing Bridge Lenders' rights hereunder with respect to any
collateral, or liens not so released or waived.
6. PAYMENTS ON BRIDGE INDEBTEDNESS PRIOR TO REVOLVER PAYMENT DEFAULT; TURNOVER
OF AMOUNTS TO REVOLVER LENDERS.
A. So long as no Revolver Payment Default has occurred and is then
continuing, Bridge Lenders will be entitled to collect from Borrower all or
any portion of the Bridge Indebtedness then outstanding by Borrower under
the Bridge Loan Documents in accordance with the terms of the Bridge Loan
Documents. Upon the occurrence of a Revolver Payment Default, Revolver
Agent may deliver a Requisite Notice instructing Bridge Lenders to cease
collection of amounts due in respect of the Bridge Indebtedness (a
"BLOCKAGE NOTICE") pursuant to this Agreement. Immediately upon receipt of
a Blockage Notice and until (a) each applicable Revolver Payment Default is
cured by the indefeasible payment of Cash or Cash Equivalents or otherwise
(if not cured by indefeasible payment of Cash or Cash Equivalents, to
Revolver Lenders' satisfaction in their sole and absolute discretion) or
(b) 179 days have passed since the delivery of the Blockage Notice and
Revolving Lenders have not accelerated the Revolver Indebtedness, before
any payment or distribution in respect to the Bridge Indebtedness may be
made, whether in Cash, Cash Equivalents, securities or other Property,
whether it is due or not due, the Revolver Indebtedness must be
indefeasibly paid in full in Cash or Cash Equivalents.
B. Notwithstanding any provision of Section 6.A to the contrary, in all
events, Bridge Lenders shall be entitled to collect (1) payments of
principal and fees made solely from Permitted Proceeds and (2) payments of
interest (including any default interest) as provided under the Bridge Loan
Documents.
C. Bridge Lenders agree that upon the occurrence of a Revolver Payment
Default, until such Revolver Payment Default is cured as provided in
Section 6.A(a), any payment or distribution of any kind or character,
whether in Cash, Cash Equivalents, securities or other Property, which
would otherwise (but for the subordination provisions of this Agreement) be
payable or deliverable in respect to the Bridge Indebtedness, excluding
Permitted Proceeds and payments of interest (including default interest) on
account of the Bridge Indebtedness, at the instruction of the Revolver
Lenders (which instruction may be contained in a Blockage Notice) will be
paid or delivered directly to Revolver
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Lenders for application in payment of the Revolver Indebtedness until all
Revolver Indebtedness will have been paid in full.
D. If, on the date of any Blockage Notice, there exists a Revolver Payment
Default of which Revolving Lenders were notified in writing by Borrower or
Revolving Lenders otherwise had knowledge, and which Revolving Lenders do
not describe in the Blockage Notice (each a "CONCURRENT DEFAULT"), then the
Revolver Lenders may not send a subsequent Blockage Notice in respect of
such Concurrent Default without the prior consent of the Bridge Lenders
which may be withheld in their sole discretion; provided, however, that a
Concurrent Default may serve as the basis for a subsequent Blockage Notice
if such Concurrent Default has been waived for a period not less than 90
days.
7. OTHER RIGHTS AND OBLIGATIONS OF BRIDGE LENDERS REGARDING THE BRIDGE LOAN.
A. Bridge Lenders will not amend, modify or otherwise alter the Bridge Loan
Documents (it being agreed that delivery of updated schedules, guaranties,
or other information or documents by Borrower, as contemplated under
Section 6.02 of the Bridge Credit Agreement as of the date hereof, is not
deemed to be an amendment, modification or other alteration under this
Section 7.A) without the prior written consent of Revolver Lenders, which
consent shall not be unreasonably withheld or delayed and shall be deemed
given if not withheld within ten Business Days after Requisite Notice
thereof, provided that any such amendment, modification or alteration is
not material. For purposes of this Agreement, a modification, amendment or
alteration will be "material" if it individually, or when taken together
with other modifications, amendments or alterations, (i) increases or
extends the scope of the Borrower's and/or Bridge Guarantors' obligations
under the Bridge Loan Documents, including, without limitation, increasing
the amounts available to be borrowed thereunder or (ii) changes the
maturity of any of Borrower's obligations under the Bridge Loan Documents.
B. Bridge Lenders will not be entitled to record or file any mortgage, deed
of trust, financing statement or any other lien or encumbrance against
Borrower, or any real property or other property now or hereafter owned by
Borrower and/or its Affiliates with respect to the Revolver Collateral
unless such mortgage, deed of trust, financing statement or any other lien
or encumbrance is expressly subordinate to the Revolver Loan and Revolver
Loan Documents and complies with the terms of this Agreement.
C. Bridge Lenders will not be entitled to sell, assign or otherwise
transfer the Bridge Loan Documents without causing such assignee to
acknowledge that the Bridge Loan Documents and assignee's rights as Bridge
Lenders are subject to the provisions hereof.
D. Bridge Agent will deliver to Revolver Agent, concurrently with delivery
of the same to Borrower, a copy of each notice delivered to Borrower under
the Bridge Loan Documents.
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E. Bridge Agent, within five Business Days after request by Revolver Agent,
will verify, in writing, the status of and payments made under the Bridge
Loan Documents.
F. If at any time after the date of this Agreement: (i) Bridge Agent
delivers to Borrower a written notice that there has occurred a default or
event of default under the Bridge Loan Documents (the "BRIDGE NOTICE"),
then Bridge Agent must provide a copy of the Bridge Notice to Revolver
Lenders within two business days thereafter; or (ii) Bridge Agent receives
written notice from Borrower stating that there has occurred a default or
event of default under the Bridge Loan Documents (the "BRIDGE BORROWER
NOTICE"), then Bridge Agent must provide a copy of the Bridge Borrower
Notice to Revolver Lenders within two business days thereafter.
8. OTHER RIGHTS AND OBLIGATIONS OF REVOLVER LENDERS REGARDING THE REVOLVER
LOAN.
