PAYMENT GUARANTY
This Payment Guaranty ("Guaranty") is made as of Aug. 12, 1996, by
APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation,
AIMCO-GP, INC., a Delaware corporation, AIMCO-LP, INC., a Delaware
corporation, AIMCO HOLDINGS, L.P., a Delaware limited partnership, AIMCO
HOLDINGS Qrs, INC., a Delaware corporation, AIMCO SOMERSET, INC., a Delaware
corporation, and AIMCO/OTC Qrs, INC., a Delaware corporation (each of the
foregoing is referred to herein as "Guarantor") in favor of BANK OF AMERICA
NATIONAL TRUST AND SAVINGS ASSOCIATION ("BofA"), as the agent for itself and
the banks ("Banks") from time to time party to the Revolving Credit Agreement
(as hereinafter defined) and also as the agent for itself and the banks from
time to time party to the Bridge Loan Agreement (as defined below) (in such
capacity, the "Agent").
FACTUAL BACKGROUND
Guarantor is executing this Guaranty (i) to induce the Banks to make a
$50,000,000 revolver-to-term credit facility available to AIMCO Properties
L.P., a Delaware limited partnership (the "Company") in accordance with the
Credit Agreement (the "Revolving Credit Agreement"), dated of even date
herewith, by and among Company, BofA (as Agent (as defined under the
Revolving Credit Agreement) and as a Bank) and the other Banks from time to
time party thereto and (ii) to induce the Banks to make a $25,000,000 bridge
loan facility available to the Company in accordance with the Credit
Agreement (Bridge Loan) (the "Bridge Loan Agreement"), dated of even date
herewith, by and among the Company, BofA (as Agent (as defined under the
Bridge Loan Agreement) and as a Bank) and the other Banks from time to time
party thereto. Capitalized terms used but not defined herein shall have the
meanings set forth in the Revolving Credit Agreement. As used herein, the
term "Facility" shall refer individually to each of the credit facilities
available to the Company under the Revolving Credit Agreement and the Bridge
Loan Agreement and shall refer collectively to all such credit facilities.
GUARANTY
1. GUARANTY OF LOAN. Guarantor absolutely, unconditionally and
irrevocably guaranties to Agent and the Banks the full payment of the
Facility, and unconditionally agrees to pay to Agent and the Banks the full
amount of the Facility. This is a guaranty of payment, not of collection. If
Company defaults in the payment when due of the Facility or any part of it,
Guarantor shall in lawful money of the United States pay to Agent and the
Banks, on demand, all sums due and owing on the Facility, including all
interest, charges, fees and other sums, costs and expenses.
2. LOAN. In this Guaranty, the term "Facility" is broadly defined to
mean and include all primary, secondary, direct, indirect, fixed and
contingent obligations of Company to pay principal, interest, prepayment
charges, breakage costs, late charges, loan fees and any other fees, charges,
sums, costs and expenses which may be owing at any time under the Loan
Documents (as such term is defined both in the Revolving Credit Agreement and
in the Bridge
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Loan Agreement), and shall include, without limitation, all liabilities and
obligations of the Company with respect to Letters of Credit issued under the
Revolving Credit Agreement, as any or all of such obligations may from time
to time be modified, amended, extended or renewed. If the amount outstanding
under the Facility is determined by a court of competent jurisdiction or in
any arbitration proceeding described in Section 10.17 of the Revolving Credit
Agreement, that determination shall be conclusive and binding on Guarantor,
regardless of whether Guarantor was a party to the proceeding in which the
determination was made or not.
3. Rights of Agent and the Banks. Guarantor authorizes Agent or any Bank
to perform any or all of the following acts at any time in its sole
discretion, all without notice to Guarantor and without affecting Guarantor's
obligations under this Guaranty:
(a) Agent or the Requisite Banks may alter any terms of the
Facility 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 Facility or any part of it.
(b) Agent or any Bank may take and hold security for the Facility
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 Facility.
