Exhibit 10.4
SECOND AMENDMENT TO
FIFTH AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF MAY 30, 2003
BY AND AMONG
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
AIMCO/BETHESDA HOLDINGS, INC., AND
NHP MANAGEMENT COMPANY,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent and Letter of Credit Issuing Lender,
and
LENDERS LISTED HEREIN,
as Lenders
SECOND AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") is dated as of May 30, 2003 (the "AMENDMENT
EFFECTIVE DATE") and entered into by and among APARTMENT INVESTMENT AND
MANAGEMENT COMPANY, a Maryland corporation (the "REIT"), 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") (the REIT, AIMCO, AIMCO/Bethesda and
NHP Management collectively referred to herein as "BORROWERS"), BANK OF AMERICA,
N.A. ("BANK OF AMERICA"), as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT"), and Lenders party hereto, and is made with reference to
that certain Fourth Amended and Restated Credit Agreement, dated as of March 11,
2002 (the "FOURTH AMENDED AND RESTATED CREDIT AGREEMENT"), as amended to date,
including as amended by that certain Fifth Amended and Restated Credit
Agreement, dated as of February 14, 2003, by and among Borrowers, each lender
from time to time party thereto, BANK OF AMERICA, N.A., as Administrative Agent
and Issuing Lender, FLEET NATIONAL BANK, as a Lender and Syndication Agent, and
WACHOVIA BANK NA (formerly known as First Union National Bank), as a Lender and
Documentation Agent, and as amended by the First Amendment (as defined below)
(the "Credit Agreement"), (the Credit Agreement as amended by this Amendment,
the "AMENDED AGREEMENT"). Capitalized terms used in this Amendment shall have
the meanings set forth in the Credit Agreement unless otherwise defined herein.
RECITALS
WHEREAS, Borrowers, Administrative Agent and the Lenders previously
entered into that certain First Amendment to Fifth Amended and Restated Credit
Agreement, dated as of May 9, 2003 (the "FIRST AMENDMENT") pursuant to which all
Lenders consented to the 2003 Term Loan and the changes, modifications,
amendments and supplements to the Credit Agreement necessary to facilitate the
consummation of the 2003 Term Loan; and
WHEREAS, Borrowers and Lenders now desire to amend the Credit Agreement
as more particularly set forth below to reflect all of the specific
modifications, amendments and supplements needed to be made to the Credit
Agreement in connection with the closing of the 2003 Term Loan concurrently
herewith.
WHEREAS, attached hereto as Exhibit A is a conformed Credit Agreement
which contains all of the modifications and changes to the Fourth Amended and
Restated Credit Agreement since March 11, 2002 to the date hereof, together with
all of the specific modifications, amendments and supplements needed to be made
to the Credit Agreement in connection with the closing of the 2003 Term Loan
concurrently herewith (the "Replacement Credit Agreement").
1
NOW, THEREFORE, in consideration of the agreements, provisions and
covenants contained herein, the parties agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
The Credit Agreement is hereby amended and modified from and after the Amendment
Effective Date as reflected in the Replacement Credit Agreement. Any provision
of the Credit Agreement prior to the Amendment Effective Date which is different
from that set forth in the Replacement Credit Agreement shall be superceded in
all respects by the provisions of the Replacement Credit Agreement, provided
that unless specifically changed in the Replacement Credit Agreement, all
Schedules and Exhibits to the Credit Agreement shall remain unchanged.
SECTION 2. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the Amendment Effective Date, at
such time that all of the following conditions are satisfied:
A. Borrowers, Administrative Agent and Requisite Lenders shall have
executed this Amendment;
B. Lenders and their respective counsel shall have received originally
executed copies of one or more favorable written opinions of counsel for
Borrowers, Guarantors and Pledgors in form and substance satisfactory to
Administrative Agent and its counsel, dated as of the Amendment Effective Date,
with respect to the validity, binding effect and enforceability of the Credit
Agreement as amended by this Amendment and superceded by the Replacement Credit
Agreement, and due authorization, execution and delivery thereof, and as to such
other matters as Administrative Agent acting on behalf of Lenders may request;
C. Lenders and their respective counsel shall have received executed
resolutions from Borrowers, Guarantors and Pledgors authorizing the entry into
and performance of this Amendment and the Credit Agreement as amended, all in
form and substance satisfactory to Administrative Agent and its counsel;
D. Borrowers shall have paid the fees, costs and expenses of
Administrative Agent's counsel in connection with this Amendment;
E. Lenders and their respective counsel shall have received a
replacement Payment Guaranty, dated as of even date herewith, duly executed by
each Guarantor in the form of EXHIBIT H to the Amended Agreement, which new
Payment Guaranty shall replace, as of the Amendment Effective Date, each
Guarantor's existing Payment Guaranty (Revolver Guarantors) or Payment Guaranty
(Casden Guarantors) dated as of March 11, 2002 (as applicable) pursuant to which
Guarantors have guarantied the Obligations.
F. Lenders and their respective counsel shall have received a copy of a
Borrowers Pledge Agreement, dated as of even date herewith, duly executed by all
2
parties thereto in the form of EXHIBIT G-2 to the Amended Agreement, pursuant to
which Pledgors have pledged the Pledged Collateral as security for the Loan.
G. Lenders and their respective counsel shall have received an Amended
and Restated Intercreditor and Collateral Agency Agreement, dated as of even
date herewith, duly executed by all parties thereto in the form of EXHIBIT L to
the Amended Agreement, which Amended and Restated Intercreditor and Collateral
Agency Agreement shall replace, as of the Amendment Effective Date, that certain
Amended and Restated Intercreditor and Subordination Agreement dated as of March
11, 2002, by and among Borrowers, Administrative Agent, borrowers to the Casden
Agreement, and Xxxxxx Commercial Paper Inc., in its capacity as administrative
agent under the Casden Loan.
H. Lenders and their respective counsel shall have received an Amended
and Restated Intra-Company Loan Subordination Agreement, dated as of even date
herewith, duly executed by all parties thereto in the form of EXHIBIT I to the
Amended Agreement, which Intra-Company Loan Subordination Agreement shall
replace, as of the Amendment Effective Date, that certain Intra-Company Loan
Subordination Agreement dated as of March 11, 2002, by and among Borrowers and
each of the Intra-Company Lenders (as defined therein).
I. Lenders and their respective counsel shall have received such
replacement Schedules to the Amended Agreement in connection with Collateral
matters as Administrative Agent shall require.
J. Administrative Agent shall have received evidence satisfactory to it
and its counsel that the Casden Agent and the Casden Lenders (i) have modified,
or concurrently with the Amendment Effective Date will modify, the Casden Loan
and the Casden Credit Agreement in a manner consistent with this Amendment and
otherwise satisfactory to Administrative Agent and the Lenders and
Administrative Agent shall have been provided with true, correct and complete
copies of the documents effecting such modifications to the Casden Loan and
Casden Credit Agreement and (ii) have consented to or waived their right to
consent to the Borrowers', Guarantors' and Pledgors' execution and delivery of
this Amendment.
SECTION 3. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Requisite Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Borrowers represent and
warrant to each Lender that the following statements are true, correct and
complete:
3.1 CORPORATE POWER AND AUTHORITY. Borrowers have all requisite power and
authority to enter into this Amendment and any other agreements, guaranties or
other operative documents to be delivered pursuant to this Amendment, to carry
out the transactions contemplated by, and perform their obligations under, the
Amended Agreement. Each of the Borrowers, Pledgors and Guarantors is in good
standing in the respective states of their organization on the Amendment
Effective Date.
3
3.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of this Amendment
and the performance of the Amended Agreement have been duly authorized by all
necessary action on the part of Borrowers and the other parties delivering any
of such documents, as the case may be. Except as disclosed on Schedule 3.2, the
organizational documents of the Borrowers, Pledgors and Guarantors have not been
modified in any material respect since May 9, 2003.
3.3 NO DEFAULT. After giving effect to this Amendment, no Default or Event of
Default exists under the Credit Agreement as of the Amendment Effective Date.
Further, after giving effect to this Amendment, no Default or Event of Default
would result under the Amended Agreement from the consummation of this
Amendment.
3.4 NO CONFLICT. The execution, delivery and performance by Borrowers, Pledgors
and Guarantors of this Amendment and the performance of the Amended Agreement by
Borrowers, Pledgors and Guarantors does not and will not (i) violate any
provision of any law or any governmental rule or regulation applicable to
Borrowers, Pledgors, Guarantors or any of their Subsidiaries, the Organization
Documents of Borrowers, Pledgors, Guarantors or any of their Subsidiaries or any
order, judgment or decree of any court or other Governmental Authority binding
on Borrowers, Pledgors, Guarantors or any of their Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of Borrowers, Pledgors,
Guarantors or any of their Subsidiaries, (iii) result in or require the creation
or imposition of any Lien upon any of the properties or assets of Borrowers,
Pledgors, Guarantors or any of their Subsidiaries not otherwise permitted by the
Amended Agreement, or (iv) require any approval of members or stockholders or
any approval or consent of any Person under any Contractual Obligation of
Borrowers, Pledgors, Guarantors or any of their Subsidiaries, except for such
approvals or consents which have been or will be obtained on or before the
Amendment Effective Date and such approvals or consents disclosed in writing to
Lenders in accordance with Section 5.03 of the Credit Agreement.
3.5 GOVERNMENTAL CONSENTS. The execution and delivery by Borrowers, Guarantors
and Pledgors of this Amendment and the performance by Borrowers, Guarantors and
Pledgors under the Amended Agreement does not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body.
3.6 BINDING OBLIGATION. The Credit Agreement, as amended by this Amendment, has
been duly executed and delivered by Borrowers, Pledgors and Guarantors and is
enforceable against Borrowers, Pledgors and Guarantors in accordance with its
respective terms, except as may be limited by bankruptcy, insolvency,
reorganization, moratorium or similar laws relating to or limiting creditors'
rights generally or by equitable principles relating to enforceability.
3.7 INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT AGREEMENT. After
giving effect to this Amendment, the representations and warranties contained in
Section 5 of the Credit Agreement are and will be true, correct and complete in
all material respects on and as of the Amendment Effective Date to the same
extent as
4
though made on and as of such date, except representations and warranties solely
to the extent such representations and warranties specifically relate to an
earlier date, in which case they were true, correct and complete in all material
respects on and as of such earlier date.
SECTION 4. MISCELLANEOUS
4.1 REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER LOAN
DOCUMENTS.
A. On and after the Amendment Effective Date, each reference in the
Credit Agreement to "this Agreement", "hereunder", "hereof", "herein" or words
of like import referring to the Credit Agreement, and each reference in the
other Loan Documents to the "Credit Agreement", "thereunder", "thereof" or words
of like import referring to the Credit Agreement shall mean and be a reference
to the Credit Agreement, as amended by this Amendment and as superceded by the
attached EXHIBIT A.
B. The execution, delivery and performance of this Amendment shall not,
except as expressly provided herein, constitute a waiver of any provision of, or
operate as a waiver of any right, power or remedy of Administrative Agent or any
Lender under, the Credit Agreement or any of the other Loan Documents.
4.2 FEES AND EXPENSES. Borrowers acknowledge that all reasonable costs, fees and
expenses incurred by Administrative Agent and its counsel with respect to this
Amendment and the documents and transactions contemplated hereby shall be for
the account of Borrowers. On or before the Amendment Effective Date, Borrowers
hereby agree to pay the reasonable fees, cost and expenses of Administrative
Agent's counsel in connection with this Amendment.
4.3 HEADINGS. Section and subsection headings in this Amendment are included
herein for convenience of reference only and shall not constitute a part of this
Amendment for any other purpose or be given any substantive effect.
4.4 COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in any number of
counterparts and by different parties hereto in separate counterparts, each of
which when so executed and delivered shall be deemed an original, but all such
counterparts together shall constitute but one and the same instrument;
signature pages may be detached from multiple separate counterparts and attached
to a single counterpart so that all signature pages are physically attached to
the same document. This Amendment shall become effective upon the execution of a
counterpart hereof by each Borrower and each Lender, and receipt by Borrowers
and Administrative Agent of written, facsimile or telephonic notification of
such execution and authorization of delivery thereof.
4.5 ENTIRE AGREEMENT. This Amendment embodies the entire agreement and
understanding among the parties with respect to the amendment to the Credit
Agreement, and supersedes all prior agreements and understandings, oral or
written, relating thereto.
[SIGNATURES ON NEXT PAGE]
5
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered as of the day and year first written
above.
BORROWERS: APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By: /s/ Xxxxx X. Xxxxxxxxx
--------------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/BETHESDA HOLDINGS INC.,
a Delaware corporation
By: /s/ Xxxxx X. Xxxxxxxxx
------------------------------------
Xxxxx X. Xxxxxxxxx
President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /s/ Xxxxxx X. Xxxxxx
------------------------------------
Xxxxxx X. Xxxxxx
President
S-1
Second Amendment to Fifth Amended and Restated Credit Agreement
BANK OF AMERICA
BANK OF AMERICA, N.A.,
as Administrative Agent
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-2
BANK OF AMERICA, N.A.,
as Issuing Lender and a Lender
By: /s/ Xxxxx X. Xxxxxx
------------------------------------
Name: Xxxxx X. Xxxxxx
Title: Vice President
S-3
FLEET NATIONAL BANK, as a Lender
By: /s/ Xxxxxxxx X. Xxxxx
------------------------------------
Name: Xxxxxxxx X. Xxxxx
Title: Director
S-4
THE BANK OF NOVA SCOTIA, acting through
its San Francisco Agency, as Lender
By: X.X. Xxxxxx
------------------------------------
Name: X.X. Xxxxxx
Title: Director
S-5
CALIFORNIA BANK & TRUST,
a California banking corporation, as a
Lender
By: /s/ Xxxx Xxxxx
------------------------------------
Name: Xxxx Xxxxx
Title: EVP
S-6
XX XXXXXX XXXXX BANK (formerly known as
The Chase Manhattan Bank), a New York
banking corporation, as a Lender
By: /s/ Xxxxx X. Xxxx
------------------------------------
Name: Xxxxx X. Xxxx
Title: Vice President
S-7
WACHOVIA BANK NA (formerly known as
First Union National Bank), as a Lender
By: /s/ Xxx X. Xxxx
------------------------------------
Name: Xxx X. Xxxx
Title: Director
S-8
KEYBANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxx X. Xxx Xxxxxxxxxxx
------------------------------------
Name: Xxxxxx. X. Xxx Xxxxxxxxxxx
Title: Assistant Vice President
S-9
U.S. BANK NATIONAL ASSOCIATION,
as a Lender
By: /s/ Xxxxxxx Xxxxxx
------------------------------------
Name: Xxxxxxx Xxxxxx
Title: Vice President
S-10
NEW YORK LIFE INSURANCE COMPANY,
a New York mutual insurance company,
as a Lender
By: /s/ Xxxxxxx Xxxxx
------------------------------------
Name: Xxxxxxx Xxxxx
Title: Real Estate Vice President
S-11
EXHIBIT A
(Replacement Credit Agreement to be attached on following page)
================================================================================
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
among
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
AIMCO/BETHESDA HOLDINGS, INC., AND
NHP MANAGEMENT COMPANY
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent and Letter of Credit Issuing Lender,
FLEET NATIONAL BANK,
as Syndication Agent,
WACHOVIA BANK NA,
as Documentation Agent
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
Dated as of February 14, 0000
XXXX XX XXXXXXX SECURITIES LLC
and
Fleet Securities Inc.,
as Co-Lead Arrangers
and
BANC OF AMERICA SECURITIES LLC,
as Sole Bookrunner
TABLE OF CONTENTS
PAGE
SECTION 1. DEFINITIONS AND ACCOUNTING TERMS 1
1.01 Defined Terms........................................................................1
1.02 Use of Certain Terms................................................................41
1.03 Accounting Terms....................................................................42
1.04 Rounding............................................................................42
1.05 Exhibits and Schedules..............................................................42
1.06 References to Agreements, Exhibits and Laws.........................................42
SECTION 2. THE COMMITMENTS AND EXTENSIONS OF CREDIT 42
2.01 Committed Loans.....................................................................42
2.02 Borrowings, Conversions and Continuations of Committed Loans........................45
2.03 Swing Line Loans....................................................................46
2.04 Borrowings of Swing Line Loans......................................................46
2.05 Letters of Credit...................................................................47
2.06 Prepayments; Mandatory Amortization.................................................51
2.07 Reduction or Termination of Commitments.............................................54
2.08 Principal and Interest; Default Rate................................................54
2.09 Fees................................................................................55
2.10 Computation of Interest and Fees....................................................55
2.11 Making Payments.....................................................................56
2.12 Funding Sources.....................................................................57
2.13 Extension of Maturity Date..........................................................57
2.14 Collateral..........................................................................58
SECTION 3. TAXES, YIELD PROTECTION AND ILLEGALITY 58
3.01 Taxes...............................................................................58
3.02 Illegality..........................................................................61
3.03 Inability to Determine Rates........................................................61
3.04 Increased Cost and Reduced Return; Capital Adequacy.................................61
3.05 Breakfunding Costs..................................................................62
3.06 Matters Applicable to all Requests for Compensation.................................62
3.07 Survival............................................................................63
SECTION 4. CONDITIONS TO EFFECTIVENESS 63
4.01 Conditions to the Amended and Restated Credit Agreement.............................63
4.02 Conditions to all Extensions of Credit..............................................66
SECTION 5. REPRESENTATIONS AND WARRANTIES 66
5.01 Existence and Qualification; Power..................................................66
5.02 Power; Authorization; Enforceable Obligations.......................................67
5.03 No Legal Bar........................................................................67
5.04 Financial Statements; No Material Adverse Effect....................................68
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PAGE
5.05 Litigation..........................................................................68
5.06 No Default..........................................................................68
5.07 Ownership of Property; Liens........................................................68
5.08 Taxes...............................................................................69
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act;
REIT and Tax Status; Stock Exchange Listing.........................................69
5.10 ERISA Compliance....................................................................70
5.11 Intangible Assets...................................................................71
5.12 Compliance With Laws................................................................71
5.13 Environmental Compliance............................................................72
5.14 Insurance...........................................................................72
5.15 GP Loans............................................................................73
5.16 Subsidiaries; Interests in Other Entities; Changes in Organizational Structure......73
5.17 Matters Relating to Pledged Collateral..............................................73
5.18 Disclosure..........................................................................74
5.19 Tax Shelter Regulations.............................................................74
SECTION 6. AFFIRMATIVE COVENANTS 75
6.01 Financial Statements................................................................75
6.02 Certificates, Notices and Other Information.........................................76
6.03 Payment Obligations.................................................................78
6.04 Preservation of Existence...........................................................79
6.05 Maintenance of Properties...........................................................79
6.06 Maintenance of Insurance............................................................79
6.07 Compliance With Laws................................................................79
6.08 Inspection Rights...................................................................80
6.09 Keeping of Records and Books of Account.............................................80
6.10 Compliance with ERISA...............................................................80
6.11 Compliance With Agreements..........................................................80
6.12 Use of Proceeds.....................................................................81
6.13 Communication with Accountants......................................................81
6.14 Maintenance of REIT Status; Stock Exchange Listing..................................81
6.15 Solvency............................................................................81
6.16 Further Assurances..................................................................81
6.17 Unconsolidated Partnership Distributions............................................82
SECTION 7. NEGATIVE COVENANTS 82
7.01 Indebtedness........................................................................83
7.02 Liens and Negative Pledges..........................................................84
7.03 Fundamental Changes.................................................................86
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(CONTINUED)
PAGE
7.04 Dispositions........................................................................88
7.05 Investments.........................................................................88
7.06 Lease Obligations...................................................................89
7.07 Restricted Payments.................................................................89
7.08 ERISA...............................................................................90
7.09 Change in Nature of Business........................................................91
7.10 Transactions with Affiliates........................................................91
7.11 Use of Proceeds.....................................................................91
7.12 Intentionally Omitted...............................................................92
7.13 Limitations on Upstreaming..........................................................92
7.14 Financial Covenants.................................................................92
7.15 Change in Auditors..................................................................93
7.16 Special Covenants Relating to the REIT..............................................93
7.17 Taxation of Borrowers...............................................................94
SECTION 8. EVENTS OF DEFAULT AND REMEDIES 94
8.01 Events of Default...................................................................94
8.02 Remedies Upon Event of Default......................................................99
SECTION 9. ADMINISTRATIVE AGENT 101
9.01 Appointment and Authorization of Administrative Agent..............................101
9.02 Delegation of Duties...............................................................102
9.03 Liability of Administrative Agent..................................................102
9.04 Reliance by Administrative Agent...................................................102
9.05 Notice of Default..................................................................103
9.06 Credit Decision; Disclosure of Information by Administrative Agent.................103
9.07 Indemnification of Administrative Agent............................................104
9.08 Administrative Agent in Individual Capacity........................................104
9.09 Successor Administrative Agent.....................................................105
9.10 Co-Lead Agents.....................................................................105
SECTION 10. MISCELLANEOUS 106
10.01 Amendments; Consents...............................................................106
10.02 Transmission and Effectiveness of Notices and Signatures...........................107
10.03 Attorney Costs, Expenses and Taxes.................................................108
10.04 Binding Effect; Assignment.........................................................109
10.05 Set-Off............................................................................111
10.06 Sharing of Payment.................................................................112
10.07 No Waiver; Cumulative Remedies.....................................................112
10.08 Usury..............................................................................113
10.09 Counterparts.......................................................................113
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10.10 Integration; Conflicts with Other Loan Documents...................................113
10.11 Nature of Lenders' Obligations.....................................................114
10.12 Survival of Representations and Warranties.........................................114
10.13 Indemnity by Borrowers.............................................................114
10.14 Nonliability of Lenders............................................................115
10.15 No Third Parties Benefited.........................................................116
10.16 Severability.......................................................................116
10.17 Confidentiality....................................................................116
10.18 Headings...........................................................................117
10.19 Time of the Essence................................................................117
10.20 [Intentionally Omitted]............................................................118
10.21 Governing Law......................................................................118
10.22 Waiver of Right to Trial by Jury...................................................118
10.23 Non-Exclusive Jurisdiction.........................................................118
10.24 Notice of Claims; Claims Bar.......................................................119
10.25 Borrowers' Obligations.............................................................119
10.26 Lender Covenant....................................................................123
10.27 Release of Collateral and Guarantee Obligations....................................123
SECTION 11. COLLATERAL AGENT 124
11.01 Collateral Agent...................................................................124
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FIFTH AMENDED AND
RESTATED CREDIT AGREEMENT
This FIFTH AMENDED AND RESTATED CREDIT AGREEMENT ("AGREEMENT")
is entered into as of February 14, 2003, by and among APARTMENT INVESTMENT AND
MANAGEMENT COMPANY, a Maryland corporation (the "REIT"), 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") (the REIT, AIMCO, AIMCO/Bethesda and
NHP Management, collectively referred to as "BORROWERS"), each lender from time
to time party hereto (collectively, "LENDERS" and individually, a "LENDER"),
BANK OF AMERICA, N.A. ("BANK OF AMERICA"), as Administrative Agent (in such
capacity "ADMINISTRATIVE AGENT"), and Issuing Lender, FLEET NATIONAL BANK
("FLEET"), as a Lender and Syndication Agent, and WACHOVIA BANK NA ("WACHOVIA"),
as a Lender and Documentation Agent.
RECITALS
WHEREAS, Borrowers, the Lenders named therein, Bank of
America, as administrative agent, issuing lender and a co-lead agent, Fleet, as
a co-lead agent and syndication agent, and First Union National Bank, as
documentation agent, entered into that certain Fourth Amended and Restated
Credit Agreement dated as of March 11, 2002, as amended by certain amendments
thereto including that certain Second Amendment to Fourth Amended and Restated
Credit Agreement, dated as of August 5, 2002 (as so amended, the "CREDIT
AGREEMENT");
WHEREAS, Borrowers desire to amend the Credit Agreement and
the Lenders have agreed to amend and restate the Credit Agreement.
NOW, THEREFORE, in consideration of the agreements, provisions
and covenants contained herein, the parties agree as follows:
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 DEFINED TERMS.
As used in this Agreement, the following terms shall have the
meanings set forth below:
"2003 TERM LOAN" means a term credit facility provided to the
Borrowers pursuant to that certain Term Loan Credit Agreement, dated as of May
30, 2003, by and among Borrowers, Bank of America, as administrative agent and
the financial institutions party thereto. The intercreditor relationship between
the lenders under the 2003 Term Loan, the lenders under the Casden Loan and the
Lenders shall be governed by the Intercreditor Agreement.
1
"ADJUSTED FIXED CHARGES" means, for any period, the sum of (i)
Total Interest Expense for such period, plus (ii) Total Scheduled Amortization
for such period (including Scheduled Amortization for Borrowers, Guarantors and
their respective Subsidiaries made pursuant to the Casden Loan Documents for
such period), plus (iii) dividends accrued (whether or not declared or payable)
on the preferred Stock and/or preferred Partnership Units of the Borrowers or
any of their Subsidiaries during such period. For purposes of determining
Scheduled Amortization under the Casden Loan Documents for the calculation of
Adjusted Fixed Charges for any period, that certain $97,000,000 principal
amortization installment required to be paid under the Casden Loan Documents on
or before March 11, 2003 shall be deemed to have been paid in equal quarterly
installments during each of the fiscal quarters ending June 30, 2002, September
30, 2002, December 31, 2002 and March 31, 2003, and that certain $97,000,000
principal amortization installment required to be paid under the Casden Loan
Documents on or before March 11, 2004 shall be deemed to have been paid in equal
quarterly installments during each of the fiscal quarters ending June 30, 2003,
September 30, 2003, December 31, 2003 and March 31, 2004.
"ADJUSTED FIXED CHARGES COVERAGE RATIO" means, as of any date
of determination, the ratio of (a) Adjusted Total Corporate EBITDA for the four
fiscal quarter period ending on such date to (b) Adjusted Fixed Charges during
such period.
"ADJUSTED TOTAL CORPORATE EBITDA" means, for any period, the
Total Corporate EBITDA for such period minus the Capital Expenditure Reserve as
of the last day of such period.
"ADJUSTED TOTAL NOI" means, for any period, Borrowers', the
Guarantors' and their respective downstream Affiliates' pro-rata share of Net
Operating Income, including the Borrowers', Guarantors' and their respective
downstream Affiliates' pro-rata share of Net Operating Income from
unconsolidated Persons, LESS the Capital Expenditure Reserve as of the last day
of such period.
"ADMINISTRATIVE AGENT" means Bank of America, in its capacity
as Administrative Agent under any of the Loan Documents, or any successor
administrative agent.
"ADMINISTRATIVE AGENT'S OFFICE" means Administrative Agent's
address and, as appropriate, account as set forth in Schedule 10.02, or such
other address or account as Administrative Agent hereafter may designate by
written notice to Borrowers and Lenders.
"ADMINISTRATIVE AGENT-RELATED PERSONS" means Administrative
Agent (including any successor agent), together with its Affiliates (including,
in the case of Administrative Agent, Banc of America Securities LLC), and the
officers, directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"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 diluted basis)
2
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" means this Fifth Amended and Restated Credit
Agreement, as amended to date and as further amended, restated, extended,
supplemented or otherwise modified in writing from time to time.
"AMENDMENT" means that certain Second Amendment to Fifth
Amended and Restated Credit Agreement, dated as of May 30, 2003 among Borrowers,
Lenders and Administrative Agent.
"AMENDMENT EFFECTIVE DATE" means the "Amendment Effective
Date" as defined in the Amendment.
"ANCILLARY SERVICES" means real property asset management,
accounting, ordering and inventory services and other property related services
provided by AIMCO/NHP Holdings, Inc. and NHP A&R Services, Inc. and any other
entities so designated by Borrowers as a provider of Ancillary Services and
acceptable to Administrative Agent in its reasonable discretion.
"APPLICABLE MARGIN" means from and after the Effective Date
the following amounts per annum, based upon the Fixed Charge Coverage Ratio as
set forth in the most recent Compliance Certificate received by Administrative
Agent pursuant to SECTION 6.02(b):
------------------------------------------------------------------------------------
APPLICABLE MARGIN
(IN BASIS POINTS PER ANNUM)
PRICING LEVEL FIXED CHARGE COVERAGE RATIO OFFSHORE RATE + BASE RATE +
------------------------------------------------------------------------------------
1 GREATER THAN
OR EQUAL TO 2.00:1 205 55
------------------------------------------------------------------------------------
2 GREATER THAN
OR EQUAL TO 1.85:1 but < 2.00:1 230 80
------------------------------------------------------------------------------------
3 GREATER THAN
OR EQUAL TO 1.65:1 but < 1.85.00:1 255 105
------------------------------------------------------------------------------------
4 < 1.65:1 265 115
------------------------------------------------------------------------------------
The Applicable Margin for all periods prior to the Revolving
Commitment Termination Date shall be in effect from the date the most recent
Compliance Certificate is received by Administrative Agent to but excluding the
date the next Compliance Certificate is received; PROVIDED, HOWEVER, that if
Borrowers fail to timely deliver the next Compliance Certificate, the Applicable
Margin from the date such Compliance Certificate was due to but excluding the
date such Compliance Certificate is received by Administrative Agent shall be
the
3
highest pricing level set forth above, and, thereafter, the pricing level
indicated by such Compliance Certificate when received.
In the event that the Maturity Date is extended past the
Revolving Commitment Termination Date pursuant to SECTION 2.13, for all periods
after the Revolving Commitment Termination Date, the Applicable Margin for Base
Rate Loans shall be 115 basis points per annum and the Applicable Margin for
Offshore Rate Loans shall be 265 basis points per annum.
"ASSIGNMENT AND ACCEPTANCE" means an Assignment and Acceptance
substantially in the form of EXHIBIT D.
"ATTORNEY COSTS" means and includes all reasonable fees and
disbursements of any law firm or other external counsel and the allocated cost
of internal legal services and all disbursements of internal counsel.
"AUDITED FINANCIAL STATEMENTS" means the audited consolidated
balance sheet of the REIT for the fiscal year ended December 31, 2002, and the
related consolidated statements of income and cash flows for such fiscal year of
the REIT.
"BANK OF AMERICA" means Bank of America, N.A.
"BAS" means Banc of America Securities LLC.
"BASE RATE" means a fluctuating rate per annum equal to the
higher of (a) the Federal Funds Rate plus 1/2 of 1% and (b) the rate of interest
in effect for such day as publicly announced from time to time by Bank of
America as its "prime rate" in effect at its principal office in Charlotte,
North Carolina. The prime rate is a rate set by Bank of America based upon
various factors including Bank of America's costs and desired return, general
economic conditions and other factors, and is used as a reference point for
pricing some loans, which may be priced at, above, or below such announced rate.
Any change in the "prime rate" announced by Bank of America shall take effect at
the opening of business on the day specified in the public announcement of such
change.
"BASE RATE LOAN" means a Loan which bears interest based on
the Base Rate.
"BORROWERS" has the meaning set forth in the introductory
paragraph hereto. Any reference to Borrowers herein shall be deemed to refer to
each Person constituting Borrowers, and the responsibilities, obligations and
covenants of each such Person under this Agreement and the other Loan Documents
shall be joint and several unless expressly stated otherwise herein or the
context otherwise requires; PROVIDED, HOWEVER, that the obligations of Borrowers
with respect to delivery of reports, financial statements and certifications may
be performed by AIMCO for or on behalf of any or all of the REIT, AIMCO/Bethesda
or NHP Management, as applicable.
"BORROWER PARTY" means Borrowers or any Person from time to
time party to a Loan Document other than (x) Lenders and any Affiliates of
Lenders, Administrative Agent, Collateral Agent, Issuing Lender, Syndication
Agent, Documentation Agent, or any Co-Lead
4
Agent or Co-Lead Arranger, (y) the Casden Lenders party to the Casden Credit
Agreement, and (z) the Term Lenders party to the Term Loan Credit Agreement.
"BORROWERS PLEDGE AGREEMENT" means collectively (i) the
Borrowers Pledge Agreement executed and delivered by the Borrower Parties party
thereto on March 11, 2002, substantially in the form of EXHIBIT G annexed to the
Credit Agreement, and (ii) the Ominibus Borrowers Pledge Agreement, as such
borrowers pledge agreements may thereafter be amended, supplemented or otherwise
modified from time to time.
"BORROWING" and "BORROW" each mean, a borrowing hereunder
consisting of Loans of the same type made on the same day and, other than in the
case of Base Rate Loans, having the same Interest Period.
"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 Lender's lending office is located
and, if such day relates to any Offshore Rate Loan, means any such day on which
dealings in Dollar deposits are conducted by and between banks in the offshore
Dollar interbank market.
"CAPITAL EXPENDITURES" means, for any period and with respect
to any Person, the aggregate of all expenditures by such Person for the
acquisition or leasing of fixed or capital assets or additions to equipment or
Property (including replacements, capitalized repairs and improvements during
such period, but excluding Enhancements and Initial Capital Expenditures) which
should be capitalized under GAAP on a consolidated balance sheet of such Person.
For the purpose of this definition, the purchase price of equipment which is
purchased simultaneously with the trade-in of existing equipment owned by such
Person or with insurance proceeds shall be included in "CAPITAL EXPENDITURES"
only to the extent of the gross amount of such purchase price, less the credit
granted by the seller of such equipment for such equipment being traded in at
such time, or the amount of such proceeds, as the case may be.
"CAPITAL EXPENDITURE RESERVE" means as of any date of
determination, the product of (a) $400 per apartment unit (subject to adjustment
as provided below), and (b) the sum of (i) the number of apartment units owned
by Borrowers, any Guarantors or any of their Wholly-Owned Subsidiaries during
such period PLUS (ii) the number of apartment units that constitute Non-Wholly
Owned Properties which is proportionate to the ownership interest of any
Borrower, any Guarantors or any of their Wholly-Owned Subsidiaries in such
Non-Wholly Owned Properties, measured at the end of the most recent calendar
quarter ending prior to such date of determination. Administrative Agent shall
review the Capital Expenditure Reserve as of the last day of each calendar year
and, based on such review, shall adjust the per apartment unit charge in clause
(a) hereof to the extent necessary to cause the Capital Expenditure Reserve to
equal or exceed Borrowers', Guarantors' and their respective Subsidiaries'
aggregate proportionate ownership interest of actual Capital Expenditures,
excluding Enhancements and Initial Capital Expenditures, for the four calendar
quarters preceding the date of such review.
"CAPITAL LEASE" means any leasing or similar arrangement
which, in accordance with GAAP, is classified as a capital lease.
5
"CAPITAL LEASE OBLIGATIONS" means, with respect to any Person,
the amount at which such Person's obligations under Capital Leases are required
to be carried on the balance sheet of such Person in accordance with GAAP.
"CASDEN" means, collectively, Casden Properties, Inc.,
National Partnership Investments Corp., and other Affiliates or related entities
thereof in existence as of the date immediately prior to the date of the Casden
Acquisition, directly or indirectly acquired by, or merged into, Borrowers
and/or their Affiliates from time to time as provided in the Casden Merger
Agreement.
"CASDEN ACQUISITION" means the acquisition and merger of the
Casden Assets contemplated under the Casden Merger Agreement, including, without
limitation, the "OP Unit Contribution Agreement" and the "Casden Contribution
Agreement" (as the foregoing terms are defined in the Casden Merger Agreement).
"CASDEN ASSETS" means any and all assets, rights and
interests, including, without limitation, all corporate interests, general and
limited partnership interests and limited liability company interests comprising
Casden, and all other Property and associated rights held or controlled,
directly or indirectly, by Casden acquired on or to be acquired after the
Initial Closing Date pursuant to the Casden Merger Agreement, and the interests
to be acquired pursuant to the "OP Unit Contribution Agreement" and the "Casden
Contribution Agreement" (as the foregoing terms are defined in the Casden Merger
Agreement).
"CASDEN CREDIT AGREEMENT" means that certain Interim Credit
Agreement dated as of March 11, 2002 between the REIT, AIMCO and NHP Management,
as borrowers, the financial institutions listed therein as lenders, and LCPI, as
administrative agent for the lenders party thereto, as amended by that certain
First Amendment and Waiver, dated as of June 12, 2002, that certain Second
Amendment, dated as of August 2, 2002, that certain Third Amendment, dated as of
February 14, 2003, that certain Fourth Amendment, dated as of May 9, 2003, and
that certain Fifth Amendment, dated as of May 30, 2003 and as hereafter may be
amended from time to time in accordance with the Intercreditor Agreement.
"CASDEN CREDIT AGREEMENT AMENDMENT" means that certain Fifth
Amendment to the Casden Credit Agreement dated as of May 30, 2003.
"CASDEN LENDERS" means the lenders from time to time party to
the Casden Credit Agreement.
"CASDEN LOAN" means that certain term loan facility in the
original principal amount of $287,000,000 which has been extended to the REIT,
AIMCO and NHP Management pursuant to the Casden Credit Agreement.
"CASDEN LOAN DOCUMENTS" means the Casden Credit Agreement and
the "Loan Documents" as defined therein, as amended from time to time in
accordance with the Intercreditor Agreement.
6
"CASDEN MERGER AGREEMENT" means that certain Agreement and
Plan of Merger dated as of December 3, 2001, by and among the REIT, Casden
Properties Inc. and XYZ Holdings LLC, including all documents executed in
connection therewith or attached as exhibits thereto; provided that copies of
such documents and exhibits were delivered to Administrative Agent prior to the
Initial Closing Date.
"CASH" means money, currency or a credit balance in any
demand, time, savings, passbook or like account with a bank, savings and loan
association, credit union or like organization, other than an account evidenced
by a negotiable certificate of deposit.
"CASH EQUIVALENTS" means:
(a) securities issued or fully guaranteed or insured by the
United States Government or any agency thereof and backed by the full
faith and credit of the United States having maturities of not more
than six months from the date of acquisition;
(b) certificates of deposit, time deposits, demand deposits,
eurodollar time deposits, repurchase agreements, reverse repurchase
agreements, or bankers' acceptances, having in each case a term of not
more than three (3) months, issued by Administrative Agent, or by any
U.S. commercial bank (or any branch or agency of a non-U.S. bank
licensed to conduct business in the U.S.) having combined capital and
surplus of not less than $100,000,000 whose short-term securities are
rated at least A-1 by S&P and P-1 by Xxxxx'x; PROVIDED, HOWEVER, such
Investments may not be made in amounts in excess of $1,000,000 with any
lender that is owed Indebtedness in excess of $1,000,000 by Borrowers
or any Subsidiary (other than (i) the Obligations and funds held by
Bank of America cash investments services, including, without
limitation, Nations Funds, FundsSweep and overnight repos, and (ii) any
balances of Borrowers or any Subsidiary held by any Lender, any Term
Lender or any Casden Lender so long as such balances are maintained in
compliance with Sections 10.05 and 10.06 herein) unless such bank
waives in writing (in form and substance satisfactory to the Requisite
Lenders) its right to set-off such Investment against such
Indebtedness;
(c) demand deposits on deposit in accounts maintained at
commercial banks having membership in the FDIC and in amounts not
exceeding the maximum amounts of insurance thereunder; and
(d) commercial paper of an issuer rated at least A-1 by S&P or
P-1 by Xxxxx'x and in either case having a term of not more than three
(3) months.
"CO-LEAD AGENTS" means Bank of America and Fleet. The Co-Lead
Agents, in their capacity as a Co-Lead Agent, shall have no duties or
responsibilities in addition to those of a Lender as provided under this
Agreement.
"CO-LEAD ARRANGERS" means BAS and Fleet Securities Inc., in
their capacity as co-lead arrangers hereunder.
"CODE" means the Internal Revenue Code of 1986, as amended
from time to time.
7
"COLLATERAL AGENT" means Bank of America, in its capacity as
Collateral Agent under the Intercreditor Agreement and the Borrowers Pledge
Agreement, or any successor Collateral Agent pursuant to SECTION 11.01(g).
"COLLATERAL DOCUMENTS" means the Borrowers Pledge Agreement
and all other instruments or documents delivered by Borrowers or any of their
Subsidiaries pursuant to this Agreement or any of the other Loan Documents in
order to grant to Administrative Agent, on behalf of the Lenders, or Collateral
Agent, on behalf of Lender Group, a Lien on any real, personal or mixed property
of that Person as security for all or a portion of the Collective Obligations.
"COLLECTIVE OBLIGATIONS" means, collectively, the Obligations
owing under this Agreement, the obligations owing under the Casden Credit
Agreement and the obligations owing under the Term Loan Credit Agreement.
"COMBINED COMMITMENTS" has the meaning assigned to such term
in the definition of "Commitment". The Combined Commitments are $400,000,000.
"COMMITMENT" means, for each Lender, the obligation of such
Lender to make Extensions of Credit in an aggregate principal amount not
exceeding the amount set forth opposite such Lender's name on SCHEDULE 2.01 at
any one time outstanding, as such amount may be reduced or adjusted from time to
time in accordance with this Agreement (collectively, the "COMBINED
COMMITMENTS").
"COMMITTED LOAN" means a Loan of any type made to Borrowers by
Lenders in accordance with their respective Pro Rata Shares pursuant to SECTION
2.01, except as otherwise provided herein.
"COMMITTED LOAN NOTE" means a promissory note made by
Borrowers in favor of a Lender evidencing Committed Loans made by such Lender,
substantially in the form of EXHIBIT C-1 (collectively, the "COMMITTED LOAN
NOTES").
"COMPLIANCE CERTIFICATE" means a certificate in the form of
EXHIBIT B, properly completed and signed by a Responsible Officer of Borrowers.
"CONSOLIDATED INTEREST EXPENSE" means for any Person and for
any period, the Interest Expense of such Person and its Subsidiaries for such
period determined on a consolidated basis in accordance with GAAP.
"CONSOLIDATED NET INCOME" means for any Person and for any
period, the net income (or loss) of such Person and its Subsidiaries on a
consolidated basis for such period taken as a single accounting period
determined in conformity with GAAP; PROVIDED that there shall be excluded (a)
any after-tax gains or losses attributable to dispositions of property, (b) (to
the extent not included in clause (a) above) any net extraordinary gains or net
non-cash extraordinary losses, and (c) income from Borrowers' and their
Subsidiaries' minority interests in operating partnerships.
8
"CONSOLIDATED NET WORTH" means, as of any date of
determination and without double counting any item, the sum of the capital stock
or other capital equity interests and additional paid-in capital plus retained
earnings (or minus accumulated deficits) of the Borrowers and their respective
Subsidiaries on a consolidated basis determined in conformity with GAAP.
"CONSOLIDATED OPERATIONS EBITDA" means, for any period, the
sum of the amounts for such period of (a) Consolidated Net Income, PLUS (b)
Consolidated Interest Expense, PLUS (c) total depreciation expense, PLUS (d)
total amortization expense, PLUS (e) provisions for taxes based on income, PLUS
(f) other non-cash items or non-cash charges reducing Consolidated Net Income
arising in the ordinary course of business (including impairment charges against
goodwill) LESS other non-cash items increasing Consolidated Net Income arising
in the ordinary course of business MINUS (g) to the extent included in
Consolidated Net Income, the sum of (1) Borrowers' and their Subsidiaries'
earnings or losses from unconsolidated partnerships and unconsolidated
subsidiaries PLUS (2) income from Borrowers' and their Subsidiaries' minority
interests in other entities PLUS (3) interest income from intercompany notes,
all of the foregoing, except as otherwise noted, as determined on a consolidated
basis for Borrowers and their Subsidiaries in conformity with GAAP.