A. Revolver Lenders will not amend, modify or otherwise alter the Revolver
Loan Documents (it being agreed that delivery of updated schedules,
guaranties, or other information or documents by Borrower, as contemplated
under Section 6.02 of the Revolver Credit Agreement or increases or
reductions in the Combined Commitments contemplated by Section 2.14 of the
Revolver Credit Agreement as of the date hereof, will not be deemed to be
an amendment, modification or other alteration under this Section 8.A)
without the prior written consent of Bridge Lenders, which consent shall
not be unreasonably withheld or delayed and shall be deemed given if not
withheld within ten Business Days after Requisite Notice thereof, provided
any such amendment, modification or alteration is not material. For
purposes of this Agreement, a modification, amendment or alteration will be
"material" if it individually, or when taken together with other
modifications, amendments or alterations, (i) increases or extends the
scope of the Borrower's and or Revolver Guarantors' obligations under the
Revolver Loan Documents, including, without limitation, increasing the
amounts available to be borrowed thereunder or (ii) changes the maturity of
any of Borrower's obligations under the Revolver Loan Documents.
B. Revolver Lenders will not be entitled to record or file any mortgage,
deed of trust, financing statement or any other lien or encumbrance against
Borrower, or any real property or other property now or hereafter owned by
Borrower and/or its Affiliates with respect to the Bridge Collateral unless
such mortgage, deed of trust, financing statement or any other lien or
encumbrance is expressly subordinate to the Bridge Loan and Bridge Loan
Documents and complies with the terms of this Agreement.
C. Revolver Lenders will not be entitled to sell, assign or otherwise
transfer the Revolver Loan Documents without causing such assignee to
acknowledge that the Revolver Loan Documents and assignee's rights as
Revolver Lenders are subject to the provisions hereof.
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D. Revolver Agent will deliver to Bridge Agent, concurrently with delivery
of the same to Borrower, a copy of each notice delivered to Borrower under
the Revolver Loan Documents.
E. Revolver Lenders, within five Business Days after request by Bridge
Lenders, will verify, in writing, the status of and payments made under the
Revolver Loan Documents.
F. If at any time after the date of this Agreement: (i) Revolver Agent
delivers to Borrower a written notice that there has occurred a default or
event of default under the Revolver Loan Documents (the "REVOLVER NOTICE"),
then Revolver Agent must provide a copy of the Revolver Notice to Bridge
Lenders within two business days thereafter; or (ii) Revolver Agent
receives written notice from Borrower stating that there has occurred a
default or event of default under the Revolver Loan Documents (the
"REVOLVER BORROWER NOTICE"), then Revolver Agent must provide a copy of the
Revolver Borrower Notice to Bridge Lenders within two business days
thereafter.
9. BANKRUPTCY AND CERTAIN ENFORCEMENT PROVISIONS WITH RESPECT TO BRIDGE
LENDERS.
A. Bridge Lenders acknowledge that Revolver Lenders have made material and
substantial concessions by entering into the Amended and Restated Revolver
and by permitting the Borrower to consummate the acquisition of the Oxford
Portfolio and the funding of the Bridge Loan. In permitting the acquisition
of the Oxford Portfolio and the funding of the Bridge Loan, Revolver
Lenders relied upon the agreement of Bridge Lenders not to seek
modifications of this Agreement, the Revolver Loan Documents or the Bridge
Loan Documents by resorting to or relying upon any provision of the
Bankruptcy Code or other remedy whatsoever, and furthermore, but for the
agreement of Bridge Lenders made herein not to resort to any provisions of
the Bankruptcy Code or other remedy to modify the form and substance of
this Agreement, the Revolver Loan Documents or the Bridge Loan Documents,
Revolver Lenders would not have entered into the Amended and Restated
Revolver and would not have permitted the Bridge Loan. If Revolver Lenders
file a motion for relief from stay pursuant to Section 362(d)(1) of the
Bankruptcy Code or any other provision of the Bankruptcy Code permitting
the filing of a motion for relief from stay, Revolver Lenders will be
entitled, upon ex parte application, and without further notice of any kind
or nature whatsoever, to an order from the Bankruptcy Court granting
immediate relief from the automatic stay so as to permit Revolver Lenders
to exercise all of their rights and remedies pursuant to this Agreement,
the Revolver Loan Documents, and at law and equity. If the Bankruptcy Court
does not issue the orders described in the preceding sentence upon Revolver
Lenders' ex parte application therefor, Bridge Lenders hereby consent and
agree that a hearing with respect to such orders may be scheduled on five
days' notice and agree not to object to such notice, and hereby waive any
right to object to such notice, on the
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grounds that such notice is insufficient or inadequate or on any other
grounds. Without conferring any right on Bridge Lenders to participate in
any such ex parte proceeding, Revolver Agent shall provide Bridge Agent
with a copy of any filing in connection therewith promptly after the filing
thereof.
B. In order to effectuate the agreements of Bridge Lenders set forth in
this Section and otherwise in this Agreement, Bridge Lenders covenant that
neither Bridge Lenders nor their Affiliates will directly or indirectly
oppose or otherwise defend against Revolver Lenders' effort to obtain
relief from the automatic stay pursuant to Section 9.A above and agree that
Revolver Lenders will be entitled to the lifting of the stay pursuant to
Section 9.A, without the necessity of an evidentiary hearing and without
the necessity or requirement that Revolver Lenders establish or prove the
lack of any reasonable prospect of reorganization with respect to Bridge
Lenders or Borrower.
