EXHIBIT 10.1
PAYMENT GUARANTY
OF REIT AND OF PREFERRED STOCK SUBSIDIARIES
This PAYMENT GUARANTY ("GUARANTY") is made as of November 6, 2001, by
the undersigned entities (each a "GUARANTOR") in favor of BANK OF AMERICA, N.A.
("BANK OF AMERICA"), as Administrative Agent for itself and the lenders
("LENDERS") from time to time party to the Credit Agreement (as hereinafter
defined) (in such capacities, "ADMINISTRATIVE AGENT").
Factual Background
The Lenders have made or intend to make a $400,000,000 credit facility
available to AIMCO Properties L.P., a Delaware limited partnership ("AIMCO"),
AIMCO/Bethesda Holdings, Inc., a Delaware corporation ("AIMCO/BETHESDA"), and
NHP Management Company, a District of Columbia corporation ("NHP MANAGEMENT")
(AIMCO, AIMCO/Bethesda and NHP Management are collectively referred to as
"BORROWERS"), in accordance with the Third Amended and Restated Credit Agreement
(the "CREDIT AGREEMENT"), dated as of the date hereof, by and among Borrowers,
Bank of America (as Administrative Agent), Fleet National Bank (as Syndication
Agent), First Union National Bank (as Documentation Agent), Banc of America
Securities LLC and Fleet Securities Inc., as Co-Lead Arrangers and Banc of
America Securities LLC, as Sole Book Manager, and the other Lenders from time to
time party thereto. In connection with the Credit Agreement, the Borrowers have
obtained this Guaranty from the Guarantors and the Guarantors (other than the
REIT) have provided this Guaranty in return for Borrowers' payment of a
guarantee fee. In addition, certain Subsidiaries of Guarantors (other than the
REIT) will be providing a guaranty for which Guarantors (other than the REIT)
have been paid a guarantee fee. Capitalized terms used but not defined herein
will have the meanings set forth in the Credit Agreement. As used herein, the
term "FACILITY" shall refer individually to each of the credit facilities
available to the Borrowers under the Credit Agreement.
Guaranty
1. Guaranty of Loan.
(a) Absolute Guaranty. Each Guarantor absolutely, unconditionally and
irrevocably guaranties to Administrative Agent and the Lenders the full payment
of the Indebtedness (as hereinafter defined), and unconditionally agrees to pay
to Administrative Agent and the Lenders the full amount of the Indebtedness.
This is a guaranty of payment, not of collection. If Borrowers default in the
payment when due of the Indebtedness or any part of it, each Guarantor will in
lawful money of the United States pay to Administrative Agent and the Lenders,
on demand, all sums due and owing on the Indebtedness, including all interest,
charges, fees and other sums, costs and expenses.
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(b) AIMCO/Bethesda Holdings Inc. Notwithstanding that AIMCO/Bethesda is
a "Borrower" pursuant to the Credit Agreement, if Administrative Agent for any
reason determines that AIMCO/Bethesda is or may be construed as a guarantor or a
surety in respect of the Indebtedness instead of a Borrower with respect
thereto, then AIMCO/Bethesda shall be for all purposes hereunder a Guarantor,
and, without limiting the generality of the foregoing, shall have all of the
obligations and liabilities of a Guarantor hereunder.
2. Loan. In this Guaranty, the term "Indebtedness" is broadly defined
to mean and include all primary, secondary, direct, indirect, fixed and
contingent obligations of Borrowers to pay principal, interest, prepayment
charges, breakage costs, late charges, loan fees and any other fees, charges,
sums, costs and expenses that may be owing at any time under the Loan Documents,
as any or all of such obligations may from time to time be modified, amended,
extended or renewed. If the amount outstanding under the Indebtedness is
determined by a court of competent jurisdiction, that determination shall be
conclusive and binding on each Guarantor, regardless of whether such Guarantor
was a party to the proceeding in which the determination was made or not.
3. Rights of Administrative Agent and the Lenders. Each Guarantor
authorizes Administrative Agent or any Lender to perform any or all of the
following acts at any time in its sole discretion, all without notice to such
Guarantor and without affecting such Guarantor's obligations under this
Guaranty:
(a) Administrative Agent or the Requisite Lenders may alter any terms
of the Indebtedness or any part of it, including renewing, compromising,
extending or accelerating, or otherwise changing the time for payment of,
or increasing or decreasing the rate of interest on, the Indebtedness or
any part of it.