"CONSTRUCTION/RENOVATION" means any New Construction or any
substantial rehabilitation, renovation and/or expansion by Borrowers or any of
their Subsidiaries or unconsolidated subsidiaries of any multi-family Property
which, in the case of rehabilitation, renovation or expansion, involves the
repositioning or upgrading of such multi-family Property with respect to
comparable multi-family properties located in the proximate geographic area.
Properties under Construction/Renovation as of the Amendment Effective Date are
listed on SCHEDULE 1.01A attached hereto.
"CONTINGENT ACQUISITION NOTE" means, collectively, those four
Promissory Notes, in respect of each Real Estate Company, in the aggregate
maximum principal amount of $655,000,000 from AIMCO, as maker, in favor of XYZ
Holdings LLC, as holder, pursuant to the Tri-Party Agreement secured by a pledge
of the membership interests in each of the Real Estate Companies owned by a
Subsidiary of the REIT, which secured promissory notes represent (i) the
$619,000,000 purchase price for the Real Estate Companies, less the aggregate
amount of construction loans to be refinanced, and (ii) a $36,000,000 earnout
payment for the Real Estate Companies. "Contingent Acquisition Note" shall not
include any renewal, extension or refinancing of such Indebtedness.
"CONTINUATION" and "CONTINUE" mean, with respect to any
Offshore Rate Loan, the continuation of such Offshore Rate Loan as an Offshore
Rate Loan on the last day of the Interest Period for such Loan.
"CONTRACTUAL OBLIGATION" means, as to any Person, any
provision of any security issued by such Person or of any agreement, instrument
or undertaking to which such Person is a party or by which it or any of its
property is bound.
"CONTROL AGREEMENT" means, with respect to any Letter of
Credit Cash Collateral Account of Borrowers, a Control Agreement, in the form of
Exhibit K, executed and delivered
9
by Borrowers, the depository institution at which such account is maintained and
the Administrative Agent from time to time, as any such agreement may be
amended, supplemented or otherwise modified from time to time.
"CONTROLLED GROUP" means Borrowers and all Persons (whether or
not incorporated) under common control or treated as a single employer with
Borrowers pursuant to Section 414(b), (c), (m) or (o) of the Code.
"CONVERSION" and "CONVERT" mean, with respect to any Loan, the
conversion of such Loan from or into another type of Loan.
"CREDIT RATING" means a credit rating assigned to the senior
unsecured indebtedness of the REIT and AIMCO by S&P and/or Xxxxx'x.
"DEBT SECURITIES" means any arrangement, bonds, debentures,
notes or other evidences of Indebtedness, secured or unsecured, convertible,
subordinated or otherwise, or in general any instruments evidencing Indebtedness
commonly known as "securities" or any certificates of interest, shares or
participations in temporary or interim certificates for the purchase or
acquisition of, or any right to subscribe to, purchase or acquire, any of the
foregoing.
"DEBTOR RELIEF LAWS" means the Bankruptcy Code of the United
States of America, and all other liquidation, conservatorship, bankruptcy,
assignment for the benefit of creditors, moratorium, rearrangement,
receivership, insolvency, reorganization, or similar debtor relief Laws of the
United States of America or other applicable jurisdictions from time to time in
effect affecting the rights of creditors generally.
"DEFAULT" means any event that, with the giving of any notice,
the passage of time, or both, would be an Event of Default.
"DEFAULT RATE" means an interest rate equal to the Base Rate
PLUS the Applicable Margin applicable to Base Rate Loans PLUS 3.0% per annum, to
the fullest extent permitted by applicable Laws; PROVIDED, HOWEVER, that with
respect to an Offshore Rate Loan, the Default Rate shall be an interest rate
equal to the interest rate (including any Applicable Margin) otherwise
applicable to such Loan plus 3.0% per annum.
"DESIGNATED DEPOSIT ACCOUNT" means a deposit account to be
maintained by Borrowers with Bank of America, N.A. as from time to time
designated by Borrowers by written notification to Administrative Agent.
"DEVCO" means Casden Properties LLC.
"DEVCO LLC AGREEMENT" means the limited liability company
agreement of DevCo.
"DISPOSITION", "DISPOSE", or "DISPOSED" means the sale,
transfer, license or other disposition (including any sale and leaseback
transaction) of any property, including, without limitation, any contract
rights, or intangible property or rights to receive revenue or cash flow, by
10
any Person, including any sale, assignment, transfer or other disposal with or
without recourse of any notes or accounts receivable or any rights and claims
associated therewith. "DISPOSITIONS" shall not include the incurrence of
Ordinary Course Liens or the transfer of Partnership Units to third party
vendors or service providers in lieu of cash payments and in consideration of
services performed on behalf of the Borrowers or any Subsidiary thereof.
"DOCUMENTATION AGENT" means, as of the Initial Closing Date,
Wachovia Bank NA. Documentation Agent shall have no responsibilities or duties
in addition to those of a Lender as provided under this Agreement.
"DOLLAR" and "$" means lawful money of the United States of
America.
"EBITDA" means, for any period, the sum determined in
accordance with GAAP, of the following, for any Person (a) the net income (or
net loss) of such Person during such period PLUS (b) all amounts on a
consolidated basis treated as expenses or non-cash charges for depreciation,
Interest Expense and the amortization of intangibles of any kind to the extent
included in the determination of such net income (or loss) (including impairment
charges against goodwill), PLUS (c) all accrued taxes on or measured by income
to the extent included in the determination of such net income (or loss);
PROVIDED, HOWEVER, that net income (or loss) shall be computed for these
purposes without giving effect to (i) extraordinary losses or extraordinary
gains (including gains or losses from the sale of Properties), (ii) any
amortization of capitalized financing expenses or charges related to
restructuring of Indebtedness (excluding such expenses or charges in connection
with renewals or extensions of existing Indebtedness in the Ordinary Course of
Business), and (iii) such Person's minority interests in operating partnerships.
"EFFECTIVE DATE" means February 14, 2003.
"ELIGIBLE ASSIGNEE" means (a) a financial institution
organized under the laws of the United States, or any state thereof, and having
a combined capital and surplus of at least $500,000,000; (b) a commercial bank
organized under the laws of any other country which is a member of the
Organization for Economic Cooperation and Development, or a political
subdivision of any such country, and having a combined capital and surplus of at
least $500,000,000, provided that such bank is acting through a branch or agency
located in the United States; (c) a Person that is engaged, among other things,
in the business of commercial banking and/or commercial loans (including
purchasing or investing in such loans), and that is (i) a Subsidiary of a
Lender, (ii) a Subsidiary of a Person of which a Lender is a Subsidiary, (iii) a
Person of which a Lender is a Subsidiary; or (iv) a Related Fund of Lender; (d)
another Lender; (e) any other person which is an "accredited investor" (as
defined in Regulation D under the Securities Act) which extends credit or buys
loans as one of its businesses, including insurance companies, mutual funds and
lease finance companies in each case with a capital and surplus of at least
$500,000,000; and (f) an investment fund which deals in commercial loans and has
assets of at least $100,000,000; PROVIDED, HOWEVER, that in no event may an
Affiliate of Borrowers be an Eligible Assignee.
"ENCUMBERED PROPERTY DEBT COVERAGE RATIO" means, as of the
last day of any fiscal quarter, the ratio of (a) Adjusted Total NOI from all
real property assets subject to Liens
11
during the four fiscal quarter period ending on such date TO (b) Borrowers', the
Guarantors' and their Subsidiaries' pro rata share of the aggregate debt service
(including all scheduled principal and interest payments, but excluding balloon
payments) on all such real property assets subject to Liens during such period.
"ENHANCEMENTS" means any material item of Capital Expenditures
(other than an Initial Capital Expenditure) which adds a new feature or revenue
source to an existing Property and which is not properly characterized as an
Ordinary Course of Business Capital Expenditure.
"ENVIRONMENTAL CLAIMS" means all claims, however asserted, by
any Governmental Authority or other Person alleging potential liability or
responsibility for violation of any Environmental Law or for release or injury
to the environment or threat to public health, personal injury (including
sickness, disease or death), property damage, natural resources damage, or
otherwise alleging liability or responsibility for damages (punitive or
otherwise), cleanup, removal, remedial or response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional and unintentional, negligent and non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spills, leaks, discharges,
emissions or releases) of any Hazardous Material at, in, or from Property,
whether or not owned by Borrowers, or (b) any other circumstances forming the
basis of any violation, or alleged violation, of any Environmental Law.
"ENVIRONMENTAL LAWS" means all federal, state or local laws,
statutes, common law duties, rules, regulations, ordinances and codes, together
with all administrative orders, directed duties, requests, licenses,
authorizations and permits of, and agreements with, any Governmental Authority,
in each case relating to environmental, health, safety and land use matters
applicable to any property.
"ERISA" means the Employee Retirement Income Security Act of
1974 and any regulations issued pursuant thereto, as amended from time to time.
"ERISA AFFILIATE" means any trade or business (whether or not
incorporated) under common control with any Borrower within the meaning of
Sections 414(b) or (c) of the Code (and Sections 414(m) and (o) of the Code for
purposes of provisions relating to Section 412 of the Code).
"ERISA EVENT" means (a) a Reportable Event with respect to a
Pension Plan; (b) a withdrawal by any Borrower or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in which it was
a substantial employer (as defined in Section 4001(a)(2) of ERISA) or a
cessation of operations that is treated as such a withdrawal under Section
4062(e) of ERISA; (c) a complete or partial withdrawal by any Borrower or any
ERISA Affiliate from a Multiemployer Plan or notification that a Multiemployer
Plan is in reorganization or that it intends to terminate; (d) the filing of a
notice of intent to terminate, the treatment of a Plan amendment as a
termination under Sections 4041 or 4041A of ERISA, or the commencement of
proceedings by the PBGC to terminate a Pension Plan or Multiemployer Plan; (e)
an event or condition which might reasonably be expected to constitute grounds
under
12
Section 4042 of ERISA for the termination of, or the appointment of a trustee to
administer, any Pension Plan or Multiemployer Plan; or (f) the imposition of any
lien or liability pursuant to Sections 401(a)(29) or 412(n) of the Code or under
Title IV of ERISA, other than PBGC premiums due but not delinquent under Section
4007 of ERISA, upon any Borrower or any ERISA Affiliate.
"EURODOLLAR RESERVE PERCENTAGE" means, for any day during any
Interest Period, the reserve percentage (expressed as a decimal, rounded upward
to the next 1/100th of 1%) in effect on such day, whether or not applicable to
any Lender, under regulations issued from time to time by the Board of Governors
of the Federal Reserve System for determining the maximum reserve requirement
(including any emergency, supplemental or other marginal reserve requirement)
with respect to Eurocurrency funding (currently referred to as "Eurocurrency
liabilities"). The Offshore Rate for each outstanding Offshore Rate Loan shall
be adjusted automatically as of the effective date of any change in the
Eurodollar Reserve Percentage.
"EVENT OF DEFAULT" means any of the events specified in
SECTION 8.
"EXCEPTIONS TO NONRECOURSE" means, with respect to
Indebtedness secured by mortgage loans which are not Recourse to the borrower
thereof, the customary exceptions to the nonrecourse nature of such mortgage
loans which include liability of the borrower and/or its principals for fraud,
misrepresentations, failure to insure, misapplication of insurance or
condemnation proceeds and waste, in each case with respect to the property
encumbered by the mortgage loan.
"EXCHANGE ACT" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"EXISTING LETTER OF CREDIT" means each Letter of Credit (as
defined in the Original Agreement) outstanding on the Initial Closing Date that
has not expired or been cancelled as of the Initial Closing Date.
"EXTENSION OF CREDIT" means (a) the Borrowing of Loans, (b)
the Conversion or Continuation of any Loans, or (c) any Letter of Credit Action
or any other action which has the effect of increasing the amount of any Letter
of Credit, extending the maturity of any Letter of Credit or making any material
modification to any Letter of Credit or the reimbursement of drawings thereunder
(collectively, the "EXTENSIONS OF CREDIT").
"FEDERAL FUNDS RATE" means, for any day, the rate per annum
(rounded upwards, if necessary, to the nearest 1/100 of 1%) equal to the
weighted average of the rates on overnight Federal funds transactions with
members of the Federal Reserve System arranged by Federal funds brokers on such
day, as published by the Federal Reserve Bank of New York on the Business Day
next succeeding such day; PROVIDED that (a) if such day is not a Business Day,
the Federal Funds Rate for such day shall be such rate on such transactions on
the next preceding Business Day as so published on the next succeeding Business
Day, and (b) if no such rate is so published on such next succeeding Business
Day, the Federal Funds Rate for such day shall be
13
the average rate charged to Bank of America on such day on such transactions as
determined by Administrative Agent.
"FEE PAYMENT DATE" is defined in Section 2.09(a).
"FEE PAYMENT PERIOD" means, for any period, the applicable
period designated in Section 2.09(a).
"FINANCE SUBSIDIARY" means AIMCO Properties Finance
Partnership, L.P., a Delaware limited partnership.
"FINANCE SUBSIDIARY LOAN" means, collectively, (i) the loan in
the amount of $95,387,690 made by the Finance Subsidiary to the REIT on or
around September 12, 1995, as evidenced by that certain Promissory Note, dated
as of September 12, 1995, executed by the REIT, in favor of the Finance
Subsidiary, which loan has been assumed by AIMCO pursuant to that certain
Redemption Agreement, dated as of April 15, 1996, between the REIT and AIMCO,
among others, and (ii) the loan in the amount of $3,000,000 made by the Finance
Subsidiary to the REIT on or around September 6, 1995, as evidenced by that
certain Promissory Note, dated as of September 6, 1995, executed by the REIT, in
favor of the Finance Subsidiary.
"FIXED CHARGE COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Adjusted Total Corporate EBITDA for the four
fiscal quarter period ending on such date TO (b) Fixed Charges during such
period.
"FIXED CHARGES" means, for any period, the sum of (i) Total
Interest Expense for such period, PLUS (ii) Total Scheduled Amortization for
such period (excluding Scheduled Amortization for Borrowers under the Casden
Loan and additional amortization under the Casden Loan and the Casden Loan
Documents for such period), PLUS (iii) dividends accrued (whether or not
declared or payable) on the preferred Stock and/or preferred Partnership Units
of the Borrowers or any of their Subsidiaries during such period.
"FLEET" means Fleet National Bank, N.A.
"FREE CORPORATE CASH FLOW" means, for any period, Total
Corporate EBITDA for such period MINUS the sum of (a) Total Interest Expense for
such period (excluding interest paid or accrued in respect of the Obligations),
PLUS (b) Borrowers', the Guarantors' and their respective Subsidiaries' pro-rata
share of all repayments of principal of Indebtedness (excluding (i) any
principal amortization consisting of a balloon payment of Indebtedness in
connection with the repayment in full of such Indebtedness, and (ii) principal
amortization in respect of the Obligations, PLUS (c) Borrowers', the Guarantors'
and their respective Subsidiaries' pro-rata share of taxes based on income paid
for such period, PLUS (d) preferred dividends accrued (whether or not declared
or payable) on the preferred Stock and/or Partnership Units of the Borrowers or
any of their Subsidiaries during such period, PLUS (e) an amount equal to 90% of
the aggregate amount of REIT taxable income as reported on the REIT's federal
income tax return (Form 1120-REIT) or as estimated from time to time based on
current financial results for the period determined in accordance with all
applicable requirements of the Code, PLUS (f) the Capital Expenditure Reserve as
of the last day of such period of determination; PROVIDED,
14
HOWEVER, that, for purposes of determining Free Corporate Cash Flow, in no event
shall any calculation of Total Corporate EBITDA include any Consolidated Net
Income or net income (or loss, as applicable) in respect of any Property which
has been Disposed of by Borrowers or any Subsidiary thereof, or any
unconsolidated partnership or subsidiary thereof.
"FUNDS FROM OPERATIONS" means, with respect to Borrowers and
their Subsidiaries on a consolidated basis, net income calculated in accordance
with GAAP, excluding gains or losses from debt restructuring and sales of
property, plus real estate depreciation and amortization (excluding amortization
of financing costs), plus amortization associated with the purchase of property
management companies, and after adjustments for unconsolidated partnerships and
joint ventures (with adjustments for unconsolidated partnerships and joint
ventures calculated to reflect funds from operations on the same basis) together
with adjustments for the non-cash deferred portion of any income tax provision
for unconsolidated subsidiaries and the payment of dividends on preferred Stock,
as interpreted by the National Association of Real Estate Investment Trusts in
its March, 1995, White Paper on Funds From Operations.
"GAAP" means generally accepted accounting principles and
practices at any date of determination in respect of a business conducting a
business the same as or similar to that of Borrowers, including, without
limitation, those set forth in applicable bulletins, opinions, pronouncements,
statements and interpretations issued by the Accounting Principles Board, the
American Institute of Certified Public Accountants and the Financial Accounting
Standard Board, which are applicable to the circumstances as of the date of
determination.
"GOVERNING STATE" means the State of California.
"GOVERNMENTAL AUTHORITY" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-governmental agency, authority, board,
bureau, commission, department, instrumentality, central bank or public body, or
(c) any court, administrative tribunal or public utility.
"GP CORP" means AIMCO-GP, Inc., a Delaware corporation. GP
Corp is a Wholly-Owned Subsidiary of the REIT and is the general partner of
AIMCO.
"GP LOAN NOTE" means a promissory note substantially in the
form of Exhibit J attached hereto, whether secured or unsecured, evidencing a GP
Loan.
"GP LOANS" means that certain Indebtedness loaned by AIMCO to
its Affiliates, whether secured or unsecured, evidenced by GP Loan Notes in an
aggregate principal amount of approximately $469,558,455 outstanding as of March
31, 2003 and such Indebtedness is set forth in more detail on SCHEDULE 1.01B
hereto.
"GROSS ASSET VALUE" means as of any date of determination, the
sum of the following, determined for Borrowers, the Guarantors and their
respective Subsidiaries:
Cash (including Restricted Cash) and Cash Equivalents of both consolidated and
unconsolidated Persons, which Cash and Cash Equivalents are owned, directly or
indirectly, by Borrowers, the Guarantors or their respective Subsidiaries as of
such date of determination;
15
GP Loans valued at net realizable value as of such date of determination
determined in accordance with GAAP;
with respect to all real estate assets wholly or partially owned by such
Person(s) throughout the most recent four calendar quarters ending on or prior
to such date of determination (other than Real Property Assets Under
Development), the Adjusted Total NOI attributable to such real estate assets for
such four quarter period DIVIDED BY 9.00%;
with respect to all real estate assets wholly or partially owned by such
Person(s) on such date of determination, but acquired less than four calendar
quarters but at least one calendar quarter preceding such date of determination
(other than Real Property Assets Under Development), the Adjusted Total NOI
attributable to such real estate assets for the number of full calendar quarters
that such Person(s) owned such assets measured on an annualized basis and
DIVIDED BY 9.00%;
with respect to all real estate assets owned by such Person(s) on such date of
determination, but acquired less than one calendar quarter preceding such date
of determination (other than Real Property Assets Under Development), 95% of the
purchase price paid by such Person(s) for such assets;
the gross book value of Real Property Assets Under Development as of such date
of determination; and
an amount equal to 400% of Management EBITDA for the four consecutive fiscal
quarter period preceding such date of determination.
"GROUP A LENDERS" means, on any date of determination, the
Lenders which are party to this Agreement and which are not party to the Casden
Loan Documents and which have no Affiliates who are party to the Casden Loan
Documents. If a Lender is not a Group A Lender, such Lender shall be deemed to
be a Group B Lender.
"GROUP B LENDERS" means, on any date of determination, the
Lenders which are party to this Agreement and which are party to the Casden Loan
Documents or which have Affiliates who are party to the Casden Loan Documents.
"GUARANTY" means a guaranty of the Obligations, in the form of
EXHIBIT H attached hereto, and any documents relating to such guaranty as
Administrative Agent requires, duly executed by the Guarantors, together with
the guaranties delivered pursuant to SECTION 6.16(c), and "Guaranties" means all
of such guaranties collectively.
"GUARANTOR" means each Subsidiary of any Borrower that
executes and delivers a counterpart of any Guaranty on the Amendment Effective
Date or from time to time thereafter pursuant to SECTION 6.16(c), and
collectively are referred to herein as the "GUARANTORS". The Guarantors as of
the Amendment Effective Date are set forth on 1.01C attached hereto.
"GUARANTY OBLIGATION" means, as to any Person, any (a)
guaranty by that Person of Indebtedness of, or other obligation payable or
performable by, any other Person or (b) assurance, agreement, letter of
responsibility, letter of awareness, undertaking or arrangement
16
given by that Person to an obligee of any other Person with respect to the
payment or performance of an obligation by, or the financial condition of, such
other Person, whether direct, indirect or contingent, including any purchase or
repurchase agreement covering such obligation or any collateral security
therefor, any agreement to provide funds (by means of loans, capital
contributions or otherwise) to such other Person, any agreement to support the
solvency or level of any balance sheet item of such other Person or any
"keep-well" or other arrangement of whatever nature given for the purpose of
assuring or holding harmless such obligee against loss with respect to any
obligation of such other Person; PROVIDED, HOWEVER, that the term Guaranty
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Guaranty
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the related primary obligation, or portion thereof, covered by such
Guaranty Obligation or, if not stated or determinable, the maximum reasonably
anticipated liability in respect thereof as determined by the Person in good
faith.
"HAZARDOUS MATERIALS" means (i) all those substances which are
regulated by, or which may form the basis of liability under, any Environmental
Law, including all substances identified under any Environmental Law as a
pollutant, contaminant, hazardous waste, hazardous constituent, special waste,
hazardous substance, hazardous material, or toxic substance, or petroleum or
petroleum-derived substance or waste, (ii) any other materials or pollutants
that (a) pose a hazard to any Property of Borrowers or to Persons on or about
such Property or (b) cause such Property to be in violation of any Environmental
Laws, (iii) asbestos in any form which is or could become friable, urea
formaldehyde foam insulation, electrical equipment which contains any oil or
dielectric fluid containing levels of polychlorinated biphenyls in excess of
fifty parts per million, and (iv) any other chemical, material, substance, or
waste, exposure to which is prohibited, limited, or regulated by any
Governmental Authority or may or could pose a hazard to the health and safety of
the owners, occupants, or any Persons surrounding the relevant Property.
"HUD" means the United States Department of Housing and Urban
Development.
"INCREASE EFFECTIVE DATE" is defined in SECTION 2.01(e).
"INDEBTEDNESS" of any Person means without duplication, (a)
all indebtedness for borrowed money, (b) all obligations issued, undertaken or
assumed as the deferred purchase price of Property or services, (c) all direct
or contingent obligations with respect to surety bonds, letters of credit,
bankers' acceptances and similar instruments (in each case, to the extent
material or noncontingent), (d) all obligations evidenced by notes, bonds,
debentures or similar instruments, including obligations so evidenced incurred
in connection with the acquisition of Properties, (e) all indebtedness created
or arising under any conditional sale or other title retention agreement, or
incurred as financing, in either case with respect to Properties acquired by the
Person (even though the rights and remedies of the seller or bank under such
agreement in the event of default are limited to repossession or sale of such
properties), (f) all Capital Lease Obligations, (g) all net obligations with
respect to Swap Agreements, (h) all obligations (other than, in the case of the
REIT, the obligation to acquire Partnership Units in exchange for shares of
common Stock of the REIT) to purchase, redeem, or acquire any Stock of such
Person or its Affiliates that, by its terms or by the terms of any security into
which it is convertible or
17
exchangeable, (x) is, or upon the happening of any event (other than a change of
control event as may be set forth in certain securities of the REIT and/or AIMCO
which has not occurred prior to the date of determination hereunder) or the
passage of time would be, required to be redeemed or repurchased by such Person
or its Affiliates, including at the option of the holder, in whole or in part,
or (y) has, or upon the happening of an event (other than the above change of
control event as may be set forth in certain securities of the REIT and/or AIMCO
which has not occurred prior to the date of determination hereunder) or passage
of time would have, a redemption or similar payment due, in each case of clauses
(x) and (y) before the date which is the one (1) year anniversary of the then
effective Maturity Date (excluding, however, any such preferred Stock which is
convertible only into common Stock of the REIT), (i) any direct or contingent
obligations or liabilities under any equity forward agreements or transactions
or under any similar arrangements or transactions, (j) all indebtedness referred
to in clauses (a) through (i) above secured by (or for which the holder of such
Indebtedness has an existing right, contingent or otherwise, to be secured by)
any Lien upon or in Properties (including accounts and contract rights) owned by
such Person, even though such Person has not assumed or become liable for the
payment of such Indebtedness, and (k) all Guaranty Obligations in respect of
indebtedness or obligations of others of the kinds referred to in clauses (a)
through (i) above. "INDEBTEDNESS" shall also include such Person's share of the
Indebtedness of any partnership or joint venture in which such Person, directly
or indirectly, holds any interest, and any direct or indirect Recourse or
contingent obligations of such Person with respect to Indebtedness of such
partnership or joint venture in excess of its proportionate share. Solely for
purposes of SECTION 7.14 only, "INDEBTEDNESS" shall exclude Intra-Company Debt,
security deposits, accounts payable and accrued liabilities, any prepaid rent
(as such terms are defined under GAAP) and that portion of the Contingent
Acquisition Note, if any, which is not required under GAAP to be shown as
indebtedness of any Borrower or any of their Subsidiaries at any time (including
in the event of any acceleration thereof).
"INDEMNIFIED LIABILITIES" has the meaning set forth in Section
10.13.
"INITIAL CAPITAL EXPENDITURES" means Capital Expenditures
incurred as part of a program of spending to improve any Properties acquired
after the Initial Closing Date; PROVIDED that such Initial Capital Expenditures
are (x) identified prior to any such acquisition of Property and (y) completed
within one year after the closing of such acquisition of Property.
"INITIAL CLOSING DATE" means March 11, 2002.
"INSTITUTIONAL JOINT VENTURE" means a Permitted Joint Venture
which either (a) involves a financial institution or sophisticated investor
which is primarily contributing Cash to the Permitted Joint Venture in exchange
for equity interests therein and the Borrowers, Guarantors or their Subsidiaries
directly or indirectly contributing Property to the Permitted Joint Venture in
exchange for equity interests therein, or (b) involves the Borrowers, Guarantors
or their Subsidiaries and one or more other Persons and where the Permitted
Joint Venture's Organization Documents provide at any time that such other
Persons may receive preferential returns or distributions with respect to the
assets and/or cash flow of such Permitted Joint Venture, or (c) is set forth on
SCHEDULE 1.01F attached hereto. Before (but in no event later than 10 Business
Days before) the consummation of the formation of any new Institutional Joint
18
Venture, Borrower shall provide the Administrative Agent with copies of the
proposed Organization Documents and promptly after such formation provide
Administrative Agent with executed copies of the final Organization Documents.
SCHEDULE 1.01F attached hereto sets forth all entities which are Institutional
Joint Ventures in existence or in negotiation on the Amendment Effective Date.
"INTERCREDITOR AGREEMENT" means the Amended and Restated
Intercreditor and Collateral Agency Agreement entered into as of the Amendment
Effective Date between Borrowers, Administrative Agent, borrowers to the Term
Loan Credit Agreement, Bank of America, in its capacity as administrative agent
under the Term Loan Credit Agreement, borrowers party to the Casden Credit
Agreement, and LCPI, in its capacity as administrative agent under the Casden
Loan, and Collateral Agent, attached hereto as Exhibit L, as amended from time
to time, as provided therein. The Intercreditor Agreement shall be binding on
and inure to the benefit of each lender in the Lender Group.
"INTEREST COVERAGE RATIO" means, as of any date of
determination, the ratio of (a) Adjusted Total Corporate EBITDA for the four
fiscal quarter period ending on such date TO (b) Total Interest Expense during
such period.
"INTEREST EXPENSE" means, for any Person and for any period,
without double counting any item, the sum of (x) gross interest expense paid in,
incurred or accrued during such period by such Person (including all
commissions, discounts, fees and other charges in connection with standby
letters of credit and similar instruments), including any amounts as capitalized
interest, plus (y) dividends paid in, incurred or accrued during such period by
such Person with respect to Trust Based Convertible Preferred Securities, PLUS
(z) the portion of the upfront costs and expenses for Swap Agreements entered
into by such Person (to the extent not included in gross interest expense)
fairly allocated to such Swap Agreements as expenses for such period, as
determined for such Person in accordance with GAAP; PROVIDED that all interest
expense accrued by Borrowers and their respective Subsidiaries during such
period, even if not payable on or before the Maturity Date, shall be included
with "INTEREST EXPENSE". Notwithstanding the foregoing, amortization of loan
costs and interest accrued under any Intra-Company Debt shall not be included
within "INTEREST EXPENSE" for any purposes hereof.
"INTEREST PAYMENT DATE" means (a) as to any Base Rate Loan and
any Swing Line Loan, the last day of each calendar month; (b) as to any Offshore
Rate Loan, the last day of each relevant Interest Period and any date that such
Loan is prepaid in whole or in part; PROVIDED, HOWEVER, that if any Interest
Period for an Offshore Rate Loan exceeds three months, interest shall also be
paid on the date which falls every three months after the beginning of such
Interest Period; and (c) as to all Loans, the Maturity Date; PROVIDED FURTHER
that interest accruing at the Default Rate shall be payable from time to time at
any time upon demand of Administrative Agent.
"INTEREST PERIOD" means, for each Offshore Rate Loan, (a)
initially, the period commencing on the date such Offshore Rate Loan is
disbursed, Continued as, or Converted into, an Offshore Rate Loan and (b)
thereafter, the period commencing on the last day of the
19
preceding Interest Period, and ending, in each case, on the earlier of (x) the
Maturity Date, or (y) one, two, three or six months thereafter, as requested by
Borrowers; PROVIDED that:
(i) any Interest Period that would otherwise end on a
day that is not a Business Day shall be extended to the next
succeeding Business Day unless such Business Day falls in
another calendar month, in which case such Interest Period
shall end on the next preceding Business Day;
(ii) any Interest Period which begins on the last
Business Day of a calendar month (or on a day for which there
is no numerically corresponding day in the calendar month at
the end of such Interest Period) shall end on the last
Business Day of the calendar month at the end of such Interest
Period; and
(iii) unless Administrative Agent otherwise consents,
there may not be more than seven (7) Interest Periods in
effect at any time.
"INTERIM LINCOLN PLACE FINANCING" means Indebtedness of
Borrowers, Guarantors or their Subsidiaries used solely as interim, short term
financing for pre-development and development activity for Lincoln Place
Apartments, the amount, interest rate, terms and maturity date of which shall be
satisfactory to the Administrative Agent.
"INTRA-COMPANY DEBT" means all Indebtedness (whether
book-entry or evidenced by a term, demand or other note or other instrument)
owed by Borrowers, any Guarantor or any of their respective Subsidiaries to
Borrowers, any Guarantor or any of their respective Subsidiaries; PROVIDED that
all such Intra-Company Debt owed by Borrowers or any Guarantor shall be
subordinated in right of payment to the payment in full of the Obligations in
accordance with the terms of the Intra-Company Loan Subordination Agreement.
"INTRA-COMPANY LOAN SUBORDINATION AGREEMENT" means a
Subordination Agreement, in the form attached hereto as EXHIBIT I, with respect
to Intra-Company Debt (including the Finance Subsidiary Loan), in favor of
Administrative Agent for the ratable benefit of Lenders, and entered into by
each of the lenders of the Intra-Company Debt and Borrowers.
"INVESTMENT" means, as to any Person, any acquisition or any
investment by such Person, whether by means of the purchase or other acquisition
of Stock, Partnership Units or other securities or Property of any other Person
or by means of a loan, creating a debt, capital contribution, guaranty or other
debt or equity participation or interest in any other Person, including any
partnership and joint venture interests in such other Person. For purposes of
covenant compliance, the amount of any Investment shall be the amount actually
invested as of any date of determination (taking into account any redemption,
repayment or partial liquidation thereof), without adjustment for subsequent
increases or decreases in the value of such Investment.
"IRS" means the Internal Revenue Service.
"ISSUING LENDER" means Bank of America, or any successor
issuing lender hereunder.
20
"KNOWLEDGE OF BORROWERS" means the actual knowledge (after
reasonable inquiry) of any of the officers of any Borrower and each other Person
with executive responsibility for any aspect of such Borrower's business.
"LAWS" or "LAW" means, collectively, all international,
foreign, federal, state and local statutes, treaties, rules, guidelines,
regulations, ordinances, codes and administrative or judicial precedents or
authorities, including without limitation the interpretation or administration
thereof by any Governmental Authority charged with the enforcement,
interpretation or administration thereof, in each case whether or not having the
force of law.
"LCPI" means Xxxxxx Commercial Paper Inc., in its capacity as
administrative agent for the Casden Loan.
"LENDER" means each lender from time to time party hereto and
Issuing Lender.
"LENDER GROUP" means, collectively, the Term Lenders, the
Casden Lenders and the Revolver Lenders.
"LENDING OFFICE" means, as to any Lender, the office or
offices of such Lender described as such on SCHEDULE 10.02, or such other office
or offices as such Lender may from time to time notify Borrowers and
Administrative Agent.
"LETTER OF CREDIT" means any letter of credit issued or
outstanding hereunder.
"LETTER OF CREDIT ACTION" means the issuance, supplement,
amendment, renewal, extension, modification or other action relating to a Letter
of Credit.
"LETTER OF CREDIT APPLICATION" means an application for a
Letter of Credit Action as shall at any time be in use by Issuing Lender.
"LETTER OF CREDIT CASH COLLATERAL ACCOUNT" means a blocked
deposit account at Bank of America with respect to which Borrowers hereby grant
a security interest in such account to Administrative Agent for and on behalf of
Lenders as security for Letter of Credit Usage and with respect to which
Borrowers agree to execute and deliver from time to time such documentation as
Administrative Agent may reasonably request to further assure and confirm such
security interest, including without limitation a Control Agreement.
"LETTER OF CREDIT COMMITMENT" means, as of any date of
determination, an amount equal to the lesser of (x) $30,000,000 and (y) 10% of
the Combined Commitments then in effect.
"LETTER OF CREDIT EXPIRATION DATE" means the date which is the
earlier of (x) the one year anniversary of the date of issuance, extension or
renewal of such Letter of Credit and (y) thirty (30) days prior to the Revolving
Commitment Termination Date.
"LETTER OF CREDIT USAGE" means, as at any date of
determination, the aggregate undrawn face amount of outstanding Letters of
Credit PLUS the aggregate amount of all drawings
21
under the Letters of Credit honored by Issuing Lender and not reimbursed to
Issuing Lender by Borrowers or converted into Committed Loans.
"LIEN" means any mortgage, pledge, hypothecation, assignment,
deposit arrangement (in the nature of compensating balances, cash collateral
accounts or security interests), encumbrance, lien (statutory or other), charge,
or preference, priority or other security interest or preferential arrangement
of any kind or nature whatsoever (including, without limitation, any conditional
sale or other title retention agreement, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing
of any financing statement under the Uniform Commercial Code or comparable Laws
of any jurisdiction), including the interest of a purchaser of accounts
receivable.
"LINCOLN PLACE APARTMENTS" means the real Property acquired by
AIMCO Lincoln Place Apartments, L.P., a Subsidiary of the REIT, on June 18,
2001, and which consists of 795 apartment units located in Venice, California. A
portion of the proceeds of the Lincoln Place Construction Financing will be used
to add 44 new apartment units to the project.
"LINCOLN PLACE CONSTRUCTION FINANCING" means Indebtedness of
Borrowers, Guarantors, or their Subsidiaries in an aggregate principal amount
not to exceed $151,000,000 in all events, with an interest rate, terms and
maturity date satisfactory to the Administrative Agent, the proceeds of which
are to be used to finance the refinancing of certain purchase money indebtedness
and the rehabilitation and stabilization of Lincoln Place Apartments and which
may also include the Interim Lincoln Place Financing, together with any Guaranty
Obligations in connection therewith; provided that "Lincoln Place Construction
Financing" shall not include any renewal, extension or refinancing of such
Indebtedness or Guaranty Obligations other than a refinancing of the Interim
Lincoln Place Financing.
"LOAN" means any advance made by any Lender to any Borrower as
provided in SECTION 2 (collectively, the "LOANS").
"LOAN DOCUMENTS" means this Agreement, the Collateral
Documents, the Guaranties, the Intercreditor Agreement, and any Note,
certificate, fee letter, and other instrument, document or agreement from time
to time delivered in connection with this Agreement.
"LP CORP" means AIMCO-LP, Inc., a Delaware corporation.
"MANAGEMENT EBITDA" means, for any period, the sum, without
duplication, of (x) the aggregate amount of EBITDA for Borrowers and their
Subsidiaries attributable to their management of multi-family apartment projects
or other real estate projects or provision of Ancillary Services during such
period, PLUS (y) Unconsolidated Subsidiaries EBITDA generated by the Management
Entities.
"MANAGEMENT ENTITY" means any Subsidiary of any Borrower (i)
which is primarily engaged in the business of managing multifamily apartment
projects or other real estate projects or providing Ancillary Services, and (ii)
whose assets (other than Intra-Company
22
Debt) are not subject to any Liens (other than Ordinary Course Liens), and
"MANAGEMENT ENTITIES" includes, without limitation, the Persons listed on
SCHEDULE 1.01D.
"MARGIN STOCK" has the meaning assigned to that term in
Regulation U of the Board of Governors of the Federal Reserve System as in
effect from time to time.
"MATERIAL ADVERSE EFFECT" means any set of circumstances or
events which (a) has or could reasonably be expected to have any material
adverse effect whatsoever upon (i) the validity or enforceability of any Loan
Document or the rights and remedies of Administrative Agent and the Lenders
thereunder, or (ii) the business, assets, property or condition (financial or
otherwise) of the REIT and AIMCO and its Subsidiaries, taken as a whole which
would reasonably be expected to cause the aggregate amount of loss, damage or
expense to the REIT and AIMCO and its Subsidiaries, taken as a whole, as a
result of such circumstances and events to exceed $100,000,000, or (b)
materially impairs or could reasonably be expected to materially impair the
ability of the Borrower Parties, taken as a whole, to pay and/or perform the
Obligations.
"MATERIAL ENTITY" means any Person in which any Borrower or
any of their Subsidiaries owns any equity interest which generates 1.5% or more
of Total Corporate EBITDA.
"MATURITY DATE" means July 31, 2005, as it may be earlier
terminated or extended in accordance with the terms hereof.
"MINIMUM AMOUNT" means, with respect to each of the following
actions, the minimum amount and any multiples in excess thereof set forth
opposite such action:
23
----------------------------------------------------------------------------------------
MULTIPLES IN
TYPE OF ACTION MINIMUM AMOUNT EXCESS THEREOF
----------------------------------------------------------------------------------------
Borrowing of, prepayment of, or Conversion $2,000,000 $500,000
into, Base Rate Loans (other than Swing
Line Loans)
----------------------------------------------------------------------------------------
Borrowing of or prepayment of Swing Line $1,000,000 $500,000
Loans
----------------------------------------------------------------------------------------
Borrowing of, prepayment of, Continuation $5,000,000 $1,000,000
of, or Conversion into, Offshore Rate Loans
----------------------------------------------------------------------------------------
Reduction in Commitments $5,000,000 $1,000,000
----------------------------------------------------------------------------------------
Assignments (other than with respect to $3,000,000 $1,000,000
the entire amount of a Lender's
Commitment, in which event the Minimum
Amount shall be such Commitment Amount)
----------------------------------------------------------------------------------------
Assignment by a Lender to (i) an Affiliate $1,000,000 $1,000,000
of the assigning Lender, or (ii) another
Lender
----------------------------------------------------------------------------------------
"MOODY'S" means Xxxxx'x Investors Service, a Delaware
corporation, and its successors and assigns.
"MULTIEMPLOYER PLAN" means any employee benefit plan of the
type described in Section 4001(a)(3) of ERISA.
"NEGATIVE PLEDGE" means a Contractual Obligation that
restricts Liens on property in favor of the Administrative Agent for the benefit
of the Lenders.
"NET DISPOSITION PROCEEDS" means, with respect to any
Disposition of any Property (including as a result of casualty or condemnation
and any purchase price refund in respect of any acquisition), Subsidiary,
Management Entity or material property management contract, Cash payments
(including any Cash received by way of deferred payment pursuant to, or by
monetization of, a note receivable or otherwise, but only as and when so
received) or Cash Equivalents received from such Disposition (which, in the case
of non-wholly owned Persons, shall be limited to the Borrowers', the Guarantors'
or any of their Subsidiaries' respective pro-rata share of such Disposition
proceeds), net of any bona fide direct costs incurred in connection with such
Disposition, including (i) income taxes reasonably estimated to be actually
payable within two years of the date of such Disposition as a result of any gain
recognized in connection
24
with such Disposition and (ii) payment of the outstanding principal amount of,
premium or penalty, if any, and interest on any Indebtedness (other than the
Loans) that is secured by a Lien on the Stock or assets in question and that is
required to be repaid under the terms thereof as a result of such Disposition.
"NET INDEBTEDNESS PROCEEDS" means, in respect of the
incurrence of any Indebtedness (other than Debt Securities, Refinancing
Indebtedness, or proceeds of Indebtedness permitted pursuant to Section 7.01) by
Borrowers or any of their respective Subsidiaries, the proceeds received in Cash
or Cash Equivalents by Borrowers or any of their respective Subsidiaries upon or
substantially simultaneously with such incurrence (which, in the case of
non-wholly owned Persons, shall be limited to the Borrowers', the Guarantors' or
any of their Subsidiaries' respective pro-rata share of such Indebtedness
proceeds), net of (a) the direct costs of such Indebtedness then payable by the
recipient of such proceeds (excluding amounts payable to Borrowers or any
Affiliate of Borrowers) and (b) fees, underwriting discounts, premiums, unpaid
accrued interest and other costs and expenses incurred in connection with such.
"NET ISSUANCE PROCEEDS" means, in respect of any issuance of
Stock or Partnership Units or Debt Securities (other than proceeds of Debt
Securities which are Indebtedness permitted pursuant to SECTION 7.01) by
Borrowers or any of their respective Subsidiaries, the proceeds in Cash or Cash
Equivalents (or, for purposes of SECTION 7.14(h), in the case of any issuance of
Partnership Units in exchange for Property, the fair market value of the
Property so acquired) received by Borrowers or any of their respective
Subsidiaries upon or substantially simultaneously with such issuance (which, in
the case of non-wholly owned Persons, shall be limited to the Borrowers', the
Guarantors' or any of their Subsidiaries' respective pro-rata share of such
issuance proceeds), net of (a) the direct costs of such issuance then payable by
the recipient of such proceeds (excluding amounts payable to Borrowers or any
Affiliate of Borrowers), (b) sales, use and other taxes paid or payable by such
recipient as a result thereof, and (c) in the case of the issuance of
Indebtedness secured by any Property, the portion of such proceeds used to repay
Indebtedness previously incurred and secured by the same Property.