C. To the extent permitted by law, Bridge Lenders hereby waive and agree
not to assert or take advantage of and to cause their Affiliates not assert
or take advantage of in each case, (as a defense or otherwise) as against
Revolver Lenders:
(i) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or
the failure of Revolver Lenders to file or enforce a claim
against the estate (in administration, bankruptcy or any other
Proceeding) of any other person or persons other than a failure
to file or enforce a proof of claim against the estate of
Borrower in any Proceeding in respect of Borrower;
(ii) any failure on the part of Revolver Lenders to ascertain the
liability of any party liable for the Revolver Loan Documents or
the obligations evidenced or secured thereby;
(iii) demand, presentment for payments, notice of nonpayment, protest,
notice of protest and all other notices of any kind, or the lack
of any thereof, including notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or
of any action or non-action on the part of Bridge Lenders,
Revolver Lenders, any endorser or creditor of Borrower or Bridge
Lenders or on the part of any other person whomsoever under this
or any other instrument in connection with any obligation or
evidence of indebtedness held by Revolver Lenders;
(iv) any right or claim or right to cause a marshalling of the assets
of Borrower or Bridge Lenders;
(v) any principle or provision of law, statutory or otherwise, which
is or might be in conflict with the terms and provisions of this
Agreement or the Revolver Loan Documents;
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(vi) any duty on the part of Revolver Lenders to disclose to Bridge
Lenders any facts Revolver Lenders may now or hereafter know
about Borrower, regardless of whether Revolver Lenders have
reason to believe that any such facts materially increase the
risk beyond that which Bridge Lenders intend to assume or have
reason to believe that such facts are unknown to Bridge Lenders
or have a reasonable opportunity to communicate such facts to
Bridge Lenders, it being understood and agreed that Bridge
Lenders are fully responsible for being and keeping informed of
the financial condition of Borrower and of any and all
circumstances bearing on the risk that liability may be incurred
by Bridge Lenders hereunder or under the Bridge Loan Documents;
(vii) failure to properly record any document, failure to secure
Borrower's obligations under the Revolver Loan, or any other lack
of due diligence by Revolver Lenders in obtaining reimbursement
or performance from any person or entity now or hereafter liable
for any of the Revolver Loan Documents;
(viii) the inaccuracy of any representation or other provision
contained herein or in any of the Revolver Loan Documents or
Bridge Loan Documents;
(ix) any sale or assignment of any of the Revolver Loan Documents or
Bridge Loan Documents, in whole or in part, except to the extent
that such sale or assignment results in a transfer of the rights
sold or assigned;
(x) any invalidity, irregularity or unenforceability, in whole or in
part, of this Agreement or any one or more of the Revolver Loan
Documents or Bridge Loan Documents;
(xi) any lack of commercial reasonableness in dealing with the
Revolver Loan or the Bridge Loan;
(xii) any assertion or claim that the automatic stay provided by 11
U.S.C. Section 362 (or any successor thereto) (arising upon the
voluntary or involuntary bankruptcy proceeding of Bridge Lenders
or Borrower) or any other stay provided under any other debtor
relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, which
may be or become applicable, will operate or be interpreted to
stay, interdict, condition, reduce or inhibit the ability of
Revolver Lenders to enforce any rights, whether now or hereafter
acquired, which Revolver Lenders may have against Bridge Lenders;
(xiii) any modifications of the Revolver Loan Documents or Bridge Loan
Documents or any obligations of Revolver Lenders relating to the
Revolver Loan
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Documents by operation of law or by action of any court, whether
pursuant to Bankruptcy Code or any other debtor relief law
(whether statutory, common law, case law or otherwise) of any
jurisdiction whatsoever, now or hereafter in effect, or
otherwise;
(xiv) any change in the composition of Revolver Lenders, Borrower or
Bridge Lenders;
(xv) granting of compromises and indulgences with respect to any one
or more of the Revolver Loan Documents and to any persons or
entities now or hereafter liable thereunder or hereunder;
(xvi) release of any indemnitor, guarantor or endorser of or other
person or entity liable upon any one or more of Revolver Loan
Documents; and
(xvii) without limiting the generality of the foregoing, any rights and
benefits which might otherwise be available to Bridge Lenders
under California Civil Code Sections 726, 2899 and 3433, and
California Code of Civil Procedure Sections 580a and 580d, and
any successor sections to such sections.
D. To the extent that Borrower or any other obligor under any of the
Revolver Loan Documents makes a payment or payments to Revolver Lenders,
which payment or proceeds or any part thereof is subsequently invalidated,
declared to be fraudulent or preferential, set aside or required to be
repaid to a trustee, receiver or any other party under any bankruptcy law,
state or federal law, common law or equitable cause, then, to the extent of
such payment or proceeds received, the obligations under the Revolver Loan
Documents or part thereof intended to be satisfied, and any and all
collateral therefor, will be revived and continue in full force and effect,
as if such payment or proceeds had not been received by Revolver Lenders
and any payments, Property or other value received by or on behalf of
Bridge Lenders (other than Permitted Proceeds and any payment received by
Bridge Lenders pursuant to Section 6.B) after the invalidated or otherwise
set aside payment was received by Revolver Lenders will be deemed to be
received in trust for the benefit of, and will promptly be paid over or
delivered and transferred by Bridge Lender, to Revolver for application to
the payment of the Revolver Indebtedness to the extent necessary to pay
the Revolver Indebtedness in full, and such payments will not be deemed to
have been paid to Bridge Lenders or applied to the Bridge Loan or any of
the Bridge Loan Documents to the extent so paid to Revolver Lenders.
E. (1) Upon the occurrence of any Proceeding, any payment or distribution
of any kind (whether in Cash, Cash Equivalents, securities or other
property) which otherwise would be payable or deliverable upon or with
respect to the Bridge Indebtedness, including without limitation, any
amount or distribution on account of a Bridge Deficiency which is received
by Bridge Lenders, excluding Permitted Proceeds and any
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payments received by Bridge Lenders pursuant to Section 6.B, will be paid
or delivered directly to Revolver Lenders for application to (in the case
of Cash or Cash Equivalents) or as collateral for (in the case of non-cash
Property or securities which non-cash Property or securities are referred
to as "TURNOVER PROPERTY")) the payment of the Revolver Indebtedness until
the Revolver Indebtedness is paid in full including the amount of any
Revolver Deficiency with Cash or Cash Equivalents, except that if the
Revolver Lenders are paid in full on account of the Revolver Deficiency in
the form of Cash or Cash Equivalents, then the Bridge Lenders may receive
securities (including stock and subordinated debt securities) that are
subordinated to any and all securities and debt instruments distributed to
the Revolver Lenders to at least the same extent and pursuant to the same
or more stringent terms as such securities distributed to the Revolver
Lenders. If any such payment or distribution is received by Bridge Lenders
before such payment in full of the Revolver Indebtedness with Cash or Cash
Equivalents, Bridge Lenders will be deemed to have received the same in
trust for Revolver Lenders, and will immediately remit such payment or
distribution to Revolver Lenders.