(b) Administrative Agent or any Lender may take and hold security for
the Indebtedness or this Guaranty, accept additional or substituted
security for either, and subordinate, exchange, enforce, waive, release,
compromise, fail to perfect and sell or otherwise dispose of any such
security in accordance with the terms of the Indebtedness.
(c) Administrative Agent or any Lender may direct the order and manner
of any sale of all or any part of any security now or later to be held for
the Indebtedness or this Guaranty, and Administrative Agent or any Lender
may also bid at any such sale.
(d) Administrative Agent or any Lender may apply any payments or
recoveries from Borrowers, Guarantors or any other source, and any proceeds
of any security, to Borrowers' obligations under the Loan Documents in such
manner, order and priority as Administrative Agent or such Lender may
elect, whether or not those obligations are guarantied by this Guaranty or
secured at the time of the application.
(e) Administrative Agent or any Lender may release Borrowers of their
liability for the Indebtedness or any part of it.
(f) Administrative Agent or any Lender may substitute, add or release
any one or more Guarantors, other guarantors or endorsers.
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(g) In addition to the Indebtedness, Administrative Agent or any Lender
may extend other credit to Borrowers, and may take and hold security for
the credit so extended, all without affecting any Guarantor's liability
under this Guaranty.
4. Guaranty to be Absolute. Each Guarantor expressly agrees that until
the Indebtedness is paid and performed in full and each and every term, covenant
and condition of this Guaranty is fully performed, such Guarantor shall not be
released by or because of:
(a) Any act or event (other than payment and performance in full of the
Indebtedness) which might otherwise discharge, reduce, limit or modify such
Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or other
act or omission of Administrative Agent or any Lender, or its failure to
proceed promptly or otherwise as against Borrowers, any Guarantor or any
security;
(c) Any action, omission or circumstance that might increase the
likelihood that such Guarantor may be called upon to perform under this
Guaranty or that might affect the rights or remedies of such Guarantor as
against Borrowers;
(d) Any dealings occurring at any time between Borrowers and
Administrative Agent or any Lender, whether relating to the Indebtedness or
otherwise; or
(e) Any action of Administrative Agent or any Lender described in
Section 3 above.
Each Guarantor hereby acknowledges that absent this Section 4, such
Guarantor might have a defense to the enforcement of this Guaranty as a result
of one or more of the foregoing acts, omissions, agreement, waivers or matters.
Each Guarantor hereby expressly waives and surrenders any defense to its
liability under this Guaranty based upon any of the foregoing acts, omissions,
agreements, waivers or matters. It is the purpose and intent of this Guaranty
that the obligations of each Guarantor under it shall be absolute and
unconditional under any and all circumstances.
5. Guarantors' Waivers. Each Guarantor waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against such Guarantor by Administrative Agent or any
Lender, to the fullest extent permitted by law;
(b) Any right it may have to require Administrative Agent or any Lender
to proceed against Borrowers, proceed against or exhaust any security held
from Borrowers, or pursue any other remedy in Administrative Agent's or any
Lender's power to pursue;
(c) Any defense based on any claim that such Guarantor's obligations
exceed or are more burdensome than those of Borrowers;
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(d) Any defense based on: (i) any legal disability of Borrowers, (ii)
any release, discharge, modification, impairment or limitation of the
liability of Borrowers to Administrative Agent or any Lender from any
cause, whether consented to by Administrative Agent or any Lender or
arising by operation of law or from any bankruptcy or other voluntary or
involuntary proceeding, in or out of court, for the adjustment of
debtor-creditor relationships ("Insolvency Proceeding"), and (iii) any
rejection or disaffirmance of the Indebtedness, or any part of it, or any
security held for it, in any such Insolvency Proceeding;
(e) Any defense based on any action taken or omitted by Administrative
Agent or any Lender in any Insolvency Proceeding involving Borrowers,
including any election to have Administrative Agent's or that Lender's
claim allowed as being secured, partially secured or unsecured, any
extension of credit by Lender to Borrowers in any Insolvency Proceeding,
and the taking and holding by Administrative Agent or any Lender of any
security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices
of acceptance of this Guaranty and of the existence, creation, or incurring
of new or additional indebtedness, and demands and notices of every kind
except for any demand or notice by Administrative Agent or any Lender to
such Guarantor expressly provided for in Section 1;
(g) Any defense based on or arising out of any defense that Borrowers
may have to the payment or performance of the Indebtedness or any part of
it; and
(h) Any defense based on or arising out of any action of Administrative
Agent or any Lender described in Sections 3 or 4 above.