(c) Agent or any Bank 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 Facility
or this Guaranty, and Agent or any Bank may also bid at any such sale.
(d) Agent or any Bank may apply any payments or recoveries from
Company, Guarantor or any other source, and any proceeds of any security, to
Company's obligations under the Loan Documents in such manner, order and
priority as Agent or such Bank may elect, whether or not those obligations
are guarantied by this Guaranty or secured at the time of the application.
(e) Agent or any Bank may release Company of its liability for the
Facility or any part of it.
(f) Agent or any Bank may substitute, add or release any one or
more Guarantors, other guarantors or endorsers.
(g) In addition to the Facility, Agent or any Bank may extend other
credit to Company, and may take and hold security for the credit so extended,
all without affecting Guarantor's liability under this Guaranty.
4. Guaranty to be Absolute. Guarantor expressly agrees that until the
Facility is paid and performed in full and each and every term, covenant and
condition of this Guaranty is fully performed, Guarantor shall not be
released by or because of:
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(a) Any act or event which might otherwise discharge, reduce, limit
or modify Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or
other act or omission of Agent or any Bank, or its failure to proceed
promptly or otherwise as against Company, Guarantor or any security;
(c) Any action, omission or circumstance which might increase the
likelihood that Guarantor may be called upon to perform under this Guaranty
or which might affect the rights or remedies of Guarantor as against Company;
(d) Any dealings occurring at any time between Company and Agent or
any Bank, whether relating to the Facility or otherwise; or
(e) Any action of Agent or any Bank described in Section 3 above.
Guarantor hereby acknowledges that absent this Section 4, Guarantor
might have a defense to the enforcement of this Guaranty as a result of one
or more of the foregoing acts, omissions, agreement, waivers or matters.
Guarantor hereby expressly waives and surrenders any defense to its liability
under this Guaranty based upon any of the foregoing acts, omissions,
agreements, waivers or matters. It is the purpose and intent of this Guaranty
that the obligations of Guarantor under it shall be absolute and
unconditional under any and all circumstances.
5. GUARANTOR'S WAIVERS. Guarantor waives:
(a) All statutes of limitations as a defense to any action or
proceeding brought against Guarantor by Agent or any Bank, to the fullest
extent permitted by law;
(b) Any right it may have to require Agent or any Bank to proceed
against Company, proceed against or exhaust any security held from Company,
or pursue any other remedy in Agent's or any Bank's power to pursue;
(c) Any defense based on any claim that Guarantor's obligations
exceed or are more burdensome than those of Company;
(d) Any defense based on: (i) any legal disability of Company, (ii)
any release, discharge, modification, impairment or limitation of the
liability of Company to Agent or any Bank from any cause, whether consented
to by Agent or any Bank 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 Facility, or any part of it, or
any security held for it, in any such Insolvency Proceeding;
(e) Any defense based on any action taken or omitted by Agent or
any Bank in any Insolvency Proceeding involving Company, including any
election to have Agent's or that Bank's claim allowed as being secured,
partially secured or unsecured, any extension of credit
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by Bank to Company in any Insolvency Proceeding, and the taking and holding
by Agent or any Bank of any security for any such extension of credit;
(f) All presentments, demands for performance, notices of
nonperformance, protests, notices of protest, notices of dishonor, notices of
acceptance of this Guaranty and of the existence, creation, or incurring of
new or additional indebtedness, and demands and notices of every kind except
for any demand or notice by Agent or any Bank to Guarantor expressly provided
for in Section 1;
(g) Any defense based on or arising out of any defense that Company
may have to the payment or performance of the Facility or any part of it; and
(h) Any defense based on or arising out of any action of Agent or
any Bank described in Sections 3 or 4 above.