(2) To the extent the payments or distributions described in Section
9.E(1) (a) are Cash or Cash Equivalents, the amount thereof shall be
applied to reduce the outstanding Revolver Deficiency, or (b) are Turnover
Property, the amount of Cash or Cash Equivalents realized by Revolver
Lenders from disposition or other realization of such Turnover Property
shall be applied to reduce the outstanding Revolver Deficiency. If Revolver
Lenders elect to dispose of any Turnover Property, at any time after
receipt of Turnover Property, Revolver Lenders may exercise in respect of
the Turnover Property, in addition to all other rights and remedies
provided for in this Agreement or otherwise available to them, all the
rights and remedies of a secured party on default under the Uniform
Commercial Code as in effect on the date hereof in the State of California
(the "UCC") (whether or not the UCC applies to the affected Turnover
Property), and Revolver Lenders may also in their sole discretion, without
notice except as specified below, sell the Turnover Property or any part
thereof in one or more parcels at public or private sale, at any exchange
or broker's board or at any of Revolver Agent's offices or elsewhere, for
Cash, on credit or for future delivery, at such time or times and at such
price or prices and upon such other terms as Revolver Lenders may deem
commercially reasonable, irrespective of the impact of any such sales on
the market price of the Turnover Property. Any Revolver Lender or Bridge
Lender may be the purchaser of any or all of the Turnover Property at any
such sale. Each purchaser at any such sale shall hold the property sold
absolutely free from any claim or right on the part of Bridge Lenders, and
Bridge Lenders hereby waive (to the maximum extent permitted by applicable
law) all rights of redemption, stay and/or appraisal which it now has or
may at any time in the future have under any rule of law or statute now
existing or hereafter enacted. Bridge Lenders agree that, to the extent
notice of sale shall be required by law, at least ten days' notice to
Bridge Lenders of the time and place of any public sale or the time after
which any private sale is to be made shall constitute reasonable
notification. Revolver Lenders shall not be obligated to make any sale of
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Turnover Property regardless of notice of sale having been given. Revolver
Lenders may adjourn any public or private sale from time to time by
announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned. Bridge Lenders hereby waive any claims against Revolver Lenders
arising by reason of the fact that the price at which any Turnover Property
may have been sold at such a private sale was less than the price which
might have been obtained at a public sale, even if Revolver Lenders accept
the first offer received and do not offer such Turnover Property to more
than one offeree. If the proceeds of any sale or other disposition of the
Turnover Property are sufficient to pay the entire amount of the Revolver
Deficiency, Revolver Lenders shall promptly remit to Bridge Lenders the
amount of any excess proceeds, less the reasonable fees, costs and expenses
(including reasonable attorneys fees) incurred by Revolver Lenders in
conducting such sales and collecting the proceeds thereof. To the extent
any of the Turnover Property constitutes securities for which registration
or other qualification is required pursuant to the rules and regulations of
the Securities and Exchange Commission (or other Governmental Authorities),
then to the extent required by Revolver Lenders, Bridge Lenders shall
cooperate with Revolver Lenders in good faith to facilitate such
registration or satisfaction of other qualifications requirements.
F. In any Proceeding, Revolver Lenders may, and are hereby irrevocably
authorized and empowered (in their own name or in the name of the Bridge
Lenders) but will have no obligation to demand, xxx for, collect and
receive every payment or distribution referred to in Section 9(E) above and
give acquittance therefor.
G. If a Proceeding is commenced under any provision of the Bankruptcy Code
in respect of Borrower or Xxxxxx Xxxxxxx, Xxxxxx Lenders will not directly
or indirectly file a motion or otherwise seek to cause the consolidation of
any such Proceeding involving the Bridge Guarantors with any other
Proceeding involving all or substantially all of the Revolver Guarantors.
H. Upon the occurrence of any Proceeding, the provisions of this Agreement
will remain in full force and effect, and the court having jurisdiction
over the Proceeding is hereby authorized to preserve such priority and
subordination in approving any such plan of reorganization, arrangement or
liquidation without the prior written consent of Bridge Lenders and to
enforce the provisions hereof in accordance with Section 510 of the
Bankruptcy Code.
I. If Bridge Lenders, directly or indirectly, violate the provisions of
this Section 9 or attempt to set aside, or cause to be altered in any
manner any term, provision, transfer, lien or other aspect of the Revolver
Loan or this Agreement, then the Bridge Lenders hereby agree to protect,
indemnify and hold harmless, Revolver Lenders from and against any and all
liability, loss, cost, damage or expense incurred by Revolver Lenders
thereby, including, without limitation, the amount of any liability
incurred by Revolver Lenders in any such action or actions and
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all costs of defending such action or actions, including, without
limitation, attorneys' fees and expenses. All reasonable attorneys' fees
and expenses incurred by Revolver Lenders in connection with any such
proceeding, including fees and expenses incurred after the filing of the
proceeding (whether or not such fees or expenses would be allowed under the
Bankruptcy Code), will be deemed to be costs of collection that the Bridge
Lenders will be required to pay.
10. BANKRUPTCY AND CERTAIN ENFORCEMENT PROVISIONS WITH RESPECT TO REVOLVER
LENDERS.
A. Revolver Lenders acknowledge that Bridge Lenders have made material and
substantial concessions by entering into the Bridge Loan. In funding the
Bridge Loan, Bridge Lenders relied upon the agreement of Revolver Lenders
not to seek modifications of this Agreement, the Revolver Loan Documents or
the Bridge Loan Documents by resorting to or relying upon any provision of
the Bankruptcy Code or other remedy whatsoever, and furthermore, but for
the agreement of Revolver Lenders made herein not to resort to any
provisions of the Bankruptcy Code or other remedy to modify the form and
substance of this Agreement, the Revolver Loan Documents or the Bridge Loan
Documents, Bridge Lenders would not have entered into the Bridge Loan. If
Bridge Lenders file a motion for relief from stay pursuant to Section
362(d)(1) of the Bankruptcy Code or any other provision of the Bankruptcy
Code permitting the filing of a motion for relief from stay solely in order
to realize upon the Bridge Collateral or obtain recourse against the Bridge
Guarantors, Bridge Lenders will be entitled, upon ex parte application, and
without further notice of any kind or nature whatsoever, to an order from
the Bankruptcy Court granting immediate relief from the automatic stay so
as to permit Bridge Lenders to exercise all of their rights and remedies
pursuant to this Agreement, the Bridge Loan Documents, and at law and
equity. If the Bankruptcy Court does not issue the orders described in the
preceding sentence upon Bridge Lenders' ex parte application therefor,
Revolver Lenders hereby consent and agree that a hearing with respect to
such orders may be scheduled on five days' notice and agree not to object
to such notice, and hereby waive any right to object to such notice, on the
grounds that such notice is insufficient or inadequate or on any other
grounds. Without conferring any rights on Revolver Lenders to participate
in any such ex parte proceeding, Bridge Agent shall provide Revolver Agent
with a copy of any filing in connection therewith promptly after the filing
thereof.
B. In order to effectuate the agreements of Revolver Lenders set forth in
this Section, Revolver Lenders covenant that neither Revolver Lenders nor
their Affiliates will directly or indirectly oppose or otherwise defend
against Bridge Lenders' effort to obtain relief from the automatic stay
pursuant to and solely for the purpose described in Section 10.A above and
agree that Bridge Lenders will be entitled to the lifting of the stay
pursuant to Section 10.A, without the necessity of an evidentiary hearing
and without the necessity or requirement that Bridge Lenders establish or
prove the lack of any reasonable prospect of reorganization with respect to
Revolver Lenders or Borrower.