6. Waivers of Subrogation and Other Rights.
(a) During the existence of an Event of Default by Borrowers,
Administrative Agent or any Lender, without prior notice to or consent of
any Guarantor, may elect to: (i) foreclose either judicially or
nonjudicially against any real or personal property security it may hold
for the Indebtedness, (ii) accept a transfer of any such security in lieu
of foreclosure, (iii) compromise or adjust the Indebtedness or any part of
it or make any other accommodation with Borrowers or Guarantors, or (iv)
exercise any other remedy against Borrowers or any security. No such action
by Administrative Agent or any Lender shall release or limit the liability
of Guarantors, who shall remain liable under this Guaranty after the
action, even if the effect of the action is to deprive Guarantors of any
subrogation rights, rights of indemnity, or other rights to collect
reimbursement from Borrowers for any sums paid to Administrative Agent or
any Lender, whether contractual or arising by operation of law or
otherwise. Each Guarantor expressly agrees that under no circumstances
shall it be deemed to have any right, title, interest or claim in or to any
real or personal property to be held by Administrative Agent or any Lender
or any third party after any foreclosure or transfer in lieu of foreclosure
of any security for the Indebtedness.
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(b) Regardless of whether any Guarantor may have made any payments to
Lender, each Guarantor hereby waives: (i) all rights of subrogation, all
rights of indemnity, and any other rights to collect reimbursement from
Borrowers for any sums paid to Administrative Agent or any Lender, whether
contractual or arising by operation of law (including the United States
Bankruptcy Code or any successor or similar statute) or otherwise, (ii) all
rights to enforce any remedy that Lender may have against Borrowers, and
(iii) all rights to participate in any security now or later to be held by
Administrative Agent or any Lender for the Indebtedness, in each case until
the full and indefeasible payment and performance of all Indebtedness, and
all obligations of the Guarantors hereunder.
(c) Each Guarantor waives all rights and defenses arising out of an
election of remedies by the Administrative Agent or any Lender, even though
that election of remedies may affect such Guarantor's rights of subrogation
and reimbursement against the Borrowers by the operation of law or
otherwise. In addition, such Guarantor waives all rights and defenses that
such Guarantor may have because the Borrowers' indebtedness is secured by
real property. This means, among other things, that Administrative Agent
and the Lenders may collect from such Guarantor without first foreclosing
on any real or personal property collateral pledged by the Borrowers.
7. Revival and Reinstatement. If Administrative Agent or any Lender is
required to pay, return or restore to Borrowers or any other person any amounts
previously paid on the Indebtedness because of any Insolvency Proceeding of
Borrowers, any stop notice or any other reason, the obligations of Guarantors
shall be reinstated and revived and the rights of Administrative Agent and such
Lender shall continue with regard to such amounts, all as though they had never
been paid.
8. Information Regarding Borrowers. Before signing this Guaranty, each
Guarantor investigated the financial condition and business operations of
Borrowers and such other matters as such Guarantor deemed appropriate to assure
itself of Borrowers' ability to discharge its obligations under the Loan
Documents. Each Guarantor assumes full responsibility for that due diligence, as
well as for keeping informed of all matters that may affect Borrowers' ability
to pay and perform its obligations to the Administrative Agent and the Lenders.
Neither Administrative Agent nor any Lender has any duty to disclose to any
Guarantor any information which such party may have or receive about Borrowers'
financial condition, business operations, or any other circumstances bearing on
its ability to perform.
9. Subordination. Any rights of Guarantors, whether now existing or
later arising, to receive payment on account of any indebtedness (including
interest) owed to any of them by Borrowers or any Subsidiary thereof or to
receive any payment from Borrowers or any such Subsidiary other than those
payments or distributions permitted under Sections 7.07 and 7.10 of the Credit
Agreement shall at all times be subordinate as to lien and time of payment and
in all other respects to the full and prior repayment of the Indebtedness. No
Guarantor shall be entitled to enforce or receive payment of any sums hereby
subordinated until the Indebtedness has been paid and performed in full and any
such sums received in violation of this Guaranty shall be received by such
Guarantor in trust for the Administrative Agent and the Lenders.