6. WAIVERS OF SUBROGATION AND OTHER RIGHTS.
(a) During the existence of an Event of Default by Company, Agent
or any Bank, without prior notice to or consent of Guarantor, may elect to:
(i) foreclose either judicially or nonjudicially against any real or personal
property security it may hold for the Facility, (ii) accept a transfer of any
such security in lieu of foreclosure, (iii) compromise or adjust the Facility
or any part of it or make any other accommodation with Company or Guarantor,
or (iv) exercise any other remedy against Company or any security. No such
action by Agent or any Bank shall release or limit the liability of
Guarantor, who shall remain liable under this Guaranty after the action, even
if the effect of the action is to deprive Guarantor of any subrogation
rights, rights of indemnity, or other rights to collect reimbursement from
Company for any sums paid to Agent or any Bank, whether contractual or
arising by operation of law or otherwise. Guarantor expressly agrees that
under no circumstances shall it be deemed to have any right, title, interest
or claim in or to any real or personal property to be held by Agent or any
Bank or any third party after any foreclosure or transfer in lieu of
foreclosure of any security for the Facility.
(b) Regardless of whether Guarantor may have made any payments to
Bank, Guarantor hereby waives: (i) all rights of subrogation, all rights of
indemnity, and any other rights to collect reimbursement from Company for any
sums paid to Agent or any Bank, 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
Bank may have against Company, and (iii) all rights to participate in any
security now or later to be held by Agent or any Bank for the Facility, in
each case until the full and indefeasible payment and performance of all
Obligations under (and as defined in) each of the Revolving Credit Agreement
and the Bridge Loan Agreement, and all obligations of the Guarantors
hereunder.
7. REVIVAL AND REINSTATEMENT. If Agent or any Bank is required to pay,
return or restore to Company or any other person any amounts previously paid
on the Facility because of any Insolvency Proceeding of Company, any stop
notice or any other reason, the
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obligations of Guarantor shall be reinstated and revived and the rights of
Agent and such Bank shall continue with regard to such amounts, all as though
they had never been paid.
8. INFORMATION REGARDING BORROWER. Before signing this Guaranty,
Guarantor investigated the financial condition and business operations of
Company and such other matters as Guarantor deemed appropriate to assure
itself of Company's ability to discharge its obligations under the Loan
Documents. Guarantor assumes full responsibility for that due diligence, as
well as for keeping informed of all matters which may affect Company's
ability to pay and perform its obligations to the Agent and the Banks.
Neither Agent nor any Bank has any duty to disclose to Guarantor any
information which such party may have or receive about Company's financial
condition, business operations, or any other circumstances bearing on its
ability to perform.
9. SUBORDINATION. Any rights of Guarantor, whether now existing or later
arising, to receive payment on account of any indebtedness (including
interest) owed to it by Company or any Wholly-Owned Subsidiary which may own
any collateral for the Facility or to receive any payment from Company or any
such Wholly-Owned Subsidiary other than those payments or distributions
permitted under Sections 7.08(b) and 7.09 of the Revolving 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 Facility. Guarantor
shall not be entitled to enforce or receive payment of any sums hereby
subordinated until the Facility has been paid and performed in full and any
such sums received in violation of this Guaranty shall be received by
Guarantor in trust for the Agent and the Banks.
10. FINANCIAL INFORMATION. Guarantor shall keep true and correct
financial books and records, using generally accepted accounting principles
consistently applied, or such other accounting principles as the Requisite
Banks in their reasonable judgment may find acceptable from time to time.
Guarantor represents, warrants and covenants to Agent and the Banks that all
financial information with respect to the Guarantor delivered or to be
delivered to Agent and the Banks by the Company with respect to Guarantor
under Section 6.01 of the Revolving Credit Agreement is or shall be true and
correct and fairly presents or will fairly' present the financial position of
the Guarantor for the applicable period. Guarantor shall promptly provide
Agent and the Banks with any additional audited financial information that
Guarantor may obtain, and such other information concerning its affairs and
properties as Agent or any Bank may reasonably request, including, without
limitation, signed copies of any tax returns if requested Agent or the Banks.