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C. To the extent permitted by law, Revolver Lenders hereby waive and agree
not to assert or take advantage of and to cause their Affiliates not assert
or take advantage of in each case, (as a defense or otherwise) as against
Bridge Lenders:
(i) any defense that may arise by reason of the incapacity, lack of
authority, death or disability of any other person or persons or
the failure of Bridge Lenders to file or enforce a claim against
the estate (in administration, bankruptcy or any other
Proceeding) of any other person or persons other than a failure
to file or enforce a proof of claim against the estate of
Borrower in any Proceeding in respect of Borrower;
(ii) any failure on the part of Bridge Lenders to ascertain the
liability of any party liable for the Bridge Loan Documents or
the obligations evidenced or secured thereby;
(iii) demand, presentment for payments, notice of nonpayment, protest,
notice of protest and all other notices of any kind, or the lack
of any thereof, including notice of the existence, creation or
incurring of any new or additional indebtedness or obligation or
of any action or non-action on the part of Bridge Lenders,
Revolver Lenders, any endorser or creditor of Borrower or
Revolver Lenders or on the part of any other person whomsoever
under this or any other instrument in connection with any
obligation or evidence of indebtedness held by Bridge Lenders;
(iv) any right or claim or right to cause a marshalling of the assets
of Borrower or Revolver Lenders;
(v) any principle or provision of law, statutory or otherwise, which
is or might be in conflict with the terms and provisions of this
Agreement or the Bridge Loan Documents;
(vi) any duty on the part of Bridge Lenders to disclose to Revolver
Bridge Lenders any facts Bridge Lenders may now or hereafter know
about Borrower, regardless of whether Bridge Lenders have reason
to believe that any such facts materially increase the risk
beyond that which Revolver Lenders intend to assume or have
reason to believe that such facts are unknown to Revolver Lenders
or have a reasonable opportunity to communicate such facts to
Revolver Lenders, it being understood and agreed that Revolver
Lenders are fully responsible for being and keeping informed of
the financial condition of Borrower and of any and all
circumstances bearing on the risk that liability may be incurred
by Revolver Lenders hereunder or under the Revolver Loan
Documents;
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(vii) failure to properly record any document, failure to secure
Borrower's obligations under the Bridge Loan, or any other lack
of due diligence by Bridge Lenders in obtaining reimbursement or
performance from any person or entity now or hereafter liable for
any of the Bridge Loan Documents;
(viii) the inaccuracy of any representation or other provision
contained herein or in any of the Revolver Loan Documents or
Bridge Loan Documents;
(ix) any sale or assignment of any of the Revolver Loan Documents or
Bridge Loan Documents, in whole or in part, except to the extent
that such sale or assignment results in a transfer of the rights
sold or assigned;
(x) any invalidity, irregularity or unenforceability, in whole or in
part, of this Agreement or any one or more of the Revolver Loan
Documents or Bridge Loan Documents;
(xi) any lack of commercial reasonableness in dealing with the
Revolver Loan or the Bridge Loan;
(xii) any assertion or claim that the automatic stay provided by 11
U.S.C. Section 362 (or any successor thereto) (arising upon the
voluntary or involuntary bankruptcy proceeding of Revolver
Lenders or Borrower) or any other stay provided under any other
debtor relief law (whether statutory, common law, case law or
otherwise) of any jurisdiction whatsoever, now or hereafter in
effect, which may be or become applicable, will operate or be
interpreted to stay, interdict, condition, reduce or inhibit the
ability of Bridge Lenders to enforce any rights, whether now or
hereafter acquired, which Bridge Lenders may have against
Revolver Lenders;
(xiii) any modifications of the Revolver Loan Documents or Bridge Loan
Documents or any obligations of Bridge Lenders relating to the
Bridge Loan Documents by operation of law or by action of any
court, whether pursuant to Bankruptcy Code or any other debtor
relief law (whether statutory, common law, case law or otherwise)
of any jurisdiction whatsoever, now or hereafter in effect, or
otherwise;
(xiv) any change in the composition of Revolver Lenders, Borrower or
Bridge Lenders;
(xv) granting of compromises and indulgences with respect to any one
or more of the Bridge Loan Documents and to any persons or
entities now or hereafter liable thereunder or hereunder;
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(xvi) release of any indemnitor, guarantor or endorser of or other
person or entity liable upon any one or more of the Bridge Loan
Documents; and
(xvii) without limiting the generality of the foregoing, any rights
and benefits which might otherwise be available to Revolver
Lenders under California Civil Code Sections 726, 2899 and 3433,
and California Code of Civil Procedure Sections 580a and 580d,
and any successor sections to such sections.
D. To the extent that Borrower or any other obligor under any of the Bridge
Loan Documents makes a payment or payments to Bridge Lenders, which payment
or proceeds or any part thereof is subsequently invalidated, declared to be
fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party under any bankruptcy law, state or
federal law, common law or equitable cause, then, to the extent of such
payment or proceeds received, the obligations under the Bridge Loan
Documents or part thereof intended to be satisfied, and any and all
collateral therefor, will be revived and continue in full force and effect,
as if such payment or proceeds had not been received by Bridge Lenders and
any payments, property or other value received by or on behalf of Revolver
Lenders in the nature of Permitted Proceeds, after the invalidated or
otherwise set aside payment was received by Bridge Lenders will be deemed
to be received in trust for the benefit of, and will promptly be paid over
or delivered and transferred by Revolver Lenders, to Bridge Lenders for
application to the payment of the Bridge Indebtedness to the extent
necessary to pay amounts properly payable under the Bridge Indebtedness,
and such payments will not be deemed to have been paid to Revolver Lenders
or applied to the Revolver Loan or any of the Revolver Loan Documents to
the extent so paid to Bridge Lenders.
E. If a Proceeding is commenced in respect of Borrower or Revolver Lenders,
Revolver Lenders will not directly or indirectly file a motion or otherwise
seek to consolidate any such Proceeding in the nature of insolvency
proceedings involving the Revolver Guarantors with any other Proceeding
involving the Bridge Guarantors.
F. Upon the occurrence of any Proceeding, the provisions of this Agreement
will remain in full force and effect, and the court having jurisdiction
over the Proceeding is hereby authorized to preserve such priority and
subordination in approving any such plan of reorganization, arrangement or
liquidation without the prior written consent of Revolver Lenders and to
enforce the provisions hereof in accordance with Section 510 of the
Bankruptcy Code.