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10. Financial Information. Each Guarantor shall keep true and correct
financial books and records, using generally accepted accounting principles
consistently applied, or such other accounting principles as the Requisite
Lenders in their reasonable judgment may find acceptable from time to time. Each
Guarantor represents, warrants and covenants to Administrative Agent and the
Lenders that all financial information with respect to such Guarantor delivered
or to be delivered to Administrative Agent and the Lenders by the Borrowers with
respect to such Guarantor under Section 6.01 of the Credit Agreement is or shall
be true and correct and fairly presents or will fairly present the financial
position of such Guarantor for the applicable period. Each Guarantor shall
promptly provide Administrative Agent and the Lenders with any additional
audited financial information that such Guarantor may obtain, and such other
information concerning its affairs and properties as Administrative Agent or any
Lender may reasonably request, including, without limitation, signed copies of
any tax returns if requested by Administrative Agent or the Lenders.
11. Guarantors' Representations and Warranties. Each Guarantor
represents and warrants that:
(a) All financial statements delivered to Administrative Agent or the
Lenders were or will be prepared in accordance with generally accepted
accounting principles which are applicable to the circumstances as of the
date of determination or such other accounting principles as may be
acceptable to the Requisite Lenders at the time of their preparation,;
(b) There has been no material adverse change in such Guarantor's
financial condition since the dates of the statements most recently
furnished to Administrative Agent and the Lenders; and
(c) All representations and warranties given on behalf of or with
respect to such Guarantor contained in Section 5 of the Credit Agreement
and in any other Loan Document or certification made in connection with the
Credit Agreement are true and correct.
12. Covenants of Guarantors. Each Guarantor covenants and agrees that
it shall comply with and perform all covenants given on behalf of or with
respect to such Guarantor (whether expressly or as a Subsidiary) contained in
Sections 6 and 7 of the Credit Agreement and in all other Loan Documents.
13. Intentionally Omitted.
14. Intentionally Omitted.
15. Authorization; No Violation. Each Guarantor is authorized to
execute, deliver and perform under this Guaranty, which is a valid, binding, and
enforceable obligation of such Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditor's rights generally. The
execution, delivery and performance of this Guaranty are not in violation of any
applicable law, regulation or ordinance, or any order or ruling of any court or
governmental
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agency applicable to such Guarantor. The Guaranty does not conflict with, or
constitute a breach or default under, any agreement to which such Guarantor is a
party.
16. Additional and Independent Obligations. Each Guarantor's
obligations under this Guaranty are in addition to its obligations under any
future guaranties, each of which shall remain in full force and effect until it
is expressly modified or released in a writing signed by Administrative Agent
and consented to by the Lenders. Each Guarantor's obligations under this
Guaranty are independent of those of Borrowers on the Indebtedness.
Administrative Agent or the Lenders may bring a separate action, or commence a
separate arbitration proceeding against each Guarantor without first proceeding
against Borrowers, any other person or any security that Administrative Agent or
any Lender may hold, and without pursuing any other remedy. None of
Administrative Agent's or any Lender's rights under this Guaranty shall be
exhausted by any action by Administrative Agent or any Lender until the
Indebtedness has been paid and performed in full in cash.
17. No Waiver; Consents; Cumulative Remedies. Each waiver by
Administrative Agent or the Lenders must be in writing, and no waiver shall be
construed as a continuing waiver. No waiver shall be implied from Administrative
Agent's or any Lender's delay in exercising or failure to exercise any right or
remedy against Borrowers, any Guarantor or any security. Consent by
Administrative Agent or the Lenders to any act or omission by Borrowers or any
Guarantor shall not be construed as a consent to any other or subsequent act or
omission, or as a waiver of the requirement for Administrative Agent's or the
Lenders' consent to be obtained in any future or other instance. All remedies of
Administrative Agent and each Lender against Borrowers and Guarantors are
cumulative.
18. No Release. Except as otherwise provided in Section 1, no Guarantor
shall be released, in whole or in part, from its obligations under this Guaranty
except by a writing signed by Administrative Agent and all the Lenders.