"NET OPERATING INCOME" means, for any period, as to any
Property (a) all gross revenues received from the operation of such Property
during such period (including, without limitation, payments received from
insurance on account of business or rental interruption and condemnation
proceeds from any temporary use or occupancy, in each case to the extent
attributable to the period for which such Net Operating Income is being
determined, but excluding any proceeds from the sale or other disposition of any
part or all of such Property; or from any financing or refinancing of such
Property; or from any condemnation of any part or all of such Property (except
for temporary use or occupancy); or on account of a casualty to the property
(other than payments from insurance on account of business or rental
interruption); or any security deposits paid under leases of all or a part of
such Property, unless forfeited by tenants; and similar items or transactions
the proceeds of which under GAAP are deemed attributable to capital), MINUS (b)
all reasonable and customary property maintenance and repair costs, leasing and
administrative costs, management fees and, without double counting, real estate
taxes and insurance premiums paid or accrued on account of such Property
(whether by direct payment or by deposit into reserves for future payment), or,
to the extent applicable for purposes of calculating Net Operating Income, the
applicable prior owner of such Property
25
during such period with respect to such Property (exclusive of Capital
Expenditures). When calculating Net Operating Income, there shall be no
deduction for any non cash items, such as depreciation.
"NET REFINANCING PROCEEDS" means the aggregate amount of any
Refinancing Indebtedness incurred in excess of the sum of the aggregate
principal amount (or if issued with original issue discount, an aggregate issue
price) then outstanding of the Indebtedness being refinanced by such Refinancing
Indebtedness (including any amounts satisfying AIMCO's obligations under the
Contingent Acquisition Note), plus fees, underwriting discounts, premiums,
unpaid accrued interest and other costs and expenses incurred in connection with
such Refinancing Indebtedness; provided, that, in the case of non-wholly owned
Persons, Net Refinancing Proceeds shall be limited to the Borrowers', the
Guarantors' or any of their Subsidiaries' respective pro-rata share of such
excess Refinancing Indebtedness.
"NEW CONSTRUCTION" means the development and construction of
any new multi-family Property by any Borrower, any Guarantor or any of their
respective Subsidiaries and shall not include any renovations, rehabilitations
or expansions of existing multi-family Properties.
"NHP MANAGEMENT" is defined in the preamble.
"NONRECOURSE DEBT OBLIGOR" has the meaning given such term in
Section 8.01(g)(B).
"NON-WHOLLY OWNED PROPERTY" means the Property comprising a
multifamily apartment project the fee simple interest in which is not 100%
owned, directly or indirectly, by Borrowers and/or their Wholly-Owned
Subsidiaries.
"NOTES" means, collectively, the Committed Loan Notes and the
Swing Line Note.
"NYSE" means the New York Stock Exchange.
"OBLIGATIONS" means all advances to, and debts, liabilities,
obligations, covenants and duties of, any Borrower Party arising under any Loan
Document, whether direct or indirect (including those acquired by assignment),
absolute or contingent, due or to become due, now existing or hereafter arising
and including interest that accrues after the commencement of any proceeding
under any Debtor Relief Laws by or against any Borrower Party or any Subsidiary
or Affiliate of any Borrower Party.
"OFFSHORE BASE RATE" has the meaning set forth in the
definition of Offshore Rate.
"OFFSHORE RATE" means for any Interest Period with respect to
any Offshore Rate Loan, a rate per annum determined by Administrative Agent
pursuant to the following formula:
Offshore Rate = Offshore Base Rate
----------------------------------------
1.00 - Eurodollar Reserve Percentage
26
Where,
"OFFSHORE BASE RATE" means for, such Interest Period,
(a) the offered rate (determined solely by the Administrative Agent) for a
period of time comparable to the number of days in the applicable Interest
Period for deposits in United States Dollars, as shown on Telerate Page 3750 as
of approximately 11:00 a.m. (London time) two Business Days prior to the first
day of such Interest Period. "Telerate Page 3750" means the display designated
as such on Teleratesystem Incorporated (or such other page as may replace page
3750 on that service for the purpose of displaying London interbank offered
rates of major banks for United States Dollar deposits), or
(b) in the event the rate referenced in the preceding subsection (a) does not
appear on such page or service or such page or service shall cease to be
available, the rate per annum (carried to the fifth decimal place) equal to the
rate determined by Administrative Agent to be the offered rate on such other
page or other service that displays an average British Bankers Association
Interest Settlement Rate for deposits in Dollars (for delivery on the first day
of such Interest Period) with a term equivalent to such Interest Period,
determined as of approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period, or
(c) in the event the rates referenced in the preceding subsections (a) and (b)
are not available, the rate per annum determined by Administrative Agent as the
rate of interest at which Dollar deposits (for delivery on the first day of such
Interest Period) in same day funds in the approximate amount of the applicable
Offshore Rate Loan and with a term equivalent to such Interest Period would be
offered by its London Branch to major banks in the offshore dollar market at
their request at approximately 11:00 a.m. (London time) two Business Days prior
to the first day of such Interest Period. The determination of the Offshore Base
Rate by the Administrative Agent shall be conclusive in the absence of manifest
error.
"OFFSHORE RATE LOAN" means a Committed Loan bearing interest
based on the Offshore Rate.
"OMNIBUS BORROWERS PLEDGE AGREEMENT" means the Borrowers
Pledge Agreement executed and delivered by the Borrower Parties party thereto in
connection with this Agreement, the Casden Credit Agreement and the Term Loan
Credit Agreement, substantially in the form of EXHIBIT G-2 annexed hereto, as
such Borrowers Pledge Agreement may thereafter be amended, supplemented or
otherwise modified from time to time.
"ORDINARY COURSE DISPOSITIONS" means:
(a) Dispositions of obsolete or worn out Property or
Property no longer useful in any Borrower Party's business,
whether now owned or hereafter acquired, in the Ordinary
Course of Business;
(b) Dispositions of Cash, Cash Equivalents, inventory
and other Property in the Ordinary Course of Business;
27
(c) Dispositions of Property to the extent that such
property is exchanged for credit against the purchase price of
similar replacement property, or the proceeds of such sale are
reasonably promptly applied to the purchase price of such
replacement Property or where any Borrower or its Subsidiary
determines in good faith that the failure to replace such
property will not be detrimental to the business of such
Borrower or such Subsidiary;
(d) Dispositions of assets or Property by a Borrower
or any Subsidiary of a Borrower to any Borrower or another
Wholly-Owned Subsidiary of a Borrower; and
(e) Dispositions of Property or Properties which
generate Net Disposition Proceeds of less than $1,000,000 per
Property and $10,000,000 in the aggregate, PROVIDED the
aggregate amount of Net Disposition Proceeds generated by all
such Dispositions shall not exceed $10,000,000 during any four
consecutive fiscal quarter period;
PROVIDED, HOWEVER, that no such Disposition shall be for less than the fair
market value of the property being disposed of.
"ORDINARY COURSE INDEBTEDNESS" means:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness under bonds supporting utility
deposits or insurance or other comparable security deposits or
property taxes, in each case incurred in the Ordinary Course
of Business; and
(c) Indebtedness arising from the honoring of a
check, draft or similar instrument against insufficient funds.
"ORDINARY COURSE INVESTMENTS" means:
(a) Investments in Cash and Cash Equivalents;
(b) Investments consisting of advances to officers,
directors and employees of Borrowers and their Subsidiaries
for travel, entertainment, relocation and analogous ordinary
business purposes;
(c) Investments of Borrowers in any other Borrower or
in any of their Subsidiaries and Investments of any Subsidiary
of Borrowers in Borrowers or another Subsidiary of Borrowers;
(d) Investments consisting of or evidencing the
extension of credit to customers or suppliers of Borrowers and
their Subsidiaries in the ordinary course of business and any
Investments received in satisfaction or partial satisfaction
thereof; and
28
(e) Investments consisting of Guaranty Obligations
permitted by SECTION 7.01.
"ORDINARY COURSE LIENS" means:
(a) Liens pursuant to any Loan Document;
(b) Liens for taxes not yet due or which are being
contested in good faith and by appropriate proceedings, if
adequate reserves with respect thereto are maintained on the
books of the applicable Person in accordance with GAAP;
(c) carriers', warehousemen's, mechanics',
materialmen's, repairmen's or other like Liens arising in the
ordinary course of business which are not overdue for a period
of more than 60 days or which are being contested in good
faith and by appropriate proceedings, if adequate reserves
with respect thereto are maintained on the books of the
applicable Person and deposits securing liability to insurance
carriers under insurance arrangements;
(d) pledges or deposits in connection with worker's
compensation, unemployment insurance and other social security
legislation;
(e) deposits to secure the performance of bids, trade
contracts (other than for borrowed money), leases, statutory
obligations, surety and appeal bonds, performance bonds and
other obligations of a like nature incurred in the ordinary
course of business;
(f) easements, rights-of-way, restrictions and other
similar encumbrances affecting real property which, in the
aggregate, are not substantial in amount, and which do not in
any case materially detract from the value of the property
subject thereto or materially interfere with the ordinary
conduct of the business of any Borrower Party;
(g) attachment, judgment or other similar Liens
arising in connection with litigation or other legal
proceedings (and not otherwise a Default hereunder) in the
ordinary course of business that are currently being contested
in good faith by appropriate proceedings, adequate reserves
have been set aside and no material Property is subject to a
material risk of loss or forfeiture or the claims in respect
of such Liens are fully covered by insurance (subject to
ordinary and customary deductibles);
(h) statutory, contractual or common law landlords'
Liens under leases to which any Borrower Party or any
Subsidiary thereof is a party; and
(i) Liens securing reimbursement obligations with
respect to letters of credit and banker's acceptances which
encumber only documents and other property relating to such
letters of credit and the products and proceeds thereof.
29
"ORDINARY COURSE OF BUSINESS" means, in respect of any
transaction involving a Person, (i) the ordinary course of such Person's
business, substantially as intended to be conducted by any such Person as of the
Amendment Effective Date, and (ii) undertaken by such Person in good faith and
not for purposes of evading any covenant or restriction in any Contractual
Obligation of such Person or for purposes of defrauding its creditors; PROVIDED,
THAT, with respect to any Person (other than the Borrowers, any Material Entity
or any Institutional Joint Venture) which is disposing of all or substantially
all of its Property, Ordinary Course of Business shall also include any
Disposition consistent with clauses (i) and (ii) above and which is not
otherwise in violation of this Agreement and the proceeds thereof are applied as
required under this Agreement; PROVIDED, FURTHER, that in all events the
Institutional Joint Ventures described on SCHEDULE 1.01F and similar
Institutional Joint Ventures permitted hereunder, shall be deemed to be in the
Ordinary Course of Business for all purposes under this Agreement.
"ORGANIZATION DOCUMENTS" means, (a) with respect to any
corporation, the certificate or articles of incorporation and the bylaws; (b)
with respect to any limited liability company, the articles of formation and
operating agreement; and (c) with respect to any partnership, joint venture or
other form of business entity, the partnership agreement and any agreement,
filing or notice with respect thereto filed with the secretary of state of the
state of its formation, in each case as amended from time to time.
"ORGANIZATIONAL CHART" means the list of Subsidiaries attached
as SCHEDULE 5.16 hereto showing the Borrowers, all of their Subsidiaries and
their interests in the Management Entities and any unconsolidated subsidiaries
or Persons, as the same may be modified pursuant hereto.
"ORIGINAL AGREEMENT" means that certain Third Amended and
Restated Credit Agreement, dated as of November 6, 2001, among the Borrowers
(other than the REIT), the Lenders named therein, Bank of America, as
administrative agent, issuing lender and a co-lead agent, Fleet National Bank,
as a co-lead agent and syndication agent, and First Union National Bank, as
documentation agent.
"OUTSTANDING OBLIGATIONS" means, as of any date, and giving
effect to making any Extensions of Credit requested on such date and all
payments, repayments and prepayments made on such date, (x) during the period
from the Initial Closing Date through and including the Revolving Commitment
Termination Date, the sum of (a) the aggregate outstanding principal amount of
all Loans (including Swing Line Loans), and (b) all Letter of Credit Usage, and
(y) during the period from but excluding the Revolving Commitment Termination
Date through and including the Maturity Date, the aggregate outstanding
principal amount of all Loans.
"OXFORD" means Oxford Holding Corporation, Oxford Realty
Financial Group, Inc., Oxford Tax Exempt Fund II, L.P. and other Affiliates or
related entities thereof acquired by Borrowers and/or their Affiliates as
provided in the Oxford Acquisition Agreement from time to time, collectively.
"OXFORD ACQUISITION AGREEMENT" means that certain Acquisition
Agreement dated as of June 28, 2000, by and among the REIT, AIMCO, NHP
Management Company and
30
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.
"OXFORD ASSETS" means any and all assets, rights and
interests, including, without limitation, all corporate interests, general and
limited partnership interests comprising Oxford, and all other Property and
associated rights held or controlled by Oxford acquired on or to be acquired
after September 20, 2000, including, without limitation, pursuant to the Oxford
Acquisition Agreement and the interests to be acquired pursuant to the "SLP
Offer Agreement," the "ILPI and BAC Agreement" and the "Option Sale Agreement"
(as the foregoing terms are defined in the Oxford Acquisition Agreement);
PROVIDED, HOWEVER, "Oxford Assets" shall not include any assets, rights or
interests in Oxford held by Borrowers, their Subsidiaries or Affiliates prior to
September 20, 2000.
"PARK LA BREA" means AIMCO Park La Brea Inc. and its direct
and indirect Subsidiaries and their respective real estate Properties.
"PARK LA BREA AND WESTWOOD VILLAGE PROPERTIES LOANS" means
those loans to XYZ Holdings, LLC in the aggregate principal amount at any time
outstanding not to exceed $70,000,000 to finance the development, construction
and stabilization of the Park La Brea and Westwood Village Properties as
contemplated in the Casden Merger Agreement, provided that such loans shall be
represented by the Park La Brea and Westwood Village Properties Notes which
shall be pledged on a first-priority basis to Collateral Agent pursuant to the
Borrowers Pledge Agreement.
"PARK LA BREA AND WESTWOOD VILLAGE PROPERTIES NOTES" means,
collectively, that certain Mezzanine Loan Secured Note issued by XYZ Holdings
LLC in favor of AIMCO Investment Services, Inc. in the principal amount of
$26,200,000 (Casden Park La Brea A), that certain Mezzanine Loan Secured Note
issued by XYZ Holdings LLC in favor of AIMCO Investment Services, Inc. in the
principal amount of $32,100,000 (Casden Park La Brea B), that certain Mezzanine
Loan Secured Note issued by XYZ Holdings LLC in favor of AIMCO Investment
Services, Inc. in the principal amount of $9,300,000 (Casden Park La Brea C) and
that certain Mezzanine Loan Secured Note issued by XYZ Holdings LLC in favor of
AIMCO Investment Services, Inc. in the principal amount of $32,400,000
(Westwood) (each a "Park La Brea and Westwood Village Properties Note" and
collectively the "Park La Brea and Westwood Village Properties Notes", the
aggregate principal amount at any time outstanding under the Park La Brea and
Westwood Village Properties Notes not to exceed $70,000,000.
"PARTICIPANT" is defined in SECTION 10.04.
"PARTNERSHIP UNITS" means the units of limited partnership
interest in the Borrowers or any of their Subsidiaries, as the case may be,
issued and outstanding from time to time.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto established under ERISA.
31
"PENSION PLAN" means any "employee pension benefit plan" (as
such term is defined in Section 3(2) of ERISA), other than a Multiemployer Plan,
that is subject to Title IV of ERISA and is sponsored or maintained by Borrowers
or any ERISA Affiliates or to which any Borrower or any ERISA Affiliate
contributes or has an obligation to contribute, or in the case of a multiple
employer plan (as described in Section 4064(a) of ERISA) has made contributions
at any time during the immediately preceding five plan years.
"PERMITTED JOINT VENTURE" means a joint venture, partnership,
limited liability company or other similar arrangement, whether in corporate,
partnership or other legal form (i) which is formed by or an interest in which
is acquired by any of the Borrowers or its Subsidiaries in the Ordinary Course
of Business, (ii) which complies with Section 7.09, and (iii) in which any of
the Borrowers' or their Subsidiaries' equity or other beneficial interests is
held at all times, directly or indirectly, by a Borrower and/or Guarantor.
"PERMITTED PREFERRED STOCK REDEMPTIONS" means the (A)
purchase, redemption, retirement or other acquisition for value of any
Redeemable Preferred Stock, in an amount up to 100% of the Net Issuance Proceeds
from any issuance of common or preferred Stock by the Borrowers, the Guarantors
or their Subsidiaries occurring after April 15, 2003 including the transactions
set forth on SCHEDULE 1.01G attached hereto, (B) purchase, redemption,
retirement or other acquisition for value of any Redeemable Preferred Stock in
an amount up to not more than 75% of the Net Disposition Proceeds from
Dispositions occurring after April 15, 2003 including the transactions set forth
on SCHEDULE 1.01G attached hereto; PROVIDED, THAT, all such purchases or
redemptions of Redeemable Preferred Stock under this clause (B) may not exceed
$250,000,000 in the aggregate in any one calendar year and $400,000,000 in the
aggregate in any two consecutive calendar years, or (C) purchase, redemption,
retirement or other acquisition for value of any Redeemable Preferred Stock with
Free Corporate Cash Flow.
"PERSON" means any individual, trustee, corporation, general
partnership, limited partnership, limited liability company, joint stock
company, trust, unincorporated organization, bank, business association, firm,
joint venture, Governmental Authority, or other entity.
"PLAN" means any employee benefit plan that is (or was within
the last 5 years) maintained or contributed to by a Borrower Party or by any
trade or business (whether or not incorporated) under common control with a
Borrower Party as defined in Section 4001(b) of ERISA and insured by the PBGC
under Title IV of ERISA.
"PLEDGED COLLATERAL" means any and all Property upon which a
Lien is purported to be created by any Collateral Document to secure the
Collective Obligations of the Borrowers pursuant to the Collateral Documents and
subject to the Intercreditor Agreement. The Pledged Collateral existing on the
Amendment Effective Date is listed on SCHEDULE 1.01E.
"PRO RATA SHARE" means, with respect to each Lender, the
percentage of the Combined Commitments set forth opposite the name of that
Lender on SCHEDULE 2.01, as may be amended from time to time.
32
"PROPERTY" means any estate or interest in any kind of
property or asset, whether real, personal or mixed, and whether tangible or
intangible.
"QUALIFIED PLAN" means a pension plan (as defined in Section
3(2) of ERISA) intended to be tax-qualified under Section 401(a) of the Code and
which any member of the Controlled Group sponsors, maintains, or to which it
makes, is making or is obligated to make contributions, or in the case of a
multiemployer plan (as described in Section 4064(a) of ERISA) has made
contributions and any time during the immediately preceding period covering at
least five (5) plan years, but excluding any Multi-employer Plan.
"REAL ESTATE COMPANY" means each of Xxxxxx Xxxxxxx LLC, Xxxxxx
Park La Brea A LLC, Casden Park La Brea B LLC and Casden Park La Brea C LLC, and
"REAL ESTATE COMPANIES" means all of such companies collectively.
"REAL PROPERTY ASSETS UNDER DEVELOPMENT" means, as of any date
of determination, Property owned by a Person and which, as of such date, is in
whole or part the subject of Construction/Renovation. Any such asset shall be
included in "REAL PROPERTY ASSETS UNDER DEVELOPMENT" only until the earlier of
(a) the date such property becomes Stabilized and (b) six months after the
completion of construction of such asset.
"RECOURSE" means, with respect to any Indebtedness or Guaranty
Obligation of any Person, that such Indebtedness or Guaranty Obligation is
recourse to the assets and/or properties of such Person (except as provided
below); PROVIDED, HOWEVER, that with respect to nonrecourse Indebtedness secured
by real property which contains limitations to the nonrecourse nature of the
obligation, such limited nonrecourse obligations shall be deemed "Recourse" if
and to the extent the nonrecourse exceptions are for liability of such Person
for any of the following under any applicable loan documentation and any such
events or circumstances described in clauses (a) through (j) have occurred: (a)
fraud, waste, material misrepresentation, or willful misconduct; (b)
indemnification with respect to environmental matters or failure to comply with
Hazardous Materials laws; (c) failure to maintain required insurance policies;
(d) misapplication of insurance proceeds, condemnation awards and tenant
security deposits; (e) breach of covenants relating to unpermitted transfers or
encumbrances of real property or other collateral; (f) misappropriation or
misapplication of property income; (g) breach of covenants relating to
unpermitted transfers of interests in a Person; (h) failure to deliver books and
records; (i) failure to pay transfer fees or charges; or (j) other matters
substantially the same as those set forth in clauses (a) through (i) above. An
obligation of a Person that is without Recourse to the assets and/or properties
of such Person shall not be considered a "RECOURSE" obligation unless any of the
events or circumstances described in clauses (a) through (j) above have
occurred. Indebtedness of a Single Purpose Entity secured by that Single Purpose
Entity's real Property assets shall not be considered a "Recourse" obligation
provided the Indebtedness is recourse only to such Single Purpose Entity's
assets. A Guaranty Obligation with respect to the events or circumstances
described in clauses (a) through (j) above of a Single Purpose Entity shall not
be deemed a "Recourse" obligation if such events or circumstances have not
occurred.
33
"REDEEMABLE PREFERRED STOCK" means (i) the preferred
Partnership Units and (ii) the preferred Stock, in each case of the Borrowers,
the Guarantors or their Subsidiaries which is redeemable in accordance with its
terms.
"REFINANCING INDEBTEDNESS" means Indebtedness that is incurred
to refund, refinance, replace, renew, repay or extend (including pursuant to any
defeasance or discharge mechanism) any Indebtedness described in SECTIONS
7.01(d), (e), (h) and (i).
"REGISTER" is defined in Section 10.04(c).
"REIT" is defined in the preamble to this Agreement.
"REIT STATUS" means, with respect to any Person, (a) the
qualification of such Person as a real estate investment trust under Sections
856 through 860 of the Code, and (b) the applicability to such Person and its
shareholders of the method of taxation provided for in Sections 857 ET SEQ. of
the Code.
"RELATED FUND" means, with respect to any Lender which is a
fund that invests in loans, any other fund that invests in loans and is managed
or advised by the same investment advisor as such Lender or by an Affiliate of
such Lender or such investment advisor.
"REPORTABLE EVENT" means any of the events set forth in
Section 4043(c) of ERISA or the regulations thereunder, a withdrawal from a Plan
described in Section 4063 of ERISA, or a cessation of operations described in
Section 4062(e) of ERISA.
"REQUEST FOR EXTENSION OF CREDIT" means a written request
substantially in the form of EXHIBIT A duly completed and signed by a
Responsible Officer, or a telephonic request followed by such a written request,
in each case delivered to Administrative Agent by Requisite Notice. In the case
of a request for a new or amended Letter of Credit, the written Letter of Credit
Application shall be deemed to be the Request for Extension of Credit.
"REQUISITE LENDERS" means (a) as of any date of determination
if the Commitments are then in effect, Lenders having in the aggregate more than
50% of the Combined Commitments then in effect and (b) as of any date of
determination if the Commitments have then been terminated and there are Loans
and/or Letter of Credit Usage outstanding, Lenders holding Loans and Letter of
Credit Usage aggregating more than 50% of the aggregate outstanding principal
amount of the Loans and Letter of Credit Usage.
"REQUISITE NOTICE" means, unless otherwise provided herein,
(a) irrevocable written notice to the intended recipient or (b) except with
respect to Letter of Credit Actions (which must be in writing), 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
shall be (i) delivered to such recipient at the address or telephone number
specified on SCHEDULE 10.02 or as otherwise designated by such recipient by
Requisite Notice to each other party hereto, and (ii) if made by any Borrower
Party, given or made by a Responsible Officer of such Borrower Party. Any
written notice delivered in connection with any Loan Document shall be in the
form, if any, prescribed in the applicable section hereof or thereof and may be
delivered
34
as provided in SECTION 10.02. Any notice sent by other than hardcopy shall be
promptly confirmed by a telephone call to the recipient and, if requested by
Administrative Agent, by a manually-signed hardcopy thereof.
"REQUISITE TIME" means, with respect to any of the actions
listed below, the time and date set forth below opposite such action (all times
are local time (standard or daylight) as observed in the Governing State):
==================================================================================================================
TYPE OF ACTION TIME DATE OF ACTION
------------------------------------------------------------------------------------------------------------------
Delivery of Request for Extension of Credit for,
or notice for:
------------------------------------------------------------------------------------------------------------------
Borrowing of, prepayment of, or Conversion into, 9:00 a.m. 1 Business Day prior to such Borrowing,
Base Rate Loans (other than Swing Line Loans) prepayment or Conversion
------------------------------------------------------------------------------------------------------------------
Borrowing of, or notice of prepayment of Swing 2:00 p.m. Same date as such Borrowing or prepayment
Line Loans
------------------------------------------------------------------------------------------------------------------
Prepayment of, or Conversion of Swing Line Loans 9:00 a.m. 2 Business Days after request for such
into Base Rate Loans by the Lenders prepayment or Conversion
------------------------------------------------------------------------------------------------------------------
Borrowing of, prepayment of, Continuation of, or 10:00 a.m. 3 Business Days prior to such Borrowing,
Conversion into, Offshore Rate Loans prepayment, Conversion or Continuation
------------------------------------------------------------------------------------------------------------------
Letter of Credit Action 10:00 a.m. 5 Business Days prior to such action
------------------------------------------------------------------------------------------------------------------
Voluntary reduction in or termination of 10:00 a.m. 5 Business Days prior to such reduction or
Commitments termination
------------------------------------------------------------------------------------------------------------------
Payments by Lenders or Borrowers to 11:00 a.m. On date payment is due
Administrative Agent
==================================================================================================================
"RESPONSIBLE OFFICER" means the president, chief financial
officer, treasurer or assistant treasurer of a Borrower Party. Any document or
certificate hereunder that is signed by a Responsible Officer of a Borrower
Party shall be conclusively presumed to have been authorized by all necessary
corporate, partnership and/or other action on the part of such Borrower Party
and such Responsible Officer shall be conclusively presumed to have acted on
behalf of such Borrower Party.
"RESTRICTED CASH" means any Cash pledged to other lenders by
Borrowers or any of their respective
35
Subsidiaries or any other Person in which Borrowers or any of their respective
Subsidiaries have any equity interest, as indicated in the line item for
"restricted cash" in the REIT's balance sheet from time to time, and Borrowers'
or their Subsidiaries' pro rata shares of "restricted cash" of unconsolidated
partnerships and unconsolidated subsidiaries.
"RESTRICTED PAYMENT" means:
(a) the declaration or payment of any dividend or
distribution by any Borrower or any of its Subsidiaries,
either in cash or property, on any shares of the capital stock
of any class of such Borrower or any of its Subsidiaries
(except dividends or other distributions payable solely in
shares of capital stock of any Borrower or any of its
Subsidiaries or payable by a Subsidiary to any Borrower or
another wholly-owned Subsidiary of any Borrower or payable by
any Borrower to another Borrower);
(b) the purchase, redemption, including depositary
shares, or retirement by Borrowers or any of their
Subsidiaries of any shares of their capital stock of any class
or any warrants, rights or options to purchase or acquire any
shares of their capital stock, whether directly or indirectly;
(c) any other payment or distribution by any Borrower
or any of its Subsidiaries in respect of their capital stock,
including depositary shares, either directly or indirectly
(except payments or other distributions to Borrowers or any of
their Subsidiaries or payable in shares of the capital Stock
of Borrowers or any of their Subsidiaries); and
(d) any Investment other than an Investment otherwise
permitted under any Loan Document.
"REVOLVER LENDERS" means the lenders from time to time party
to this Agreement.
"REVOLVING COMMITMENT TERMINATION DATE" means July 31, 2005.
"REVOLVING LOAN" means a Loan of any type made to Borrowers by
Lenders in accordance with their Pro Rata Shares pursuant to SECTION 2.01(a),
except as otherwise provided herein.
"S&P" shall mean Standard & Poor's Ratings Group and its
successors and assigns.
"SCHEDULED AMORTIZATION" means, with respect to any Person,
the sum, as of any date of determination, of all regularly scheduled
amortization payments paid or accrued on such Person's Indebtedness (exclusive
of balloon payments).
"SEC" means the Securities and Exchange Commission, or any
successor thereto.
36
"SEC REPORT" means all filings on Form 10-K, Form 10-Q or Form
8-K with the SEC made by the REIT pursuant to the Exchange Act and delivered to
Administrative Agent prior to the date hereof.
"SECURITIES ACT" means the Securities Act of 1933, as amended
from time to time, and any successor statute.
"SINGLE PURPOSE ENTITY" means a Person which is created or
existing solely to own a specific real Property asset and which has no
Indebtedness other than in conjunction with the acquisition, operation and
maintenance of such real Property asset (including normal and customary trade
payables) and which engages in no business other than the ownership, operation
and maintenance of such real Property asset.
"SOLVENT" means, as to any Person at any time, that (a) the
fair value of the Property of such Person is greater than the amount of such
Person's liabilities (including disputed, contingent and unliquidated
liabilities) as such value is established and liabilities evaluated for purposes
of Section 101(31) of the Bankruptcy Code of the United States of America and,
in the alternative, for purposes of the Uniform Fraudulent Transfer Act; (b) the
present fair saleable value of the Property of such Person is not less than the
amount that will be required to pay the probable liability of such Person on its
debts as they become absolute and matured; (c) such Person is able to realize
upon its Property and pay its debts and other liabilities (including disputed,
contingent and unliquidated liabilities) as they mature in the normal course of
business; (d) such Person does not intend to, and does not believe that it will,
incur debts or liabilities beyond such Person's ability to pay as such debts and
liabilities mature; and (e) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for which
such Person's property would constitute unreasonably small capital.
"STABILIZED" means, with respect to any Property and as of any
date of determination, the date on which the occupancy level is at least
eighty-five percent (85%) for the most recent complete quarter.
"STOCK" means all shares, options, warrants, interests,
participations or other equivalents (regardless of how designated) of or in a
corporation or equivalent entity, whether voting or nonvoting, including common
stock, preferred stock, perpetual preferred stock or any other "equity security"
(as such term is defined in Rule 3a11-1 of the General Rules and Regulations
promulgated by the SEC under the Exchange Act).
"SUBSIDIARY" means, with respect to any Person, a corporation,
partnership, joint venture, limited liability company or other business entity
of which a majority of the shares of securities or other interests having
ordinary voting power for the election of directors or other governing body
(other than securities or interests having such power only by reason of the
happening of a contingency) are at the time beneficially owned, or the
management of which is otherwise controlled, directly, or indirectly through one
or more intermediaries, or both, by such Person.
37
"SUPERMAJORITY LENDERS" means (a) as of any date of
determination if the Commitments are then in effect, Lenders having in the
aggregate more than 66-2/3% of the Combined Commitments then in effect and (b)
as of any date of determination if the Commitments have then been terminated and
there are Loans and/or Letter of Credit Usage outstanding, Lenders holding Loans
and Letter of Credit Usage aggregating more than 66-2/3% of the aggregate
outstanding principal amount of the Loans and Letter of Credit Usage.
"SWAP AGREEMENT" means (a) any and all rate swap transactions,
basis swaps, forward rate transactions, commodity swaps, commodity options,
forward commodity contracts, equity or equity index swaps or options, bond or
bond price or bond index swaps or options or forward bond or forward bond price
or forward bond index transactions, interest rate options, forward foreign
exchange transactions, cap transactions, floor transactions, collar
transactions, currency swap transactions, cross-currency rate swap transactions,
currency options, or any other similar transactions or any combination of any of
the foregoing (including any options to enter into any of the foregoing),
whether or not any such transaction is governed by or subject to any master
agreement, or (b) any and all transactions of any kind, and the related
confirmations, which are subject to the terms and conditions of, or governed by,
any form of master agreement published by the International Swaps and
Derivatives Association, Inc., or any other master agreement (any such master
agreement, together with any related schedules, as amended, restated, extended,
supplemented or otherwise modified in writing from time to time, a "MASTER
AGREEMENT"), including but not limited to any such obligations or liabilities
under any Master Agreement.
"SWING LINE COMMITMENT" means, as of any date of
determination, an amount equal to the lesser of (x) $30,000,000 and (y) 10% of
the Combined Commitments then in effect.
"SWING LINE LENDER" means Bank of America, or any Person
serving as a successor Administrative Agent hereunder, in its capacity as Swing
Line Lender hereunder.
"SWING LINE LOAN" means a Loan made to any Borrower by Swing
Line Lender pursuant to SECTION 2.03.
"SWING LINE NOTE" means a promissory note of Borrowers payable
to the order of the Swing Line Lender in substantially the form of EXHIBIT C-2.
"SYNDICATION AGENT" means Fleet National Bank. The Syndication
Agent shall have no responsibilities or duties in addition to those of a Lender
as provided under this Agreement.
"TERM LENDERS" means the lenders from time to time party to
the Term Loan Credit Agreement.
"TERM LOAN" means a Loan of any type made to Borrowers by
Lenders in accordance with their Pro Rata Shares pursuant to SECTION 2.01(b),
except as otherwise provided herein.
38
"TERM LOAN CREDIT AGREEMENT" means that certain Term Loan
Credit Agreement, dated as of May 30, 2003, by and among Borrowers, Bank of
America, as administrative agent, and the other financial institutions party
thereto.
"TERM LOAN DOCUMENTS" means the Term Loan Credit Agreement and
the "Loan Documents" as defined therein, as amended from time to time in
accordance with the Intercreditor Agreement.
"THRESHOLD AMOUNT" means $5,000,000.
"TO THE BEST KNOWLEDGE OF" means, when modifying a
representation, warranty or other statement of any Person, that the fact or
situation described therein is known by such Person (or, in the case of a Person
other than a natural Person, known by any officer of such Person) making the
representation, warranty or other statement, or with the exercise of reasonable
due diligence under the circumstances (in accordance with the standard of what a
reasonable Person in similar circumstances would have done) would have been
known by such Person (or, in the case of a Person other than a natural Person,
would have been known by an officer of such Person).
"TOTAL COMBINED DEBT" means, as of any date of determination
and without double counting any item, the sum of (a) the aggregate amount of all
Indebtedness of Borrowers, and their respective consolidated Subsidiaries as of
such date, PLUS (b) the Borrowers' and their Subsidiaries' pro-rata share of all
Indebtedness of any unconsolidated Person in which they have an equity interest.
Notwithstanding the foregoing, Intra-Company Debt, accounts payable, security
deposits, accrued liabilities and prepaid rents shall be excluded from the
calculation of "TOTAL COMBINED DEBT."
"TOTAL CORPORATE EBITDA" means, for any period, the sum of (a)
Consolidated Operations EBITDA for such period, PLUS (b) Unconsolidated
Subsidiaries EBITDA for such period, PLUS (c) Unconsolidated Partnerships EBITDA
for such period.
"TOTAL CORPORATE NOI" means, for any period, and without
double counting any item, the sum of Net Operating Income of the Borrowers, the
Guarantors, their respective Subsidiaries and any Person that owns an apartment
Property and in which the Borrowers, the Guarantors or their respective
Subsidiaries owns an equity or beneficial interest.
"TOTAL INTEREST EXPENSE" means for any period, without double
counting any item, the sum of (a) Consolidated Interest Expense of the
Borrowers, the Guarantors and their respective Subsidiaries for such period,
PLUS (b) the Borrowers', the Guarantors' and their respective Subsidiaries'
pro-rata share of Interest Expense for such period of unconsolidated Persons in
which they have any equity interest.
"TOTAL OBLIGATIONS" means as of any date, the sum of (a) Total
Combined Debt and (b) the aggregate liquidation preference of all preferred
Stock issued by Borrowers and Guarantors.
39
"TOTAL PRO RATA NOI" means, for any period, and without double
counting any item, the Borrowers', the Guarantors' and their respective
downstream Affiliates' pro-rata share of Net Operating Income, including the
Borrowers', the Guarantors' and their respective downstream Affiliates' pro-rata
share of Net Operating Income from unconsolidated Persons.
"TOTAL SCHEDULED AMORTIZATION" means, for any period of
determination, and without double counting any item, the sum of (a) the
Scheduled Amortization for Borrowers, the Guarantors and their respective
Subsidiaries for such period on a consolidated basis PLUS (b) the Borrowers',
the Guarantors' and their respective Subsidiaries' pro-rata share of Scheduled
Amortization for such period in respect of any unconsolidated Person in which
they have an equity interest.
"TRI-PARTY AGREEMENT" means, collectively, the four Tri-Party
and Construction Completion Agreements each dated as of March 11, 2002 among
each of the Real Estate Companies and the REIT, AIMCO, XYZ Holdings LLC and
DevCo.
"TRUST BASED CONVERTIBLE PREFERRED SECURITIES" means the 6.5%
trust based convertible preferred securities due September 30, 2016 with an
aggregate liquidation value of $149.5 million, or such lesser amount as may be
outstanding.
"TYPE", when used with respect to any Loan, means the
designation of whether such Loan is a Base Rate Loan or an Offshore Rate Loan.
"UNCONSOLIDATED PARTNERSHIPS EBITDA" means, for any period, an
amount equal to the sum of the Borrowers' and the Guarantors' pro-rata share of
each of the following: (a) the net income (or loss) for such period taken as a
single accounting period, PLUS (b) Interest Expense for such period, PLUS (c)
total depreciation and amortization expense for such period, PLUS (d) other
non-cash items or non-cash charges reducing net income arising in the ordinary
course of business (including impairment charges against goodwill) LESS other
non-cash items increasing net income arising in the ordinary course of business
during such period MINUS (e) any gains with respect to the sale of any
Properties, all of the foregoing as determined in conformity with GAAP for the
unconsolidated partnerships in which any Borrower or any Guarantor has an equity
interest.
"UNCONSOLIDATED SUBSIDIARIES EBITDA" means, for any period, an
amount equal to the sum of the Borrowers' and the Guarantors' pro-rata share of
each of the following: (a) the net income (or loss) for such period taken as a
single accounting period, PLUS (b) Interest Expense for such period, PLUS (c)
provisions for taxes based on income for such period, PLUS (d) total
depreciation and amortization expense for such period, PLUS (e) other non-cash
items or non-cash charges reducing net income arising in the ordinary course of
business (including impairment charges against goodwill) LESS other non-cash
items increasing net income arising in the ordinary course of business during
such period MINUS (f) any gains with respect to the sale of any Properties, all
of the foregoing as determined in conformity with GAAP for the unconsolidated
subsidiaries in which any Borrower or any Guarantor has an equity interest.
40
"UNFUNDED PENSION LIABILITY" means the excess of a Pension
Plan's benefit liabilities under Section 4001(a)(16) of ERISA, over the current
value of that Pension Plan's assets, determined in accordance with the
assumptions used for funding the Pension Plan pursuant to Section 412 of the
Code for the applicable plan year.
"UNSECURED DEBT" means Indebtedness which is not secured by
any Lien; PROVIDED, HOWEVER, that for purposes of SECTION 7.14, Indebtedness
that consists of Loans shall constitute "Unsecured Debt".
"UNSECURED DEBT SERVICE COVERAGE RATIO" means, as of any date
of determination, the ratio of (a) the sum of (i) Adjusted Total NOI from all
unencumbered (other than Ordinary Course Liens) real property assets PLUS (ii)
Management EBITDA, in each case for the period of the four prior fiscal quarters
ending on such date TO (b) Total Interest Expense relating to Unsecured Debt
during such period.
"WESTWOOD VILLAGE" means Xxxxxx Xxxxxxx Member LLC and its
direct and indirect Subsidiaries and their respective real estate Properties.
"WHOLLY-OWNED SUBSIDIARY" means a Subsidiary of AIMCO and/or
the REIT and/or AIMCO/Bethesda and/or NHP Management of which one hundred
percent (100%) of the Stock or other equity or other beneficial interests (in
the case of Persons other than corporations) is owned directly or indirectly by
Borrowers; PROVIDED, HOWEVER, that where such term is qualified with respect to
a specific Person (e.g., "Wholly Owned Subsidiary of the REIT") such term means
a Subsidiary of which one hundred percent (100%) of the Stock or other equity or
other beneficial interests (in the case of Persons other than corporations) is
owned directly or indirectly by the specified Person.
1.02 USE OF CERTAIN TERMS.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "HEREIN" and "HEREUNDER" and words of similar
import when used in this Agreement shall refer to this Agreement as a whole and
not to any particular provision of this Agreement. The word "INCLUDING" when
used herein is not intended to be exclusive and means "including, without
limitation." References herein to a Section, subsection or clause shall refer to
the appropriate Section, subsection or clause in this Agreement.
(d) The term "or" is disjunctive; the term "and" is
conjunctive. The term "shall" is mandatory; the term "may" is permissive.
41
1.03 ACCOUNTING TERMS.
All accounting terms not specifically or completely defined in
this Agreement shall be construed in conformity with, and all financial data
required to be submitted by this Agreement shall be prepared in conformity with,
GAAP, as in effect on the Amendment Effective Date, EXCEPT as otherwise
specifically prescribed herein.
1.04 ROUNDING.
Any financial ratios required to be maintained by Borrowers
pursuant to this Agreement shall be calculated by dividing the appropriate
component by the other component, carrying the result to one place more than the
number of places by which such ratio is expressed in this Agreement and rounding
the result up or down to the nearest number (with a round-up if there is no
nearest number) to the number of places by which such ratio is expressed in this
Agreement.
1.05 EXHIBITS AND SCHEDULES.
All exhibits and schedules to this Agreement, either as
originally existing or as the same may from time to time be supplemented,
modified or amended, are incorporated herein by this reference. A matter
disclosed on any Schedule shall be deemed disclosed on all Schedules.
1.06 REFERENCES TO AGREEMENTS, EXHIBITS AND LAWS.
Unless otherwise expressly provided herein, (a) references to
agreements (including the Loan Documents) and other contractual instruments
shall include all amendments and other modifications thereto (unless prohibited
by any Loan Document), and (b) references to any statute or regulation shall
include all statutory and regulatory provisions consolidating, amending,
replacing, supplementing or interpreting the statute or regulation.
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 COMMITTED LOANS.
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to make, Convert and Continue Committed
Loans ("REVOLVING LOANS") until the Revolving Commitment Termination Date as
Borrowers may from time to time request; PROVIDED, HOWEVER, that the Outstanding
Obligations of each Lender shall not exceed such Lender's Commitment, and the
Outstanding Obligations of all Lenders shall not exceed the Combined Commitments
at any time. Subject to the foregoing and the other terms and conditions hereof,
Borrowers may borrow, Convert, Continue, prepay and reborrow Revolving Loans
until the Revolving Commitment Termination Date as set forth herein without
premium or penalty.
(b) If the conditions to the extension of the initial Maturity
Date hereunder are satisfied pursuant to SECTION 2.13, all Revolving
42
Loans outstanding on the Revolving Commitment Termination Date, after giving
effect to any prepayment thereof made on such date, shall be converted into term
loans ("TERM LOANS") hereunder. No additional Term Loans shall be made
hereunder. Subject to the terms and conditions set forth in this Agreement, each
Lender severally agrees to Convert and Continue Term Loans until the Maturity
Date as Borrowers may from time to time request; PROVIDED, HOWEVER, that the
Outstanding Obligations of each Lender shall not exceed such Lender's
Commitment, and the Outstanding Obligations of all Lenders shall not exceed the
Combined Commitments at any time. Subject to the foregoing and the other terms
and conditions hereof, Borrowers may Convert, Continue, and prepay Term Loans
until the Maturity Date as set forth herein without premium or penalty. Term
Loans that are repaid or prepaid may not be reborrowed.
(c) Loans made by each Lender shall be evidenced by one or
more loan accounts or records maintained by such Lender in the Ordinary Course
of Business. Such Lender's Loans shall be evidenced by one or more Notes,
instead of or in addition to loan accounts. Each such Lender may attach
schedules to its Note(s) and endorse thereon the date, amount and maturity of
its Committed Loans and payments with respect thereto. Such loan accounts,
records or Notes shall be conclusive absent manifest error of the amount of such
Loans and payments thereon. Any failure so to record or any error in doing so
shall not, however, limit or otherwise affect the obligation of Borrowers to pay
any amount owing with respect to the Loans.