G. If Revolver Lenders, directly or indirectly, violate the provisions of
this Section 10 or attempt to set aside, or cause to be altered in any
manner any term, provision, transfer, lien or other aspect of the Bridge
Loan or this Agreement, then the Revolver Lenders hereby agree to protect,
indemnify and hold harmless, Bridge Lenders from and against any and all
liability, loss, cost, damage or
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expense incurred by Bridge Lenders thereby, including, without limitation,
the amount of any liability incurred by Bridge Lenders in any such action
or actions and all costs of defending such action or actions, including,
without limitation, attorneys' fees and expenses. All reasonable attorneys'
fees and expenses incurred by Bridge Lenders in connection with any such
proceeding, including fees and expenses incurred after the filing of the
proceeding (whether or not such fees or expenses would be allowed under the
Bankruptcy Code), will be deemed to be costs of collection that the
Revolver Lenders will be required to pay.
11. INTRA-COMPANY TRANSACTIONS.
A. To the extent Borrower or any Bridge Guarantor, through one or more
inter-company transactions whether in the nature of a sale, sale-leaseback,
financing arrangement, incurrence of Intra-Company Debt, merger, corporate
or other reorganization, or otherwise, converts or has the effect of
converting Cash, Cash Equivalents or other Property which would otherwise
constitute Bridge Collateral, Permitted Proceeds or Property of a Bridge
Guarantor, into Cash, Cash Equivalents, or other Property which does not
constitute Bridge Collateral, Permitted Proceeds or Property of a Bridge
Guarantor (but for this Section 11.A), then such converted Cash, Cash
Equivalents or other Property shall for all purposes be deemed Bridge
Collateral, Permitted Proceeds and/or Property of a Bridge Guarantor and
any of Bridge Lenders' liens or encumbrances thereon or security interests
therein shall continue and survive with respect to such Cash, Cash
Equivalents or other Property.
B. To the extent Borrower or Revolver Guarantors, through one or more
inter-company transactions whether in the nature of a sale, sale-leaseback,
financing arrangement, incurrence of Intra-Company Debt, merger, corporate
or other reorganization, or otherwise, converts or has the effect of
converting Cash, Cash Equivalents or other Property which does not
constitute Bridge Collateral, Permitted Proceeds or Property of a Bridge
Guarantor, into Property which would constitute Bridge Collateral,
Permitted Proceeds or Property of a Bridge Guarantor (but for this Section
11.B), then such converted Cash, Cash Equivalents or other Property shall
for all purposes be deemed not to be Bridge Collateral, Permitted Proceeds
and/or Property of a Bridge Guarantor and any of Revolver Lenders' liens or
encumbrances thereon or security interests therein shall continue and
survive with respect to such Cash, Cash Equivalents or other Property. The
parties acknowledge that if NHP Management becomes a Subsidiary of
AIMCO/Bethesda, the provisions of this Section 11.B shall prevent NHP
Management from being a Bridge Guarantor and/or its assets or property
constituting Bridge Collateral or Permitted Proceeds in violation of this
Agreement.
12. TURNOVER OF IMPROPER PAYMENTS.
A. If Bridge Lenders receive any payment or distribution of any character,
by setoff or
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otherwise, or any security, whether in Cash, securities or other property,
that Revolver Lenders are entitled to receive pursuant to the terms of this
Agreement or the Revolver Loan Documents or that Bridge Lenders were not
entitled to receive hereunder, including without limitation pursuant to
Section 9.E, then such payment or distribution or security will be received
in trust for the benefit of, and will be immediately paid over or delivered
and transferred to Revolver Lenders for application to the payment of the
Revolver Indebtedness to the extent necessary to pay all such Revolver
Indebtedness in full. No such payment or distribution so paid over or
delivered and transferred to Revolver Lenders will be deemed a payment in
respect of the Bridge Indebtedness.
B. If Revolver Lenders receive any payment or distribution of any
character, by setoff or otherwise, or any security, whether in Cash,
securities or other property, that Bridge Lenders are entitled to receive
pursuant to the terms of this Agreement or the Bridge Loan Documents or
that Revolver Lenders were not entitled to receive hereunder, including,
without limitation, Permitted Proceeds, then such payment or distribution
or security will be received in trust for the benefit of, and will be
immediately paid over or delivered and transferred to Bridge Lenders for
application to the payment of the Bridge Indebtedness to the extent
necessary to pay all such Bridge Indebtedness in full. No such payment or
distribution so paid over or delivered and transferred to Bridge Lenders
will be deemed a payment in respect of the Revolver Indebtedness.
13. LEGENDING.
A. The faces of the instruments evidencing the Bridge Indebtedness will be
inscribed with the following legend:
"ALL RIGHT, TITLE AND INTEREST OF _________________ UNDER THIS INSTRUMENT
IS EXPRESSLY SUBJECT AND SUBORDINATE TO THE INDEBTEDNESS UNDER A CERTAIN SECOND
AMENDED AND RESTATED CREDIT AGREEMENT DATED AS OF SEPTEMBER 20, 2000 AMONG AIMCO
PROPERTIES, L.P., AIMCO/BETHESDA HOLDINGS, INC., NHP MANAGEMENT COMPANY, BANK OF
AMERICA, N.A., AS AGENT, AND THE OTHER PARTIES AND LENDERS NAMED THEREIN, AS
AMENDED, TO THE EXTENT AND IN THE MANNER PROVIDED IN A CERTAIN INTERCREDITOR AND
SUBORDINATION AGREEMENT DATED AS OF SEPTEMBER 20, 2000, BY AND AMONG BANK OF
AMERICA N.A., AS AGENT FOR REVOLVER LENDERS AND BRIDGE LENDERS, AIMCO
PROPERTIES, L.P., AIMCO/BETHESDA HOLDINGS, INC. AND NHP MANAGEMENT COMPANY;
PROVIDED THAT THIS INSTRUMENT IS NOT SUBORDINATE TO SAID CREDIT AGREEMENT WITH
RESPECT TO THE BRIDGE COLLATERAL, PERMITTED PROCEEDS AND RECOURSE TO THE BRIDGE
GUARANTORS, INCLUDING TO PROPERTY OWNED BY SUCH GUARANTORS (AS PROVIDED IN THE
INTERCREDITOR AGREEMENT)."