19. Heirs, Successors and Assigns; Participations. The terms of this
Guaranty shall bind and benefit the heirs, legal representatives, successors and
assigns of Administrative Agent, the Lenders and Guarantors; provided, however,
that no Guarantor may assign this Guaranty, or assign or delegate any of its
rights or obligations under this Guaranty, without the prior written consent of
Administrative Agent in each instance. Without notice to or the consent of
Guarantors, Administrative Agent and any Lender may disclose any and all
information in its possession concerning Guarantors, this Guaranty and any
security for this Guaranty to any actual or prospective purchaser of any
securities issued or to be issued by Administrative Agent or such Lender, and to
any actual or prospective purchaser or assignee of any participation or other
interest in the Indebtedness and this Guaranty.
20. Notices.
(a) Delivery. All notices, requests and other communications provided
for hereunder shall be in writing (including, unless the context expressly
otherwise provides, telegraphic, telex, facsimile transmission or cable
communication) and mailed, telegraphed, telexed or delivered to the
recipient's address specified on the signature
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pages hereof, or to such other address as shall be designated by such party
in a written notice to the other party.
(b) Receipt. All such notices and communications shall, when
transmitted by overnight delivery, telegraphed, telecopied by facsimile,
telexed or cabled, be effective when delivered for overnight delivery or to
the telegraph company, transmitted by telecopier, confirmed by telex
answerback or delivered to the cable company, respectively, or if
delivered, upon delivery.
(c) Reliance. Administrative Agent and each Lender shall be entitled to
rely on the authority of any person purporting to be a person authorized by
Guarantors to give such notice, and neither Administrative Agent nor any
Lender shall have any liability to any Guarantor or any other person on
account of any action taken or not taken by Administrative Agent or such
Lender in reliance upon such telephonic or facsimile notice. The obligation
of each Guarantor hereunder shall not be affected in any way or to any
extent by any failure by Lender to receive written confirmation of any
telephonic or facsimile notice or the receipt by Administrative Agent or a
Lender of a confirmation which is at variance with the terms understood by
Administrative Agent or such Lender to be contained in the telephonic or
facsimile notice.
21. Rules of Construction. In this Guaranty, the word "Borrowers"
includes both the named Borrowers and any other person who at any time assumes
or otherwise becomes primarily liable for all or any part of the obligations of
the named Borrowers on the Indebtedness. The word "person" includes any
individual, company, trust or other legal entity of any kind. The word
"include(s)" means "include(s), without limitation," and the word "including"
means "including, but not limited to." When the context and construction so
require, all words used in the singular shall be deemed to have been used in the
plural and vice versa. No listing of specific instances, items or matters in any
way limits the scope or generality of any language of this Guaranty. All
headings appearing in this Guaranty are for convenience only and shall be
disregarded in construing this Guaranty.
22. Governing Law. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of California, without regard to its
choice of law rules.
23. Costs and Expenses. If any lawsuit or arbitration is commenced
which arises out of, or which relates to this Guaranty, the Loan Documents or
the Indebtedness, the prevailing party shall be entitled to recover from each
other party such sums as the court or arbitrator may adjudge to be reasonable
attorneys' fees (including allocated costs for services of in-house counsel) in
the action or proceeding, in addition to costs and expenses otherwise allowed by
law. In all other situations, including any Insolvency Proceeding, the
Guarantors agree to pay all of the Administrative Agent's and each Lender's
costs and expenses, including attorneys' fees (including allocated costs for
services of the Administrative Agent's and each Lender's in-house counsel) which
may be incurred in any effort to collect or enforce the Indebtedness or any part
of it or any term of this Guaranty. Without limiting any rights of the
Administrative Agent or Lenders under the Credit Agreement, all amounts of any
kind due and payable under this Guaranty (whether for principal, interest, and
other costs under the Indebtedness, or for costs, fees, and expenses for which
the Guarantors are directly responsible
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hereunder, or otherwise) shall accrue interest from the time the Administrative
Agent or the Lenders make demand therefor hereunder until paid in full in cash
to such Administrative Agent or the Lenders at the Base Rate, as defined in the
Credit Agreement, plus three (3%) percentage points, except to the extent that
any such amounts are then accruing interest under the Indebtedness, in which
case such Base Rate plus 3% interest rate shall not be applied if the effect
would be to compound the interest to which such obligations are subject to under
the Indebtedness.
24. Covenant. Each Guarantor hereby agrees that it will make dividend
payments on its outstanding preferred stock with its excess cash to the extent
such cash is not required by such Guarantor for its business, consistent with
prudent business practices and its cash requirements.