(d) Anything contained in this Agreement to the contrary
notwithstanding, the Committed Loans and the Combined Commitment shall be
subject to the following additional limitations:
(i) in no event shall the aggregate principal amount
of outstanding Committed Loans, the proceeds of which are used
to finance Construction/Renovation, exceed $100,000,000; and
(ii) in no event shall the Outstanding Obligations at
any time exceed the lesser of (x) the Combined Commitments
then in effect and (y) an amount equal to 300% of the Free
Corporate Cash Flow for the four fiscal quarter period most
recently ended on or before such time of determination.
(e) Subject to the provisions of SECTION 4.02, on the terms
and subject to the conditions set forth in this SECTION 2.01(e), Borrowers may,
on or at any time prior to March 11, 2004, by written notice to Administrative
Agent, request an increase in the then effective aggregate principal amount of
the Combined Commitments by (i) permitting any Lender to increase its Commitment
(and accordingly increase the Combined Commitments by such amount), or (ii)
inviting any Eligible Assignee that has previously been approved by
Administrative Agent in writing to become a Lender under this Agreement and to
provide a commitment to lend hereunder (and accordingly increase the Combined
Commitments by such amount); PROVIDED, however, that in no event shall such
actions cause the aggregate principal amount of the Combined Commitments to
increase above $500,000,000.
43
Each of the Lenders acknowledges and agrees that,
notwithstanding any contrary provisions of SECTION 10.01, (i) its consent to any
such increase in the Combined Commitments shall not be required and (ii)
Eligible Assignees may be added to this Agreement and any Lender may increase
its Commitment without the consent or agreement of the other Lenders (PROVIDED,
however, that no Lender's Commitment may be increased without such Lender's
consent), so long as Administrative Agent and Borrowers have consented in
writing to such Eligible Assignee or the increase in the Commitment of any of
the Lenders, as applicable.
Administrative Agent shall not unreasonably withhold its
consent to Borrowers' request for an increase in the Combined Commitments under
this SECTION 2.01(E) provided that Borrowers satisfy all of the following
conditions precedent:
(i) No Default or Event of Default shall have
occurred and remain uncured on the Increase Effective Date (as
hereinafter defined), and Administrative Agent shall have
received a certificate to that effect signed by an officer of
the Borrowers;
(ii) Any Eligible Assignee is acceptable to
Administrative Agent in its reasonable discretion;
(iii) Borrowers and each such Lender or Eligible
Assignee shall have executed and delivered to Administrative
Agent a Joinder Agreement in the form of EXHIBIT M attached
hereto (a "JOINDER AGREEMENT");
(iv) Borrowers shall have paid to Administrative
Agent, for the account of such Lender or Eligible Assignee,
Administrative Agent and BAS, as applicable, a commitment fee
and/or an arrangement fee in an amount reasonably satisfactory
to Administrative Agent and Borrowers;
(v) Administrative Agent shall have sent written
notice of each such request by Borrowers to the Lenders,
together with notice of such Eligible Assignee's Commitment or
such Lender's increased Commitment, as the case may be, and
the effective date (the "INCREASE EFFECTIVE DATE") of such
increase in the Combined Commitments; and
(vi) All requirements of this SECTION 2.01(e) shall
have been satisfied.
Upon the Increase Effective Date, and notwithstanding any
contrary provision of this Agreement (i) each such Eligible Assignee shall
become a party to this Agreement, and thereafter shall have all of the rights
and obligations of a Lender hereunder, (ii) each such Eligible Assignee or
Lender shall simultaneously pay to Administrative Agent, for distribution to the
Lenders whose Pro Rata Shares of the Combined Commitments of all of the Lenders
have decreased as a result of the new Commitment of such Eligible Assignee or
the increased Commitment of such Lender, an amount equal to the product of such
Eligible Assignee's Pro Rata Share (or the increase in such Lender's Pro Rata
Share), expressed as a decimal, multiplied by the aggregate outstanding
principal amount of the Loans on the date of determination, and (iii) each such
Eligible Assignee or Lender shall thereafter be obligated to make its Pro Rata
44
Share of Borrowings to Borrowers up to and including the amount of such Eligible
Assignee's or Lender's Pro Rata Share of the increased Combined Commitments, on
the terms and subject to the conditions set forth in this Agreement.
2.02 BORROWINGS, CONVERSIONS AND CONTINUATIONS OF COMMITTED LOANS.
(a) From time to time, Borrowers may irrevocably request a
Borrowing, Conversion or Continuation of Committed Loans in a Minimum Amount
therefor by delivering a Request for Extension of Credit therefor by Requisite
Notice to Administrative Agent not later than the Requisite Time therefor.
Immediately after any telephonic notice of a Borrowing, Borrowers shall provide
Administrative Agent with a written notice thereof, signed by a Responsible
Officer. All Borrowings, Conversions and Continuations shall constitute Base
Rate Loans unless properly and timely otherwise designated as set forth in the
prior sentence.
(b) Following receipt of a Request for Extension of Credit,
Administrative Agent shall promptly notify each Lender of its Pro Rata Share
thereof by Requisite Notice. In the case of a Borrowing of Loans, each Lender
shall make the funds for its Loan available to Administrative Agent at
Administrative Agent's Office not later than the Requisite Time therefor on the
Business Day specified in such Request for Extension of Credit. Upon
satisfaction of the applicable conditions set forth in SECTION 4, all funds so
received shall be made available to Borrowers in like funds received.
(c) Administrative Agent shall promptly notify Borrowers and
Lenders of the interest rate applicable to any Loan other than a Base Rate Loan
upon determination of same.
(d) Except as otherwise provided herein, an Offshore Rate Loan
may be Continued or Converted only on the last day of the Interest Period for
such Offshore Rate Loan. No Loans may be requested as, Converted into or
Continued as Offshore Rate Loans during the existence of a Default or Event of
Default. During the existence of a Default or Event of Default, the Requisite
Lenders may demand that any or all of the then outstanding Offshore Rate Loans
be converted into Base Rate Loans on the last day of the applicable Interest
Period. Such Conversion shall be effective upon the last day of the applicable
Interest Period and after notice has been given to Borrowers and shall continue
so long as such Default or Event of Default continues to exist.
(e) If a Loan is to be made on the same date that another Loan
is due and payable, Borrowers or Lenders, as the case may be, shall make
available to Administrative Agent the net amount of funds giving effect to both
such Loans and the effect for purposes of this Agreement shall be the same as if
separate transfers of funds had been made with respect to each such Loan.
(f) The failure of any Lender to make any Loan on any date
shall not relieve any other Lender of any obligation to make a Loan on such
date, but no Lender shall be responsible for the failure of any other Lender to
so make its Loan.
45
2.03 SWING LINE LOANS.
(a) Subject to the terms and conditions set forth in this
Agreement, Swing Line Lender agrees to make Swing Line LOANS until the Revolving
Commitment Termination Date as Borrowers may from time to time request;
PROVIDED, HOWEVER, that the aggregate outstanding principal amount of Swing Line
Loans shall not exceed the Swing Line Commitment at any time; PROVIDED FURTHER
that in no event shall the Outstanding Obligations at any time exceed the lesser
of (x) the Combined Commitments then in effect and (y) an amount equal to 300%
of the Free Corporate Cash Flow for the four fiscal quarter period most recently
ended on or before such time of determination. Swing Line Loans shall constitute
Loans for all purposes hereunder. Subject to the foregoing and the other terms
and conditions hereof, Borrowers may borrow, prepay and reborrow Swing Line
Loans as set forth herein until the Revolving Commitment Termination Date
without premium or penalty.
(b) Swing Line Loans made by Swing Line Lender shall be
evidenced by a loan account or records maintained by Swing Line Lender in the
Ordinary Course of Business. Upon the request of Swing Line Lender, Swing Line
Lender's Swing Line Loans may be evidenced by a Swing Line Note, instead of or
in addition to loan accounts. Swing Line Lender may attach schedules to its
Swing Line Note and endorse thereon the date, amount and maturity of its Swing
Line Loans and payments with respect thereto. Such loan accounts, records or
Swing Line Note shall be conclusive absent manifest error of the amount of such
Swing Line Loans and payments thereon. Any failure so to record or any error in
doing so shall not, however, limit or otherwise affect the obligation of
Borrowers to pay any amount owing with respect to the Swing Line Loans.
2.04 BORROWINGS OF SWING LINE LOANS.
(a) Borrowers may irrevocably request a Borrowing of Swing
Line Loans in a Minimum Amount therefor by delivering a Request for Extension of
Credit therefor by Requisite Notice to Administrative Agent and Swing Line
Lender not later than the Requisite Time therefor. All Borrowings of Swing Line
Loans shall constitute Base Rate Loans.
(b) Upon satisfaction of the applicable conditions set forth
in SECTION 4, Swing Line Lender shall make the funds for the Swing Line Loan
available to Borrowers not later than the Requisite Time therefor by deposit in
such of Borrowers' accounts with Swing Line Lender in Los Angeles, California,
as Borrowers designate in writing, on the Business Day specified in such Request
for Extension of Credit.
(c) If necessary to meet Borrowers' funding deadlines,
Administrative Agent may treat any Request for Extension of Credit as a request
for a Swing Line Loan from Borrowers and Swing Line Lender may fund it as a
Swing Line Loan. Within two (2) Business Days after each Swing Line Loan is
funded, Swing Line Lender and Administrative Agent shall request that each
Lender, and each Lender shall, at the Requisite Time after such request is made,
prepay one or more Swing Line Loans in an amount equal to such Lender's Pro Rata
Share of such Swing Line Loans by funding under such Lender's Commitment, such
purchase to be made in accordance with the terms of SECTION 2.01 of this
Agreement just as if such Lender
46
were funding a Base Rate Loan directly to Borrowers under its Commitment (such
that all Lenders other than Swing Line Lender shall fund only under their
respective Commitments). Unless Administrative Agent had actual knowledge when
Swing Line Lender funded a Swing Line Loan that Borrowers have not satisfied the
conditions in this Agreement to obtain a borrowing, each Lender's obligation to
prepay the Swing Line Loans shall be absolute and unconditional and shall not be
affected by any circumstance, including, without limitation (i) any set-off,
counterclaim, recoupment, defense, or other right which such Lender or any other
Person may have against Swing Line Lender or any other Person for any reason
whatsoever, (ii) the occurrence or continuance of a Default or Event of Default
or the termination of any Lender's Commitment, (iii) the occurrence of any
Material Adverse Effect, (iv) any breach of this Agreement or any other Loan
Document by Borrowers, any Borrower Party, Administrative Agent, or any other
Lender, or (v) any other circumstance, happening, or event whatsoever, whether
or not similar to any of the foregoing. Any portion of a Swing Line Loan not so
prepaid may be treated by Swing Line Lender as a Loan which was not funded by
the non-purchasing Lenders as contemplated in SECTION 2.11(d) of this Agreement,
and as a funding by Swing Line Lender under the Combined Commitments in excess
of Swing Line Lender's Commitment. Each Swing Line Loan, once so prepaid, shall
cease to be a Swing Line Loan for the purposes of this Agreement, but shall be
deemed a borrowing made under the Combined Commitments and each Lender's
Commitment; PROVIDED, HOWEVER, that so long as Bank of America is both
Administrative Agent and Swing Line Lender, no Lender shall be obligated to
prepay any Swing Line Loan for which Borrowers have not satisfied the applicable
conditions precedent set forth in SECTION 4 hereof.
2.05 LETTERS OF CREDIT.
(a) THE LETTER OF CREDIT COMMITMENT. Subject to the terms and
conditions hereof, at any time and from time to time from the Initial Closing
Date through the Letter of Credit Expiration Date, Issuing Lender shall take
such Letter of Credit Actions under the Commitments as Borrowers may request;
PROVIDED, HOWEVER, that (i) the Outstanding Obligations of each Lender shall not
exceed such Lender's Commitment, (ii) the Outstanding Obligations of all Lenders
shall not exceed at any time the lesser of (x) Combined Commitments at such time
and (y) an amount equal to 300% of the Free Corporate Cash Flow for the four
fiscal quarter period most recently ended on or before such time of
determination, and (iii) the Letter of Credit Usage shall not at any time exceed
the Letter of Credit Commitment at such time. Each Letter of Credit Action shall
be in a form reasonably acceptable to Issuing Lender and shall not violate any
policies of Issuing Lender. No Letter of Credit shall expire after the Letter of
Credit Expiration Date. If any Letter of Credit Usage remains outstanding after
the Letter of Credit Expiration Date, Borrowers shall, not later than the Letter
of Credit Expiration Date, deposit Cash in an amount equal to such Letter of
Credit Usage in a Letter of Credit Cash Collateral Account.
(b) REQUESTING LETTER OF CREDIT ACTIONS. Borrowers may
irrevocably request a Letter of Credit Action by delivering a Letter of Credit
Application therefor to Issuing Lender, with a copy to Administrative Agent (who
shall notify Lenders), by Requisite Notice not later than the Requisite Time
therefor. Unless Administrative Agent notifies Issuing Lender that such Letter
of Credit Action is not permitted hereunder or Issuing Lender determines that
such
47
Letter of Credit Action is contrary to any Laws or policies of Issuing Lender or
does not otherwise conform to the requirements of this Agreement, Issuing Lender
shall effect such Letter of Credit Action. This Agreement shall control in the
event of any conflict with any Letter of Credit Application. Upon the issuance
of a Letter of Credit, each Lender shall be deemed to have purchased a pro rata
participation in such Letter of Credit from Issuing Lender in an amount equal to
that Lender's Pro Rata Share.
(c) REIMBURSEMENT OF PAYMENTS UNDER LETTERS OF CREDIT.
Borrowers shall reimburse Issuing Lender through Administrative Agent for any
payment that Issuing Lender makes under a Letter of Credit on or before the date
of such payment; PROVIDED, HOWEVER, that if the conditions precedent set forth
in SECTION 4 can be satisfied, Borrowers may request a Borrowing of Committed
Loans to reimburse Issuing Lender for such payment on or before the date thereof
by complying with SECTION 2.02, or Borrowers may allow a deemed Borrowing of
Committed Loans which are Base Rate Loans to take place on such payment date
pursuant to subsection (e) below.
(d) FUNDING BY LENDERS WHEN ISSUING LENDER NOT REIMBURSED. If
Borrowers fail to timely make the payment required pursuant to subsection (c)
above, Issuing Lender shall notify Administrative Agent of such fact and the
amount of such unreimbursed payment. Administrative Agent shall promptly notify
each Lender of its Pro Rata Share of such amount by Requisite Notice. Each
Lender shall make funds in an amount equal its Pro Rata Share of such amount
available to Administrative Agent at Administrative Agent's Office not later
than the Requisite Time on the Business Day specified by Administrative Agent.
The obligation of each Lender to so reimburse Issuing Lender shall be absolute
and unconditional and shall not be affected by the occurrence of an Event of
Default or any other occurrence or event. Any such reimbursement shall not
relieve or otherwise impair the obligation of Borrowers to reimburse Issuing
Lender for the amount of any payment made by Issuing Lender under any Letter of
Credit, together with interest as provided herein.
(e) NATURE OF LENDERS' FUNDING. If the conditions precedent
set forth in SECTION 4 can be satisfied (except for the giving of a Request for
Extension of Credit) on the date Borrowers are obligated to make, but fail to
make, a reimbursement of a payment under a Letter of Credit, the funding by
Lenders pursuant to subsection (d) above shall be deemed to be part of a
Borrowing of Committed Loans which are Base Rate Loans (without regard to the
Minimum Amount therefor) requested by Borrowers. If the conditions precedent set
forth in SECTION 4 cannot be satisfied on the date Borrowers are obligated to
make, but fail to make, a reimbursement of a payment under a Letter of Credit,
the funding by Lenders pursuant to subsection (d) above shall be deemed to be a
funding by each Lender of its participation in such Letter of Credit, and such
funds shall be payable by Borrowers upon demand and shall bear interest at the
Default Rate, and each Lender making such funding shall thereupon acquire a pro
rata participation, to the extent of such reimbursement, in the claim of Issuing
Lender against Borrowers in respect of such payment and shall share, in
accordance with that pro rata participation, in any payment made by Borrowers
with respect to such claim.
(f) [intentionally omitted]
48
(g) OBLIGATIONS ABSOLUTE. The obligation of Borrowers to pay
to Issuing Lender the amount of any payment made by Issuing Lender under any
Letter of Credit shall be absolute, unconditional, and irrevocable. Without
limiting the foregoing, Borrowers' obligation shall not be affected by any of
the following circumstances:
(i) any lack of validity or enforceability of the
Letter of Credit, this Agreement, or any other agreement or
instrument relating thereto;
(ii) any amendment or waiver of or any consent to
departure from the Letter of Credit, this Agreement, or any
other agreement or instrument relating thereto;
(iii) the existence of any claim, setoff, defense, or
other rights which Borrowers may have at any time against
Issuing Lender, Administrative Agent or any Lender, any
beneficiary of the Letter of Credit (or any persons or
entities for whom any such beneficiary may be acting) or any
other Person, whether in connection with the Letter of Credit,
this Agreement, or any other agreement or instrument relating
thereto, or any unrelated transactions;
(iv) any demand, statement, or any other document
presented under the Letter of Credit proving to be forged,
fraudulent, invalid, or insufficient in any respect or any
statement therein being untrue or inaccurate in any respect
whatsoever so long as any such document appeared to comply
with the terms of the Letter of Credit;
(v) payment by Issuing Lender in good faith under the
Letter of Credit against presentation of a draft or any
accompanying document which does not strictly comply with the
terms of the Letter of Credit; or any payment made by Issuing
Lender under any Letter of Credit to any Person purporting to
be a trustee in bankruptcy, debtor-in-possession, assignee for
the benefit of creditors, liquidator, receiver or other
representative of or successor to any beneficiary or any
transferee of any Letter of Credit, including any arising in
connection with any proceeding under any Debtor Relief Laws;
(vi) the existence, character, quality, quantity,
condition, packing, value or delivery of any Property
purported to be represented by documents presented in
connection with any Letter of Credit or for any difference
between any such Property and the character, quality,
quantity, condition, or value of such Property as described in
such documents;
(vii) the time, place, manner, order or contents of
shipments or deliveries of Property as described in documents
presented in connection with any Letter of Credit or the
existence, nature and extent of any insurance relative
thereto;
(viii) the solvency or financial responsibility of
any party issuing any documents in connection with a Letter of
Credit;
49
(ix) any failure or delay in notice of shipments or
arrival of any Property;
(x) any error in the transmission of any message
relating to a Letter of Credit not caused by Issuing Lender,
or any delay or interruption in any such message;
(xi) any error, neglect or default of any
correspondent of Issuing Lender in connection with a Letter of
Credit;
(xii) any consequence arising from acts of God, wars,
insurrections, civil unrest, disturbances, labor disputes,
emergency conditions or other causes beyond the control of
Issuing Lender;
(xiii) so long as Issuing Lender in good faith
determines that the document appears to comply with the terms
of the Letter of Credit, the form, accuracy, genuineness or
legal effect of any contract or document referred to in any
document submitted to Issuing Lender in connection with a
Letter of Credit; and
(xiv) where Issuing Lender has acted in good faith
and any other circumstances whatsoever.
In addition, Borrowers will promptly examine a copy of each
Letter of Credit and amendments thereto delivered to it and, in the event of any
claim of noncompliance with Borrowers' instructions or other irregularity,
Borrowers will immediately notify Issuing Lender in writing. Borrowers shall be
conclusively deemed to have waived any such claim against Issuing Lender and its
correspondents unless such notice is given as aforesaid.
(h) ROLE OF ISSUING LENDER. Each Lender and Borrower Party
agree that, in paying any drawing under a Letter of Credit, Issuing Lender shall
not have any responsibility to obtain any document (other than any sight draft
and certificates expressly required by the Letter of Credit) or to ascertain or
inquire as to the validity or accuracy of any such document or the authority of
the Person executing or delivering any such document. No Administrative
Agent-Related Person nor any of the respective correspondents, participants or
assignees of Issuing Lender shall be liable to any Lender for any action taken
or omitted in connection herewith at the request or with the approval of Lenders
or the Requisite Lenders, as applicable; any action taken or omitted in the
absence of gross negligence or willful misconduct; or the due execution,
effectiveness, validity or enforceability of any document or instrument related
to any Letter of Credit. Borrowers hereby assume all risks of the acts or
omissions of any beneficiary or transferee with respect to its use of any Letter
of Credit; PROVIDED, HOWEVER, that this assumption is not intended to, and shall
not, preclude Borrowers' pursuing such rights and remedies as they may have
against the beneficiary or transferee at law or under any other agreement. No
Administrative Agent-Related Person, nor any of the respective correspondents,
participants or assignees of Issuing Lender, shall be liable or responsible for
any of the matters described in subsection (g) above. In furtherance and not in
limitation of the foregoing, Issuing Lender may
50
accept documents that appear on their face to be in order, without
responsibility for further investigation, regardless of any notice or
information to the contrary, and Issuing Lender shall not be responsible for the
validity or sufficiency of any instrument transferring or assigning or
purporting to transfer or assign a Letter of Credit or the rights or benefits
thereunder or proceeds thereof, in whole or in part, which may prove to be
invalid or ineffective for any reason.
(i) APPLICABILITY OF INTERNATIONAL STANDBY PRACTICES 1998.
Unless otherwise expressly agreed by Issuing Lender and Borrowers when a Letter
of Credit is issued, the rules of the "International Standby Practices 1998" or
such later revision as may be published by the Institute of International
Banking Law and Practice, subject to applicable Laws, shall be deemed a part of
this Section and shall apply to such Letter of Credit.
(j) FEES AND OTHER CHARGES. Borrowers agree to pay the
following amounts with respect to Letters of Credit issued hereunder:
(i) with respect to each Letter of Credit, a letter
of credit fee, payable to Administrative Agent for the account
of Lenders, equal to the Applicable Margin for Offshore Rate
Loans, stated as a percentage per annum, of the daily amount
available to be drawn under such Letter of Credit, each such
letter of credit fee to be payable in arrears on each March
31, June 30, September 30 and December 31 of each year and
computed on the basis of a 360-day year for the actual number
of days elapsed; and
(ii) with respect to the issuance, amendment or
transfer of each Letter of Credit and each payment of a
drawing made thereunder (without duplication of the fees
payable under clause (a) above), documentary and processing
charges payable directly to the applicable Issuing Lender for
its own account in accordance with such Issuing Lender's
standard schedule for such charges in effect at the time of
such issuance, amendment, transfer or payment, as the case may
be.
For purposes of calculating any fees payable under clause (i)
of this SECTION 2.05(j), the daily amount available to be drawn under any Letter
of Credit shall be determined as of the close of business on any date of
determination. Promptly upon receipt by Administrative Agent of any amount
described in clause (i) of this SECTION 2.05(j), Administrative Agent shall
distribute to each Lender its Pro Rata Share of such amount.
(k) EXISTING LETTERS OF CREDIT. Each Existing Letter of Credit
outstanding on the Initial Closing Date shall be deemed to be a Letter of Credit
hereunder and all unpaid reimbursement obligations owed in respect of amounts
drawn on Existing Letters of Credit shall be reimbursement obligations
hereunder.
2.06 PREPAYMENTS; MANDATORY AMORTIZATION.
(a) VOLUNTARY PREPAYMENTS. Upon Requisite Notice to
Administrative Agent not later than the Requisite Time therefor, Borrowers may
at any time and from time to time voluntarily prepay Committed Loans and/or
Swing Line Loans in part in at least the Minimum
51
Amount therefor or in full without premium or penalty. Administrative Agent will
promptly notify each Lender thereof and of such Lender's Pro Rata Share of such
prepayment. Any prepayment of an Offshore Rate Loan shall be accompanied by all
accrued interest thereon, together with the costs set forth in SECTION 3.05.
(b) MANDATORY PREPAYMENTS.
(i) Free Corporate Cash Flow. If at any time the
Outstanding Obligations exceed the lesser of (x) the Combined
Commitments then in effect and (y) an amount equal to 300% of
the Free Corporate Cash Flow for the four fiscal quarter
period most recently ended on or before such time of
determination, then Borrowers shall immediately prepay Loans
in an amount sufficient to reduce the Outstanding Obligations
to the lesser of (x) the Combined Commitments then in effect
and (y) an amount equal to 300% of the Free Corporate Cash
Flow for the four fiscal quarter period most recently ended on
or before such time of determination.
(ii) Other Limitations on Combined Commitments. If
for any reason the Outstanding Obligations exceed the
Outstanding Obligations as reduced by this Section or because
of any limitation set forth in this Agreement or otherwise,
Borrowers shall immediately prepay Loans and/or deposit Cash
in a Letter of Credit Cash Collateral Account in an aggregate
amount equal to such excess.
(iii) Net Issuance Proceeds. Subject to the terms of
the Intercreditor Agreement, no later than the fourth Business
Day after the date of receipt by the Borrowers, the Guarantors
or any of their Subsidiaries of Net Issuance Proceeds (except
any such Net Issuance Proceeds received from the sale of Stock
or Partnership Units in Park La Brea) after the Amendment
Effective Date, Borrowers shall prepay the Loans and pay
accrued and unpaid interest thereon in an aggregate amount
equal to 100% of such Net Issuance Proceeds.
(iv) Net Disposition Proceeds. Subject to the terms
of the Intercreditor Agreement, no later than the fourth
Business Day after the date of receipt by the Borrowers, the
Guarantors or any of their Subsidiaries of Net Disposition
Proceeds from any Disposition which is not an Ordinary Course
Disposition after the Amendment Effective Date, Borrowers
shall prepay the Loans and pay accrued and unpaid interest
thereon in an aggregate amount equal to 100% of such Net
Disposition Proceeds.
(v) Net Refinancing Proceeds. Subject to the terms of
the Intercreditor Agreement, no later than the fourth Business
Day after the date of receipt by the Borrowers or any of their
Subsidiaries of Net Refinancing Proceeds from any Refinancing
after the Amendment Effective Date, Borrowers shall prepay the
Loans and pay accrued and unpaid interest thereon in an
aggregate amount equal to 100% of such Net Refinancing
Proceeds.
52
(vi) Net Indebtedness Proceeds. Subject to the terms
of the Intercreditor Agreement, no later than the fourth
Business Day after the date of receipt by the Borrowers or any
of their Subsidiaries of Net Indebtedness Proceeds from any
Indebtedness incurred by the Borrowers or any of their
Subsidiaries after the Amendment Effective Date, Borrowers
shall apply an aggregate amount equal to 100% of such Net
Indebtedness Proceeds to prepay the Loans and pay accrued and
unpaid interest thereon.
(c) APPLICATION OF PREPAYMENTS.
(i) Unless otherwise instructed by Borrowers, any
prepayments pursuant to SECTION 2.06(a) or SECTION 2.06(b)
made (1) on a day other than the last day of an Interest
Period for any Loan shall be applied first to any Base Rate
Loans then outstanding and then to any Offshore Rate Loans
then outstanding, in the forward order of such Offshore Rate
Loans' stated maturities and (2) on the last day of an
Interest Period for any Offshore Rate Loan shall be applied
first to such maturing Offshore Rate Loan, then to any Base
Rate Loans outstanding, and then to any other Offshore Rate
Loans then outstanding, in the forward order of such Offshore
Rate Loans' stated maturities.
(ii) In the event that Borrowers make any extension
of the Maturity Date pursuant to SECTION 2.13, then any
prepayments pursuant to SECTION 2.06(a) or SECTION 2.06(b)
shall be applied to reduce the scheduled installments of
principal of the Loans set forth in SECTION 2.06(d) in inverse
order of maturity.
(iii) Notwithstanding anything to the contrary
contained herein, upon the occurrence of a Payment Default (as defined
in the Intercreditor Agreement) and during the continuation thereof,
each payment received pursuant to this SECTION 2.06 shall be applied in
accordance with and subject to the provisions of the Intercreditor
Agreement.
(d) SCHEDULED REPAYMENTS. In the event that Borrowers make the
extension of the Maturity Date pursuant to SECTION 2.13, Borrowers shall make
principal payments on the Outstanding Obligations on each of the following dates
in the aggregate amount, expressed as a percentage of the Lenders' aggregate
principal amount of Outstanding Obligations outstanding as of the Extension
Effective Date (as defined in SECTION 2.13(b)), set forth opposite such date in
the table set forth below:
53
================================================================================
SCHEDULED REPAYMENT OF OUTSTANDING
OBLIGATIONS IN THE EVENT OF
SCHEDULED REPAYMENT DATE EXTENSION OF THE MATURITY DATE
PURSUANT TO SECTION 2.13
--------------------------------------------------------------------------------
October 31, 2005 12.5%
January 31, 2006 12.5%
April 30, 2006 12.5%
July 31, 2006 62.5%
--------------------------------------------------------------------------------
TOTAL 100%
================================================================================
; PROVIDED that the Outstanding Obligations and other amounts owed hereunder
with respect to the Loans shall be paid in full no later than the Maturity Date
and the final installment payable by Borrowers in respect of the Loans on such
date shall be in an amount sufficient to repay all amounts owing by Borrowers
under this Agreement with respect to the Loans.
(e) Notwithstanding the contrary provisions of this Subsection
2.06, the Borrowers may, in lieu of prepaying the Loans and paying accrued and
unpaid interest thereon per Subsections 2.06(b) (iii), (iv), (v) and (vi)
hereof, retain any Net Disposition Proceeds, Net Issuance Proceeds, Net
Refinancing Proceeds or Net Indebtedness Proceeds, as applicable, upon receipt
by the Borrowers, Guarantors or any of their Subsidiaries; PROVIDED, THAT, the
Borrowers submit a certificate to Administrative Agent in the form of Exhibit N
attached hereto certifying, among other things, that the Borrowers are in
compliance with all of the covenants in this Agreement, and that there does not
exist any Default or Event of Default immediately before and after the receipt
of such proceeds.
2.07 REDUCTION OR TERMINATION OF COMMITMENTS.
Upon Requisite Notice to Administrative Agent not later than
the Requisite Time therefor, Borrowers may at any time and from time to time,
without premium or penalty, permanently and irrevocably reduce the Commitments
in at least the Minimum Amount therefor to an amount not less than the
Outstanding Obligations at such time or terminate the Commitments.
Administrative Agent shall promptly notify Lenders of any such request for
reduction or termination of the Commitments. Each Lender's Commitment shall be
reduced by an amount equal to such Lender's Pro Rata Share TIMES the amount of
such reduction.
2.08 PRINCIPAL AND INTEREST; DEFAULT RATE.
(a) If not sooner paid (including repayments pursuant to
SECTION 2.06), Borrowers agree to pay the outstanding principal amount of each
Loan on the Maturity Date.
54
(b) Subject to subsection (c) below, Borrowers shall pay
interest on the unpaid principal amount of each Loan (before, during and after a
Default or an Event of Default, before and after maturity, before and after
judgment, and before and after the commencement of any proceeding under any
Debtor Relief Laws) from the date borrowed until paid in full (whether by
acceleration or otherwise) on each applicable Interest Payment Date at a rate
per annum equal to the interest rate determined in accordance with the
definition of such type of Loan, PLUS the Applicable Margin.
(c) If any amount payable by any Borrower Party under any Loan
Document is not paid when due (without regard to any applicable grace periods),
it shall thereafter bear interest (after as well as before entry of judgment
thereon to the extent permitted by law) at a fluctuating interest rate per annum
at all times equal to the Default Rate. Accrued and unpaid interest on past due
amounts (including, without limitation, interest on past due interest) shall be
payable upon demand.
2.09 FEES.
(a) FACILITY FEE. On a quarterly basis, payable in advance on
the first Business Day of each fiscal quarter, Borrowers shall pay to
Administrative Agent, for the account of each Lender pro-rata according to its
Pro-Rata Share, a facility fee equal to 0.200% per annum times the Combined
Commitments as in effect when such payment is due. No facility fee shall accrue
on or after any extension of the Maturity Date pursuant to SECTION 2.13. All
facility fees are fully earned on the date paid. The facility fee paid to each
Lender hereunder and under the Original Agreement is solely for its own account
and is nonrefundable for any reason.
(b) AGENCY FEES. Borrowers shall pay to Administrative Agent
an agency fee in such amounts and at such times as agreed upon by letter
agreement between Borrowers and Administrative Agent and in the event of any
extension of the Maturity Date pursuant to SECTION 2.13, Borrowers shall
continue to pay such agency fee to Administrative Agent in accordance with such
letter agreement. The agency fee is for the services to be performed by
Administrative Agent in acting as Administrative Agent and is fully earned on
the date paid. The agency fee paid to Administrative Agent is solely for its own
account and is nonrefundable.
(c) [OMITTED]
(d) EXTENSION FEE. If the Maturity Date shall be extended in
accordance with SECTION 2.13, Borrowers shall pay to Administrative Agent the
fees specified in SECTION 2.13(d).
(e) MODIFICATION FEE. Borrowers shall pay to Administrative
Agent a modification fee when and as designated in any fee letter by and between
Borrowers and Administrative Agent.
2.10 COMPUTATION OF INTEREST AND FEES.
Computation of all types of interest and all fees shall be
calculated on the basis of a year of 360 days and the actual number of days
elapsed, which results in a higher yield to Lenders than a method based on a
year of 365 or 366 days. Interest shall accrue on each Loan
55
for the day on which the Loan is made, and shall not accrue on a Loan, or any
portion thereof, for the day on which the Loan or such portion is paid, PROVIDED
that any Loan that is repaid on the same day on which it is made shall bear
interest for one day.
2.11 MAKING PAYMENTS.
(a) Except as otherwise provided herein, all payments by
Borrowers or any Lender shall be made to Administrative Agent at Administrative
Agent's Office not later than the Requisite Time for such type of payment. All
payments received after such Requisite Time shall be deemed received on the next
succeeding Business Day. All payments shall be made in immediately available
funds in lawful money of the United States of America. All payments by Borrowers
shall be made without condition or deduction for any counterclaim, defense,
recoupment or setoff.
(b) Upon satisfaction of any applicable terms and conditions
set forth herein, Administrative Agent shall promptly make any amounts received
in accordance with the prior subsection available in like funds received as
follows: (i) if payable to Borrowers, by crediting the Designated Deposit
Account, and (ii) if payable to any Lender, by wire transfer to such Lender at
the address specified in SCHEDULE 10.02, as amended from time to time by such
Lender.
(c) Subject to the definition of "INTEREST PERIOD," if any
payment to be made by any Borrower Party shall come due on a day other than a
Business Day, payment shall instead be considered due on the next succeeding
Business Day.
(d) Except as otherwise provided in SECTION 2.05(c) with
respect to Borrowers reimbursing drawings under Letters of Credit, unless a
Borrower or any Lender has notified Administrative Agent prior to the date any
payment to be made by it is due, that it does not intend to remit such payment,
Administrative Agent may, in its discretion, assume that Borrowers or Lender, as
the case may be, have timely remitted such payment and may, in its discretion
and in reliance thereon, make available such payment to the Person entitled
thereto. If such payment was not in fact remitted to Administrative Agent in
immediately available funds, then:
(i) if Borrowers failed to make such payment, each
Lender shall forthwith on demand repay to Administrative Agent
the amount of such assumed payment made available to such
Lender, together with interest thereon in respect of each day
from and including the date such amount was made available by
Administrative Agent to such Lender to the date such amount is
repaid to Administrative Agent at the Federal Funds Rate; and
(ii) if any Lender failed to make such payment,
Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Lender. If such
Lender does not pay such corresponding amount forthwith upon
Administrative Agent's demand therefor, Administrative Agent
promptly shall notify Borrowers, and Borrowers shall pay such
corresponding amount to Administrative Agent. Administrative
Agent also shall be entitled to recover
56
from such Lender interest on such corresponding amount in
respect of each day from the date such corresponding amount
was made available by Administrative Agent to Borrowers to the
date such corresponding amount is recovered by Administrative
Agent, at a rate per annum equal to the daily Federal Funds
Rate. Nothing herein shall be deemed to relieve any Lender
from its obligation to fulfill its Commitment or to prejudice
any rights which Administrative Agent or Borrowers may have
against any Lender as a result of any default by such Lender
hereunder.
2.12 FUNDING SOURCES.
Nothing in this Agreement shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or manner or to
constitute a representation by any Lender that it has obtained or will obtain
the funds for any Loan in any particular place or manner.
2.13 EXTENSION OF MATURITY DATE.
(a) Not earlier than ninety (90) days prior to, nor later than
sixty (60) days prior to the Maturity Date then in effect, Borrowers may request
by Requisite Notice made to Administrative Agent (who shall promptly notify
Lenders) a one-time one year extension of the Maturity Date. Such request shall
include a certificate signed by a Responsible Officer stating that (i) the
representations and warranties contained in SECTION 5 are true and correct on
and as of the date of such certificate and (ii) no Default or Event of Default
exists.
(b) If the statements in such certificate are true and
correct, the Maturity Date shall be extended to the same date in the following
calendar year, effective as of a date to be determined by Administrative Agent
and Borrowers (the "EXTENSION EFFECTIVE DATE"), and Administrative Agent shall
promptly notify Lenders thereof. On or prior to the Extension Effective Date,
Borrowers shall deliver to Administrative Agent, in form and substance
satisfactory to Administrative Agent: (i) corporate resolutions and incumbency
certificates of Borrowers dated as of the Extension Effective Date approving
such extension, (ii) new or amended Notes, if requested by any new or affected
Lender, evidencing such new or extended Commitments, and (iii) an
acknowledgement and consent from each Guarantor affirming the effectiveness of
its Guaranty after giving effect to the Maturity Date, as extended hereunder.
(c) Only one extension of the Maturity Date may be made, and
the Maturity Date shall not, in any event, be extended beyond July 31, 2006.
(d) Borrowers shall pay to Administrative Agent, for the
account of each Lender pro-rata according to its Pro Rata Share, an extension
fee equal to 0.25% times the Outstanding Obligations on the first day of the new
extension period. The extension fee shall be payable on the first day of the new
extension period and such extension fees are fully earned on the date paid. The
extension fee paid to each Lender is solely for its own account and is
nonrefundable.
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(e) This section shall supercede any provisions in SECTION
10.01 to the contrary.
2.14 COLLATERAL
The payment and performance of the Obligations are and shall
be secured by the Pledged Collateral subject to and in accordance with the
provisions of the Borrowers Pledge Agreement.
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 TAXES.
(a) Any and all payments by Borrowers to or for the account of
Administrative Agent or any Lender under any Loan Document shall be made free
and clear of and without deduction for any and all present or future taxes,
duties, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of Administrative Agent
and any Lender, taxes imposed on its income, and franchise taxes imposed on it,
by the jurisdiction under the Laws of which Administrative Agent or such Lender
is organized, maintains a Lending Office or otherwise does business, or any
political subdivision thereof (all such non-excluded taxes, duties, levies,
imposts, deductions, charges, withholdings, and liabilities being hereinafter
referred to as a "TAX" or "TAXES"). If Borrowers shall be required by any Laws
to deduct any Taxes from or in respect of any sum payable under any Loan
Document to Administrative Agent or any Lender, (i) the sum payable shall be
increased as necessary so that after making all required deductions (including
deductions applicable to additional sums payable under this Section), each of
the Administrative Agent and such Lender receives an amount equal to the sum it
would have received had no such deductions been made (such increase, an
"ADDITIONAL AMOUNT"); (ii) Borrowers shall make such deductions, (iii) Borrowers
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Laws, and (iv) Borrowers shall furnish
to Administrative Agent (who shall forward the same to such Lender) the original
or a certified copy of a receipt evidencing payment thereof.
(b) In addition, Borrowers agree to pay any and all present or
future stamp or documentary taxes and any other excise or property taxes or
charges or similar levies which arise from any payment made under any Loan
Document or from the execution or delivery of, or otherwise with respect to, any
Loan Document (hereinafter referred to as "OTHER TAXES").
(c) Borrowers agree to indemnify Administrative Agent and each
Lender for the full amount of Taxes and Other Taxes (including, without
limitation, any Taxes or Other Taxes imposed or asserted by any jurisdiction on
amounts payable under this Section) paid by Administrative Agent and such Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto, whether or not such Taxes or Other Taxes were correctly
or legally asserted unless and except to the extent such Taxes or Other Taxes
were
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imposed solely as a result of the gross negligence or willful misconduct of
Administrative Agent or Lender, as the case may be.
(d) Each Lender that is not a "United States person" within
the meaning of Section 7701(a)(30) of the Code (a "FOREIGN LENDER") agrees that:
(i) such Lender shall deliver to the Administrative
Agent, prior to receipt of any payment subject to withholding
under the Code (or upon accepting an assignment of an interest
herein), two duly signed completed copies of either IRS Form
W-8BEN ("Form W-8BEN") or any successor thereto (relating to
such Person and entitling it to an exemption from, or
reduction of, withholding tax on all payments to be made to
such Person by the Borrowers pursuant to this Agreement) or
IRS Form W-8ECI ("Form W-8ECI") or any successor thereto
(relating to all payments to be made to such Person by the
Borrowers pursuant to this Agreement) or such other evidence
satisfactory to the Borrowers and the Administrative Agent
that such Person is entitled to an exemption from, or
reduction of, U.S. withholding tax. Thereafter and from time
to time, each such Person shall (A) promptly submit to the
Administrative Agent such additional duly completed and signed
copies of one of such forms (or such successor forms as shall
be adopted from time to time by the relevant United States
taxing authorities) as may then be available under then
current United States laws and regulations to avoid, or such
evidence as is satisfactory to the Borrowers and the
Administrative Agent of any available exemption from or
reduction of, United States withholding taxes in respect of
all payments to be made to such Person by the Borrowers
pursuant to this Agreement, (B) promptly notify the
Administrative Agent of any change in circumstances which
would modify or render invalid any claimed exemption or
reduction, and (C) take such steps as shall not be materially
disadvantageous to it, in the reasonable judgment of such
Lender, and as may be reasonably necessary (including the
re-designation of its Lending Office) to avoid any requirement
of applicable Laws that the Borrowers make any deduction or
withholding for taxes from amounts payable to such Person. If
such Person fails to deliver the above forms or other
documentation, then the Administrative Agent may withhold from
any interest payment to such Person an amount equivalent to
the applicable withholding tax imposed by Sections 1441 and
1442 of the Code, without reduction.
(ii) such Lender shall, before or promptly after the
occurrence of any event (including the passing of time but
excluding any event mentioned in (i) above) requiring a change
in or renewal of the most recent Form W-8BEN or Form W-8ECI
previously delivered by such Lender, deliver to Borrowers
through Administrative Agent two (2) accurate and complete
original signed copies of Form W-8BEN or Form W-8ECI, as
appropriate, in replacement of the forms previously delivered
by such Lender; and
(iii) such Lender shall, promptly upon Borrowers'
reasonable request to that effect, deliver to Borrowers such
other forms or similar documentation as
59
may be required from time to time by any applicable law,
treaty, rule or regulation in order to establish such Lender's
tax status for withholding purposes.