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B. The faces of the instruments evidencing the Revolver Indebtedness will
be inscribed with the following legend:
"ALL RIGHT, TITLE AND INTEREST OF ____________________________ UNDER THIS
INSTRUMENT IS EXPRESSLY SENIOR TO THE INDEBTEDNESS UNDER A CERTAIN SECOND
AMENDED AND RESTATED CREDIT AGREEMENT DATED SEPTEMBER 20, 2000 AMONG AIMCO
PROPERTIES, L.P., AIMCO/BETHESDA HOLDINGS, INC., NHP MANAGEMENT COMPANY, BANK OF
AMERICA, N.A., AS AGENT, AND THE OTHER PARTIES AND THE LENDERS NAMED THEREIN, TO
THE EXTENT AND IN THE MANNER PROVIDED IN A CERTAIN INTERCREDITOR AND
SUBORDINATION AGREEMENT DATED AS OF SEPTEMBER 20, 2000, BY AND AMONG BANK OF
AMERICA N.A., AS AGENT FOR REVOLVER LENDERS AND BRIDGE LENDERS, AIMCO
PROPERTIES, L.P., AIMCO/BETHESDA HOLDINGS, INC., AND NHP MANAGEMENT COMPANY;
PROVIDED THAT THIS INSTRUMENT IS EXPRESSLY SUBJECT AND SUBORDINATE TO SAID
CREDIT AGREEMENT SOLELY WITH RESPECT TO THE BRIDGE COLLATERAL, PERMITTED
PROCEEDS AND RECOURSE TO BRIDGE GUARANTORS, INCLUDING TO PROPERTY OWNED BY SUCH
GUARANTORS (AS PROVIDED IN THE INTERCREDITOR AGREEMENT)."
14. SUCCESSORS AND ASSIGNS. This Agreement will bind the parties hereto and
their respective successors and will inure to the benefit of the parties hereto
and their permitted successors and assigns.
15. NON-RELIANCE ON OTHER LENDERS. Each party hereto covenants that it will,
independently and without reliance upon any other party hereto, and based on
such documents and information as it will deem appropriate at the time, make its
own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the Loan Documents it holds and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
Borrower.
16. FURTHER ASSURANCES. Revolver Lenders and Bridge Lenders agree, within ten
(10) days after request therefor by any other party hereto, at the sole cost and
expense of the requesting party, to do, execute, acknowledge and deliver all and
every such further acts, deeds, conveyances, documents, and instruments as the
requesting party may reasonably request for better assuring and evidencing of
the foregoing subordination and other provisions, provided that such acts,
deeds, conveyances, documents and instruments (a) do not increase the rights of
the requesting party or any other party, or diminish the obligations of the
requesting party or any other party, hereunder and (b) are otherwise consistent
with the terms, provisions and intent of this Agreement.
17. NOTICES. Notices, requests, demands, directions, agreements and documents
delivered in connection herewith must be transmitted by Requisite Notice to the
number and address set forth below, may be delivered by the following modes of
delivery and will be effective as follows:
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MODE OF DELIVERY EFFECTIVE ON EARLIER OF ACTUAL RECEIPT AND:
---------------- -------------------------------------------
Courier Scheduled delivery date
Facsimile When transmission in legible form complete
Mail Fourth Business Day after deposit in U.S.
mail first class postage pre-paid
Personal delivery When received
Telephone When conversation completed
A. Revolver Agent, Revolver Lenders, Bridge Agent and Bridge Lenders are
entitled to rely and act on any communications purportedly given by or on
behalf of Borrower even if such communications (i) were not made in a
manner specified herein; (ii) were incomplete; (iii) were not preceded or
followed by any other notice specified herein; or (iv) the terms thereof,
as understood by the recipient, varied from any subsequent related
communications provided for herein. Borrower will indemnify such agents and
lenders, as applicable, from any loss, cost, expense or liability as a
result of relying on any communications permitted herein.
B. Signatures on communications may be transmitted by facsimile, electronic
mail or other digital transmission only with the consent of the Bridge
Agent or Revolver Agent, as applicable, in its respective sole discretion
in each instance. The effectiveness of any such signatures accepted by such
applicable agent will, subject to applicable Law (as defined in the
Revolving Credit Agreement), have the same force and effect as manual
signatures and will be binding on all Borrower Parties (as defined in the
Revolving Credit Agreement) and Revolver Agent, Revolver Lenders, Bridge
Agent and Bridge Lenders. Each agent may also require that any such
signature be confirmed by a manually-signed hardcopy thereof.
If to Revolver Lenders: Bank of America N.A.
Real Estate Group - Structured Debt
CA9-706-06-02
000 X. Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
If to Bridge Lenders: Bank of America N.A.
Real Estate Group - Structured Debt
CA9-706-06-02
000 X. Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, XX 00000
Fax: 000-000-0000
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If to Borrower: AIMCO Properties, LP
0000 Xxxxx Xxxxxxxx Xxxx.
Tower 2, Suite 2-1000
Xxxxxx, Xxxxxxxx 00000
Attn: Xxxx XxXxxxxxx
Executive Vice President/Chief Financial Officer
Fax: 000-000-0000
Notices will be deemed delivered upon receipt, refusal to accept delivery, or
inability to deliver as a result of change of address as to which change no
notice was given to the party or parties sending the notice, in each case as
indicated on the return receipt.
18. RIGHTS CUMULATIVE: WAIVERS. Except as expressly provided to the contrary
elsewhere in this Agreement, the rights of each of the parties under this
Agreement are cumulative and may be exercised as often as such party considers
appropriate. The rights of each of the parties hereto will not be capable of
being waived or varied other than by an express waiver or variation in writing.
Except as may be expressly provided to the contrary elsewhere in this Agreement,
any failure to exercise or any delay in exercising any of such rights will not
operate as a waiver or variation of that or any other such right. Except as may
be expressly provided to the contrary elsewhere in this Agreement, any defective
or partial exercise of any of such rights will not preclude any other or further
exercise of that or any other such right. No act or course of conduct or
negotiation on the part of any party will in any way preclude such party from
exercising any such right or constitute a suspension or any variation of any
such right.
19. SECTION HEADINGS. Section headings in this Agreement are for reference
purposes only and will not affect in any way the meaning or interpretation of
this Agreement or of any provision hereof.
20. CONSTRUCTION OF CERTAIN WORDS AND PHRASES. Unless the context otherwise
requires, when used herein, the singular will be deemed to include the plural,
the plural will be deemed to include each of the singular, and pronouns of one
or no gender will be deemed to include the equivalent pronoun of the other or no
gender. Wherever the words "including" or "included" are used in this Agreement,
such words will be deemed to be followed by the phrase "without limitation."