11. GUARANTOR'S REPRESENTATIONS AND WARRANTIES. Guarantor represents and
warrants that:
(a) All financial statements delivered to Agent or the Banks were
or will be prepared in accordance with generally accepted accounting
principles, or such other accounting principles as may be acceptable to the
Requisite Banks at the time of their preparation, consistently applied;
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(b) There has been no material adverse change in Guarantor's
financial condition since the dates of the statements most recently furnished
to Agent and the Banks; and
(c) All representations and warranties given on behalf of or with
respect to Guarantor contained in Article V of the Revolving Credit
Agreement, in Article V of the Bridge Loan Agreement and in any other Loan
Document or certification made in connection with the Revolving Credit
Agreement or Bridge Loan Agreement are true and correct.
12. COVENANTS OF GUARANTOR. Guarantor covenants and agrees that it shall
comply with and perform all covenants given on behalf of or with respect to
Guarantor (whether expressly or as a Subsidiary) contained in Articles VI and
VII of the Revolving Credit Agreement, Articles VI and VII of the Bridge Loan
Agreement and in all other Loan Documents. 13. Intentionally Omitted. 14.
Reference and Arbitration.
(a) MANDATORY ARBITRATION. Any controversy or claim between or
among the parties, including those arising out of or relating to this
Guaranty or the Loan Documents and any claim based on or arising from an
alleged tort, shall at the request of any party be determined by arbitration.
The arbitration shall be conducted in Los Angeles, California, in accordance
with the United States Arbitration Act (Title 9, U.S. Code), notwithstanding
any choice of law provision in this Guaranty, and under the Commercial Rules
of the American Arbitration Association (the "AAA"). The arbitrator(s) shall
give effect to statutes of limitation in determining any claim. Any
controversy concerning whether an issue is arbitrable shall be determined by
the arbitrator(s). Judgment upon the arbitration award may be entered in any
court having jurisdiction. The institution and maintenance of an action for
judicial relief or pursuit of a provisional or ancillary remedy shall not
constitute a waiver of the right of any party, including the plaintiff, to
submit the controversy or claim to arbitration if any other party contests
such action for judicial relief.
(b) Provisional Remedies, Self-Help and foreclosure. No provision
of this Section 14 shall limit the right of any party to exercise self-help
remedies such as setoff, foreclosure against or sale of any real or personal
property collateral or security, or to obtain provisional or ancillary
remedies from a court of competent jurisdiction before, after, or during the
pendency of any arbitration.
15. AUTHORIZATION: NO VIOLATION. Guarantor is authorized to execute,
deliver and perform under this Guaranty, which is a valid, binding, and
enforceable obligation of Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditor's rights generally. The
execution, delivery and performance of this Guaranty are not in violation of
any applicable law, regulation or ordinance, or any order or ruling of any
court or governmental agency applicable to the Guarantor. The Guaranty does
not conflict with, or constitute a breach or default under, any agreement to
which Guarantor is a party.
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16. ADDITIONAL AND INDEPENDENT OBLIGATIONS. Guarantor's obligations
under this Guaranty are in addition to its obligations under any future
guaranties, each of which shall remain in full force and effect until it is
expressly modified or released in a writing signed by Agent and consented to
by the Banks. Guarantor's obligations under this Guaranty are independent of
those of Company on the Facility. Agent or the Banks may bring a separate
action, or commence a separate arbitration proceeding against Guarantor
without first proceeding against Company, any other person or any security
that Agent or any Bank may hold, and without pursuing any other remedy. None
of Agent's or any Bank's rights under this Guaranty shall be exhausted by any
action by Agent or any Bank until the Facility has been paid and performed in
full in cash.
17. NO WAIVER; CONSENTS; CUMULATIVE REMEDIES. Each waiver by Agent or
the Banks must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from Agent's or any Bank's
delay in exercising or failure to exercise any right or remedy against
Company, Guarantor or any security. Consent by Agent or the Banks to any act
or omission by Company or Guarantor shall not be construed as a consent to
any other or subsequent act or omission, or as a waiver of the requirement
for Agent's or the Banks' consent to be obtained in any future or other
instance. All remedies of Agent and each Bank against Company and Guarantor
are cumulative.