(e) Borrowers shall not be required to pay any Additional
Amounts in respect of United States Federal or state income tax pursuant to this
Section 3.01 to any Lender or any duly appointed assignee for the account of any
Lending Office of such Lender or assignee:
(i) if the obligation to pay such Additional Amounts
arises as a result of a failure by such Lender or assignee to
comply with its obligations under this Section 3.01 in respect
of such Lending Office;
(ii) if such Lender or assignee shall have delivered
to Borrowers a Form W-8BEN in respect of such Lending Office
pursuant to this Section 3.01, and such Lender or assignee
shall not at any time be entitled to exemption from deduction
or withholding of United States Federal income tax in respect
of payments by Borrowers hereunder for any reason other than a
change in United States law or regulations or in the official
interpretation of such law or regulations by any governmental
authority charged with the interpretation or administration
thereof (whether or not having the force of law) after the
date of delivery of such Form W-8BEN; or
(iii) if such Lender or assignee shall have delivered
to Borrowers a Form W-8ECI in respect of such Lending Office
pursuant to this Section 3.01, and such Lender or assignee
shall not at any time be entitled to reduction, partial
exemption or exemption from deduction or withholding of United
States federal income tax in respect of payments by Borrowers
hereunder for the account of such Lending Office for any
reason other than a change in United States law or regulations
or any applicable tax treaty or regulations or in the official
interpretation of such law, treaty or regulations by any
governmental authority charged with the interpretation or
administration thereof (whether or not having the force of
law) after the date of delivery of such Form W-8ECI.
Notwithstanding the foregoing, an assignee subject to U.S. withholding taxes
shall be entitled to receive Additional Amounts pursuant to Section 3.01(a) to
the same extent that such assignee's assignor was entitled to receive such
Additional Amounts.
(f) If, at any time, Borrowers request any Lender to deliver
any forms or other documentation pursuant to this Section 3.01, then Borrowers
shall, on demand of such Lender, through Administrative Agent reimburse such
Lender for any costs and expenses (including Attorney Costs) reasonably incurred
by such Lender in the preparation or delivery of such forms or other
documentation.
(g) If Borrowers are required to pay Additional Amounts to
Administrative Agent or any Lender pursuant to this Section 3.01, then such
Lender shall use its reasonable best efforts (consistent with legal and
regulatory restrictions) to change the jurisdiction of its Lending
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Office so as to eliminate any such additional payment by Borrowers which may
thereafter accrue if such change in the judgment of such Lender is not otherwise
disadvantageous to such Lender.
3.02 ILLEGALITY.
If any Lender determines that any Laws have made it unlawful,
or that any Governmental Authority has asserted that it is unlawful, for any
Lender or its applicable Lending Office to make, maintain or fund Offshore Rate
Loans, or materially restricts the authority of such Lender to purchase or sell,
or to take deposits of, Dollars in the applicable offshore Dollar market, or to
determine or charge interest rates based upon the Offshore Rate, then, on notice
thereof by Lender to Borrowers through Administrative Agent, any obligation of
that Lender to make Offshore Rate Loans shall be suspended until Lender notifies
Administrative Agent and Borrowers that the circumstances giving rise to such
determination no longer exist. Upon receipt of such notice, Borrowers shall,
upon demand from such Lender (with a copy to Administrative Agent), prepay or
Convert all Offshore Rate Loans of that Lender, either on the last day of the
Interest Period thereof, if Lender may lawfully continue to maintain such
Offshore Rate Loans to such day, or immediately, if Lender may not lawfully
continue to maintain such Offshore Rate Loans. Each Lender agrees to designate a
different Lending Office if such designation will avoid the need for such notice
and will not, in the good faith judgment of such Lender, otherwise be materially
disadvantageous to such Lender.
3.03 INABILITY TO DETERMINE RATES.
If, in connection with any Extension of Credit involving any
Offshore Rate Loan, Administrative Agent determines that (a) Dollar deposits are
not being offered to banks in the applicable offshore Dollar market for the
applicable amount and Interest Period of the requested Offshore Rate Loan, (b)
adequate and reasonable means do not exist for determining the underlying
interest rate for such Offshore Rate Loan, or (c) such underlying interest rate
does not adequately and fairly reflect the cost to Lender of funding such
Offshore Rate Loan, Administrative Agent will promptly notify Borrowers and all
Lenders. Thereafter, the obligation of all Lenders to make or maintain such
Offshore Rate Loan shall be suspended until Administrative Agent revokes such
notice. Upon receipt of such notice, Borrowers may revoke any pending request
for a Borrowing of Offshore Rate Loans or, failing that, be deemed to have
converted such request into a request for a Borrowing of Base Rate Loans in the
amount specified therein.
3.04 INCREASED COST AND REDUCED RETURN; CAPITAL ADEQUACY.
(a) If any Lender determines that any Laws:
(i) subject such Lender to any Tax, duty, or other
charge with respect to any Offshore Rate Loans or its
obligation to make Offshore Rate Loans, or change the basis on
which Taxes are imposed on any amounts payable to such Lender
under this Agreement in respect of any Offshore Rate Loans;
(ii) shall impose or modify any reserve, special
deposit, or similar requirement (other than the reserve
requirement utilized in the determination of
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the Offshore Rate) relating to any extensions of credit or
other assets of, or any deposits with or other liabilities or
commitments of, such Lender (including its Commitment); or
(iii) shall impose on such Lender or on the offshore
Dollar interbank market any other condition affecting this
Agreement or any of such extensions of credit or liabilities
or commitments;
and the result of any of the foregoing is to increase the cost to such Lender of
making, Converting into, Continuing, or maintaining any Offshore Rate Loans or
to reduce any sum received or receivable by such Lender under this Agreement
with respect to any Offshore Rate Loans, then from time to time upon demand of
such Lender (with a copy of such demand to Administrative Agent), Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such increased cost or reduction.
(b) If any Lender determines that any change in or the
interpretation of any Laws have the effect of reducing the rate of return on the
capital of such Lender or compliance by such Lender (or its Lending Office) or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy to Administrative Agent), Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
3.05 BREAKFUNDING COSTS.
Upon demand of any Lender (with a copy to Administrative
Agent) from time to time, Borrowers shall promptly compensate such Lender for
and hold such Lender harmless from any loss, cost or expense incurred by it as a
result of:
(a) any Continuation, Conversion, payment or prepayment of any
Offshore Rate Loan on a day other than the last day of the Interest Period for
such Loan (whether voluntary, mandatory, automatic, by reason of acceleration,
or otherwise); or
(b) any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, Continue or Convert
any Offshore Rate Loan on the date or in the amount notified by such Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such
Offshore Rate Loan or from fees payable to terminate the deposits from which
such funds were obtained. Borrowers shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
3.06 MATTERS APPLICABLE TO ALL REQUESTS FOR COMPENSATION.
A certificate of Administrative Agent claiming compensation
under this SECTION 3 and setting forth the additional amount or amounts to be
paid to it hereunder shall be conclusive in the absence of clearly demonstrable
error. In determining such amount, Administrative Agent
62
may use any reasonable averaging and attribution methods. For purposes of this
SECTION 3, a Lender shall be deemed to have funded each Offshore Rate Loan at
the Offshore Base Rate used in determining the Offshore Rate for such Loan by a
matching deposit or other borrowing in the offshore Dollar interbank market,
whether or not such Offshore Rate Loan was in fact so funded.
3.07 SURVIVAL.
All of Borrowers' obligations under this SECTION 3 shall
survive termination of the Commitments and payment in full of all Obligations.
SECTION 4.
CONDITIONS TO EFFECTIVENESS
4.01 CONDITIONS TO THE AMENDED AND RESTATED CREDIT AGREEMENT.
The obligation of each Lender to enter into this Agreement is
subject to satisfaction of the following conditions precedent, all of which were
satisfied as of the Initial Closing Date, and no provision of this SECTION 4.01
shall have any force and effect on and after the Amendment Effective Date:
(a) Unless waived by all Lenders (or by Administrative Agent
with respect to immaterial matters, or items specified in subsections (iii) or
(iv) below, that the Borrowers have given assurances satisfactory to
Administrative Agent that they will be delivered promptly following the Initial
Closing Date), Administrative Agent's receipt of the following, each of which
shall be originals unless otherwise specified, each properly executed by a
Responsible Officer, each dated on or about the Initial Closing Date and each in
form and substance satisfactory to Administrative Agent and its legal counsel:
(i) (a) executed counterparts of this Agreement and
each other Loan Document, sufficient in number for
distribution to Administrative Agent, Lenders and Borrowers,
and (b) an Acknowledgement and Consent in the form attached to
the Borrowers Pledge Agreement, executed and delivered by any
issuer of the Pledged Collateral that is not a Borrower Party;
(ii) Committed Loan Notes executed by Borrowers in
favor of each Lender requesting a Committed Loan Note, each in
a principal amount equal to that Lender's Pro Rata Share, and,
if requested by Swing Line Lender, a Swing Line Note executed
by Borrowers in favor of Swing Line Lender, if required by
Administrative Agent;
(iii) such certificates of resolutions or other
action, incumbency certificates and/or other certificates of
Responsible Officers of each Borrower Party as Administrative
Agent may require to establish the identities of and verify
the authority and capacity of each Responsible Officer thereof
authorized to act as a Responsible Officer thereof;
63
(iv) such evidence as Administrative Agent may
reasonably require to verify that each Borrower Party is duly
organized or formed, validly existing, in good standing and
qualified to engage in business in each jurisdiction in which
it is required to be qualified to engage in business,
INCLUDING, without limitation, certified copies of each
Borrower Party's Organization Documents, certificates of good
standing and/or qualification to engage in business, tax
clearance certificates, and the like;
(v) a certificate signed by a Responsible Officer of
Borrowers certifying that (A) the conditions specified in
SECTIONS 4.01(c) and 4.01(d) have been satisfied and (B) there
has been no event or circumstances since the date of the
Audited Financial Statements which has a Material Adverse
Effect;
(vi) an opinion of counsel to Borrowers substantially
in the form of EXHIBIT F hereto;
(vii) a fully executed (and duly delivered) copy of
the Casden Credit Agreement and all other Casden Loan
Documents;
(viii) evidence satisfactory to Administrative Agent
that Borrowers shall have taken or caused to be taken all such
actions, executed and delivered or caused to be executed and
delivered all such agreements, documents and instruments, and
made or caused to be made all such filings and recordings and
deliveries that may be necessary or, in the opinion of
Administrative Agent, desirable in order to create in favor of
Administrative Agent, for the benefit of the Lenders, a valid
and (upon such filing and recording and delivery) perfected
first priority security interest in the Pledged Collateral.
Such actions shall include the following:
(A) delivery to Administrative Agent of
accurate and complete schedules to all of the
applicable Collateral Documents; and
(B) except for the Park La Brea and Westwood
Village Properties Notes, delivery to Administrative
Agent of (a) certificates (which certificates shall
be accompanied by irrevocable undated stock powers,
duly endorsed in blank and otherwise satisfactory in
form and substance to Administrative Agent)
representing all capital stock constituting Pledged
Collateral pledged pursuant to the Borrowers Pledge
Agreement and (b) all promissory notes or other
instruments (duly endorsed, where appropriate, in a
manner satisfactory to Administrative Agent)
constituting Pledged Collateral.
(ix) a pro forma Compliance Certificate for the
succeeding two years after the Initial Closing Date, which
shall be in form and substance satisfactory to Administrative
Agent;
(x) execution and delivery of the Intercreditor
Agreement;
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(xi) a certification and written analysis of the
chief financial officer or treasurer of Borrowers which, to
Administrative Agent's satisfaction, evidences that Borrowers
and their Subsidiaries are, and shall remain through and
including the Maturity Date, Solvent after giving effect to
the Loans, the Casden Acquisition, and the other transactions
contemplated hereby; and
(xii) a pro forma consolidated balance sheet of the
REIT as of December 31, 2001, adjusted to give effect to the
closing of the Casden Acquisition and the financings
contemplated thereby as if such transactions had occurred as
of such date.
(b) Any fees required to be paid on or before the Initial
Closing Date shall have been paid, including all fees referred to in SECTION
2.09.
(c) The representations and warranties made by Borrowers
herein, or which are contained in any certificate, document or financial or
other statement furnished at any time under or in connection herewith or
therewith, shall be correct on and as of the Initial Closing Date (other than
any representations and warranties made as of a specified date, which shall only
be required to be correct as of such specified date).
(d) Each Borrower Party shall be in compliance with all the
terms and provisions of the Loan Documents to which it is a party and any other
material document relating to any other material financial obligation except as
disclosed To The Best Knowledge of Borrowers on Schedule 5.03-B attached hereto
and except for breaches of financings related to Casden Assets arising from the
Casden Acquisition or the transactions contemplated by this Agreement and the
Casden Credit Agreement, and no Default or Event of Default shall have occurred
and be continuing.
(e) Unless waived by Administrative Agent, Borrowers shall
have paid all Attorney Costs of Administrative Agent to the extent invoiced
prior to or on the Initial Closing Date, plus such additional amounts of
Attorney Costs as shall constitute Administrative Agent's reasonable estimate of
Attorney Costs incurred or to be incurred by it through the closing proceedings
(provided that such estimate shall not thereafter preclude final settling of
accounts between Borrowers and Administrative Agent).
(f) The results of a recent lien search in each relevant
jurisdiction indicating that there are no Liens on the Pledged Collateral except
for Liens securing Indebtedness listed on Schedules 7.01(d), (i), (k) or (m) or
Indebtedness or Liens otherwise permitted under this Agreement.
(g) Administrative Agent shall have received evidence
reasonably satisfactory to it that all conditions to the closing and
consummation of the Casden Acquisition shall have been irrevocably satisfied or
irrevocably waived.
(h) Administrative Agent shall have received evidence
satisfactory to it that HUD has approved the transfer of Casden Assets
contemplated by the Merger Agreement to occur on the Initial Closing Date, to
the extent HUD's approval is required.
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(i) Such other assurances, certificates, documents, consents
or opinions as Administrative Agent, or the Requisite Lenders reasonably may
require.
4.02 CONDITIONS TO ALL EXTENSIONS OF CREDIT.
In addition to any applicable conditions precedent set forth
elsewhere in this SECTION 4 or in SECTION 2, the obligation of each Lender to
make any Extension of Credit is subject to the following conditions precedent:
(a) the representations and warranties of Borrowers contained
in SECTION 5, or which are contained in any certificate, document or financial
or other statement furnished at any time under or in connection herewith or
therewith, shall be correct on and as of the date of such Extension of Credit,
except to the extent that such representations and warranties specifically refer
to any earlier date.
(b) no Default or Event of Default exists, or would result
from such proposed Extension of Credit.
(c) Administrative Agent shall have timely received a Request
for Extension of Credit by Requisite Notice by the Requisite Time therefor.
(d) Upon the request of Administrative Agent, Administrative
Agent shall have received a certificate of the Borrowers, in form and substance
satisfactory to Administrative Agent, setting forth the calculation of the Free
Corporate Cash Flow as of the end of the immediately preceding month, such
calculation to be certified by a Responsible Officer of the Borrowers, as the
case may be.
Each request for an Extension of Credit by Borrowers shall be
deemed to be a representation and warranty that the conditions specified in
SECTIONS 4.02(a) and 4.02(b) have been satisfied and on and as of the date of
such Extension of Credit.
SECTION 5.
REPRESENTATIONS AND WARRANTIES
Each Borrower represents and warrants to Administrative Agent
and Lenders that:
5.01 EXISTENCE AND QUALIFICATION; POWER.
Each Borrower Party is a corporation, partnership, real estate
investment trust or limited liability company duly organized or formed, validly
existing and in good standing under the Laws of the state of its incorporation
or organization, has the power and authority and the legal right, and all
governmental licenses, authorizations, consents and approvals, to own and
operate its Properties, to lease the Properties it operates and to conduct its
business, is duly qualified and licensed and in good standing under the Laws of
each jurisdiction where its ownership, lease or operation of Properties or the
conduct of its business requires such qualification, except, with respect to
Borrower Parties that are not Management Entities, where a
66
failure to be so qualified or to obtain such licenses, consents and approvals
would not reasonably be expected to have a Material Adverse Effect.
5.02 POWER; AUTHORIZATION; ENFORCEABLE OBLIGATIONS.
Each Borrower Party has the power and authority and the legal
right to make, deliver and perform each Loan Document to which it is a party and
each Borrower has the power and authority to borrow hereunder and has taken all
necessary action to authorize the borrowings on the terms and conditions of this
Agreement and to authorize the execution, delivery and performance of this
Agreement and the other Loan Documents to which any of them is a party. No
approval, consent, exemption or authorization of, filing with, notice to or
other act by or in respect of any Governmental Authority is necessary or
required in connection with the borrowings hereunder or with the execution,
delivery, performance, validity or enforceability of this Agreement or any of
the other Loan Documents; PROVIDED, HOWEVER, that with respect to the
obligations under the Casden Loan Documents (and so long as any such obligations
remain outstanding) all approvals, consents, exemptions or authorizations of,
filings with, notices to or other acts by or in respect of any Governmental
Authority which are necessary or required in connection with the Casden
Acquisition, the borrowings under the Casden Loan Documents or with the
execution, delivery, performance, validity or enforceability of the Casden Loan
Documents, or are advisable within the reasonable discretion of Administrative
Agent, have been obtained, except where (i) the failure to obtain such approval
will not have a Material Adverse Effect and (ii) all applicable waiting periods
have expired without any enforcement action being taken or threatened by any
such Governmental Authority. The Loan Documents have been duly executed and
delivered by each Borrower Party party thereto, and constitute a legal, valid
and binding obligation of such Borrower Party, enforceable against such Borrower
Party in accordance with their respective terms, except as enforceability may be
limited by applicable bankruptcy, insolvency or similar laws affecting the
enforcement of creditors' rights generally or by equitable principles relating
to enforceability.
5.03 NO LEGAL BAR.
The execution, delivery, and performance by each Borrower
Party of the Loan Documents to which it is a party and compliance with the
provisions thereof have been duly authorized by all requisite action on the part
of such Borrower Party and do not and will not (a) violate or conflict with, or
result in a breach of, or require any consent under (i) any Organization
Documents of such Borrower Party or any of its Subsidiaries, except (1) with
respect to the transfer or pledging of the Oxford Assets, as disclosed To The
Best Knowledge Of Borrowers on Schedule 5.03-A, or (2) with respect to the
transfer or pledging of the Casden Assets, (ii) any applicable material Laws,
rules, or regulations or any order, writ, injunction, or decree of any
Governmental Authority or arbitrator (except for governmental consents required
in connection with the realization on the Pledged Collateral which is subject to
regulation by applicable Governmental Authorities), or (iii) any Contractual
Obligation of such Borrower Party or any of its Subsidiaries or by which any of
them or any of their property is bound or subject, except (1) with respect to
the transfer or pledging of the Oxford Assets, as disclosed To The Best
Knowledge of Borrowers on Schedule 5.03-B, or (2) with respect to the transfer
or pledging of the Casden Assets, (b) constitute a default under any such
agreement or instrument (except for
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non-monetary defaults concerning the Oxford Assets or the Casden Assets) or (c)
result in, or require, the creation or imposition of any Lien on any of the
Properties of such Borrower Party or any of its Subsidiaries, except as required
under the Loan Documents, the Term Loan Documents and the Casden Loan Documents.
5.04 FINANCIAL STATEMENTS; NO MATERIAL ADVERSE EFFECT.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP, except as otherwise expressly noted therein; (ii) are
complete and accurate and fairly present the financial condition of the REIT as
of the date thereof and the results of operations for the period covered thereby
in accordance with GAAP, except as otherwise expressly noted therein; and (iii)
together with the Form 10-K and Form 10-Q filings of the REIT, show all material
indebtedness and other liabilities, direct or contingent, of Borrowers and their
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments, Contractual Obligations and Indebtedness in accordance with GAAP or
which are required to be disclosed under SEC rules and regulations.
(b) Since the date of the Audited Financial Statements, there
has been no event or circumstance which has had a Material Adverse Effect.
5.05 LITIGATION.
Except as disclosed in SCHEDULE 5.05, no action, suit,
litigation, investigation or proceeding of or before an arbitrator or
Governmental Authority is pending or, to the Knowledge of Borrowers, threatened
by or against any Borrower Party or any of its Subsidiaries or against any of
their Properties or revenues which (a) purports to affect or pertain to this
Agreement, or any other Loan Document, or any of the transactions contemplated
hereby or thereby, or (b) would reasonably be expected to have a Material
Adverse Effect. No injunction, writ, temporary restraining order or any other
order of any nature has been issued by any court or other Governmental Authority
purporting to enjoin or restrain the execution, delivery and performance of this
Agreement or any other Loan Document, or directing that the transactions
provided for herein or therein not be consummated as herein or therein provided.
5.06 NO DEFAULT.
Neither any Borrower Party nor any of their respective
Subsidiaries are in default under or with respect to any Contractual Obligation
in any respect which, individually or together with all such other defaults,
would reasonably be expected to have a Material Adverse Effect, and no Default
or Event of Default has occurred and is continuing or will result from the
consummation of this Agreement or any of the other Loan Documents, or the making
of the Extensions of Credit hereunder.
5.07 OWNERSHIP OF PROPERTY; LIENS.
Each Borrower Party and its Subsidiaries have valid fee or
leasehold interests in all real property necessary or used in the ordinary
conduct of their respective businesses, taken as a whole, and each Borrower
Party and their respective Subsidiaries have good and marketable
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title to all their other Property, and none of such Property is subject to any
Lien, in each case EXCEPT as permitted in SECTION 7.02 and for such defects in
title which, individually or in the aggregate, would not reasonably be expected
to have a Material Adverse Effect.
5.08 TAXES.
Borrowers and their Subsidiaries have filed all Federal and
other material tax returns and material reports that are required to be filed,
except where the failure to make any such filing would not reasonably be
expected to have a Material Adverse Effect. Except as disclosed in the SEC
Report, (i) all tax returns filed by Borrowers and their Subsidiaries are
complete and correct in all material respects, except where any such
incompleteness or inaccuracy would not reasonably be expected to have a Material
Adverse Effect; (ii) Borrowers and their Subsidiaries, have paid all material
taxes, assessments, fees and other governmental charges for which they are
liable and that are due and payable and have fully satisfied any material taxes,
assessments, fees, and other governmental charges levied or imposed upon them or
their Properties, income or assets or otherwise due and payable, except those
which are being contested in good faith by appropriate proceedings and for which
adequate reserves have been provided in accordance with GAAP and no material
"notice of lien" or similar document or instrument has been filed or recorded,
except with respect to any taxes not yet due or payable; (iii) there is no
proposed tax assessment against Borrowers or any of their Subsidiaries which, if
the assessment were made, would reasonably be expected to have a Material
Adverse Effect; and (iv) Borrowers and their Subsidiaries have no primary,
secondary or other liability for taxes of any kind, arising with respect to any
individual, trust, corporation, partnership or other entity as to which
Borrowers or any of their Subsidiaries are directly or indirectly liable for
taxes of any kind incurred by such individual or entity either as a transferee,
or pursuant to Treasury Regulations section 1.1502-6, or pursuant to any other
Law. None of Borrowers nor any of their Affiliates is (nor has it ever been) a
party to any tax sharing agreement other than as disclosed on SCHEDULE 5.08.
5.09 MARGIN REGULATIONS; INVESTMENT COMPANY ACT; PUBLIC UTILITY HOLDING
COMPANY ACT; REIT AND TAX STATUS; STOCK EXCHANGE LISTING.
(a) No Borrower Party is engaged principally or as one of its
important activities, in the business of extending credit for the purpose of
"purchasing" or "carrying" "margin stock" within the respective meanings of each
of the quoted terms under Regulation U of the Board of Governors of the Federal
Reserve System as now and from time to time hereafter in effect. No part of the
proceeds of any Extensions of Credit hereunder will be used for "purchasing" or
"carrying" "margin stock" as so defined or for any purpose which violates, or
which would be inconsistent with, the provisions of Regulations U or X of such
Board of Governors.
(b) No Borrower Party or any of its Subsidiaries (i) is a
"holding company," or a "subsidiary company" of a "holding company," or an
"affiliate" of a "holding company" or of a "subsidiary company" of a "holding
company," within the meaning of the Public Utility Holding Company Act of 1935,
(ii) is or is required to be registered as an "investment company" under the
Investment Company Act of 1940 or (iii) is subject to regulations under the
Federal
69
Power Act, the Interstate Commerce Act, any state public utilities code, or any
other federal or state statute or regulation limiting its ability to incur
Indebtedness.
(c) None of Borrowers nor any Wholly-Owned Subsidiary is a
"foreign person" within the meaning of Section 1445(f)(3) of the Code.
(d) The REIT currently has REIT Status and has maintained REIT
Status on a continuous basis since its formation. AIMCO is not an association
taxable as a corporation under the Code. The shares of common Stock of the REIT
are listed on the NYSE.
5.10 ERISA COMPLIANCE.
(a) Schedule 5.10 lists all Plans and separately identifies
Plans intended to be Qualified Plans and Multiemployer Plans. All written
descriptions thereof provided to Administrative Agent and the Lenders are true
and complete in all material respects.
(b) Each Plan, and To The Best Knowledge Of Borrowers each
Multiemployer Plan, is in compliance in all material respects with the
applicable provisions of ERISA, the Code and other federal or state law,
including all requirements under the Code or ERISA for filing reports (which are
true and correct in all material respects as of the date filed), and benefits
have been paid in accordance with the provisions of the Plan.
(c) Each Qualified Plan and, and To The Best Knowledge Of
Borrowers, Multiemployer Plan has been determined by the IRS to qualify under
Section 401 of the Code, and the trusts created thereunder have been determined
to be exempt from tax under the provisions of Section 501 of the Code, and To
The Best Knowledge Of Borrowers nothing has occurred which would cause the loss
of such qualification or tax-exempt status.
(d) Except as disclosed in Schedule 5.10, none of Borrowers
nor any ERISA Affiliate has any outstanding liability under Title IV of ERISA
with respect to any Plan maintained or sponsored by Borrowers or any ERISA
Affiliate, nor To The Best Knowledge Of Borrowers, with respect to any
Multiemployer Plan to which Borrowers or any ERISA Affiliate contributes or is
obligated to contribute.
(e) Except as disclosed in Schedule 5.10, no Plan, and To The
Best Knowledge Of Borrowers, no Multiemployer Plan has any Unfunded Pension
Liability.
(f) Except as disclosed in Schedule 5.10, no member of the
Controlled Group has ever represented, promised or contracted (whether in oral
or written form) to any current or former employee (either individually or to
employees as a group) that such current or former employee(s) would be provided,
at any cost to any member of the Controlled Group, with life insurance or
employee welfare plan benefits (within the meaning of section 3(1) of ERISA)
following retirement or termination of employment. To the extent that any member
of the Controlled Group has made any such representation, promise or contract,
such member has expressly reserved the right to amend or terminate such life
insurance or employee welfare plan benefits with respect to claims not yet
incurred.
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(g) Members of the Controlled Group have complied in all
material respects with the notice and continuation coverage requirements of
Section 4980B of the Code.
(h) Except as disclosed in Schedule 5.10, no ERISA Event has
occurred or is reasonably expected to occur with respect to any Plan, or, To The
Best Knowledge Of Borrowers, any Multiemployer Plan.
(i) There are no pending or, to the Knowledge of Borrowers,
threatened claims, actions or lawsuits, other than routine claims for benefits
in the usual and ordinary course, asserted or instituted against (i) any Plan
maintained or sponsored by Borrowers or their assets, (ii) any member of the
Controlled Group with respect to any Plan, or (iii) any fiduciary with respect
to any Plan for which any Borrower may be directly or indirectly liable, through
indemnification obligations or otherwise.
(j) Except as disclosed in Schedule 5.10, none of Borrowers
nor any ERISA Affiliate has incurred nor reasonably expects to incur (i) any
liability (and no event has occurred which, with the giving of notice under
Section 4219 of ERISA, would result in such liability) under Section 4201 or
4243 of ERISA with respect to a Multiemployer Plan or (ii) any liability under
Title IV of ERISA (other than premiums due and not delinquent under Section 4007
of ERISA) with respect to a Plan.
(k) Except as disclosed in Schedule 5.10, none of Borrowers
nor any ERISA Affiliate has transferred any Unfunded Pension Liability to a
Person other than a Borrower or an ERISA Affiliate or otherwise engaged in a
transaction that could be subject to Section 4069 or 4212(c) of ERISA.
(l) No member of the Controlled Group has engaged, directly or
indirectly, in a non-exempt prohibited transaction (as defined in Section 4975
of the Code or Section 406 of ERISA) in connection with any Plan which would
reasonably be expected to have a Material Adverse Effect.
5.11 INTANGIBLE ASSETS.
Each Borrower Party and its Subsidiaries own, or possess the
right to use, all trademarks, trade names, copyrights, patents, patent rights,
franchises, licenses and other intangible assets that are used in, or with
respect to the Casden Assets only, are necessary for, the conduct of their
respective businesses as now operated, and none of such items, To The Best
Knowledge Of Borrowers, conflicts with the valid trademark, trade name,
copyright, patent, patent right or intangible asset of any other Person to the
extent that such conflict would reasonably be expected to have a Material
Adverse Effect.
5.12 COMPLIANCE WITH LAWS.
Each Borrower Party and its Subsidiaries are in substantial
compliance in all material respects with all Laws that are applicable to them.
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5.13 ENVIRONMENTAL COMPLIANCE.
(a) ENVIRONMENTAL LAWS. Except as disclosed in SCHEDULE 5.13
or in the SEC Report, the operations and Properties of Borrowers, the Management
Entities and their Subsidiaries comply in all respects with all Environmental
Laws, EXCEPT such non-compliance affecting any Properties as would not result in
liability which would reasonably be expected to result in a Material Adverse
Effect.
(b) ENVIRONMENTAL PERMITS. Except as described in SCHEDULE
5.13 or in the SEC Report, Borrowers, the Management Entities and their
Subsidiaries have obtained and maintained all material licenses, permits,
authorizations and registrations required under any Environmental Law
("ENVIRONMENTAL PERMITS"), other than such Environmental Permits the failure to
obtain or maintain which would not reasonably be expected to cause a Material
Adverse Effect. All such Environmental Permits are in good standing, and each
such Person is in compliance with all terms and conditions thereof, except, with
respect to Persons that are not Management Entities, where the failure to be in
compliance would not reasonably be expected to have a Material Adverse Effect.
(c) ORDERS. Except as specifically disclosed in SCHEDULE 5.13
or in the SEC Report, there are no outstanding written orders from or agreements
with any Governmental Authority nor any judicial or docketed administrative
proceedings respecting any Environmental Law, Environmental Claim or Hazardous
Material to which any Borrower, any Management Entity, any of their
Subsidiaries, or any of such Person's Properties or operations is bound that
would reasonably be expected to have a Material Adverse Effect.
(d) HAZARDOUS MATERIALS. Except as disclosed in SCHEDULE 5.13
or in the SEC Report, there are no Hazardous Materials or other conditions or
circumstances existing with respect to any Property, or arising from operations
prior to the Amendment Effective Date, that would reasonably be expected to have
a Material Adverse Effect. In addition, (i) there are not located on the
Properties underground storage tanks (x) that are not properly registered or
permitted under applicable Environmental Laws, or (y) that are leaking or
emitting Hazardous Materials whether on-or off-site, and (ii) Borrowers, the
Management Entities and their Subsidiaries have notified all of their employees
of the existence, if any, of any health hazard arising from the conditions of
their employment to the extent required under any Environmental Laws and have
met all notification requirements under Title III of The Comprehensive
Environmental Response, Compensation and Liability Act and all other
Environmental Laws that would in each case reasonably be expected to have a
Material Adverse Effect.
5.14 INSURANCE.
The properties of each Borrower Party and its Subsidiaries are
insured with financially sound and reputable insurance companies not Affiliates
of Borrowers, in such amounts, with such deductibles and covering such risks as
are customarily carried by companies engaged in similar businesses and owning
similar Properties in localities where such Borrower Party or such Subsidiary
operates, provided that with respect to the Casden Assets the foregoing
representation is limited To The Best Knowledge Of Borrowers.
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5.15 GP LOANS.
All GP Loans are evidenced by a GP Loan Note which has been
delivered to Collateral Agent in accordance with the provisions of this
Agreement.
5.16 SUBSIDIARIES; INTERESTS IN OTHER ENTITIES; CHANGES IN
ORGANIZATIONAL STRUCTURE.
None of Borrowers, nor any of their respective Subsidiaries
has any interest in any corporation, partnership or other entity, EXCEPT (i) as
disclosed in the Organizational Chart set forth as SCHEDULE 5.16 (other than
nondisclosures which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect), and (ii) for interests acquired
after the date of this Agreement in compliance with SECTIONS 7.03, 7.04 and 7.05
hereof.
5.17 MATTERS RELATING TO PLEDGED COLLATERAL.
(a) CREATION, PERFECTION AND PRIORITY OF LIENS. The execution
and delivery of the Collateral Documents and the Intercreditor Agreement by
Borrowers and the other applicable Borrower Parties, together with (i) the
actions taken on or prior to the Amendment Effective Date pursuant to Section
4.01(a)(viii) hereof and Section 2 of the Amendment, and (ii) the delivery to
Collateral Agent of any Pledged Collateral together with any required stock
powers or endorsements not previously delivered to Collateral Agent are
effective to create in favor of Collateral Agent for the benefit of the Lender
Group, as security for the Collective Obligations, a valid and perfected first
priority Lien on all of the Pledged Collateral, and all filings and other
actions necessary or desirable to perfect and maintain the perfection and
applicable priority status of such Liens have been duly made or taken and remain
in full force and effect, other than the filing or recording of any UCC
financing statements delivered to Collateral Agent for filing (but not yet
filed) and the periodic filing of UCC continuation statements in respect of UCC
financing statements filed by or on behalf of Collateral Agent.
(b) GOVERNMENTAL AUTHORIZATIONS. No authorization, approval or
other action by, and no notice to or filing with, any governmental authority or
regulatory body is required for either (i) the pledge or grant by Borrowers or
any other Borrower Party of the Liens purported to be created in favor of
Collateral Agent pursuant to any of the Collateral Documents or (ii) the
exercise by Collateral Agent of any rights or remedies in respect of any Pledged
Collateral (whether specifically granted or created pursuant to any of the
Collateral Documents or created or provided for by applicable law), except for
filings or recordings contemplated by SECTION 5.17(A) and except as may be
required, in connection with the disposition of any Pledged Collateral, by laws
generally affecting the offering and sale of securities or, to the extent
applicable, HUD or other approvals required in connection with the foreclosure
on or other realization with respect to Oxford Assets or Casden Assets which
directly or indirectly involve real Property encumbered by HUD mortgages or
regulatory agreements or properties regulated by HUD or a state housing finance
agency, or laws generally affecting the operation of properties as nursing homes
or assisted living facilities.
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(c) ABSENCE OF THIRD-PARTY FILINGS. Except such as may have
been filed in favor of Collateral Agent as contemplated by SECTION 5.17(a) and
as filed in favor of Administrative Agent or the administrative agent under the
Casden Credit Agreement on or before the Initial Closing Date, no effective UCC
financing statement, fixture filing or other instrument similar in effect
covering all or any part of the Pledged Collateral is on file in any filing or
recording office.
(d) MARGIN REGULATIONS. The pledge of the Pledged Collateral
pursuant to the Collateral Documents does not violate Regulation T, U or X of
the Board of Governors of the Federal Reserve System.
(e) INFORMATION REGARDING PLEDGED COLLATERAL. All information
supplied to Administrative Agent by or on behalf of any Borrower Party with
respect to the Pledged Collateral is accurate and complete in all material
respects.
5.18 DISCLOSURE.
None of the representations or warranties made by any Borrower
Party in the Loan Documents as of the date such representations and warranties
are made or deemed made, and none of the statements contained in each exhibit,
report, statement or certificate furnished by or on behalf of any such Person in
connection with the Loan Documents, contains any untrue statement of a material
fact or omits any material fact required to be stated therein or necessary to
make the statements made therein, in light of the circumstances under which they
are made, not misleading. There is no fact, To The Best Knowledge Of Borrowers,
which materially and adversely affects the business, operations, properties,
assets or condition (financial or otherwise) of Borrowers, the Management
Entities, and the Subsidiaries, taken as a whole, that has not been disclosed
herein, in the SEC Reports, or in other documents, certificates and statements
furnished to Administrative Agent and each Lender (to the extent required
hereunder) hereunder or pursuant hereto. The copies of all documents delivered
to Administrative Agent and/or the Lenders from time to time in connection with
this Agreement are and shall be true and complete copies of the originals
thereof and have not been or shall not be amended except as disclosed to
Administrative Agent and/or the Lenders, as applicable.
5.19 TAX SHELTER REGULATIONS
The Borrowers do not intend to treat the Loans and/or Letters
of Credit as being a "reportable transaction" (within the meaning of Treasury
Regulation Section 1.6011-4). In the event the Borrowers determine to take any
action inconsistent with such intention, they will promptly notify the
Administrative Agent thereof. If the Borrowers so notify the Administrative
Agent, the Borrowers acknowledge that one or more of the Lenders may treat the
Loans and/or Letters of Credit as part of a transaction that is subject to
Treasury Regulation Section 301.6112-1, and the Lender or Lenders, as
applicable, will maintain the lists and other records required by such Treasury
Regulation.
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SECTION 6.
AFFIRMATIVE COVENANTS
So long as any Extension of Credit remains unpaid, or any
other Obligation remains unpaid or unperformed, or any portion of the
Commitments remains outstanding, each Borrower shall, and shall (except in the
case of Borrowers' reporting covenants), cause each of its Subsidiaries to:
6.01 FINANCIAL STATEMENTS.
Deliver to Administrative Agent and each Lender, in form and
detail satisfactory to Administrative Agent and the Requisite Lenders:
(a) as soon as available, but in any event within ninety (90)
days after the end of each fiscal year, consolidated balance sheets of the
Borrowers on a combined basis, in each case as at the end of such fiscal year,
and the related consolidated statements of income and cash flows for such fiscal
year, including the REIT's and AIMCO's SEC Form 10-K for such period, setting
forth in each case in comparative form the figures for the previous fiscal year,
all in reasonable detail, audited and accompanied by a report and unqualified
opinion of an independent certified public accountant of nationally recognized
standing reasonably acceptable to the Requisite Lenders, which report and
opinion shall be prepared in accordance with GAAP and shall not be subject to
any qualifications or exceptions as to the scope of the audit nor to any
qualifications and exceptions not reasonably acceptable to the Requisite
Lenders;
(b) as soon as available, but in any event within forty-five
(45) days after the end of each of the first three fiscal quarters of each
fiscal year, unaudited consolidated balance sheets of the Borrowers on a
combined basis, in each case as at the end of such fiscal quarter, and the
related consolidated statements of income and cash flows for such fiscal quarter
and for the portion of the Borrowers' fiscal year then ended, as the case may
be, including the REIT's and AIMCO's SEC Form 10-Q for such period, all in
reasonable detail and certified by at least two Responsible Officers of the
Borrowers, as the case may be, that such financial statements are complete and
correct and fairly present the financial condition, results of operations and
cash flows of the Borrowers, as the case may be, in accordance with GAAP,
subject only to normal year-end audit adjustments and the absence of footnotes;
(c) as soon as available, but in any event not less than
ninety (90) days after the beginning of each fiscal year, copies of AIMCO's and
the REIT's business plan for such fiscal year in form and substance satisfactory
to Administrative Agent; and
(d) as soon as available, but in any event not less than
forty-five (45) days after the end of each fiscal quarter, the REIT's
consolidated financial projections for the current and the succeeding three
fiscal quarters, as prepared by the REIT's Chief Financial Officer and in a
format and with such detail as Administrative Agent may require.
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6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION.
Deliver to Administrative Agent and each Lender, or Collateral
Agent (with respect to Collateral matters set forth in clause (b)), in form and
detail satisfactory to Administrative Agent and the Requisite Lenders, and/or
Collateral Agent (as applicable):
(a) concurrently with the delivery of the financial statements
referred to in SECTION 6.01(a), a certificate of its independent certified
public accountants certifying such financial statement and stating that in
making the examination necessary therefor no knowledge was obtained of any
Default or Event of Default hereunder or, if any such Default or Event of
Default shall exist, stating the nature and status of such event;
(b) not more than forty-five (45) days after the end of each
fiscal quarter, (1) a duly completed Compliance Certificate signed by a
Responsible Officer of Borrowers, with such supporting information as may be
requested by Administrative Agent, (2) an updated SCHEDULE 1.01A
(Construction/Renovation), which updated schedule will identify the aggregate
book value of all Construction/Renovation (separating New Construction from
renovations, rehabilitations and expansions) and all Real Property Assets Under
Development, in each case including information with respect to the aggregate
expenditures made to date, (3) an updated SCHEDULE 1.01B (GP Loans), which
updated schedule will identify each GP Loan and, with respect to each such GP
Loan, its original amount, carrying value, write-off amount, pro rata share
owned (directly or indirectly) by Borrowers and such other information as
Administrative Agent and Collateral Agent may reasonably request (upon each
delivery of an updated SCHEDULE 1.01B (GP Loans), the representations and
warranties contained in Section 5.17(a) hereof shall be deemed to have been
re-made by each Borrower as of the date of such delivery, and Borrowers shall
deliver to Collateral Agent concurrently with the delivery of such updated
SCHEDULE 1.01B (GP Loans) such Pledged Collateral and the Pledge Amendment (as
defined in the Borrowers Pledge Agreement) to cause Borrowers to be in
compliance with SECTION 5.17(a) hereof as of the date of such delivery), (4) an
updated SCHEDULE 1.01C (Guarantors), which updated schedule will identify each
Guarantor, and such Guarantor's pro rata share of Total Pro Rata NOI (PROVIDED
that the Management Entities' pro rata shares of Total Pro Rata NOI may be
combined for purposes of this updated SCHEDULE 1.01C), (5) an updated SCHEDULE
1.01E (Collateral), which updated schedule will identify all Pledged Collateral
as of the period covered by such Compliance Certificate, (6) an updated SCHEDULE
7.01(m) (Existing Cross-Pledged Collateralized and Cross-Defaulted
Indebtedness), which updated schedule will identify all cross-collateralized and
cross-defaulted Indebtedness of the Borrowers and their Subsidiaries and the
aggregate outstanding principal amount thereof, and (7) an updated SCHEDULE I to
the Borrowers Pledge Agreement, together with such documentation and actions as
may be necessary to cause Borrowers to be in compliance with SECTION 5.17 hereof
as of the date of such Compliance Certificate;
(c) promptly after delivery by the Person providing the same,
copies of any detailed audit reports, management letters or recommendations
submitted to the board of directors (or the audit committee of the board of
directors) of the REIT by independent accountants in connection with the
accounts or books of the REIT or any of its Subsidiaries, or any audit of any of
them;
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(d) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of the REIT, and copies of all annual, regular,
periodic and special reports and registration statements which the REIT may file
or be required to file with the SEC under Sections 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to
Administrative Agent pursuant hereto;
(e) promptly after the occurrence thereof, notice of any
Default or Event of Default, and the occurrence or existence of any event or
circumstance that is likely to become a Default or Event of Default and each
such notice shall describe with particularity the clause or provision of this
Agreement or other Loan Document that has been breached or violated;
(f) promptly after the commencement thereof, notice of any
litigation, investigation or proceeding affecting any Borrower Party (i) where
the amount involved exceeds the Threshold Amount, (ii) in which injunctive
relief or similar relief is sought, which relief, if granted, would reasonably
be expected to have a Material Adverse Effect; (iii) in which the relief sought
is an injunction or other stay of the performance of any Loan Document or (iv)
required to be reported to the SEC pursuant to the Exchange Act;
(g) promptly after the occurrence of any of the following
ERISA Events affecting Borrowers or any member of their Controlled Group,
together with a copy of any notice with respect to such event that may be
required to be filed with any Governmental Authority and any notice delivered by
a Governmental Authority to Borrowers or any member of their Controlled Group
with respect to such event, notice of any of the following:
(i) an ERISA Event where the aggregate liability is
likely to exceed $1,000,000;
(ii) the adoption of any new Plan that is subject to
Title IV of ERISA or Section 412 of the Code by any member of
the Controlled Group;
(iii) the adoption of any amendment to a Plan that is
subject to Title IV of ERISA or Section 412 of the Code, if
such amendment results in a material increase in benefits or
Unfunded Pension Liabilities; or
(iv) the commencement of contributions by any member
of the Controlled Group to any Plan that is subject to Title
IV of ERISA or Section 412 of the Code;
(h) promptly after the occurrence thereof, notice of any
Material Adverse Effect;
(i) notice of any material change in accounting policies or
financial reporting practices by Borrowers or any of their Subsidiaries;
(j) promptly after the occurrence thereof, notice of (i) any
and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed
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or threatened against Borrowers, any Management Entity or any of their
Subsidiaries or any of their Properties pursuant to any Environmental Laws, (ii)
all other material Environmental Claims, and (iii) any environmental or similar
condition on any real property adjoining or in the vicinity of the Properties of
Borrowers, any Management Entity or any of their Subsidiaries that could
reasonably be anticipated to cause such Properties (or any portion thereof) to
be subject to any material restrictions on ownership, occupancy, transferability
or use under any Environmental Laws, in each case only to the extent any of the
foregoing would reasonably be expected to have a Material Adverse Effect;
(k) promptly after the occurrence thereof, notice of the
consummation of any material Investment or Disposition, of any material issuance
of Stock of the REIT (other than upon the tender of any Partnership Units for
redemption or the conversion of any employee stock options) or Partnership
Units, of any incurrence of material Indebtedness or of any other material
transaction entered into, by Borrowers, any Management Entity or any of their
Subsidiaries; and change in any executive officer of the REIT;
(l) promptly after the occurrence thereof, notice of the
failure of the REIT to maintain REIT Status or of any existing Subsidiary of the
REIT to maintain its status as a qualified REIT subsidiary under the Code, if
and to the extent required by applicable law;
(m) upon the request of Administrative Agent, any subsequent
revisions to the Organizational Chart;
(n) promptly after receipt of any notice by Borrowers, any
Management Entity or any of their Subsidiaries of any default under any
Indebtedness or Guaranty Obligation described in SECTION 8.01(G), notice of such
default; and
(o) promptly, such other data and information as from time to
time may be reasonably requested by Administrative Agent, or, through
Administrative Agent or any Lender.