21. AMENDMENT. Except as provided below, this Agreement may be amended only by
an instrument in writing executed by Revolver Agent, Bridge Agent and Borrower.
Borrower acknowledges that, so long as any such change or modification does not
impair, expand or modify Borrower's obligations under the Bridge Loan Documents
or the Revolver Loan Documents or otherwise adversely affect Borrower, Borrower
will at the request of Revolver Lenders or Bridge Lenders, execute any such
amendment to this Agreement.
22. ENTIRE AGREEMENT. This Agreement, the Revolver Loan Documents and the Bridge
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Loan Documents constitute the entire agreements with respect to the subject
matter hereof and thereof. This Agreement constitutes the entire agreement of
the Lender Parties with respect to the subject matter hereof and thereof.
23. COUNTERPARTS. This Agreement may be executed in any number of counterparts,
each of which will be deemed an original, but all of which will constitute one
and the same instrument.
24. CONSTRUCTION OF AGREEMENT. Each party acknowledges that it has participated
in the negotiation of this Agreement, and no provision of this Agreement will be
construed against or interpreted to the disadvantage of any party hereto by any
court or other governmental or judicial authority by reason of such party having
or being deemed to have structured, dictated or drafted such provision; that
each of the parties hereto at all times has had access to an attorney in the
negotiation of the terms of and in the preparation and execution of this
Agreement; and that each of the parties has had the opportunity to review and
analyze this Agreement for a sufficient period of time before the execution and
delivery thereof.
25. GOVERNING LAW. This agreement will be construed and enforced under, in
accordance with, and governed by the laws of the state of California, without
reference to its conflict of laws principles. The parties agree to venue in the
state of California.
26. WAIVER OF TRIAL BY JURY. BRIDGE LENDERS AND REVOLVER LENDERS HEREBY
KNOWINGLY, VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY
APPLICABLE LAW) ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE
ARISING UNDER OR RELATING TO THIS AGREEMENT AND AGREE THAT ANY SUCH DISPUTE WILL
BE TRIED BEFORE A JUDGE SITTING WITHOUT A JURY. TO THE FULL EXTENT PERMITTED BY
LAW, REVOLVER LENDERS AND BRIDGE LENDERS HEREBY KNOWINGLY, INTENTIONALLY AND
VOLUNTARILY, WITH AND UPON THE ADVICE OF COMPETENT COUNSEL, (i) SUBMIT TO
PERSONAL JURISDICTION IN THE STATE OF CALIFORNIA OVER ANY SUIT, ACTION OR
PROCEEDING BY ANY PERSON ARISING FROM OR RELATING TO THIS AGREEMENT, (ii) AGREE
THAT ANY SUCH ACTION, SUIT OR PROCEEDING WILL BE BROUGHT IN ANY STATE OR FEDERAL
COURT OF COMPETENT JURISDICTION SITTING IN LOS ANGELES COUNTY, CALIFORNIA, AND
(iii) SUBMIT TO THE JURISDICTION OF SUCH COURTS.
Initial by: Revolver Agent _____ Bridge Agent ______.
27. PAYMENTS. Unless otherwise provided herein, all payments required to be made
by one party to the other hereunder will be made in Cash or by certified or
cashier's check drawn on a bank in the United States reasonably acceptable to
the other party or by wire transfer to an account designated by the recipient
party.
28. TIME. Time is of the essence of each and every term and provision of this
Agreement.
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29. CONFLICTS. In the event of any conflict or inconsistency between the terms
and provisions of this Agreement and the terms and provisions of the Revolver
Loan Documents or the Bridge Loan Documents, the terms and provisions of this
Agreement will control.
30. ATTORNEYS' FEES. If any action is brought by any party against another
party, the prevailing party will be entitled to recover from the other party
reasonable attorneys' fees and costs (including all fees and disbursements of
any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel) incurred in connection with
the prosecution or defense of such action and in the enforcement of this
Agreement.
31. AGENT. Revolver Agent, or any successor agent under the Revolving Credit
Agreement, will be entitled to exercise all rights of Revolver Lenders or
Revolver Agent hereunder in accordance with the provisions of the Revolver Loan
Documents. Bridge Agent, or any successor agent under the Bridge Credit
Agreement will be entitled to exercise all rights of Bridge Lenders or Bridge
Agent hereunder in accordance with the provisions of the Bridge Loan Documents.
Any reference in this Agreement to Revolver Lenders and/or Bridge Lenders taking
or not taking any action hereunder including consenting to any matter or
receiving notice shall mean Revolver Agent and/or Bridge Agent taking or not
taking any such action, as applicable. The respective rights, duties and
obligations of Bridge Agent and Revolver Agent in connection with this Agreement
shall be governed by the terms of the Bridge Loan Agreement (with respect to the
Bridge Agent) and by the Revolving Credit Agreement (with respect to the
Revolver Agent); provided, however, that Bank of America as Revolver Agent and
as Bridge Agent and in its capacity as "Secured Party" under the Borrower Pledge
Agreement for the Revolver Loan and under the Borrower Pledge Agreement for the
Bridge Loan shall be required to observe the subordination provisions of this
Agreement in connection with the perfection of and maintenance of security
interests and realization on any Bridge Collateral or Revolver Collateral, as
applicable.
32. BORROWER'S OBLIGATIONS ABSOLUTE. Subject to Section 29, without limiting
Revolver Lenders' or Bridge Lenders' obligations hereunder, nothing contained
herein will impair, as between Borrower and Revolver Lenders, or as between
Borrower and Bridge Lenders, Borrower's obligations under the Revolver Loan
Documents or the Bridge Loan Documents, which are absolute and unconditional.
[SIGNATURES ON NEXT PAGE]
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IN WITNESS WHEREOF, Revolver Agent, Bridge Agent and Borrower have each caused
this Agreement to be executed by its duly authorized representative(s) as of the
date first above written
BORROWER
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By:
Xxxxx X. Xxxxxxxxx
President
AIMCO/BETHESDA HOLDINGS, INC.,
a Delaware corporation
By:
Xxxxx X. Xxxxxxxxx
President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By:
Xxxxxxx Xxxx
Executive Vice President
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BANK OF AMERICA
BANK OF AMERICA, N.A.,
as Revolver Agent
By:
Xxxxxx X. Xxxxx
Vice President
BANK OF AMERICA
BANK OF AMERICA, N.A.,
as Bridge Agent
By:
Xxxxxx X. Xxxxx
Vice President
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