25. Integration; Modifications. This Guaranty (a) integrates all the
terms and conditions mentioned in or incidental to this Guaranty, (b) supersedes
all oral negotiations and prior writings with respect to its subject matter, and
(c) is intended by each Guarantor, Administrative Agent and the Lenders as the
final expression of the agreement with respect to the terms and conditions set
forth in this Guaranty and as the complete and exclusive statement of the terms
agreed to by each Guarantor, Administrative Agent and the Lenders. No
representation, understanding, promise or condition shall be enforceable against
any party hereto unless it is contained in this Guaranty. This Guaranty may not
be modified except in a writing signed by both Administrative Agent (with the
consent of the Requisite Lenders) and each Guarantor. No course of prior
dealing, usage of trade, parol or extrinsic evidence of any nature shall be used
to supplement, modify or vary any of the terms hereof. As between Administrative
Agent and the Lenders only, nothing contained in this Guaranty shall alter the
rights and obligations among Administrative Agent and the Lenders set forth in
the Credit Agreement.
26. Miscellaneous. The illegality or unenforceability of one or more
provisions of this Guaranty shall not affect any other provision. Time is of the
essence in the performance of this Guaranty by Guarantors.
27. Consent to Jurisdiction and Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST GUARANTORS ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE COURT OF
COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA OR IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. BY EXECUTING AND
DELIVERING THIS GUARANTY, EACH GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO SUCH GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 20; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GUARANTOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE
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AND BINDING SERVICE IN EVERY RESPECT; (V) AGREES THAT ADMINISTRATIVE AGENT
RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO
BRING PROCEEDINGS AGAINST SUCH GUARANTOR IN THE COURTS OF ANY OTHER
JURISDICTION; AND (VI) AGREES THAT THE PROVISIONS OF THIS SECTION 27 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST EXTENT
PERMISSIBLE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION 410.40 OR
OTHERWISE.
28. Waiver of Jury Trial. EACH GUARANTOR AND ADMINISTRATIVE AGENT
HEREBY AGREE TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR
CAUSE OF ACTION BASED UPON OR ARISING OUT OF THIS GUARANTY. The scope of this
waiver is intended to be all-encompassing of any and all disputes that may be
filed in any court and that relate to the subject matter of this transaction,
including without limitation contract claims, tort claims, breach of duty
claims, and all other common law and statutory claims. Each Guarantor and
Administrative Agent acknowledge that this waiver is a material inducement for
Guarantors and Administrative Agent to enter into a business relationship, that
Guarantors and Administrative Agent have already relied on this waiver in
entering into this Guaranty and that each will continue to rely on this waiver
in their related future dealings. Each Guarantor and Administrative Agent
further warrant and represent that each has reviewed this waiver with its legal
counsel, and that each knowingly and voluntarily waives its jury trial rights
following consultation with legal counsel. THIS WAIVER IS IRREVOCABLE, MEANING
THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING (OTHER THAN BY A MUTUAL
WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION 28 AND EXECUTED BY EACH OF
THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO ANY SUBSEQUENT AMENDMENTS,
RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS AGREEMENT. In the event of
litigation, this Guaranty may be filed as a written consent to a trial by the
court.
29. Provisional Remedies, Self-Help and Foreclosure. No provision of
this Guaranty shall limit the right of any party to exercise self-help remedies
such as setoff, foreclosure against or sale of any real or personal property
collateral or security.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this
Guaranty as of the date on the first page.
GUARANTOR:
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/BETHESDA HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/NHP HOLDINGS, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
President
NHP A&R SERVICES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/NHP PROPERTIES, INC.
By: /s/ Xxxxx X. Xxxxxxxxx
-------------------------------
Xxxxx X. Xxxxxxxxx
President
NHP MANAGEMENT COMPANY
By: /s/ Xxxxxxx Xxxx
-------------------------------
Xxxxxxx Xxxx
Executive Vice President
Address Where Notices are to be Sent:
To Guarantor: 0000 X. Xxxxxxxx Xxxxxxxxx
Xxxxx 0-0000
Xxxxxx, Xxxxxxxx 00000
To Administrative Agent: BANK OF AMERICA, N.A.
Real Estate Group-Structured Debt
CA9-706-06-02
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
To Lenders: Per the Credit Agreement