Each notice pursuant to SECTIONS 6.02(e) through (l) and (n)
shall be accompanied by a statement of two (2) Responsible Officers of
Borrowers, setting forth details of the occurrence referred to therein and, if
applicable, the provisions of this Agreement affected, and stating what action
Borrowers have taken and propose to take with respect thereto.
6.03 PAYMENT OBLIGATIONS.
Pay and discharge as the same shall become due and payable and
otherwise comply with all their respective obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges,
Ordinary Course Liens or levies imposed on any Borrower Party or its
Subsidiaries or on its income or profits or any of its Properties, EXCEPT for
any such tax, assessment, charge or levy which is (i) an Ordinary Course Lien
under Subsection (b) of the definition of such term or (ii) being contested in
good faith by appropriate proceedings and adequate reserves in accordance with
GAAP are being maintained by Borrowers or such Person, (b) all lawful claims
which, if unpaid, would by law become a Lien upon any Property of any Borrower
Party or its Subsidiaries, (c) all Indebtedness, as and when due and payable,
but subject to any subordination provisions contained in any instrument or
agreement evidencing
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such Indebtedness, and (d) payment and/or performance of all Contractual
Obligations (including any payments of preferred stock dividends); PROVIDED,
HOWEVER, with respect to any Person that is not a Management Entity, then only
to the extent the failure to do any of the foregoing could reasonably be
expected to have a Material Adverse Effect.
6.04 PRESERVATION OF EXISTENCE.
Preserve and maintain in full force and effect (i) its
partnership, corporate or other organizational existence and good standing under
the laws of its state or jurisdiction of organization, and (ii) its licenses,
permits, rights, franchises and privileges necessary or desirable in the normal
conduct of its business, except where failure to do so does not have a Material
Adverse Effect; PROVIDED, HOWEVER, that with respect to any Person that is not a
Management Entity, then only to the extent that the failure to do any of the
foregoing would reasonably be expected to have a Material Adverse Effect.
6.05 MAINTENANCE OF PROPERTIES.
Maintain, preserve and protect all of its material Properties
and equipment necessary in the operation of its business in good order and
condition in accordance with Borrowers' past practices, subject to wear and tear
in the ordinary course of business, and not permit any waste of its Properties.
6.06 MAINTENANCE OF INSURANCE.
Maintain, with financially sound and reputable independent
insurers, insurance with respect to their Properties and business against loss
or damage of the kinds customarily insured against by Persons engaged in the
same or a similar business, of such types and in such amounts as are customarily
carried under similar circumstances by such other Persons, including liability
insurance specifically insuring Borrowers and their Wholly Owned Subsidiaries
from any tort, legal or other liability resulting from their participation as
general partners in partnerships which own Property, workers' compensation
insurance, public liability and property and casualty insurance (which amount
shall not be reduced in the absence of 30 days' prior notice to Administrative
Agent), and upon the request of Administrative Agent, furnish Administrative
Agent, with sufficient copies for each Lender, at reasonable intervals (but not
more than twice per calendar year) a certificate signed by at least two (2)
Responsible Officers of Borrowers (and, if requested by Administrative Agent,
any insurance broker of Borrowers) setting forth the nature and extent of all
insurance maintained by Borrowers, the Management Entities and each of their
Subsidiaries in accordance with this SECTION 6.06 (and which, in the case of a
certificate of a broker, was placed through such broker).
6.07 COMPLIANCE WITH LAWS.
(a) Comply, in all material respects, with the requirements of
all applicable Laws and orders of any Governmental Authority, noncompliance with
which has a Material Adverse Effect.
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(b) Conduct its operations and keep and maintain its
Properties in compliance in all material respects with all Environmental Laws,
and upon the written request of Administrative Agent or any Lender, submit to
Administrative Agent and the Lenders, at Borrowers' sole cost and expense, at
reasonable intervals, a report providing an update of the status of any
environmental, health or safety compliance, hazard or liability issue identified
in any notice or report required pursuant to SECTION 6.02(j) that could,
individually or in the aggregate, result in liability in excess of $10,000,000.
6.08 INSPECTION RIGHTS.
At any time during regular business hours and as often as
reasonably requested, upon no less than forty-eight (48) hours advance notice to
Borrowers, permit Administrative Agent or any Lender, or any employee, agent or
representative thereof, to examine, audit and make copies and abstracts from the
Borrower Parties' records and books of account and to visit and inspect their
properties and to discuss their affairs, finances and accounts with any of their
officers and key employees, and, upon request, furnish promptly to
Administrative Agent or any Lender true copies of all financial information and
internal management reports made available to their senior management, all at
the expense of Borrowers; PROVIDED, HOWEVER, that when an Event of Default
exists, Administrative Agent may visit and inspect at the expense of Borrowers
such Properties at any time during business hours and without advance notice.
6.09 KEEPING OF RECORDS AND BOOKS OF ACCOUNT.
Keep adequate records and books of account reflecting all
financial transactions in conformity with GAAP, and in material conformity with
all applicable requirements of any Governmental Authority having regulatory
jurisdiction over Borrowers or any of their Subsidiaries.
6.10 COMPLIANCE WITH ERISA.
Cause, and cause each of its ERISA Affiliates to: (a) maintain
each Plan in compliance in all material respects with the applicable provisions
of ERISA, the Code and other federal or state law; and (b) make all required
contributions to any Plan subject to Section 412 of the Code.
6.11 COMPLIANCE WITH AGREEMENTS.
Comply and cause each Guarantor to comply with their
respective Organization Documents. Promptly and fully comply with all
Contractual Obligations under all material agreements, indentures, leases and/or
instruments to which any one or more of them is a party, EXCEPT for any such
Contractual Obligations (a) the performance of which would cause a Default, (b)
then being contested by any of them in good faith by appropriate proceedings, or
(c) if the failure to comply therewith does not have a Material Adverse Effect.
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6.12 USE OF PROCEEDS.
Use the proceeds of Extensions of Credit for (i) funding
general working capital, corporate needs, and payment of Indebtedness permitted
under this Agreement, (ii) financing acquisitions permitted under this
Agreement, and (iii) funding costs associated with Construction/Renovation;
PROVIDED, HOWEVER, that the aggregate principal amount of Loans the proceeds of
which were used to fund costs associated with Construction/Renovation shall not
at any one time exceed $100,000,000.
6.13 COMMUNICATION WITH ACCOUNTANTS.
While any Event of Default is continuing, authorize
Administrative Agent and any Lender to communicate directly with Borrowers'
independent accountants and authorize such accountants to disclose to such
Persons any and all financial statements and other information of any kind,
including the substance of any oral information or conversation that such
accountants may have with respect to the business, financial condition and other
affairs of Borrowers.
6.14 MAINTENANCE OF REIT STATUS; STOCK EXCHANGE LISTING.
With respect to the REIT, maintain its REIT Status and
maintain its common Stock listing on the NYSE, American Stock Exchange or Nasdaq
Stock Exchange.
6.15 SOLVENCY.
Remain Solvent; PROVIDED, THAT, this Section 6.15 shall apply
only to Borrower Parties and any Material Entities.
6.16 FURTHER ASSURANCES.
(a) FULL DISCLOSURE. Ensure that all other written
information, exhibits and reports furnished to Administrative Agent or any
Lender by Borrowers, any Management Entity or any of their Subsidiaries do not
contain any untrue statement of a material fact and do not and will not omit to
state any material fact or any fact necessary to make the statements contained
therein not misleading in light of the circumstances in which made, and will
promptly disclose to Administrative Agent and the Lenders and correct any defect
or error that may be discovered therein or in any Loan Document or in the
execution, acknowledgment or recordation thereof.
(b) FURTHER ACTS. Promptly upon request by Administrative
Agent or the Requisite Lenders, do, execute, acknowledge, deliver, record,
re-record, file, re-file, register and re-register, any and all such further
acts, deeds, conveyances, security agreements, mortgages, deeds of trust,
assignments, estoppel certificates, financing statements and continuations
thereof, termination statements, notices of assignment, transfers, certificates,
assurances and other instruments that Administrative Agent or such Lenders, as
the case may be, may reasonably require from time to time in order (i) to carry
out more effectively the purposes of this Agreement or any other Loan Document,
and (ii) to better assure, convey, grant, assign, transfer, preserve, protect
and confirm to Administrative Agent and Lenders the rights granted or now or
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hereafter intended to be granted under any Loan Document, or any other document
executed in connection herewith or therewith.
(c) ADDITIONAL GUARANTORS. Promptly upon (i) the formation by
the Borrowers of any Person which is a Material Entity, (ii) any Subsidiary
becoming a Material Entity or (iii) the acquisition by the Borrowers of any
Subsidiary which constitutes a Material Entity after giving effect to such
acquisition, in each case after the Initial Closing Date, Borrowers shall cause
such Person (so long as such Person is not prohibited from doing so by law,
Organization Documents or Contractual Obligations not prohibited by this
Agreement) to deliver to Administrative Agent for the ratable benefit of the
Lenders a guaranty of the Obligations in the form attached hereto as EXHIBIT H.
Concurrently with the delivery of such guaranty, Borrowers shall deliver to
Administrative Agent with respect to such Person the same documents and other
instruments required to be delivered pursuant to clauses (iii) and (iv) of
SECTION 4.01(a) and an opinion of counsel, in form and substance satisfactory to
Administrative Agent. In all events, if all such agreements, documents and other
instruments required to be delivered to Administrative Agent pursuant to this
SECTION 6.16(c) have not been delivered prior to the date of the next required
Compliance Certificate, then such items shall be delivered collectively at the
same time a Compliance Certificate is delivered to Administrative Agent pursuant
to SECTION 6.02(b). Additionally and notwithstanding any provision of this
Section 6.16(c) to the contrary, in all events and at all times, Borrowers shall
cause the Guarantors and Borrowers to collectively represent not less than 75%
of Total Pro Rata NOI for the immediately preceding fiscal quarter.
(d) ADDITIONAL PLEDGED COLLATERAL. With respect to any new
Guarantor created or acquired after the Amendment Effective Date by the
Borrowers or any of their Affiliates, within a reasonable time, not to exceed
twenty (20) days, following the delivery of any guaranty required pursuant to
SECTION 6.16(c), the Borrowers or their Affiliates, as applicable, shall execute
and deliver to the Collateral Agent such amendment to the Borrower Pledge
Agreement as the Collateral Agent deems reasonably necessary or desirable to
grant to the Collateral Agent, for the benefit of the Lender Group, a perfected
first priority security interest in the Stock or other equity interest of such
new Guarantor in accordance with the Borrower Pledge Agreement and deliver to
the Collateral Agent the certificates representing such Stock or equity
interests, together with undated stock powers, in blank, executed and delivered
by a duly authorized officer of the Borrowers or their respective Affiliates, as
applicable..
6.17 UNCONSOLIDATED PARTNERSHIP DISTRIBUTIONS.
Use its reasonable best efforts to cause any Person in which any
Borrower, any Guarantor or any of their respective Subsidiaries holds an equity
interest to make regular distributions of Net Operating Income of such Person,
subject to compliance with applicable law and such Person's Organization
Documents and in the Ordinary Course of Business.
SECTION 7.
NEGATIVE COVENANTS
So long as any Extension of Credit remains unpaid, or any
other Obligations remain unpaid or unperformed, or any portion of the
Commitments remains outstanding, each
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Borrower shall not, and shall not permit any of its respective Subsidiaries to,
directly or indirectly:
7.01 INDEBTEDNESS.
Create, incur, assume or suffer to exist any Indebtedness,
EXCEPT:
(a) Ordinary Course Indebtedness;
(b) Accounts payable to trade creditors for goods and services
and current operating liabilities (not the result of the borrowing of money)
incurred in the Ordinary Course of Business in accordance with customary terms
and paid within the specified time, unless contested in good faith by
appropriate proceedings and reserved for in accordance with GAAP;
(c) Intra-Company Debt;
(d) Indebtedness of Borrowers, the Guarantors and their
Subsidiaries (whether secured or unsecured) which is Recourse to Borrowers, the
Guarantors or any of their Subsidiaries (but excluding Indebtedness under the
Loan Documents and the 2003 Term Loan and the outstanding Indebtedness under the
Casden Loan on the Amendment Effective Date) in an aggregate principal amount
not to exceed at any time an amount equal to the sum of (x) $250,000,000, PLUS
(y) while the Lincoln Place Construction Financing is outstanding, the lesser of
$151,000,000 or any portion of the Lincoln Place Construction Financing which
constitutes Recourse Indebtedness. Such Recourse Indebtedness outstanding on the
Initial Closing Date is listed on Schedule 7.01(d);
(e) Secured Indebtedness of Borrowers, the Guarantors and
their Subsidiaries which is not Recourse to Borrowers, the Guarantors or any of
their Subsidiaries;
(f) Endorsements for collection or deposit in the Ordinary
Course of Business;
(g) Unsecured Swap Agreements entered into by any Borrower
with respect to variable rate Indebtedness permitted hereunder;
(h) Indebtedness of the Borrowers and their Subsidiaries
consisting of "exceptions to nonrecourse" guaranties of non-Recourse
Indebtedness otherwise permitted under this SECTION 7.01 or of other
Indebtedness permitted under this SECTION 7.01; PROVIDED that "exceptions to
non-recourse" shall include the types of additional exceptions customarily
required by Federal National Mortgage Association or Federal Home Loan Mortgage
Corporation from time to time in its standard form loan documentation;
(i) Indebtedness (other than any Indebtedness otherwise
permitted under clauses (a) through (h) of this SECTION 7.01) outstanding on the
Initial Closing Date and listed on SCHEDULE 7.01(i);
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(j) Any refinancings, refundings, renewals or extensions of
any Indebtedness permitted under SECTIONS 7.01(e) or (i); PROVIDED, HOWEVER,
that any such refinancing, refunding, renewal or extension shall not cause the
financial or other material covenants, when taken as a whole, to be
significantly more restrictive than (A) those existing in the applicable credit
documentation prior to such renewal, refinancing or extension or (B) the
comparable covenants in this Agreement;
(k) Indebtedness in respect of performance bonds, bid bonds,
appeal bonds, surety bonds and similar obligations and trade-related letters of
credit, in each case provided in the Ordinary Course of Business, and any
extension, renewal or refinancing thereof to the extent not provided to secure
the repayment of other Indebtedness which Indebtedness existing on the Amendment
Effective Date is listed on SCHEDULE 7.01(k);
(l) Variable rate Indebtedness (but excluding such variable
rate Indebtedness that is covered by unsecured Swap Agreements permitted under
SECTION 7.01(g) and Indebtedness under the Loan Documents) in an aggregate
principal amount not to exceed 30% of Total Combined Debt at any time; PROVIDED,
HOWEVER, that such variable rate Indebtedness shall otherwise be Indebtedness
permitted under SECTIONS 7.01(d) and (e);
(m) Indebtedness which is cross-collateralized with or
cross-defaulted to any other Indebtedness; provided that (x) the aggregate
principal amount of all cross collateralized or cross-defaulted Indebtedness
(other than the aggregate principal amount of Indebtedness permitted under
SECTIONS 7.01(n) OR (o)) shall not exceed 15% of Total Combined Debt at any time
and (y) all cross-collateralized and cross-defaulted Indebtedness shall
otherwise be Indebtedness permitted under Sections 7.01(d), (e), (n) and (o) and
PROVIDED FURTHER that all such cross-collateralized and cross-defaulted
Indebtedness existing on the Amendment Effective Date hereof shall be listed on
SCHEDULE 7.01(m) and such existing cross-collateralized and cross-defaulted
Indebtedness shall be satisfactory to Administrative Agent;
(n) Indebtedness of Borrowers, the Guarantors and their
Subsidiaries pursuant to the Casden Loan Documents, including any Guaranty
Obligations in connection therewith;
(o) Indebtedness in respect of the Contingent Acquisition
Note; and
(p) Indebtedness pursuant to the 2003 Term Loan, including any
Guaranty Obligations in connection therewith.
Nothing contained in this SECTION 7.01 shall be deemed to
excuse any lack of compliance by Borrowers or any Subsidiary with the terms of
SECTION 7.14.
7.02 LIENS AND NEGATIVE PLEDGES.
Incur, assume or suffer to exist, any Lien or Negative Pledge
upon any of its Property, assets or revenues, whether now owned or hereafter
acquired, EXCEPT:
(a) Liens and Negative Pledges existing on the Initial Closing
Date and any renewals or extensions thereof;
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(b) Ordinary Course Liens;
(c) Liens arising solely by virtue of any statutory or common
law provision relating to banker's liens, rights of setoff or similar rights and
remedies as to deposit accounts or other funds maintained with a creditor
depository institution; PROVIDED that (i) such deposit account is not a
dedicated cash collateral account and is not subject to restrictions against
access by the depositor in excess of those set forth by regulations promulgated
by the Federal Reserve Board, and (ii) such deposit account is not intended by
the depositor to provide collateral to the depository institution;
(d) Liens and Negative Pledges securing Indebtedness permitted
under SECTION 7.01(d), (e), (h) or (i) on real and personal Properties, together
with refinancings, refundings, renewals or extensions of such Indebtedness as
and to the extent permitted under Section 7.01(j), and not constituting
ownership interests in Borrowers or any of the Subsidiaries of Borrowers;
PROVIDED that no such Lien is spread to cover any additional Property and that
the amount of Indebtedness secured thereby is not increased;
(e) Liens and Negative Pledges supporting purchase options and
Guaranty Obligations permitted by this Agreement;
(f) Liens and Negative Pledges on Property of a Person which
becomes a Subsidiary of any Borrower or any of their respective Subsidiaries
after the Initial Closing Date securing Indebtedness permitted by SECTION
7.01(d) or (e); PROVIDED that (i) such Liens existed at the time such Person
becomes a Subsidiary of any Borrower or any of their respective Subsidiaries and
were not incurred or otherwise created in anticipation thereof, and (ii) any
such Lien is not expanded to cover any other Property of such Person after the
time such Person becomes a Subsidiary of any Borrower or any of their respective
Subsidiaries;
(g) Licenses, leases or subleases granted to other Persons in
the Ordinary Course of Business not materially interfering with the conduct of
the business of the Borrower Parties taken as a whole;
(h) Liens and Negative Pledges arising from Capital Leases
entered into by the Borrower Parties;
(i) (x) Liens pursuant to the Collateral Documents in favor of
the Collateral Agent, for the benefit of the Lender Group, (y) Liens under the
Casden Loan Documents and the Term Loan Documents, and (z) Negative Pledges
pursuant to this Agreement, the Casden Credit Agreement, the Term Loan
Agreement, the other Loan Documents, the other Casden Loan Documents and the
other Term Loan Documents, and the Contingent Acquisition Note; and
(j) Liens and Negative Pledges (x) pursuant to the
Organization Documents of the Institutional Joint Ventures listed on SCHEDULE
1.01F attached hereto and permitted under Section 7.05(f) hereof; PROVIDED,
THAT, the Liens and Negative Pledges only encumber or restrict Liens on the
Property owned by such Institutional Joint Venture and/or the equity interests
in such Institutional Joint Venture; PROVIDED, FURTHER, in all cases such equity
interests are owned directly or indirectly by a Guarantor and/or Borrower, and
(y) pursuant to customary provisions
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in the Organization Documents of any other Permitted Joint Venture; PROVIDED,
THAT, the Liens only encumber the Property owned by such Permitted Joint Venture
and the Negative Pledges only restrict Liens on the Property owned by such
Permitted Joint Venture and the transferability of the managing member or
general partner interest in such Permitted Joint Venture, and
(k) Liens arising from precautionary UCC financing statement
filings regarding operating leases entered into by the Borrower and their
Subsidiaries.
7.03 FUNDAMENTAL CHANGES.
(a) Merge or consolidate with or into any Person or liquidate,
wind-up or dissolve itself, or permit or suffer any liquidation or dissolution,
EXCEPT, that so long as no Default or Event of Default exists or would result
therefrom:
(i) Subsidiaries of Borrowers may merge or
consolidate with or into, or convey, transfer, lease or
otherwise dispose (whether in one transaction or in a series
of transactions) of all or substantially all of any of their
Properties (whether now owned or hereafter acquired) to, or in
favor of, Borrowers or another Subsidiary of Borrowers;
(ii) Subsidiaries of Borrowers may be liquidated,
wound up or dissolved following any conveyance, transfer,
lease or other disposition (whether in one transaction or a
series of transactions) of all or substantially all of their
Properties permitted under SECTION 7.03(a)(i);
(iii) Subsidiaries of Borrowers may engage in reverse
mergers or internal reorganizations whereby a Subsidiary or
Subsidiaries merge into or with one or more Subsidiaries of
the Borrowers or any Guarantor or any combination thereof; and
(iv) Borrowers or any Subsidiary of Borrowers may
merge, or consolidate with another Person; PROVIDED that each
of the following conditions are satisfied: (1) at the
inception of the transaction, Borrowers or such Subsidiary are
intended to be and will be the surviving Person after the
consummation of the contemplated transaction; (2) To The Best
Knowledge of Borrowers, prior to the consummation of the
transaction, the transaction will not cause Borrowers to be in
breach of the representations and warranties of this Agreement
and the other Loan Documents; (3) the transaction will not
cause Borrowers to be in breach of the covenants of this
Agreement and the other Loan Documents, including financial
covenants after the consummation thereof; and (4) Borrowers
provide Administrative Agent with a pro-forma Compliance
Certificate that demonstrates that after the consummation of
the proposed transaction the Borrowers will be in compliance
with the financial covenants of this Agreement.
(v) Borrowers may (x) consummate the Casden
Acquisition and (y) acquire additional equity interests in the
managing members of the Real Estate
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Companies after the Initial Closing Date as contemplated by
the Casden Merger Agreement.
Notwithstanding the foregoing, no Subsidiary shall merge,
consolidate with or into, or convey, transfer, lease or otherwise dispose of
(whether in one transaction or in a series of transactions) all or substantially
all of its Properties (whether now owned or hereafter acquired) to or in favor
of another Subsidiary if such transaction would result in a violation of any
covenant in this Agreement.
(b) Amend its Organization Documents in any respect which is,
in the opinion of the Requisite Lenders, materially adverse to the interests of
the Lenders. Without limiting the foregoing, under no circumstances (i) shall
the Organization Documents of the Borrowers be changed so as to eliminate the
transferability of Partnership Units of AIMCO for common Stock in the REIT on a
one-to-one basis (subject to adjustment as provided in the Organization
Documents of AIMCO) or (ii) shall the Organization Documents of a Management
Entity be changed so as to eliminate or reduce any obligation to pay preferred
Stock dividends, without the prior consent of the Requisite Lenders; PROVIDED,
HOWEVER, that consent shall not be required for the foregoing solely to the
extent any such changes or amendments are required in connection with the
consolidation or merger of any Management Entity into a Wholly-Owned Subsidiary
of the Borrowers and such new or surviving Person provides a Guaranty to the
Lenders in accordance with the requirements of SECTION 6.16(c).
(c) Issue any preferred Stock or preferred Partnership Units;
PROVIDED, HOWEVER, the REIT or any of its Subsidiaries may issue preferred Stock
and/or preferred Partnership Units so long as (i) if such preferred Stock or
preferred Partnership Units has any mandatory redemption feature or has a
redemption feature which is exercisable at the option of the holder thereof
(other than a change of control put feature), then the face amount of such
preferred Stock or preferred Partnership Units shall be deemed Unsecured Debt
for all purposes of this Agreement; and (ii) any distributions with respect
thereto shall comply with the provisions of this Agreement (including, without
limitation, SECTION 7.07).
(d) Change the organizational structure of Borrowers or any of
their respective Subsidiaries from that which is reflected in the Organizational
Chart which is, in the reasonable opinion of the Requisite Lenders, materially
adverse to any Management Entity, without the prior written consent of the
Requisite Lenders, EXCEPT for mergers and changes in the equity structure of
Subsidiaries in accordance with this Section 7.03 and the formation or
acquisition of Subsidiaries in accordance with this SECTION 7.03; PROVIDED,
HOWEVER, that consent shall not be required for the foregoing solely to the
extent any such changes are required in connection with the consolidation or
merger of any Management Entity into a Wholly-Owned Subsidiary of the Borrowers
and such new or surviving Person provides a Guaranty to the Lenders in
accordance with the requirements of SECTION 6.16(c).
(e) Terminate the employment of Xxxxx X. Xxxxxxxxx and/or
Xxxxx X. Xxxxxxxxx as Chief Executive Officer and President of the REIT,
respectively, or remove either or both of them from such positions without the
prior written consent of Requisite Lenders (other than in the event of death or
permanent disability).
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(f) Other than the Casden Acquisition and the acquisition of
additional equity interests in the managing members of the Real Estate Companies
after the Initial Closing Date as contemplated by the Casden Merger Agreement,
acquire by purchase or otherwise all or substantially all of the business or
Property of, or Stock or other evidence of beneficial ownership of, any Person
or any division or line of business of any Person, where such business,
Property, Stock or other evidence of beneficial ownership and/or division or
line of business to be acquired has a fair market value in excess of 20% of the
Gross Asset Value in effect immediately prior to such acquisition, without the
prior written consent of Requisite Lenders.
7.04 DISPOSITIONS. Make any Dispositions, EXCEPT:
(a) Ordinary Course Dispositions;
(b) Dispositions permitted by SECTION 7.03; and
(c) Dispositions of Property or Properties which generate Net
Disposition Proceeds of $1,000,000 or more; PROVIDED that (i) the consideration
received for such Property or Properties shall be in an amount at least equal to
the fair market value thereof; (ii) any consideration received for such Property
or Properties in the form of promissory notes shall be pledged to Collateral
Agent pursuant to the Borrowers Pledge Agreement; and (iii) the Net Disposition
Proceeds of such Dispositions shall be applied as required by SECTION
2.06(B)(IV).
7.05 INVESTMENTS.
Make or maintain any Investments, EXCEPT:
(a) Investments existing on the Initial Closing Date;
(b) Ordinary Course Investments;
(c) Investments permitted by SECTION 7.03;
(d) Investments in Intra-Company Debt permitted under SECTION
7.01(c);
(e) Investments in unsecured Swap Agreements permitted under
SECTION 7.01(g);
(f) Investments in multi-family apartment projects (including
those with de minimis commercial aspects) in fee simple or leasehold interests
therein or partnership, joint venture interests or other Investments (including
capital contributions or partner loans) in Persons that own, directly or
indirectly, multi-family apartment projects (including those with de minimis
commercial aspects); PROVIDED, HOWEVER, Investments in Institutional Joint
Ventures in addition to those listed on SCHEDULE 1.01F shall not be permitted if
and to extent any such additional Institutional Joint Venture causes or is
expected to cause all Institutional Joint Ventures to generate more than 15% of
Total Corporate NOI;
(g) Investments in Management Entities;
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(h) Investments in unimproved land with an aggregate book
value not to exceed 5% of the Gross Asset Value then in effect;
(i) Investments in Stock and Partnership Units with an
aggregate book value not to exceed 5% of the Gross Asset Value then in effect;
PROVIDED, HOWEVER, any Investment in Stock and Partnership Units made in
connection with the Casden Acquisition or pursuant to any other provision of
this SECTION 7.05, shall not be subject to this Section 7.05(i);
(j) Investments in GP Loans provided all such loans are
evidenced by GP Loan Notes and other mortgage loans with an aggregate book value
not to exceed 10% of the Gross Asset Value then in effect;
(k) Investments in New Construction with an aggregate
undepreciated book value not to exceed 5% of the Gross Asset Value then in
effect;
(l) Investments in real property not constituting multi-family
apartment projects (each a "TEMPORARY INVESTMENT") acquired as part of any
Investment in any multi-family apartment project permitted under SECTION
7.05(f); PROVIDED that any such Temporary Investment shall be sold or otherwise
disposed of as soon as commercially reasonable after its acquisition; and
(m) the Casden Acquisition, including (i) the Park La Brea and
Westwood Village Properties Loans, and (ii) Investments in an aggregate amount
not exceeding $50,000,000 (plus any return received in respect of such
Investments) to acquire a 20% membership interest in DevCo and pay additional
capital contributions in connection therewith, in each case as contemplated by
the Casden Merger Agreement; and
(n) Investments in the direct or indirect Stock or Partnership
Units of the Park La Brea or Westwood Village Properties as contemplated in the
Casden Merger Agreement.
7.06 LEASE OBLIGATIONS.
Create or suffer to exist any obligations for the payment of
rent for any Property under lease or agreement to lease, EXCEPT:
(a) leases in existence on the Initial Closing Date and any
renewal, extension or refinancing thereof; and
(b) leases (other than Capital Leases) entered into or assumed
by Borrowers or any of their Subsidiaries after the Initial Closing Date in the
Ordinary Course of Business.
7.07 RESTRICTED PAYMENTS.
(a) (i) Declare or make any Restricted Payment or any
distribution of any Properties (including cash, rights, obligations, partnership
interests or Partnership Units, on account of any partnership interests,
Partnership Units or Stock) to any Person (other than Borrowers or a
Wholly-Owned Subsidiary), or (ii) purchase, redeem or otherwise acquire for
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value any of its partnership interests, Partnership Units or Stock, now or
hereafter outstanding, from any Person (other than Borrowers or a Wholly-Owned
Subsidiary) (all of the foregoing set forth in clauses (i) and (ii),
collectively, being "distributions"), EXCEPT for the following: (A) the exchange
of common Stock of the REIT for Partnership Units; (B) if no Default or Event of
Default exists under SECTION 8.01(a), (b) or (c) as a result of a breach of
Section 7.14, then the Borrowers and all such Subsidiaries may make
"distributions" during any four consecutive fiscal quarter period in an amount
in the aggregate which does not exceed the greater of (1) (x) 88% of Funds From
Operations for each four consecutive fiscal quarter period ending on June 30,
2003, September 30, 2003, December 31, 2003 and March 31, 2004, (y) 85% of Funds
From Operations for each four consecutive fiscal quarter period ending on June
30, 2004 and September 30, 2004, or (z) 80% of Funds From Operations for each
four consecutive fiscal quarter period ending on the last day of each fiscal
quarter thereafter, or (2) such amount as may be necessary to maintain REIT
Status ("distributions" under this clause (B) shall not include any
"distributions" under clauses (A) or (C)); and (C) that if no Default or Event
of Default exists, the Borrowers and all such Subsidiaries may undertake
Permitted Preferred Stock Redemptions; PROVIDED, THAT, prior to making any
Permitted Preferred Stock Redemptions, Borrowers shall first certify in writing
to Administrative Agent (i) that the Net Issuance Proceeds or Net Disposition
Proceeds referred to in the definition of "Permitted Preferred Stock
Redemptions" have been, or will be, applied as and to the extent required under
Section 2.06, and (ii) that the use of funds to make such Permitted Preferred
Stock Redemptions shall not cause a Default or an Event of Default under this
Agreement; PROVIDED, HOWEVER, that nothing in this SECTION 7.07 shall prohibit
(A) any Borrower or any Subsidiary of Borrower from making tenders for or
otherwise acquiring for value any partnership interest, Partnership Units or
Stock, now or hereafter outstanding, of any Borrower or any Subsidiary of any
Borrower which were not issued by such acquiring Borrower or Subsidiary or (B)
any distribution of Property by any Borrower Party, or any Affiliate thereof, in
the Ordinary Course of Business and pursuant to such Borrower Party's or
Affiliate's Organization Documents, including (x) any distribution of proceeds
from Dispositions permitted under SECTION 7.04, (y) any distribution of proceeds
from Dispositions in the Ordinary Course of Business and (z) any distribution by
a non-Wholly-Owned Subsidiary to any Borrower, any of Borrowers' Subsidiaries or
to any other Person holding an equity interest in such non-Wholly-Owned
Subsidiary.
(b) (i) Permit any Subsidiary to make a demand under any
Intra-Company Debt which is payable upon demand at any time after the Revolving
Commitment Termination Date, or (ii) permit any payment with respect to
Intra-Company Debt while any Event of Default is continuing.
7.08 ERISA.
At any time (a) engage in a transaction which could be subject
to Sections 4069 or 4212(c) of ERISA, or (b) permit any Plan to (i) engage in
any non-exempt "prohibited transaction" (as defined in Section 406 of ERISA and
Section 4975 of the Code); (ii) fail to comply with ERISA, the Code or any other
applicable Laws; or (iii) incur any material "accumulated funding deficiency"
(as defined in Section 412 of the Code or Section 302 of ERISA), which, with
respect to each event listed above, has a Material Adverse Effect, (c) terminate
any Plan so as to result in any material (in the opinion of Administrative
Agent) liability to Borrowers or any ERISA Affiliate (i.e., $1,000,000 or more),
(d) permit to exist any ERISA Event or any other event or condition, which
presents the risk of a material (in the opinion of Administrative Agent)
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liability to any member of the Controlled Group, (e) make a complete or partial
withdrawal (within the meaning of ERISA Section 4201) from any Multiemployer
Plan so as to result in any material (in the opinion of Administrative Agent)
liability to Borrowers or any ERISA Affiliate, (f) enter into any new Plan or
modify any existing Plan so as to increase its obligations thereunder which
could result in any material (in the opinion of Administrative Agent) liability
to any member of the Controlled Group, or (g) permit the present value of all
nonforfeitable accrued benefits under any Plan (using the actuarial assumptions
utilized by the PBGC upon termination of a Plan) materially (in the opinion of
Administrative Agent) to exceed the fair market value of Plan assets allocable
to such benefits, all determined as of the most recent valuation date for each
such Plan.
7.09 CHANGE IN NATURE OF BUSINESS.
Make any change in the nature of the business of any Borrower
Party as conducted and as proposed to be conducted as of the Initial Closing
Date; PROVIDED, HOWEVER, that the foregoing shall not restrict the Borrowers'
development of related lines of business which are complimentary to its existing
core multifamily rental operations and such other changes as are necessary to
comply with applicable laws and the Code, and to enable the REIT to maintain its
REIT status.
7.10 TRANSACTIONS WITH AFFILIATES.
Enter into any transaction with any Affiliate of Borrowers
(other than a Wholly-Owned Subsidiary or a Management Entity), except (a) as
permitted by this Agreement, (b) in the Ordinary Course of Business and pursuant
to the reasonable requirements of the business of Borrowers, and in each case of
(a) and (b), upon fair and reasonable terms no less favorable to such Person
than would obtain in a comparable arm's length transaction with a Person not
such an Affiliate, (c) transactions between or among Borrowers and their
respective Subsidiaries, (d) employment, compensation and indemnification
arrangements with officers and directors of Borrowers and their respective
Subsidiaries, (e) fees payable in connection with directors' fees and services
rendered to the Board of Directors of Borrowers or their respective
Subsidiaries, or (f) loans and advances to officers and directors of Borrowers
and their respective Subsidiaries, (g) Park La Brea and Westwood Village
Properties Loans, and (h) transactions contemplated by the Casden Merger
Agreement and the other documents executed in connection therewith, including
the DevCo LLC Agreement.
7.11 USE OF PROCEEDS.
Use any proceeds of any Extensions of Credit, directly or
indirectly, (a) to purchase or carry Margin Stock, (b) to repay or otherwise
refinance indebtedness of Borrowers or others incurred to purchase or carry
Margin Stock, (c) to extend credit for the purpose of purchasing or carrying any
Margin Stock, (d) for any purpose other than those permitted by SECTION 6.12, or
(e) in connection with the acquisition of a voting interest of five percent (5%)
or more in any Person if such acquisition is opposed by the board of directors
or management of
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such Person UNLESS (i) Borrowers have given Administrative Agent (who shall
promptly notify each Lender) five Business Days' prior notice thereof and (ii)
no Lender shall have, within that period, notified Administrative Agent (who
shall promptly notify Borrowers) not consented to the use of the proceeds of
such Extension of Credit for that purpose.
7.12 INTENTIONALLY OMITTED.
7.13 LIMITATIONS ON UPSTREAMING.
Agree to any restriction or limitation on the making of
Restricted Payments from any Subsidiary of Borrower to a Borrower, the making of
any loans or advances to Borrowers or any other Subsidiary of Borrowers, the
repayment or prepayment of any Indebtedness owed by any Subsidiary of Borrowers
to any Borrower or any other Subsidiary of Borrowers, or the transferring of
assets from any Subsidiary of Borrowers to any Borrower or any other Subsidiary
of Borrowers, EXCEPT for such restrictions existing or by reason of (a) any
restrictions existing under the Loan Documents, the Term Loan Documents or the
Casden Loan Documents or any other Indebtedness permitted under Section 7.01
(except as provided in clause (f) below), (b) customary provisions in leases,
subleases, licenses and other contracts restricting the assignment thereof, (c)
applicable law, (d) Intra-Company Debt, (e) ordinary course restrictions in or
contemplated by a Permitted Joint Venture's Organization Documents (subject to
SECTION 6.17), (f) ordinary course restrictions in mortgage loan documents
evidencing Indebtedness permitted under SECTION 7.01 and consisting of, among
other things (i) provisions requiring funding and maintaining of reserves, (ii)
restrictions on the transfer or assignment of the obligor's real or personal
Property, and (iii) limitations on distributions of the obligor's net revenues,
or (g) restrictions in contracts for sales or Dispositions of Property permitted
hereby; PROVIDED, THAT, such restrictions relate only to the Property being
disposed of.
7.14 FINANCIAL COVENANTS.
(a) Permit the Fixed Charge Coverage Ratio as of the end of
any fiscal quarter to be less than 1.50:1.00.
(b) Permit the Adjusted Fixed Charge Coverage Ratio as of the
end of any fiscal quarter to be less than 1.45:1.00.
(c) Permit the Interest Coverage Ratio as of the end of any
fiscal quarter to be less than 2.25:1.00
(d) Permit the Unsecured Debt Service Coverage Ratio as of the
end of any fiscal quarter to be less than 3.00:1.00.
(e) Permit the ratio of Total Combined Debt to Gross Asset
Value to exceed 0.55:1.00 at any time; PROVIDED, HOWEVER, that for purposes of
this SECTION 7.14(e), Gross Asset Value shall be reduced by an amount equal to
the excess, if any, of (x) the sum of the amounts, as on the date of
determination, from clauses (ii), (vi) and (vii) set forth in the definition of
"GROSS ASSET VALUE" OVER (y) 15% of the sum of the amounts, as on such date of
determination, from clauses (i), (iii), (iv) and (v) set forth in the definition
of "GROSS ASSET VALUE".
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(f) Permit the ratio of Total Obligations to Gross Asset Value
to exceed 0.68:1.00 at any time up to and including September 30, 2002, nor
permit the ratio of Total Obligations to Gross Asset Value to exceed 0.65:1.00
at October 1, 2002 or any time thereafter; PROVIDED, HOWEVER, that for purposes
of this SECTION 7.14(f), Gross Asset Value shall be reduced by an amount equal
to the excess, if any, of (x) the sum of the amounts, as on the date of
determination, from clauses (ii), (vi) and (vii) set forth in the definition of
"GROSS ASSET VALUE" OVER (y) 15% of the sum of the amounts, as on such date of
determination, from clauses (i), (iii), (iv) and (v) set forth in the definition
of "GROSS ASSET VALUE".
(g) Permit the Encumbered Property Debt Coverage Ratio as of
the end of any fiscal quarter to be less than 1.60:1.00.
(h) Permit the Consolidated Net Worth of the REIT and its
Subsidiaries on a consolidated basis to be less at any time than the sum of (x)
$3,230,456,000 PLUS (y) 85% of the Net Issuance Proceeds of all issuances of
Stock or Partnership Units from and after September 30, 2002.
Notwithstanding anything to the contrary contained herein, the
Borrowers acknowledge and agree that in determining EBITDA and Net Operating
Income for the Borrowers and their Subsidiaries, any items of net income (or net
loss) on account of the operations of an Institutional Joint Venture shall not
be included in the determination of EBITDA and/or Net Operating Income unless
the Cash or Cash Equivalents related thereto have been distributed to Borrowers
or their Wholly-Owned Subsidiaries which are Guarantors or are otherwise
available to be so distributed without restriction, excluding ordinary course
restrictions which limit distributions to a quarterly or more frequent basis.
7.15 CHANGE IN AUDITORS.
Change the certified public accountants auditing the books of
Borrowers without the consent of Requisite Lenders, other than changes to Ernst
& Young LLP, PricewaterhouseCoopers LLP and Deloitte & Touche LLP.