18. NO RELEASE. Except as otherwise provided in Section 1, Guarantor
shall not be released, in whole or in part, from its obligations under this
Guaranty except by a writing signed by Agent and all the Banks.
19. HEIRS, SUCCESSORS AND ASSIGNS; PARTICIPANTS. The terms of this
Guaranty shall bind and benefit the heirs, legal representatives, successors
and assigns of Agent, the Banks and Guarantor; provided, however, that
Guarantor may not assign this Guaranty, or assign or delegate any of its
rights or obligations under this Guaranty, without the prior written consent
of Agent in each instance. Without notice to or the consent of Guarantor,
Agent and any Bank may disclose any and all information in its possession
concerning Guarantor, this Guaranty and any security for this Guaranty to any
actual or prospective purchaser of any securities issued or to be issued by
Agent or such Bank, and to any actual or prospective purchaser or assignee of
any participation or other interest in the Facility and this Guaranty.
20. NOTICES.
(a) DELIVERY. All notices, requests and other communications
provided for hereunder shall be in writing (including, unless the context
expressly otherwise provides, telegraphic, telex, facsimile transmission or
cable communication) and mailed, telegraphed, telexed or delivered to its
address specified on the signature pages hereof, or to such other address as
shall be designated by such party in a written notice to the other party.
(b) RECEIPT. All such notices and communications shall, when
transmitted by overnight delivery, telegraphed, telecopied by facsimile,
telexed or cabled, be effective when delivered for overnight delivery or to
the telegraph company, transmitted by
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telecopier, confirmed by telex answerback or delivered to the cable company,
respectively, or if delivered, upon delivery.
(c) RELIANCE. Agent and each Bank shall be entitled to rely on the
authority of any person purporting to be a person authorized by Guarantor to
give such notice, and neither Agent nor any Bank shall have any liability to
Guarantor or any other person on account of any action taken or not taken by
Agent or such Bank in reliance upon such telephonic or facsimile notice. The
obligation of Guarantor hereunder shall not be affected in any way or to any
extent by any failure by Bank to receive written confirmation of any
telephonic or facsimile notice or the receipt by Agent or a Bank of a
confirmation which is at variance with the terms understood by Agent or such
Bank to be contained in the telephonic or facsimile notice.
21. RULES OF CONSTRUCTION. In this Guaranty, the word "Company" includes
both the named Company 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 Company on the Facility. The word "person" includes any individual,
company, trust or other legal entity of any kind. If this Guaranty is
executed by more than one person, the word "Guarantor" includes all such
persons. The word "include(s)" means "include(s), without limitation," and
the word "including" means "including, but not limited to." When the context
and construction so require, all words used in the singular shall be deemed
to have been used in the plural and vice versa. No listing of specific
instances, items or matters in any way limits the scope or generality of any
language of this Guaranty. All headings appearing in this Guaranty are for
convenience only and shall be disregarded in construing this Guaranty.
22. GOVERNING LAW. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of Colorado, without regard to its
choice of law rules.
23. COSTS AND EXPENSES. If any lawsuit or arbitration is commenced which
arises out of, or which relates to this Guaranty, the Loan Documents or the
Facility, the prevailing party shall be entitled to recover from each other
party such sums as the court or arbitrator may adjudge to be reasonable
attorneys' fees (including allocated costs for services of in-house counsel)
in the action or proceeding, in addition to costs and expenses otherwise
allowed by law. In all other situations, including any Insolvency Proceeding,
Guarantor agrees to pay all of the Agent's and each Bank's costs and
expenses, including attorneys' fees (including allocated costs for services
of the Agent's and each Bank's in-house counsel) which may be incurred in any
effort to collect or enforce the Facility or any part of it or any term of
this Guaranty. Without limiting any rights of the Agent or Banks under the
Revolving Credit Agreement or the Bridge Loan Agreement, all amounts of any
kind due and payable under this Guaranty (whether for principal, interest,
and other costs under the Facility, or for costs, fees, and expenses for
which the Guarantors are directly responsible hereunder, or otherwise) shall
accrue interest from the time the Agent or the Banks make demand therefor
hereunder until paid in full in cash to such Agent or the Banks at the Base
Rate, as defined in the Revolving Credit Agreement, plus three (3%)
percentage points, except to the extent that any such amounts are then
accruing interest under the Facility, in which case such Base Rate plus 3%
interest rate shall
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not be applied if the effect would be to compound the interest to which such
obligations are subject to under the Facility.