7.16 SPECIAL COVENANTS RELATING TO THE REIT.
In the case of the REIT:
(a) Make any disposition of or encumber, pledge or
hypothecate, whether directly or indirectly, all or any portion of its interest
in AIMCO or any Subsidiary at any time or any rights to distributions or
dividends therefrom other than to AIMCO or a Wholly-Owned Subsidiary, other than
any pledges of equity interests pursuant to the Collateral Documents in
connection with this Agreement, the Term Loan Credit Agreement and the Casden
Credit Agreement, in each case subject to the terms of the Intercreditor
Agreement;
(b) At any time and for any reason, fail to own, either
directly or through one or more Wholly-Owned Subsidiaries of the REIT, more than
50% of the aggregate outstanding partnership interests in AIMCO;
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(c) Fail for any reason whatsoever, whether voluntarily or
involuntarily, either directly or through one or more Wholly-Owned Subsidiaries
of the REIT, to be the sole general partner of AIMCO at any time;
(d) Use Net Issuance Proceeds for any purpose other than to
make capital contributions to GP Corp and LP Corp immediately upon the receipt
thereof by the REIT for immediate contribution thereof to AIMCO;
(e) Cease to have its Common Stock listed on the NYSE, the
American Stock Exchange, or the Nasdaq Stock Exchange; or
(f) Cease to have REIT Status or fail to comply with the
requirements of the Code relating to qualified REIT subsidiaries in respect of
its ownership of any Subsidiary of the REIT to the extent required under the
Code and applicable law.
7.17 TAXATION OF BORROWERS.
In the case of AIMCO, become an association taxable as a
corporation and not be taxed as a partnership under the Code.
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 EVENTS OF DEFAULT.
Any one or more of the following events shall constitute an
Event of Default:
(a) Borrowers fail to pay any principal on any Extension of
Credit as and on the date when due; or
(b) Borrowers fail to pay any interest on any Extension of
Credit, or any fees due hereunder or amount payable to Administrative Agent or
any Lender under any Loan Document within five days after the date due; or
(c) Any default occurs in the observance or performance of any
agreement contained in SECTIONS 6.12, 6.14, 6.16(d) or 7; or
(d) Intentionally omitted; or
(e) The occurrence of an Event of Default (as such term is or
may hereafter be specifically defined in any other Loan Document) under any
other Loan Document; or any Borrower Party fails to perform or observe any other
covenant or agreement (not specified above) contained in any Loan Document on
its part to be performed or observed and such failure continues for 20 days
after the earlier of (i) the date upon which a Responsible Officer knew or
received written notice of such failure or (ii) the date upon which written
notice thereof is given to Borrowers by Administrative Agent or any Lender; or
94
(f) Any representation or warranty in any Loan Document or in
any certificate, agreement, instrument or other document made or delivered by
any Borrower Party or any Responsible Officer pursuant to or in connection with
any Loan Document proves to have been incorrect in any material respect when
made or deemed made; or
(g) Borrowers, the Guarantors, any of their respective
Subsidiaries or any Person in which they have a controlling equity interest
shall fail, after any applicable cure period:
(A) to make any payment when due, whether by
scheduled maturity, required prepayment,
acceleration, demand, or otherwise, (and which
failure is continuing) in respect of any Indebtedness
of Borrowers, any Guarantor or any of their
respective Subsidiaries which is Recourse to the
assets of any such Person or Persons and that,
together with all other such Recourse Indebtedness
for which the applicable Person has failed to make
any such payment when due during the prior twelve
(12) month period, equals or exceeds $5,000,000 in
the aggregate (other than any payments with respect
to Intra-Company Debt where the obligee has not
commenced pursuing its remedies); or
(B) to make any payment when due, whether by
scheduled maturity, required prepayment,
acceleration, demand, or otherwise, (and which
failure is continuing) in respect of any Indebtedness
(other than the Indebtedness described in SECTION
8.01(g)(A) above) of Borrowers, any Guarantor, any of
their respective Subsidiaries or any other Person in
which Borrowers, any Guarantor or any such Subsidiary
has a controlling equity interest (each such Person
being a "Nonrecourse Debt Obligor") and that equals
or exceeds (x) $25,000,000 individually or (y)
together with all other such Indebtedness for which
Borrowers, any Guarantor or their respective
Subsidiaries or any Nonrecourse Debt Obligor has
failed to make any payment when due during the prior
twelve (12) month period, $50,000,000 in the
aggregate (in either case, other than any payments
with respect to Intra-Company Debt where the obligee
has not commenced pursuing its remedies); PROVIDED,
HOWEVER, that in determining the amount of such
Indebtedness subject to this SECTION 8.01(g)(B), the
amount of such Indebtedness shall include (I) 100% of
such Indebtedness (PROVIDED that Borrowers, any
Guarantor or any of their respective Subsidiaries
shall own a 50% or greater equity interest in the
Nonrecourse Debt Obligor), and (II) any Borrower's,
any Guarantor's or any of their Subsidiaries' pro
rata share of such Indebtedness of a Nonrecourse Debt
Obligor. For purposes of this clause (B)(II), "pro
rata share" of Indebtedness of a Person means the
greater of (1) the amount of such Indebtedness
allocated by the Nonrecourse Debt Obligor to the
Person on the books or records of the Nonrecourse
Debt Obligor or (2) any Borrower's, any Guarantor's
or any Subsidiaries' ownership percentage of the
Nonrecourse Debt Obligor, multiplied by the
outstanding amount of such Indebtedness, as of any
date of determination; or
95
(C) to perform or observe any other
condition or covenant, or any other event shall occur
or condition exist, under any agreement or instrument
relating to any such Indebtedness or Guaranty
Obligation described in SECTION 8.01(g)(A) or (B), if
the effect of such failure, event or condition is to
cause, or to permit the holder or holders of such
Indebtedness or the beneficiary or beneficiaries of
such Indebtedness (or a trustee or agent on behalf of
such holder or holders or beneficiary or
beneficiaries) to cause, such Indebtedness to be
declared to be due and payable prior to its stated
maturity, or such Guaranty Obligation to become
payable or cash collateral in respect thereof to be
demanded; PROVIDED, HOWEVER, that, with respect to
any Indebtedness or Guaranty Obligation encumbering
or directly affecting any real Property which is
owned by a Person constituting any part of Oxford
Assets or Casden Assets, then any such failure, event
or condition shall only be the basis for a default
under this SECTION 8.01(g)(C) if, because of such
failure, event or condition, the holder of such
Indebtedness or Guaranty Obligations causes an
acceleration of the Indebtedness prior to its stated
maturity or a liquidation of the Guaranty Obligation;
or
(D) to perform or observe any condition or
covenant of the Intra-Company Loan Subordination
Agreement; or
(E) to perform or observe any condition or
covenant under any Indebtedness which is Recourse to
the assets of any Management Entity within any
applicable cure or grace periods; or
(It is being understood that, for purposes of clauses (A), (B)
and (C) above, no failure by the Borrowers or any of their Subsidiaries
to pay or perform any obligation with respect to an item of
Intra-Company Debt shall be deemed a breach or default hereunder if
such failure to pay or perform is in compliance with the Intra-Company
Loan Subordination Agreement.)
(h) Any Loan Document, at any time after its execution and
delivery and for any reason other than the agreement of all Lenders or
satisfaction in full of all the Obligations, ceases to be in full force and
effect (other than in accordance with its terms) or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
respect; or any Borrower Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document to which it is a party; or
(i) A final judgment against any Borrower Party is entered for
the payment of money (for a liability not covered by insurance) in excess of the
Threshold Amount, or any non-monetary final judgment is entered against any
Borrower Party which has a Material Adverse Effect and, in each case if such
judgment remains unsatisfied without procurement of a stay of execution within
30 calendar days after the date of entry of judgment or, if earlier, five days
prior to the date of any proposed sale, or any writ or warrant of attachment or
execution or
96
similar process is issued or levied against all or any material part of the
Property of any such Person and is not released, vacated or fully bonded within
30 calendar days after its issue or levy; or
(j) Any Borrower Party or any of its Material Entities
institutes or consents to the institution of any proceeding under Debtor Relief
Laws with respect to itself or its assets, or makes an assignment for the
benefit of creditors; or applies for or consents to the appointment of any
receiver, trustee, custodian, conservator, liquidator, rehabilitator or similar
officer for it or for all or any material part of its property; or any receiver,
trustee, custodian, conservator, liquidator, rehabilitator or similar officer is
appointed without the application or consent of that Person and the appointment
continues undischarged or unstayed for 60 calendar days; or any proceeding under
Debtor Relief Laws relating to any such Person or to all or any part of its
property is instituted without the consent of that Person and continues
undismissed or unstayed for 60 calendar days, or an order for relief is entered
in any such proceeding; or
(k) (i) A member of the Controlled Group shall fail to pay
when due, after the expiration of any applicable grace period, any installment
payment with respect to its withdrawal liability under a Multiemployer Plan;
(ii) a Borrower or an ERISA Affiliate shall fail to satisfy its contribution
requirements under Section 412(c)(11) of the Code, whether or not it has sought
a waiver under Section 412(d) of the Code; (iii) in the case of an ERISA Event
involving the withdrawal from a Plan of Borrowers or any ERISA Affiliate which
is a "substantial employer" (as defined in Section 4001(a)(2) or Section 4062(e)
of ERISA), the withdrawing employer's proportionate share of that Plan's
Unfunded Pension Liabilities is more than $5,000,000; (iv) in the case of an
ERISA Event involving the complete or partial withdrawal of Borrowers or an
ERISA Affiliate from a Multiemployer Plan, the withdrawing employer has incurred
a withdrawal liability in an aggregate amount exceeding $5,000,000; (v) in the
case of an ERISA Event not described in clause (iii) or (iv), the Unfunded
Pension Liabilities of the relevant Plan or Plans exceed $5,000,000; (vi) a Plan
that is intended to be qualified under Section 401(a) of the Code shall lose its
qualification, and the loss can reasonably be expected to impose on members of
the Controlled Group liability (for additional taxes, to Plan participants, or
otherwise) in the aggregate amount of $5,000,000 or more; (vii) the commencement
or increase of contributions to, or the adoption of or the amendment of a Plan
by, a member of the Controlled Group shall result in a net increase in unfunded
liabilities to the Controlled Group in excess of $5,000,000; (viii) any member
of the Controlled Group engages in or otherwise becomes liable for a non-exempt
prohibited transaction and the initial tax or additional tax under section 4975
of the Code relating thereto might reasonably be expected to exceed $5,000,000;
(ix) a violation of section 404 or 405 of ERISA or the exclusive benefit rule
under section 401(a) of the Code if such violation might reasonably be expected
to expose a member or members of the Controlled Group to monetary liability in
excess of $5,000,000; (x) any member of the Controlled Group is assessed a tax
under section 4980B of the Code in excess of $5,000,000; or (xi) the occurrence
of any combination of events listed in clauses (iii) through (x) that involves a
potential liability, net increase in aggregate Unfunded Pension Liabilities,
unfunded liabilities, or any combination thereof, in excess of $5,000,000; or
(l) [Intentionally Omitted]
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(m) [Intentionally Omitted]
(n) (i) Any provision of any Guaranty shall for any reason
(other than pursuant to the terms thereof) cease to be valid and binding on or
enforceable against Borrowers or other Persons party thereto (except to the
extent that the same results solely from an act or omission of Administrative
Agent or the Lenders), or Borrowers or such Person shall so state in writing or
bring an action to limit its obligations or liabilities thereunder; or (ii) any
party to any Guaranty (other than the Administrative Agent or Lenders) shall
fail to perform or observe any term, covenant or agreement in Sections 1, 9, or
12, of such Guaranty or incorporated into such Guaranty from SECTIONS 6.12 and
6.14 and ARTICLE 7 of this Agreement, or (B) any other term, covenant or
agreement in any Guaranty, and such failure shall continue unremedied for a
period of 20 days after the earlier of (I) the date upon which a Responsible
Officer of Borrowers knew or received written notice of such failure or (II) the
date upon which written notice thereof is given to Borrowers (or any Subsidiary
party thereto) by Administrative Agent; or (iii) any Guaranty shall for any
reason be partially (including with respect to future advances) or wholly
revoked or invalidated, or otherwise cease to be in full force and effect; or
(iv) any Guarantor shall contest in any manner the validity or enforceability
thereof or deny that such Guarantor has any further liability or obligation
thereunder; or
(o) (i) Any "Person", or a "group" of related "Persons" (as
such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange Act
whether or not applicable), shall acquire (a) beneficial ownership of in excess
of 50% of the outstanding voting Stock of the REIT or other voting interest
having ordinary voting power to elect a majority of the directors, managers or
trustees of the REIT (irrespective of whether at the time stock of any other
class or classes shall have or might have voting power by reason of the
happening of any contingency) or (b) all or substantially all of the Properties
of Borrowers, or (ii) a majority of the Board of Directors of the REIT, at any
time, shall be composed of Persons other than (a) Persons who were members of
the Board of Directors on the date of this Agreement, or (b) Persons who
subsequently become members of the Board of Directors and who either (x) are
appointed or recommended for election with the affirmative vote of a majority of
the directors in office as of the date of this Agreement or (y) are appointed or
recommended for election with the affirmative vote of a majority of the Board of
Directors of the REIT then in office; or
(p) Borrowers, any Guarantor, or any of their respective
Subsidiaries shall lose, through suspension, termination, impoundment,
revocation, failure to renew or otherwise, any license or permit material to
Borrowers, Guarantors and their respective Subsidiaries, taken as a whole; or
(q) Borrowers, any Guarantor, or any of their respective
Subsidiaries or any of their respective Properties shall become subject to one
or more Liens for costs or damages in excess of $5,000,000, individually or in
the aggregate, and in each case under any Environmental Law and such Liens shall
remain in place for thirty (30) days after the creation thereof; or
(r) If at any time after the incurrence of any Intra-Company
Debt, a Borrower or any of its Subsidiaries is not the holder of such
Intra-Company Debt; or if any modification or amendment with respect to the
payment terms of any Intra-Company Debt is entered into without
98
the prior written consent of the Requisite Lenders; or if, at any time after the
Revolving Commitment Termination Date, the holder of any Intra Company Debt
demands any payment whatsoever thereon in violation of the Intra-Company Loan
Subordination Agreement; or
(s) Any event not otherwise described in this SECTION 8.01
occurs which has a Material Adverse Effect; or
(t) If at any time Xxxxx X. Xxxxxxxxx and Xxxxx X. Xxxxxxxxx
and their respective immediate family members and/or affiliated trusts fail to
directly or indirectly own in the aggregate the lesser of (i) at least 2% of the
aggregate ordinary voting power represented by the issued and outstanding equity
of the REIT as diluted from time to time or (ii) 600,000 shares of common voting
Stock thereof or Partnership Units; or
(u) The occurrence of an "Event of Default" under any of the
Casden Loan Documents.
8.02 REMEDIES UPON EVENT OF DEFAULT.
Without limiting any other rights or remedies of
Administrative Agent or Lenders provided for elsewhere in this Agreement, or the
other Loan Documents, or by applicable Law, or in equity, or otherwise:
(a) upon the occurrence, and during the continuance, of any
Event of Default OTHER THAN an Event of Default described in SECTION 8.01(j):
(i) Supermajority Lenders may request Administrative
Agent to, and Administrative Agent thereupon shall, terminate
the Commitments and/or declare all or any part of the unpaid
principal of all Loans, all interest accrued and unpaid
thereon and all other amounts payable under the Loan Documents
to be forthwith due and payable, whereupon the same shall
become and be forthwith due and payable, without protest,
presentment, notice of dishonor, demand or further notice of
any kind, all of which are expressly waived by Borrowers; and
(ii) Issuing Lender may, with the approval of
Administrative Agent on behalf of Supermajority Lenders,
demand immediate payment by Borrowers of an amount equal to
the aggregate amount of all outstanding Letters of Credit
Usage to be held in a Letter of Credit Cash Collateral
Account.
(iii) While all or any portion of the Casden Loan is
outstanding and there are Lenders which constitute Group B
Lenders, if within 30 days after the occurrence of an Event of
Default described in Subsections 8.01(a), (b), (f), (h), (j)
and (u), Supermajority Lenders have not requested that
Administrative Agent terminate the Commitments and/or declare
all or any part of the unpaid principal of all Loans, all
interest accrued and unpaid thereon and all other amounts
payable under the Loan Documents to be forthwith due and
payable, then unless Group A Lenders holding in the aggregate
more than 51% of the combined Commitments of Group A Lenders
then in effect and Group B Lenders holding in the aggregate
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more than 51% of the combined Commitments of Group B Lenders
then in effect direct otherwise, Administrative Agent shall
take such action as if directed by the Supermajority Lenders
pursuant to SUBSECTION 8.02(a)(i); and
(iv) While all or any portion of the Casden Loan is
outstanding and there are Lenders which constitute Group B
Lenders, if within 90 days after the occurrence of an Event of
Default described in SUBSECTIONS 8.01(c), (e), (g), (i), (k),
(n), (o), (p), (q), (r), (s) OR (t), Supermajority Lenders
have not requested that Administrative Agent terminate the
Commitments and/or declare all or any part of the unpaid
principal of all Loans, all interest accrued and unpaid
thereon and all other amounts payable under the Loan Documents
to be forthwith due and payable, then unless Group A Lenders
holding in the aggregate more than 51% of the combined
Commitments of Group A Lenders then in effect and Group B
Lenders holding in the aggregate more than 51% of the combined
Commitments of Group B Lenders then in effect direct
otherwise, Administrative Agent shall take such action as if
directed by the Supermajority Lenders pursuant to SUBSECTION
8.02(a)(i).
(b) Upon the occurrence of any Event of Default described in
SECTION 8.01(j):
(i) the Commitments and all other obligations of
Administrative Agent or Lenders to Borrowers (other than the
confidentiality provisions of SECTION 10.17, and the Lenders'
agreement to change the jurisdiction of its Lending Office, as
provided in SECTION 3.01(G), and to designate a different
Lending Office, as provided in SECTION 3.02) shall
automatically terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers;
(ii) the unpaid principal of all Loans, all interest
accrued and unpaid thereon and all other amounts payable under
the Loan Documents shall be forthwith due and payable, without
protest, presentment, notice of dishonor, demand or further
notice of any kind, all of which are expressly waived by
Borrowers; and
(iii) an amount equal to the aggregate amount of all
outstanding Letters of Credit Usage shall be immediately due
and payable to Issuing Lender without notice to or demand upon
Borrowers, which are expressly waived by Borrowers, to be held
in a Letter of Credit Cash Collateral Account.
(c) Upon the occurrence of any Event of Default, Lenders and
Administrative Agent, or any of them, without notice to (except as expressly
provided for in any Loan Document) or demand upon Borrowers, which are expressly
waived by Borrowers (except as to notices expressly provided for in any Loan
Document), may proceed to (but only with the consent of Supermajority Lenders)
protect, exercise and enforce their rights and remedies under the Loan Documents
against any Borrower Party and such other rights and remedies as are provided by
Law or equity.
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(d) Except as permitted by SECTION 10.05, no Lender may
exercise any rights or remedies with respect to the Obligations without the
consent of Supermajority Lenders in their sole discretion. The order and manner
in which Administrative Agent's and Lenders' rights and remedies are to be
exercised shall be determined by Supermajority Lenders in their sole discretion.
Regardless of how a Lender may treat payments for the purpose of its own
accounting, for the purpose of computing the Obligations hereunder, payments
shall be applied FIRST, to costs and expenses (including Attorney Costs)
incurred by Administrative Agent and each Lender, SECOND, to the payment of
accrued and unpaid interest on the Loans to and including the date of such
application, THIRD, to the payment of the unpaid principal of the Loans, and
FOURTH, to the payment of all other amounts (including fees) then owing to
Administrative Agent and Lenders under the Loan Documents, in each case paid pro
rata to Administrative Agent and each Lender in the same proportions that the
aggregate Obligations owed to Administrative Agent and each Lender under the
Loan Documents bear to the aggregate Obligations owed under the Loan Documents
to Administrative Agent and all Lenders, without priority or preference among
Administrative Agent and Lenders. No application of payments will cure any Event
of Default, or prevent acceleration, or continued acceleration, of amounts
payable under the Loan Documents, or prevent the exercise, or continued
exercise, of rights or remedies of Administrative Agent and Lenders hereunder or
thereunder or at Law or in equity.
SECTION 9.
ADMINISTRATIVE AGENT
9.01 APPOINTMENT AND AUTHORIZATION OF ADMINISTRATIVE AGENT.
(a) Each Lender hereby irrevocably (subject to SECTION 9.09)
appoints, designates and authorizes Administrative Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Agreement or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(b) Issuing Lender shall act on behalf of Lenders with respect
to any Letters of Credit issued by it and the documents associated therewith
until such time and except for so long as Administrative Agent may agree at the
request of the Requisite Lenders to act for such Issuing Lender with respect
thereto; PROVIDED, HOWEVER, that Issuing Lender shall have all of the benefits
and immunities (i) provided to Administrative Agent in this SECTION 9 with
respect to
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any acts taken or omissions suffered by Issuing Lender in connection with
Letters of Credit issued by it or proposed to be issued by it and the
application and agreements for letters of credit pertaining to the Letters of
Credit as fully as if the term "Administrative Agent" as used in this SECTION 9
included Issuing Lender with respect to such acts or omissions, and (ii) as
additionally provided in this Agreement with respect to Issuing Lender.
9.02 DELEGATION OF DUTIES.
Administrative Agent may execute any of its duties under this
Agreement or any other Loan Document by or through agents, employees or
attorneys-in-fact and shall be entitled to advice of counsel concerning all
matters pertaining to such duties. Administrative Agent shall not be responsible
for the negligence or misconduct of any agent or attorney-in-fact that it
selects with reasonable care.
9.03 LIABILITY OF ADMINISTRATIVE AGENT.
None of Administrative Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of Lenders for any recital,
statement, representation or warranty made by Borrowers or any Subsidiary or
Affiliate of Borrowers, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of Borrowers or any
other party to any Loan Document to perform their obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the Properties, books or records of any
Borrower or any of Borrowers' Subsidiaries or Affiliates.
9.04 RELIANCE BY ADMINISTRATIVE AGENT.
(a) Administrative Agent shall be entitled to rely, and shall
be fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to
Borrowers), independent accountants and other experts selected by Administrative
Agent. Administrative Agent may deem and treat the payee of any Note as the
owner thereof for all purposes unless such Note shall have been transferred in
accordance with Section 10.04 and all actions required by such Section in
connection with such transfer shall have been taken. Administrative Agent shall
be fully justified in failing or refusing to take any action under this
Agreement or any other Loan Document unless it shall first receive such advice
or concurrence of the Requisite Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by
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Lenders against any and all liability and expense which may be incurred by it by
reason of taking or continuing to take any such action. Administrative Agent
shall in all cases be fully protected in acting, or in refraining from acting,
under this Agreement or any other Loan Document in accordance with a request or
consent of the Requisite Lenders or Supermajority Lenders or all Lenders, if
required hereunder, and such request and any action taken or failure to act
pursuant thereto shall be binding upon all of Lenders.
(b) For purposes of determining compliance with the conditions
specified in SECTION 4.01, each Lender that has executed this Agreement shall be
deemed to have consented to, approved or accepted or to be satisfied with, each
document or other matter either sent by Administrative Agent to such Lender for
consent, approval, acceptance or satisfaction, or required thereunder to be
consented to or approved by or acceptable or satisfactory to such Lender.
9.05 NOTICE OF DEFAULT.
Administrative Agent shall not be deemed to have knowledge or
notice of the occurrence of any Default or Event of Default, except with respect
to defaults in the payment of principal, interest and fees required to be paid
to Administrative Agent for the account of Lenders, unless Administrative Agent
shall have received written notice from a Lender or Borrowers referring to this
Agreement, describing such Default or Event of Default and stating that such
notice is a "notice of default". Administrative Agent will notify Lenders of its
receipt of any such notice. Administrative Agent shall take such action with
respect to such Default or Event of Default as may be requested by the Requisite
Lenders in accordance with SECTION 8; PROVIDED, HOWEVER, that unless and until
Administrative Agent has received any such request, Administrative Agent may
(but shall not be obligated to) take such action, or refrain from taking such
action, with respect to such Default or Event of Default as it shall deem
advisable or in the best interest of Lenders.
9.06 CREDIT DECISION; DISCLOSURE OF INFORMATION BY ADMINISTRATIVE
AGENT.
Each Lender acknowledges that none of Administrative
Agent-Related Persons or Co-Lead Arrangers has made any representation or
warranty to it, and that no act by Administrative Agent hereinafter taken,
including any consent to and acceptance of any assignment or review of the
affairs of Borrowers and their Subsidiaries, shall be deemed to constitute any
representation or warranty by any Administrative Agent-Related Person or any
Co-Lead Arranger to any Lender as to any matter, including without limitation,
whether Administrative Agent-Related Persons or Co-Lead Arrangers, as the case
may be, have disclosed material information in their possession. Each Lender,
including any Lender by assignment, represents to Administrative Agent that it
has, independently and without reliance upon any Administrative Agent-Related
Person or any Co-Lead Arranger and based on such documents and information as it
has deemed appropriate, made its own appraisal of and investigation into the
business, prospects, operations, property, financial and other condition and
creditworthiness of Borrowers and their Subsidiaries, and all applicable bank
regulatory laws relating to the transactions contemplated hereby, and made its
own decision to enter into this Agreement and to extend credit to Borrowers
hereunder. Each Lender also represents that it will, independently
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and without reliance upon any Administrative Agent-Related Person or any Co-Lead
Arranger and based on such documents and information as it shall deem
appropriate at the time, continue to make its own credit analysis, appraisals
and decisions in taking or not taking action under this Agreement and the other
Loan Documents, and to make such investigations as it deems necessary to inform
itself as to the business, prospects, operations, property, financial and other
condition and creditworthiness of Borrowers. Except for notices, reports and
other documents expressly herein required to be furnished to Lenders by
Administrative Agent herein, Administrative Agent shall not have any duty or
responsibility to provide any Lender with any credit or other information
concerning the business, prospects, operations, property, financial and other
condition or creditworthiness of Borrowers or any of their Subsidiaries which
may come into the possession of any of Administrative Agent-Related Persons or
Co-Lead Arranger.
9.07 INDEMNIFICATION OF ADMINISTRATIVE AGENT.
Whether or not the transactions contemplated hereby are
consummated, Lenders shall indemnify upon demand each Administrative
Agent-Related Person (to the extent not reimbursed by or on behalf of Borrowers
and without limiting the obligation of Borrowers to do so), pro rata, and hold
harmless each Administrative Agent-Related Person from and against any and all
Indemnified Liabilities incurred by it; PROVIDED, HOWEVER, that no Lender shall
be liable for the payment to any Administrative Agent-Related Person of any
portion of such Indemnified Liabilities resulting from such Person's gross
negligence or willful misconduct; PROVIDED, HOWEVER, that no action taken in
accordance with the directions of the Requisite Lenders shall be deemed to
constitute gross negligence or willful misconduct for purposes of this Section.
Without limitation of the foregoing, each Lender shall reimburse Administrative
Agent upon demand for its ratable share of any costs or out-of-pocket expenses
(including Attorney Costs) incurred by Administrative Agent after the Initial
Closing Date in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
rights or responsibilities under, this Agreement, any other Loan Document, or
any document contemplated by or referred to herein, to the extent that
Administrative Agent is not reimbursed for such expenses by or on behalf of
Borrowers. The undertaking in this Section shall survive the payment of all
Obligations hereunder and the resignation or replacement of Administrative
Agent.
9.08 ADMINISTRATIVE AGENT IN INDIVIDUAL CAPACITY.
Administrative Agent and its Affiliates may make loans to,
issue letters of credit for the account of, accept deposits from, acquire equity
interests in and generally engage in any kind of banking, trust, financial
advisory, underwriting or other business with Borrowers and their Subsidiaries
and Affiliates as though it were not Administrative Agent or Issuing Lender
hereunder and without notice to or consent of Lenders. Lenders acknowledge that,
pursuant to such activities, Administrative Agent or its Affiliates may receive
information regarding Borrowers or their Affiliates (including information that
may be subject to confidentiality obligations in favor of such Borrower or such
Affiliate) and acknowledge that Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans,
Administrative Agent shall have the same rights and powers under this Agreement
as any
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other Lender and may exercise the same as though it were not Administrative
Agent or Issuing Lender, and the terms "Lender" and "Lenders" shall include
Administrative Agent in its individual capacity.
9.09 SUCCESSOR ADMINISTRATIVE AGENT.
Administrative Agent may, and at the request of the
Supermajority Lenders shall, resign as Administrative Agent upon thirty (30)
days' notice to Lenders. If Administrative Agent resigns under this Agreement,
the Requisite Lenders shall appoint from among Lenders a successor
administrative agent for Lenders, and, so long as no Default or Event of Default
has occurred and is continuing, such successor administrative agent shall
require the approval of Borrowers (which approval shall not be unreasonably
withheld, conditioned or delayed). If no successor administrative agent is
appointed prior to the effective date of the resignation of Administrative
Agent, Administrative Agent may appoint, after consulting with Lenders and
Borrowers, a successor administrative agent from among Lenders. Upon the
acceptance of its appointment as successor administrative agent hereunder, such
successor administrative agent shall succeed to all the rights, powers and
duties of the retiring Administrative Agent and the term "ADMINISTRATIVE AGENT"
shall mean such successor administrative agent and the retiring Administrative
Agent's appointment, powers and duties as Administrative Agent shall be
terminated. After any retiring Administrative Agent's resignation hereunder as
Administrative Agent, the provisions of this SECTION 9 and SECTIONS 10.03 and
10.13 shall inure to its benefit as to any actions taken or omitted to be taken
by it while it was Administrative Agent under this Agreement. If no successor
administrative agent has accepted appointment as Administrative Agent by the
date which is thirty (30) days following a retiring Administrative Agent's
notice of resignation, the retiring Administrative Agent's resignation shall
nevertheless thereupon become effective and Lenders shall perform all of the
duties of Administrative Agent hereunder until such time, if any, as the
Requisite Lenders appoint a successor agent as provided for above.
Notwithstanding the foregoing, however, Bank of America may not be removed as
Administrative Agent at the request of Supermajority Lenders unless Bank of
America shall also simultaneously be replaced as "Issuing Lender" hereunder
pursuant to documentation in form and substance reasonably satisfactory to Bank
of America.
9.10 CO-LEAD AGENTS.
None of Lenders identified on the facing page or signature
pages of this Agreement as a "lead agent" or "co-lead agent" shall have any
right, power, obligation, liability, responsibility or duty under this Agreement
other than those applicable to all Lenders as such. Without limiting the
foregoing, none of Lenders so identified as a "lead agent" or "co-lead agent"
shall have or be deemed to have any fiduciary relationship with any Lender. Each
Lender acknowledges that it has not relied, and will not rely, on any of Lenders
so identified in deciding to enter into this Agreement or in taking or not
taking action hereunder.
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SECTION 10.
MISCELLANEOUS
10.01 AMENDMENTS; CONSENTS.
No amendment, modification, supplement, extension, termination
or waiver of any provision of this Agreement or any other Loan Document, no
approval or consent thereunder, and no consent to any departure by any Borrower
Party therefrom shall be effective unless in writing signed by Administrative
Agent and Requisite Lenders, and each such waiver or consent shall be effective
only in the specific instance and for the specific purpose for which given;
PROVIDED, HOWEVER, that, except as otherwise expressly provided herein, (i)
without the approval in writing of Administrative Agent and Supermajority
Lenders, no amendment, modification, supplement, termination, waiver or consent
may be effective to amend the provisions of SECTION 7.14 while all or any
portion of the Casden Loan is outstanding, Sections 7.14(A), (C), (E) or (F)
after repayment of the Casden Loan in full, or SECTION 8 or to amend any
provision of this Agreement that expressly requires the consent or approval of
Supermajority Lenders, and (ii) without the approval in writing of
Administrative Agent and all Lenders, no amendment, modification, supplement,
termination, waiver or consent may be effective to the extent it involves a
material change to any material provision of the Intercreditor Agreement or
causes any of the following to occur:
(a) To reduce the amount of any scheduled payment of
principal, principal prepayments or the rate of interest payable on, any Loan,
or the amount of any fee or other amount payable to any Lender under the Loan
Documents (unless such modification is consented to by each Lender entitled to
receive such fee ) or to waive an Event of Default consisting of the failure of
Borrowers to pay when due principal, interest or any commitment fee; or
(b) To postpone any date fixed for any scheduled payment of
principal of, prepayment of principal of, or any installment of interest on, any
Loan or any installment of any commitment fee, to extend the term of, or
increase the amount of, any Lender's Commitment (it being understood that a
waiver of an Event of Default shall not constitute an extension or increase in
the Commitment of any Lender) or modify the Pro Rata Share of any Lender; or
(c) To amend the provisions of the definition of "REQUISITE
LENDERS", "SUPERMAJORITY LENDERS", SECTION 9 or this SECTION 10.01; or
(d) To amend any provision of this Agreement that expressly
requires the consent or approval of all Lenders; or
(e) To (i) release Liens granted in favor of Administrative
Agent with respect to any material portion of the Pledged Collateral, other than
in connection with dispositions of such Pledged Collateral permitted under this
Agreement or the Collateral Documents and provided that the proceeds of any such
disposition are applied as required to be applied under this Agreement,
including pursuant to SECTION 2.06(b) or (ii) release any Guarantor which is a
Material Entity from its obligations under the applicable Guaranty, provided
that such Guarantor may be released by Administrative Agent in the event (1)
such Guarantor is dissolved, merged,
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consolidated, liquidated, or wound-up as specifically provided in SECTIONS
6.04 or 7.03 and after giving effect to such dissolution, merger,
consolidation, liquidation or winding-up, Borrowers remain in compliance with
the other terms and provisions of this Agreement, or (2) there is a sale of
the Stock of such Guarantor which complies with the terms of this Agreement,
and after giving effect to such sale, Borrowers remain in compliance with the
terms and provisions of this Agreement;
PROVIDED, HOWEVER, that (i) no amendment, waiver or consent shall, unless in
writing and signed by Issuing Lender in addition to the Requisite Lenders or all
Lenders, as the case may be, affect the rights or duties of Issuing Lender under
any Loan Document relating to Letters of Credit and (ii) any fee letter may be
amended, or rights or privileges thereunder waived, in a writing executed by the
parties thereto. Any amendment, modification, supplement, termination, waiver or
consent pursuant to this Section shall apply equally to, and shall be binding
upon, all Lenders and Administrative Agent.
Notwithstanding any other provision contained herein to the
contrary, any amendments or replacements of the Intercreditor Agreement in
accordance with the First Amendment to Fifth Amended and Restated Credit
Agreement dated as of the First Amendment Effective Date, among Borrowers,
Lenders and the Administrative Agent shall only require the consent of the
Administrative Agent and Requisite Lenders.
10.02 TRANSMISSION AND EFFECTIVENESS OF NOTICES AND SIGNATURES.
(a) MODES OF DELIVERY. Except as otherwise provided in any
Loan Document, notices, requests, demands, directions, agreements and documents
delivered in connection with the Loan Documents (collectively, "COMMUNICATIONS")
shall be transmitted by Requisite Notice to the number and address set forth on
SCHEDULE 10.02, may be delivered by the following modes of delivery, and shall
be effective as follows:
=======================================================================================
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
=======================================================================================
; PROVIDED, HOWEVER, that communications delivered to Administrative Agent
pursuant to SECTION 2 shall not be effective until actually received by
Administrative Agent.
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(b) RELIANCE BY ADMINISTRATIVE AGENT AND LENDERS.
Administrative Agent and Lenders shall be entitled to rely and act on any
communications purportedly given by or on behalf of any Borrower Party 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. Borrowers shall
indemnify Administrative Agent and Lenders from any loss, cost, expense or
liability as a result of relying on any communications permitted herein.
(c) EFFECTIVENESS OF ELECTRONIC AND FACSIMILE SIGNATURES.
Signatures on communications may be transmitted by facsimile, electronic mail or
other digital transmission only with the consent of Administrative Agent in its
sole discretion, in each instance. The effectiveness of any such signatures
accepted by Administrative Agent shall, subject to applicable Law, have the same
force and effect as manual signatures and shall be binding on all Borrower
Parties and Administrative Agent and Lenders. Administrative Agent may also
require that any such signature be confirmed by a manually-signed hardcopy
thereof.
10.03 ATTORNEY COSTS, EXPENSES AND TAXES.
Borrowers agree (a) to pay or reimburse Administrative Agent
and Collateral Agent for all reasonable costs and expenses incurred in
connection with the development, preparation, negotiation and execution of the
Loan Documents, and the development, preparation, negotiation and execution of
any amendment, waiver, consent, supplement or modification to, any Loan
Documents, and any other documents prepared in connection herewith or therewith,
and the consummation and administration of the transactions contemplated hereby
and thereby, including, without limitation, all Attorney Costs and the charges
of Intralinks or any other electronic document distribution service; PROVIDED,
HOWEVER, that Administrative Agent and Fleet Securities, Inc. not seek more than
$10,000 from Borrowers for reimbursement of travel and travel-related expenses
through and including the Initial Closing Date; and (b) to pay or reimburse
Administrative Agent, Collateral Agent and each Lender for all costs and
expenses incurred in connection with any refinancing, restructuring,
reorganization (including a bankruptcy reorganization) and enforcement or
attempted enforcement, or preservation of any rights under any Loan Documents,
and any other documents prepared in connection herewith or therewith, or in
connection with any refinancing, or restructuring of any such documents in the
nature of a "workout" or of any insolvency or bankruptcy proceeding, including,
without limitation, Attorney Costs. The foregoing costs and expenses shall
include all search, filing, recording, title insurance and appraisal charges and
fees and taxes related thereto, and other out-of-pocket expenses incurred by
Administrative Agent and the cost of independent public accountants and other
outside experts retained by Administrative Agent, Collateral Agent or any
Lender. Such costs and expenses shall also include administrative costs of
Administrative Agent and Collateral Agent reasonably attributable to the
administration of the Loan Documents, among other things, in connection with the
matters described in clause (b) above. Any amount payable by Borrowers under
this Section shall bear interest from the second Business Day following the date
of demand for payment at the Default Rate, unless waived by Administrative
Agent. The agreements in this Section shall survive repayment of all
Obligations.
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10.04 BINDING EFFECT; ASSIGNMENT.
(a) GENERALLY. This Agreement shall be binding upon and inure
to the benefit of and be enforceable by the respective successors and assigns of
the parties hereto; PROVIDED that none of the Borrower Parties may assign and
transfer any of their interests without the prior written consent of all the
Lenders and Administrative Agent; and PROVIDED FURTHER that the rights of each
Lender to transfer, assign or grant participants in its rights and/or
obligations hereunder shall be limited as set forth below in this Section 10.04.
(b) ASSIGNMENTS. Each Lender may assign to one or more
Eligible Assignees all or a portion of its rights and obligations under this
Agreement (including, without limitation, all or a portion of its Loans, its
Notes, and its Commitment); PROVIDED HOWEVER, that:
(i) each such assignment shall be to an Eligible
Assignee;
(ii) except (A) in the case of an assignment to
another Lender, (B) in the case of an assignment of all of a
Lender's rights and obligations under this Agreement, or (C)
with the consent of the Administrative Agent and the
Borrowers, any such partial assignment shall be in an amount
at least equal to the applicable Minimum Amount (or, if less,
the remaining amount of the Commitment being assigned by such
Lender) or an integral multiple of the applicable Minimum
Amount in excess thereof;
(iii) each such assignment by a Lender shall be of a
constant, and not varying, percentage of all of its rights and
obligations under this Agreement and the Notes;
(iv) the parties to such assignment shall execute and
deliver to the Administrative Agent and, so long as no Default
or Event of Default has occurred and is continuing, to the
Borrowers for their acceptance an Assignment and Acceptance in
substantially the form of EXHIBIT D, together with a
processing fee from the assignor of $3,500; and
(v) such assignment, if not to a Lender or an
Affiliate of an assigning Lender, shall require the approval
of Borrowers at all times other than during the existence of a
Default or Event of Default and Administrative Agent and
Issuing Lender (which approval of Borrowers or Administrative
Agent or Issuing Lender, as the case may be, shall not be
unreasonably withheld, conditioned or delayed) and if
Borrowers do not respond during such ten (10) Business Days
after receipt of an Assignment and Acceptance, such assignment
shall be deemed approved.
Upon execution, delivery, and acceptance of such Assignment and Acceptance, the
assignee thereunder shall be a party hereto and, to the extent of such
assignment, have the obligations, rights, and benefits of a Lender hereunder and
the assigning Lender shall, to the extent of such assignment, relinquish its
rights and be released from its obligations under this Agreement. Upon the
consummation of any assignment pursuant to this Section 10.04(b), the assignor,
the Administrative Agent and the Borrowers shall make appropriate arrangements
so that, if
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required, new Notes are issued to the assignor and the assignee. If the assignee
is not incorporated under the laws of the United States of America or a state
thereof, it shall deliver to the Borrowers and the Administrative Agent
certification as to exemption from deduction or withholding of taxes in
accordance with Section 3.01.
By executing and delivering an Assignment and Acceptance in accordance with this
Section 10.04(b), the assigning Lender thereunder and the assignee thereunder
shall be deemed to confirm to and agree with each other and the other parties
hereto as follows: (A) such assigning Lender warrants that it is the legal and
beneficial owner of the interest being assigned thereby free and clear of any
adverse claim and the assignee warrants that it is an Eligible Assignee; (B)
except as set forth in clause (A) above, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made in or in connection with this
Agreement, any of the other Loan Documents or any other instrument or document
furnished pursuant hereto or thereto, or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of this Agreement, any of the
other Loan Documents or any other instrument or document furnished pursuant
hereto or thereto or the financial condition of any Borrower Party or the
performance or observance by any Borrower Party of any of its obligations under
this Agreement, any of the other Loan Documents or any other instrument or
document furnished pursuant hereto or thereto; (C) such assignee represents and
warrants that it is legally authorized to enter into such Assignment and
Acceptance; (D) such assignee confirms that it has received a copy of this
Agreement, the other Loan Documents and such other documents and information as
it has deemed appropriate to make its own credit analysis and decision to enter
into such assignment agreement; (E) such assignee will independently and without
reliance upon the Administrative Agent, such assigning Lender or any other
Lender, and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under this Agreement and the other Loan Documents; (F) such assignee
appoints and authorizes the Administrative Agent to take such action on its
behalf and to exercise such powers under this Agreement or any other Loan
Document as are delegated to the Administrative Agent by the terms hereof or
thereof, together with such powers as are reasonably incidental thereto; and (G)
such assignee agrees that it will perform in accordance with their terms all the
obligations which by the terms of this Agreement and the other Loan Documents
are required to be performed by it as a Lender.
(c) REGISTER. The Administrative Agent shall maintain a copy
of each Assignment and Acceptance Agreement delivered to and accepted by it and
a register for the recordation of the names and addresses of the Lenders and the
Commitment of, and principal amount of the Loans owing to, each Lender from time
to time (the "REGISTER"). The entries in the Register shall be conclusive and
binding for all purposes, absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall
be effective only upon appropriate entries with respect thereto being made in
the Register (and each Note shall expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance;
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thereupon one or more new Notes in the same aggregate principal amount shall be
issued to the designated Assignee, and the old Notes shall be returned by the
Administrative Agent to the Borrower marked "canceled." The Register shall be
available for inspection by the Borrowers at any reasonable time and from time
to time upon reasonable prior notice.
(d) ACCEPTANCE. Upon its receipt of an Assignment and
Acceptance executed by the parties thereto, together with any Note subject to
such assignment and payment of the processing fee, the Administrative Agent
shall, if such Assignment Agreement has been completed and is in substantially
the form of EXHIBIT D, (i) accept such Assignment Agreement, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the parties thereto.
(e) PARTICIPATIONS. Each Lender may, without notice to or
consent of Borrowers or the Administrative Agent, sell participations to one or
more Persons (each a "Participant") in all or a portion of its rights,
obligations or rights and obligations under this Agreement (including all or a
portion of its Commitment and its Loans); PROVIDED, HOWEVER, that (i) such
Lender's obligations under this Agreement shall remain unchanged, (ii) such
Lender shall remain solely responsible to the other parties hereto for the
performance of such obligations, (iii) the Participant shall be entitled to the
benefit of the right of set-off contained in Section 10.05, (iv) the Borrowers
and Administrative Agent shall continue to deal solely and directly with such
Lender in connection with such Lender's rights and obligations under this
Agreement, and (v) such Lender shall retain the sole right to enforce the
obligations of the Borrowers relating to their Loans and its Notes and to
approve any amendment, modification, or waiver of any provision of this
Agreement (other than amendments, modifications, or waivers decreasing the
amount of principal of or the rate at which interest is payable on such Loans or
Notes, extending any scheduled principal payment date or date fixed for the
payment of interest on such Loans or Notes, extending its Commitment, reducing
the amount or changing the date of payment of the facility fee described in
Section 2.09(a) payable to such participant, releasing all or substantially all
of the Pledged Collateral or releasing the Borrowers or all or substantially all
of the Guarantors from its or their respective obligations under the Loan
Documents).
(f) NONRESTRICTED ASSIGNMENTS. Notwithstanding any other
provision set forth in this Agreement, any Lender may at any time assign and
pledge all or any portion of its Loans and its Notes to any Federal Reserve Bank
as collateral security pursuant to the Regulation A and any Operating Circular
issued by such Federal Reserve Bank. No such assignment shall release the
assigning Lender from its obligations hereunder.
10.05 SET-OFF.
In addition to any rights and remedies of Administrative Agent
and Lenders or any assignee or participant of Lenders or any Affiliates thereof
(each, a "PROCEEDING PARTY") provided by law, upon the occurrence and during the
continuance of any Event of Default, each Proceeding Party is authorized at any
time and from time to time, without prior notice to Borrowers, any such notice
being waived by Borrowers to the fullest extent permitted by law, to proceed
directly, by right of set-off, banker's lien, or otherwise, against any assets
of the Borrower Parties which may be in the hands of such Proceeding Party
(including all general or
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special, time or demand, provisional or other deposits and other indebtedness
owing by such Proceeding Party to or for the credit or the account of Borrowers)
and apply such assets against the Obligations, irrespective of whether such
Proceeding Party shall have made any demand therefor and although such
Obligations may be unmatured. Each Lender agrees promptly to notify Borrowers
and Administrative Agent after any such set-off and application made by such
Lender; PROVIDED, HOWEVER, that the failure to give such notice shall not affect
the validity of such set-off and application.
10.06 SHARING OF PAYMENT.
Subject to the terms of the Intercreditor Agreement, each
Lender severally agrees that if it, through the exercise of any right of setoff,
banker's lien or counterclaim against Borrowers, or otherwise, receives payment
of the Obligations held by it that is ratably more than any other Lender,
through any means, receives in payment of the Obligations held by that Lender,
then, subject to applicable Laws: (a) Lender exercising the right of setoff,
banker's lien or counterclaim or otherwise receiving such payment shall
purchase, and shall be deemed to have simultaneously purchased, from the other
Lenders a participation in the Obligations held by the other Lenders and shall
pay to the other Lenders a purchase price in an amount so that the share of the
Obligations held by each Lender after the exercise of the right of setoff,
banker's lien or counterclaim or receipt of payment shall be in the same
proportion that existed prior to the exercise of the right of setoff, banker's
lien or counterclaim or receipt of payment; and (b) such other adjustments and
purchases of participations shall be made from time to time as shall be
equitable to ensure that all Lenders share any payment obtained in respect of
the Obligations ratably in accordance with each Lender's share of the
Obligations immediately prior to, and without taking into account, the payment;
PROVIDED that, if all or any portion of a disproportionate payment obtained as a
result of the exercise of the right of setoff, banker's lien, counterclaim or
otherwise is thereafter recovered from the purchasing Lender by Borrowers or any
Person claiming through or succeeding to the rights of Borrowers, the purchase
of a participation shall be rescinded and the purchase price thereof shall be
restored to the extent of the recovery, but without interest. Each Lender that
purchases a participation in the Obligations pursuant to this Section shall from
and after the purchase have the right to give all notices, requests, demands,
directions and other communications under this Agreement with respect to the
portion of the Obligations purchased to the same extent as though the purchasing
Lender were the original owner of the Obligations purchased. Borrowers expressly
consent to the foregoing arrangements and agree that any Lender holding a
participation in an Obligation so purchased may exercise any and all rights of
setoff, banker's lien or counterclaim with respect to the participation as fully
as if Lender were the original owner of the Obligation purchased.
10.07 NO WAIVER; CUMULATIVE REMEDIES.
(a) No failure by any Lender or Administrative Agent to
exercise, and no delay by any Lender or Administrative Agent in exercising, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
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(b) The rights, remedies, powers and privileges herein or
therein provided are cumulative and not exclusive of any rights, remedies,
powers and privileges provided by Law. Any decision by Administrative Agent or
any Lender not to require payment of any interest (including Default Interest),
fee, cost or other amount payable under any Loan Document or to calculate any
amount payable by a particular method on any occasion shall in no way limit or
be deemed a waiver of Administrative Agent's or such Lender's right to require
full payment thereof, or to calculate an amount payable by another method that
is not inconsistent with this Agreement, on any other or subsequent occasion.
(c) The terms and conditions of SECTION 9 are inserted for the
sole benefit of Administrative Agent and Lenders; the same may be waived in
whole or in part, with or without terms or conditions, in respect of any
Extension of Credit without prejudicing Administrative Agent's or Lenders'
rights to assert them in whole or in part in respect of any other Loan.
10.08 USURY.
Notwithstanding anything to the contrary contained in any Loan
Document, the interest and fees paid or agreed to be paid under the Loan
Documents shall not exceed the maximum rate of non-usurious interest permitted
by applicable Law (the "MAXIMUM RATE"). If Administrative Agent or any Lender
shall receive interest or a fee in an amount that exceeds the Maximum Rate, the
excessive interest or fee shall be applied to the principal of the Outstanding
Obligations or, if it exceeds the unpaid principal, refunded to Borrowers. In
determining whether the interest or a fee contracted for, charged, or received
by Administrative Agent or a Lender exceeds the Maximum Rate, such Person may,
to the extent permitted by applicable Law, (a) characterize any payment that is
not principal as an expense, fee, or premium rather than interest, (b) exclude
voluntary prepayments and the effects thereof, and (c) amortize, prorate,
allocate, and spread in equal or unequal parts the total amount of interest
throughout the contemplated term of the Obligations.
10.09 COUNTERPARTS.
This Agreement may be executed in one or more counterparts,
each of which shall be deemed an original, but all of which together shall
constitute one and the same instrument. Delivery of an executed signature page
of this Agreement by facsimile transmission shall be effective as delivery of a
manually executed counterpart hereof. A set of the copies of this Agreement
signed by all the parties shall be lodged with Borrowers and the Administrative
Agent.
10.10 INTEGRATION; CONFLICTS WITH OTHER LOAN DOCUMENTS.
This Agreement, together with the other Loan Documents and any
letter agreements referred to herein, comprises the complete and integrated
agreement of the parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof. There are no
unwritten oral agreements between the parties hereto. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control and govern; PROVIDED
that the inclusion of
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supplemental rights or remedies in favor of Administrative Agent or Lenders in
any other Loan Document shall not be deemed a conflict with this Agreement. Each
Loan Document was drafted with the joint participation of the respective parties
thereto and shall be construed neither against nor in favor of any party, but
rather in accordance with the fair meaning thereof.
10.11 NATURE OF LENDERS' OBLIGATIONS.
The obligations of Lenders hereunder are several and not joint
or joint and several. Nothing contained in this Agreement or any other Loan
Document and no action taken by Administrative Agent or Lenders or any of them
pursuant hereto or thereto may, or may be deemed to, make Lenders a partnership,
an association, a joint venture or other entity, either among themselves or with
Borrowers or any Affiliate of Borrowers. Each Lender's obligation to make the
initial Loan is conditioned upon the performance by all other Lenders of their
obligations to make initial Loans. A default by any Lender will not increase the
Pro Rata Share attributable to any other Lender.
10.12 SURVIVAL OF REPRESENTATIONS AND WARRANTIES.
All representations and warranties made hereunder and in any
Loan Document, certificate or statement delivered pursuant hereto or thereto or
in connection herewith or therewith shall survive the execution and delivery
thereof but shall terminate on the later of (a) when the Commitments are
terminated and (b) when no Obligations remain outstanding under any Loan
Document. Such representations and warranties have been or will be relied upon
by Administrative Agent and each Lender, notwithstanding any investigation made
by Administrative Agent or any Lender or on their behalf. PROVIDED, HOWEVER,
notwithstanding anything in this Agreement or implied by law to the contrary,
the agreements of Borrowers set forth in SECTION 3 and SUBSECTIONS 10.03, 10.05,
10.13, and 10.14 and the agreements of Lenders set forth in SUBSECTIONS 9.03,
9.07, 10.06, and 11.01(f) shall survive the payment of the other Obligations and
the termination of this Agreement.
10.13 INDEMNITY BY BORROWERS.
Borrowers agree to indemnify, save and hold harmless
Administrative Agent-Related Persons and each Lender and their respective
Affiliates, directors, officers, agents, attorneys and employees, or any holding
company thereof (collectively the "INDEMNITEES") from and against: (a) any and
all claims, demands, actions or causes of action, including, without limitation,
any environmental claims, actions, demands or causes of action (except a claim,
demand, action, or cause of action for Taxes of Lenders) if the claim, demand,
action or cause of action arises out of or relates to the execution, delivery,
enforcement, performance or administration of this Agreement, the other Loan
Documents and any other such documents, including, without limitation, any act
or omission (or alleged act or omission) of any Borrower Party, its Affiliates
or any of their officers, directors or stockholders relating to the Commitments,
the use or contemplated use of proceeds of any Loan, or the relationship of any
Borrower Party and Lenders under this Agreement, including, without limitation,
the granting of any pledge or security interest in the Pledged Collateral; (b)
any administrative or investigative proceeding by any Governmental Authority
arising out of or related to a claim, demand, action
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or cause of action described in subsection (a) above; and (c) any and all
liabilities, losses, damages, penalties, judgments, disbursements, costs or
expenses of any kind whatsoever (including settlement costs or Attorney Costs)
that any Indemnitee suffers or incurs as a result of the assertion of any
foregoing claim, demand, action or cause of action thereto, including those
liabilities caused by an Indemnitee's own negligence (all the foregoing,
collectively, the "INDEMNIFIED LIABILITIES"); PROVIDED that no Indemnitee shall
be entitled to indemnification for any loss caused by its own gross negligence
or willful misconduct or for any loss asserted against it by another Indemnitee.
No Indemnitee shall be liable for any damages arising from the use by
unauthorized persons of Information or other materials sent through electronic
telecommunications or other information transmission systems that are
intercepted by such persons or for any special, indirect, consequential or
punitive damages in connection with the Loans. Without limiting the foregoing,
and to the extent permitted by applicable law, the Borrowers agree not to assert
and to cause their Subsidiaries not to assert, and hereby waives and agrees to
cause their Subsidiaries so to waive, all rights for contribution or any other
rights of recovery with respect to all claims, demands, penalties, fines,
liabilities, settlements, damages, costs and expenses of whatever kind or
nature, under or related to Environmental Laws, that any of them might have by
statute or otherwise against any Indemnitee.
10.14 NONLIABILITY OF LENDERS.
Each Borrower acknowledges and agrees that:
(a) It has been advised by counsel in the negotiation,
execution and delivery of this Agreement and the other Loan Documents;
(b) Any inspections of any Property of Borrowers made by or
through Administrative Agent or Lenders are for purposes of administration of
the Loan Documents only, and Borrowers are not entitled to rely upon the same
(whether or not such inspections are at the expense of Borrowers);
(c) By accepting or approving anything required to be
observed, performed, fulfilled or given to Administrative Agent or Lenders
pursuant to the Loan Documents, neither Administrative Agent nor Lenders shall
be deemed to have warranted or represented the sufficiency, legality,
effectiveness or legal effect of the same, or of any term, provision or
condition thereof, and such acceptance or approval thereof shall not constitute
a warranty or representation to anyone with respect thereto by Administrative
Agent or Lenders;
(d) The relationship between Borrowers and Administrative
Agent and Lenders is, and shall at all times remain, solely that of borrowers
and lenders; neither Administrative Agent nor Lenders shall under any
circumstance be construed to be partners or joint venturers of Borrowers or
their Affiliates; neither Administrative Agent nor Lenders shall under any
circumstance be deemed to be in a relationship of confidence or trust or a
fiduciary relationship with Borrowers or their Affiliates, or to owe any
fiduciary duty to Borrowers or their Affiliates; neither Administrative Agent
nor Lenders undertake or assume any responsibility or duty to Borrowers or their
Affiliates to select, review, inspect, supervise, pass judgment upon or inform
Borrowers or their Affiliates of any matter in connection with their Property or
the
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operations of Borrowers or their Affiliates; Borrowers and their Affiliates
shall rely entirely upon their own judgment with respect to such matters; and
any review, inspection, supervision, exercise of judgment or supply of
information undertaken or assumed by Administrative Agent or Lenders in
connection with such matters is solely for the protection of Administrative
Agent and Lenders and none of Borrowers nor any other Person is entitled to rely
thereon; and
(e) Administrative Agent and Lenders shall not be responsible
or liable to any Person for any loss, damage, liability or claim of any kind
relating to injury or death to Persons or damage to Property caused by the
actions, inaction or negligence of Borrowers and/or their Affiliates and
Borrowers hereby indemnify and holds Administrative Agent and Lenders harmless
from any such loss, damage, liability or claim.
10.15 NO THIRD PARTIES BENEFITED.
This Agreement is made for the purpose of defining and setting
forth certain obligations, rights and duties of Borrowers, Administrative Agent
and Lenders in connection with the Loans, and is made for the sole benefit of
Borrowers, Administrative Agent and Lenders, and Administrative Agent's and
Lenders' successors and assigns. Except as provided in SECTIONS 10.04 and 10.13,
no other Person shall have any rights of any nature hereunder or by reason
hereof.
10.16 SEVERABILITY.
Any provision of the Loan Documents that is prohibited or
unenforceable in any jurisdiction shall, as to such jurisdiction, be ineffective
to the extent of such prohibition or unenforceability without invalidating the
remaining provisions hereof, and any such prohibition or unenforceability in any
jurisdiction shall not invalidate or render unenforceable such provision in any
other jurisdiction.
10.17 CONFIDENTIALITY.
Each of the Administrative Agent and the Lenders agrees to
maintain the confidentiality of the Information (as defined below), except that
Information may be disclosed (a) to its and its Affiliates' directors, officers,
employees and agents, including accountants, legal counsel and other advisors
(it being understood that the Persons to whom such disclosure is made will be
informed of the confidential nature of such Information and instructed to keep
such Information confidential); (b) to the extent requested by any regulatory
authority; (c) to the extent required by applicable laws or regulations or by
any subpoena or similar legal process; (d) to any other party to this Agreement;
(e) in connection with the exercise of any remedies hereunder or any suit,
action or proceeding relating to this Agreement or the enforcement of rights
hereunder; (f) subject to an agreement containing provisions substantially the
same as those of this Section, to (i) any Eligible Assignee of or Participant
in, or any prospective Eligible Assignee of or Participant in, any of its rights
or obligations under this Agreement or (ii) any direct or indirect contractual
counterparty or prospective counterparty (or such contractual counterparty's or
prospective counterparty's professional advisor) to any credit derivative
transaction relating to obligations of the Borrowers; (g) with the consent of
the Borrowers; (h) to
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the extent such Information (i) becomes publicly available other than as a
result of a breach of this Section or (ii) becomes available to the
Administrative Agent or any Lender on a nonconfidential basis from a source
other than the Borrowers; or (i) to the National Association of Insurance
Commissioners or any other similar organization or any nationally recognized
rating agency that requires access to information about a Lender's or its
Affiliates' investment portfolio in connection with ratings issued with respect
to such Lender or its Affiliates. In addition, the Administrative Agent and the
Lenders may disclose the existence of this Agreement and information about this
Agreement to market data collectors, similar service providers to the lending
industry, and service providers to the Administrative Agent and the Lenders in
connection with the administration and management of this Agreement, the other
Loan Documents, the Commitments, and the Credit Extensions. For the purposes of
this Section, "Information" means all information received from the Borrowers
relating to the Borrowers or their business, other than any such information
that is available to the Administrative Agent or any Lender on a nonconfidential
basis prior to disclosure by the Borrowers; provided that, in the case of
information received from the Borrowers after the date hereof, such information
is clearly identified in writing at the time of delivery as confidential. Any
Person required to maintain the confidentiality of Information as provided in
this Section shall be considered to have complied with its obligation to do so
if such Person has exercised the same degree of care to maintain the
confidentiality of such Information as such Person would accord to its own
confidential information.
Notwithstanding anything herein to the contrary, the
information subject to this SECTION 10.17 shall not include, and the
Administrative Agent and each Lender may disclose without limitation of any kind
as required by the Internal Revenue Service, the Code or applicable treasury
regulations, any information with respect to the "tax treatment" and "tax
structure" (in each case, within the meaning of Treasury Regulation Section
1.6011-4) of the transactions contemplated hereby and all materials of any kind
(including opinions or other tax analyses) that are provided to the
Administrative Agent or such Lender relating to such tax treatment and tax
structure; PROVIDED that with respect to any document or similar item that in
either case contains information concerning the tax treatment or tax structure
of the transactions as well as other information, this sentence shall apply only
to such portions of the document or similar item that relate to the tax
treatment or tax structure of the Loans and transactions contemplated hereby.
10.18 HEADINGS.
Section headings in this Agreement and the other Loan
Documents are included for convenience of reference only and are not part of
this Agreement or the other Loan Documents for any other purpose.
10.19 TIME OF THE ESSENCE.
Time is of the essence of the Loan Documents.
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10.20 [INTENTIONALLY OMITTED]
10.21 GOVERNING LAW.
THIS AGREEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN
ACCORDANCE WITH, THE LAW OF THE GOVERNING STATE APPLICABLE TO AGREEMENTS MADE
AND TO BE PERFORMED ENTIRELY WITHIN SUCH STATE; PROVIDED THAT ADMINISTRATIVE
AGENT AND EACH LENDER SHALL RETAIN ALL RIGHTS ARISING UNDER FEDERAL LAW.
10.22 WAIVER OF RIGHT TO TRIAL BY JURY.
EACH PARTY TO THIS AGREEMENT HEREBY EXPRESSLY WAIVES ANY RIGHT
TO TRIAL BY JURY OF ANY CLAIM, DEMAND, ACTION OR CAUSE OF ACTION ARISING UNDER
ANY LOAN DOCUMENT OR IN ANY WAY CONNECTED WITH OR RELATED OR INCIDENTAL TO THE
DEALINGS OF THE PARTY HERETO OR ANY OF THEM WITH RESPECT TO ANY LOAN DOCUMENT,
OR THE TRANSACTIONS RELATED THERETO, IN EACH CASE WHETHER NOW EXISTING OR
HEREAFTER ARISING, AND WHETHER FOUNDED IN CONTRACT OR TORT OR OTHERWISE; AND
EACH PARTY HEREBY AGREES AND CONSENTS THAT ANY SUCH CLAIM, DEMAND, ACTION OR
CAUSE OF ACTION SHALL BE DECIDED BY COURT TRIAL WITHOUT A JURY, AND THAT ANY
PARTY TO THIS AGREEMENT MAY FILE AN ORIGINAL COUNTERPART OR A COPY OF THIS
SECTION WITH ANY COURT AS WRITTEN EVIDENCE OF THE CONSENT OF THE SIGNATORIES
HERETO TO THE WAIVER OF THEIR RIGHT TO TRIAL BY JURY.
10.23NON-EXCLUSIVE JURISDICTION.
ANY LEGAL ACTION OR PROCEEDING WITH RESPECT TO THIS AGREEMENT
OR ANY OTHER LOAN DOCUMENT MAY BE BROUGHT IN THE COURTS OF THE STATE OF THE
GOVERNING STATE OR OF THE UNITED STATES FOR THE CENTRAL DISTRICT OF THE
GOVERNING STATE, AND BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH BORROWER
PARTY, ADMINISTRATIVE AGENT AND EACH LENDER CONSENTS, FOR ITSELF AND IN RESPECT
OF ITS PROPERTY, TO THE NON-EXCLUSIVE JURISDICTION OF THOSE COURTS. EACH
BORROWER PARTY, ADMINISTRATIVE AGENT AND EACH LENDER IRREVOCABLY WAIVES ANY
OBJECTION, INCLUDING ANY OBJECTION TO THE LAYING OF VENUE OR BASED ON THE
GROUNDS OF FORUM NON CONVENIENS, WHICH IT MAY NOW OR HEREAFTER HAVE TO THE
BRINGING OF ANY ACTION OR PROCEEDING IN SUCH JURISDICTION IN RESPECT OF ANY LOAN
DOCUMENT OR OTHER DOCUMENT RELATED HERETO. EACH BORROWER PARTY, ADMINISTRATIVE
AGENT AND EACH LENDER WAIVES PERSONAL SERVICE OF ANY SUMMONS, COMPLAINT OR OTHER
PROCESS, WHICH MAY BE MADE BY ANY OTHER MEANS PERMITTED BY THE LAW OF THE
GOVERNING STATE. EACH BORROWER HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVES, TO
THE MAXIMUM EXTENT NOT PROHIBITED BY LAW, ANY RIGHT IT MAY HAVE TO
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CLAIM OR RECOVER IN ANY LEGAL ACTION OR PROCEEDING REFERRED TO IN THIS SECTION
ANY SPECIAL, EXEMPLARY, PUNITIVE OR CONSEQUENTIAL DAMAGES.
10.24 NOTICE OF CLAIMS; CLAIMS BAR.
BORROWERS HEREBY AGREE THAT THEY SHALL GIVE PROMPT WRITTEN
NOTICE TO ADMINISTRATIVE AGENT OF ANY CLAIM OR CAUSE OF ACTION THEY BELIEVE THEY
HAVE, OR MAY SEEK TO ASSERT OR ALLEGE AGAINST THE AGENT OR ANY LENDER, WHETHER
SUCH CLAIM IS BASED IN LAW OR EQUITY, ARISING UNDER OR RELATED TO THIS AGREEMENT
OR ANY OF THE OTHER LOAN DOCUMENTS, OR TO THE LOANS, OR ANY ACT OR OMISSION TO
ACT BY ADMINISTRATIVE AGENT OR ANY LENDER WITH RESPECT HERETO OR THERETO, AND
THAT IF BORROWERS SHALL FAIL TO GIVE SUCH PROMPT NOTICE TO ADMINISTRATIVE AGENT
WITH REGARD TO ANY SUCH CLAIM OR CAUSE OF ACTION, BORROWERS SHALL BE DEEMED TO
HAVE WAIVED, AND SHALL BE FOREVER BARRED FROM BRINGING OR ASSERTING, SUCH CLAIM
OR CAUSE OF ACTION IN ANY ARBITRATION OR ANY SUIT, ACTION OR PROCEEDING IN ANY
COURT OR BEFORE ANY GOVERNMENTAL AGENCY.
10.25 BORROWERS' OBLIGATIONS.
Each of the REIT, AIMCO, AIMCO/Bethesda, and NHP Management
represents, warrants, covenants and agrees as follows:
(a) DEFENSES. The obligations pursuant to the Loan Documents
shall not be affected by any of the following: (i) the bankruptcy, disability,
dissolution, incompetence, insolvency, liquidation, or reorganization of any
Borrower; (ii) the discharge, modification of the terms of, reduction in the
amount of, or stay of enforcement of any or all liens and encumbrances or any or
all obligations pursuant to the Loan Documents in any bankruptcy, insolvency,
reorganization, or other legal proceeding or by law, ordinance, regulation, or
rule (federal, state, or local).
(b) RIGHTS OF ADMINISTRATIVE AGENT AND COLLATERAL AGENT.
Administrative Agent or Collateral Agent, as applicable, in each case, on behalf
of the Lenders, may do the following acts or omissions from time to time without
notice to or consent of any Borrower and without receiving payment or other
value, nor shall the following acts or omissions affect, delay or impair any of
the obligations pursuant to the Loan Documents or any or all liens and
encumbrances: (i) Collateral Agent may obtain collateral or additional
collateral; (ii) Collateral Agent may substitute for any or all collateral
regardless of whether the same type or greater or lesser value; (iii) Collateral
Agent may release any or all collateral; (iv) Collateral Agent may compromise,
delay enforcement, fail to enforce, release, settle or waive any rights or
remedies of Administrative Agent as to any or all collateral; (v) Collateral
Agent may sell or otherwise dispose of any collateral in such manner or order as
Collateral Agent determines in accordance with the Collateral Documents and the
Intercreditor Agreement; (vi) Collateral Agent may fail to perfect, fail to
protect the priority of, and fail to ensure any or all liens or encumbrances;
(vii)
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Collateral Agent may fail to inspect, insure, maintain, preserve or protect any
or all collateral; (viii) Administrative Agent may obtain additional obligors
for any or all obligations pursuant to the Loan Documents; (ix) Administrative
Agent may increase or decrease any or all obligations or otherwise change terms
of any or all obligations in accordance with the Loan Documents; (x)
Administrative Agent may release any Borrower; (xi) Administrative Agent or
Collateral Agent may compromise, delay enforcement, fail to enforce, release,
settle or waive any obligations of any Borrower with the agreement of that
Borrower; (xii) Administrative Agent may make advances, or grant other financial
accommodations to any Borrower; (xiii) Administrative Agent or Collateral Agent
may fail to file or pursue a claim in any bankruptcy, insolvency, reorganization
or other proceeding as to any or all liens and encumbrances or any or all
obligations; (xiv) Administrative Agent or Collateral Agent may amend, modify,
extend, renew, restate, supplement or terminate in whole or in part the
obligation of any Borrower with the agreement of that Borrower; (xv)
Administrative Agent or Collateral Agent may take or fail to take any other
action with respect to any Loan Document or any Borrower; and (xvi)
Administrative Agent or Collateral Agent may do any other acts or make any other
omissions that result in the extinguishment of the obligation of any Borrower.
(c) SURETYSHIP WAIVERS. Each Borrower waives any and all
rights and benefits under California Civil Code SECTIONS 2787-2855, inclusive
and any other statutes or rules now or hereafter in effect and any other
statutes or rules now or hereafter in effect that purport to confer specific
rights upon or make specific defenses or procedures available to each Borrower.
(d) INFORMATION. Each Borrower represents and warrants to
the Administrative Agent and Lenders that such Borrower is currently informed
of the financial condition of Borrowers and of all other circumstances which
a diligent inquiry would reveal and which bear upon the risk of nonpayment of
the Obligations. Each Borrower further represents and warrants to the
Administrative Agent and Lenders that such Borrower has read and understands
the terms and conditions of the Loan Documents. Each Borrower hereby
covenants that such Borrower will continue to keep informed of Borrowers'
financial condition, the financial condition of other guarantors, if any, and
of all other circumstances which bear upon the risk of nonpayment or
nonperformance of the Obligations. Notwithstanding anything herein which may
be construed to the contrary, Administrative Agent shall have no obligation
to provide to any Borrower any information concerning the performance of any
other Borrower, the obligations pursuant to the Loan Documents, or the
ability of any other Borrower to perform the obligations pursuant to the Loan
Documents or any other matter, regardless of what information Administrative
Agent may from time to time have.
(e) WAIVERS. Each Borrower waives, until payment in full of
the Obligations, any and all present and future claims, remedies and rights
against any other Borrower, any collateral and any other property, interest in
property or rights to property of any other Borrower (A) arising from any
performance hereunder, (B) arising from any application of any collateral, or
any other property, interest in property or rights to property of any Borrower,
or (C) otherwise arising in respect of the Loan Documents, regardless of whether
such claims, remedies and rights arise under any present or future agreement,
document or instrument or are provided by any law, ordinance, regulation or rule
(federal, state or local) (including, without limitation, any and all
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rights of contribution, exoneration, indemnity, reimbursement, and
subrogation and any and all rights to participate in the rights and remedies
of Lenders against any Borrower).
(f) JOINT AND SEVERAL LIABILITY OF BORROWERS.
(i) Each of Borrowers is accepting joint and several
liability hereunder and under the other Loan Documents in
consideration of the financial accommodations to be provided
by the Administrative Agent and the Lenders under this
Agreement, for the mutual benefit, directly and indirectly, of
each of Borrowers and in consideration of the undertakings of
the other Borrowers to accept joint and several liability for
the Obligations.
(ii) Each of Borrowers, jointly and severally, hereby
irrevocably and unconditionally accepts, not merely as a
surety but also as a co-debtor, joint and several liability
with the other Borrowers, with respect to the payment and
performance of all of the Obligations (including, without
limitation, any Obligations arising under this SECTION 10.25),
it being the intention of the parties hereto that all the
Obligations shall be the joint and several obligations of each
Borrower without preferences or distinction among them.
(iii) If and to the extent that any Borrower shall
fail to make any payment with respect to any of the
Obligations as and when due or to perform any of the
Obligations in accordance with the terms thereof, then in each
such event the other Borrower will make such payment with
respect to, or perform, such Obligation.
(iv) The Obligations of each Borrower under the
provisions of this SECTION 10.25 constitute the absolute and
unconditional, full recourse Obligations of each Borrower
enforceable against each such Borrower to the full extent of
its properties and assets, irrespective of the validity,
regularity or enforceability of this Agreement or any other
circumstances whatsoever.
(v) Except as otherwise expressly provided in this
Agreement, each Borrower hereby waives notice of acceptance of
its joint and several liability, notice of any Loans issued
under or pursuant to this Agreement, notice of the occurrence
of any Default, Event of Default, or of any demand for any
payment under this Agreement, notice of any action at any time
taken or omitted by the Administrative Agent or Lenders under
or in respect of any of the Obligations, any requirement of
diligence or to mitigate damages and, generally, to the extent
permitted by applicable law, all demands, notices and other
formalities of every kind in connection with this Agreement
(except as otherwise provided in this Agreement). Each
Borrower hereby assents to, and waives notice of, any
extension or postponement of the time for the payment of any
of the Obligations, the acceptance of any payment of any of
the Obligations, the acceptance of any partial payment
thereon, any waiver, consent or other action or acquiescence
by the Administrative Agent or Lenders at any time or times in
respect of any default
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by any Borrower in the performance or satisfaction of any
term, covenant, condition or provision of this Agreement, any
and all other indulgences whatsoever by the Administrative
Agent or Lenders in respect of any of the Obligations, and the
taking, addition, substitution or release, in whole or in
part, at any time or times, of any security for any of the
Obligations or the addition, substitution or release, in whole
or in part, of any Borrower. Without limiting the generality
of the foregoing, each Borrower assents to any other action or
delay in acting or failure to act on the part of the
Administrative Agent or Lender with respect to the failure by
any Borrower to comply with any of its respective Obligations,
including, without limitation, any failure strictly or
diligently to assert any right or to pursue any remedy or to
comply fully with applicable laws or regulations thereunder,
which might, but for the provisions of this SECTION 10.25
afford grounds for terminating, discharging or relieving any
Borrower, in whole or in part, from any of its Obligations
under this SECTION 10.25, it being the intention of each
Borrower that, so long as any of the Obligations hereunder
remain unsatisfied, the Obligations of such Borrower under
this SECTION 10.25 shall not be discharged except by
performance and then only to the extent of such performance.
The Obligations of each Borrower under this SECTION 10.25
shall not be diminished or rendered unenforceable by any
winding up, reorganization, arrangement, liquidation,
reconstruction or similar proceeding with respect to any
Borrower or the Administrative Agent or Lender. The joint and
several liability of each Borrower hereunder shall continue in
full force and effect notwithstanding any absorption, merger,
amalgamation or any other change whatsoever in the name,
constitution or place of formation of any of the Borrowers or
Administrative Agent or Lenders.
(vi) The provisions of this SECTION 10.25 are made
for the benefit of the Administrative Agent, the Lenders and
their respective successors and assigns, and may be enforced
by it or them from time to time against any or all Borrowers
as often as occasion therefor may arise and without
requirement on the part of Administrative Agent, or any
Lender, successor or assign first to marshal any of its or
their claims or to exercise any of its or their rights against
any Borrower or to exhaust any remedies available to it or
them against any Borrower or to resort to any other source or
means of obtaining payment of any of the Obligations hereunder
or to elect any other remedy. The provisions of this SECTION
10.25 shall remain in effect until all of the Obligations
shall have been paid in full or otherwise fully satisfied. If
at any time, any payment, or any part thereof, made in respect
of any of the Obligations, is rescinded or must otherwise be
restored or returned by the Administrative Agent or any Lender
upon the insolvency, bankruptcy or reorganization of any
Borrower, or otherwise, the provisions of this SECTION 10.25
will forthwith be reinstated in effect, as though such payment
had not been made.
(vii) Each Borrower hereby agrees that it will not
enforce any of its rights of contribution or subrogation
against any other Borrower with respect to any liability
incurred by it hereunder or under any of the other Loan
Documents,
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any payments made by it to the Administrative Agent or Lenders
with respect to any of the Obligations or any collateral
security therefor until such time as all of the Obligations
have been paid in full in cash. Any claim which any Borrower
may have against the other Borrowers with respect to any
payments to the Administrative Agent or any Lender hereunder
or under any other Loan Documents are hereby expressly made
subordinate and junior in right of payment, including without
limitation, as to any increases in the Obligations arising
hereunder or thereunder, to the prior payment in full in cash
of the Obligations and, in the event of any insolvency,
bankruptcy, receivership, liquidation, reorganization or other
similar proceeding under the laws of any jurisdiction relating
to any Borrower, its debts or its assets, whether voluntary or
involuntary, all such Obligations shall be paid in full in
cash before any payment or distribution of any character,
whether in cash, securities or other property, shall be made
to the other Borrowers therefor.
10.26 LENDER COVENANT.
Each Lender hereby covenants and agrees that it shall notify Administrative
Agent, in writing, immediately upon becoming a Casden Lender or Term Loan Lender
and upon any Affiliate becoming a Casden Lender or a Term Loan Lender.
10.27 RELEASE OF COLLATERAL AND GUARANTEE OBLIGATIONS.
(a) Notwithstanding anything to the contrary contained herein
or in any other Loan Document, upon request of Borrowers in connection with any
Disposition of Property permitted by the Loan Documents, the Administrative
Agent shall (without notice to, or vote or consent of, any Lender) cause the
Collateral Agent to (i) take such actions as shall be required to release its
security interest in any Pledged Collateral being Disposed of in such
Disposition, and (ii) to release any guarantee obligations under any Loan
Document of any Person being Disposed of in such Disposition, to the extent
necessary to permit consummation of such Disposition in accordance with the Loan
Documents.
(b) Notwithstanding anything to the contrary contained herein
or any other Loan Document, when all Obligations have been paid in full and all
Commitments have terminated or expired, upon request of Borrowers, the
Administrative Agent shall (without notice to, or vote or consent of, any
Lender) cause the Collateral Agent to take such actions as shall be required to
release its security interest in all Pledged Collateral (on behalf of the
Revolver Lenders only), and to release all guarantee obligations under any Loan
Document (on behalf of the Revolver Lenders only). Any such release of guarantee
obligations shall be deemed subject to the provision that such guarantee
obligations shall be reinstated if after such release any portion of any payment
in respect of the Obligations guaranteed thereby shall be rescinded or must
otherwise be restored or returned upon the insolvency, bankruptcy, dissolution,
liquidation or reorganization of Borrowers or any Guarantor, or upon or as a
result of the appointment of a receiver, intervenor or conservator of, or
trustee or similar officer for, Borrowers or any Guarantor or any substantial
part of its property, or otherwise, all as though such payment had not been
made.
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SECTION 11.
COLLATERAL AGENT
11.01 COLLATERAL AGENT.
(a) Each Lender hereby irrevocably appoints, designates and
authorizes Bank of America as Collateral Agent under the Intercreditor Agreement
and the Collateral Documents with such powers as are specifically granted to the
Collateral Agent by the terms thereof, together with such other powers as are
reasonably incidental thereto, and expressly authorizes the Collateral Agent as
its agent to execute, deliver and perform the Collateral Documents and the
Intercreditor Agreement and to act as Collateral Agent under the Collateral
Documents (subject to and in accordance with the Intercreditor Agreement), and
the Intercreditor Agreement and Bank of America, in its individual capacity,
accepts such appointment as Collateral Agent thereunder by executing the
Borrowers Pledge Agreement, which appointment is coupled with an interest. Each
Lender hereby agrees to be bound by the provisions of the Intercreditor
Agreement applicable to a "Lender" therein.
(b) Notwithstanding any provision to the contrary contained
elsewhere in this Agreement or the Collateral Documents, Collateral Agent shall
not have any duties or responsibilities, except those expressly set forth in
this Section 11, the Collateral Documents and the Intercreditor Agreement, nor
shall Collateral Agent have or be deemed to have any fiduciary relationship with
any Lender, and no implied covenants, functions, responsibilities, duties,
obligations or liabilities shall be read into this Agreement or otherwise exist
against Collateral Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in the Collateral Documents with reference
to Collateral Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
(c) Collateral Agent may execute any of its duties under the
Collateral Documents and the Intercreditor Agreement by or through agents,
employees or attorneys-in-fact and shall be entitled to advice of counsel
concerning all matters pertaining to such duties. Collateral Agent shall not be
responsible for the negligence or misconduct of any agent or attorney-in-fact
that it selects with reasonable care.
(d) None of Collateral Agent-Related Persons (defined below)
shall (i) be liable for any action taken or omitted to be taken by any of them
under or in connection with the Collateral Documents or the Intercreditor
Agreement or the transactions contemplated thereby (except for its own gross
negligence or willful misconduct), or (ii) be responsible in any manner to any
of Lenders for any recital, statement, representation or warranty made by
Borrowers or any Subsidiary or Affiliate of Borrowers, or any officer thereof,
contained in this Agreement, or in any certificate, report, statement or other
document referred to or provided for in, or received by Collateral Agent under
or in connection with, this Agreement, or the validity, effectiveness,
genuineness, enforceability or sufficiency of this Agreement, or for any failure
of Borrowers or any other party to any Loan Document to perform their
obligations hereunder or thereunder. No Collateral Agent-Related Person shall be
under any obligation to any Lender to ascertain or to
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inquire as to the observance or performance of any of the agreements contained
in, or conditions of, this Agreement, or to inspect the Properties, books or
records of any Borrower or any of Borrowers' Subsidiaries or Affiliates.
"Collateral Agent-Related Persons" means Collateral Agent (including any
successor agent), together with its Affiliates (including, in the case of
Collateral Agent, Banc of America Securities LLC), and the officers, directors,
employees, agents and attorneys-in-fact of such Persons and Affiliates.
(e) Collateral Agent shall be entitled to rely, and shall be
fully protected in relying, upon any writing, resolution, notice, consent,
certificate, affidavit, letter, telegram, facsimile, telex or telephone message,
statement or other document or conversation believed by it to be genuine and
correct and to have been signed, sent or made by the proper Person or Persons,
and upon advice and statements of legal counsel (including counsel to
Borrowers), independent accountants and other experts selected by Collateral
Agent. Collateral Agent shall be fully justified in failing or refusing to take
any action under this Agreement unless it shall first receive such advice or
concurrence of the Requisite Lenders as it deems appropriate and, if it so
requests, it shall first be indemnified to its satisfaction by Lenders against
any and all liability and expense which may be incurred by it by reason of
taking or continuing to take any such action. Collateral Agent shall in all
cases be fully protected in acting, or in refraining from acting, under the
Collateral Documents and the Intercreditor Agreement in accordance with a
request or consent of the Requisite Lenders, and such request and any action
taken or failure to act pursuant thereto shall be binding upon all Lenders.
(f) Whether or not the transactions contemplated hereby are
consummated, Lenders shall indemnify upon demand each Collateral Agent-Related
Person (to the extent not reimbursed by or on behalf of Pledgors (as defined in
the Borrowers Pledge Agreement) and without limiting the obligation of Pledgors
to do so), pro rata, and hold harmless each Collateral Agent-Related Person from
and against any and all Indemnified Liabilities incurred by it; PROVIDED,
HOWEVER, that no Lender shall be liable for the payment to any Collateral
Agent-Related Person of any portion of such Indemnified Liabilities resulting
from such Person's gross negligence or willful misconduct; PROVIDED, HOWEVER,
that no action taken in accordance with the provisions of the Intercreditor
Agreement shall be deemed to constitute gross negligence or willful misconduct
for purposes of this Section. Without limitation of the foregoing, each Lender
shall reimburse Collateral Agent upon demand for its ratable share of any costs
or out-of-pocket expenses (including Attorney Costs) incurred by Collateral
Agent after the Initial Closing Date in connection with the preparation,
execution, delivery, administration, modification, amendment or enforcement
(whether through negotiations, legal proceedings or otherwise) of, or legal
advice in respect of rights or responsibilities under, the Collateral Documents
or the Intercreditor Agreement, or any document contemplated by or referred to
therein, to the extent that Collateral Agent is not reimbursed for such expenses
by or on behalf of Borrower Parties. The undertaking in this subsection shall
survive the payment of all Obligations hereunder and the resignation or
replacement of Collateral Agent.
(g) Collateral Agent may, and at the request of 66-2/3% of the
Benefited Parties (as defined in the Intercreditor Agreement) shall, resign as
Collateral Agent upon thirty (30) days' notice to Lenders. If Collateral Agent
resigns under the Collateral Documents and Intercreditor Agreement, the Majority
Benefited Parties (as defined in the Intercreditor
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Agreement) shall appoint from among the Casden Lenders, Revolver Lenders or Term
Lenders, a successor collateral agent, and, so long as no Default or Event of
Default has occurred and is continuing, such successor collateral agent shall
require the approval of Borrowers (which approval shall not be unreasonably
withheld, conditioned or delayed); provided that if no successor collateral
agent is appointed prior to the effective date of the resignation of Collateral
Agent, Collateral Agent may appoint, after consulting with such Lenders and
Borrowers, a successor collateral agent from among such Lenders. Upon the
acceptance of its appointment as successor collateral agent under the Collateral
Documents and the Intercreditor Agreement, such successor collateral agent shall
succeed to all the rights, powers and duties of the retiring Collateral Agent
and the term "Collateral Agent" shall mean such successor collateral agent and
the retiring Collateral Agent's appointment, powers and duties as Collateral
Agent under the Collateral Documents and the Intercreditor Agreement shall be
terminated. After any retiring Collateral Agent's resignation under the
Collateral Documents and the Intercreditor Agreement as the collateral agent,
the provisions of this subsection shall inure to its benefit as to any actions
taken or omitted to be taken by it while it was Collateral Agent under the
Collateral Documents and Intercreditor Agreement. If no successor collateral
agent has accepted appointment as Collateral Agent by the date which is thirty
(30) days following a retiring Collateral Agent's notice of resignation, the
retiring Collateral Agent's resignation shall nevertheless thereupon become
effective and Majority Benefited Parties shall perform all of the duties of
Collateral Agent hereunder until such time, if any, as the Majority Benefited
Parties appoint a successor collateral agent as provided for above.
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