24. CONSIDERATION. Guarantor acknowledges that it expects to benefit
from Banks' extension of the Facility to Company because of its relationship
to Company, because such Facility is essential to the business of the Company
and because a portion of the Facility will be available for the Company to
pay certain expenses intended to be incurred by Guarantor in connection with
the conduct by Guarantor of its business. Guarantor is executing this
Guaranty in consideration of these anticipated benefits.
25. INTEGRATION; MODIFICATIONS. This Guaranty (a) integrates all the
terms and conditions mentioned in or incidental to this Guaranty, (b)
supersedes all oral negotiations and prior writings with respect to its
subject matter, and (c) is intended by Guarantor, Agent and the and Banks as
the final expression of the agreement with respect to the terms and
conditions set forth in this Guaranty and as the complete and exclusive
statement of the terms agreed to by Guarantor, Agent and the Banks. No
representation, understanding, promise or condition shall be enforceable
against any party hereto unless it is contained in this Guaranty. This
Guaranty may not be modified except in a writing signed by both Agent (with
the consent of the Requisite Banks) and Guarantor. No course of prior
dealing, usage of trade, parol or extrinsic evidence of any nature shall be
used to supplement, modify or vary any of the terms hereof. As between Agent
and the Banks only, nothing contained in this Guaranty shall alter the rights
and obligations among Agent and the Banks set forth in the Credit Agreement.
26. MISCELLANEOUS. The illegality or unenforceability of one or more
provisions of this Guaranty shall not affect any other provision. Time is of
the essence in the performance of this Guaranty by Guarantor. The obligations
of each Guarantor under this Guaranty shall be joint and several.
Guarantors:
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxxx
--------------------
Title: Vice President
--------------------
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AIMCO-GP, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
-----------------------
Name: Xxxxx Xxxxxxxxx
---------------------
Title: Vice President
---------------------
AIMCO-LP, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxx
----------------------
Title: Vice President
----------------------
AIMCO HOLDINGS, LP,
a Delaware limited partnership
By: AIMCO HOLDINGS Qrs, INC.,
a Delaware corporation,
General Partner
By: /s/ Xxxxx Xxxxxxxxx
---------------------
Name: Xxxxx Xxxxxxxxx
---------------------
Title: Vice President
--------------------
AIMCO HOLDINGS Qrs, INC.,
a Delaware corporation
By: /s/ Xxxxx Xxxxxxxxx
----------------------
Name: Xxxxx Xxxxxxxxx
----------------------
Title: Vice President
---------------------
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Address Where Notices to Guarantors are to be
AIMCO SOMERSET, INC., Sent:
a Delaware corporation
0000 Xxxxx Xxxxxxxx Xxxxxx
By: /s/ Xxxxx Xxxxxxxxx 17th Floor
------------------------ Xxxxxx, Xxxxxxxx 00000
Name: Xxxxx Xxxxxxxxx
------------------------ Address Where Notices to Agent are to be
Title Vice President; Sent:
------------------------
BANK OF AMERICA NATIONAL TRUST
AIMCO/OTC QRS, INC., AND SAVINGS ASSOCIATION
a Delaware corporation 000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
By: /s/ Xxxxx Xxxxxxxxx Att'n: Manager - Unit #1357
---------------------- Addresses Where Notices to the Banks are to
Name: Xxxxx Xxxxxxxxx be Sent:
----------------------
Title: Vice President
----------------------
----------------------------- Per the Credit Agreement
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