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EXHIBIT 10.5
EXHIBIT H-1
FORM OF PAYMENT GUARANTY
OF REIT AND OF PREFERRED STOCK SUBSIDIARIES
This PAYMENT GUARANTY ("GUARANTY") is made as of August __, 1999, by the
undersigned entities (each a "GUARANTOR") in favor of BANK OF AMERICA, N.A.
("BANK OF AMERICA"), as a Co-Lead Agent and Administrative Agent for itself and
the lenders ("LENDERS") from time to time party to the Credit Agreement (as
hereinafter defined) (in such capacities, "ADMINISTRATIVE AGENT").
Factual Background
The Lenders intend to make a $300,000,000 credit facility available to
AIMCO Properties L.P., a Delaware limited partnership ("BORROWER") in accordance
with the Credit Agreement (the "CREDIT AGREEMENT"), dated as of the date hereof,
by and among Borrower, Bank of America (as Administrative Agent and as Issuing
Lender), BankBoston, N.A. (as a Co-Lead Agent, the Syndication Agent and as a
Lender), First Union National Bank (as Documentation Agent and as a Lender) and
the other Lenders from time to time party thereto. In connection with the Credit
Agreement, the Borrower has obtained this Guaranty from the Guarantor, and the
Guarantor (other than the REIT) has provided this Guaranty in return for
Borrower's payment of a guarantee fee. In addition, certain Subsidiaries of
Guarantor (other than the REIT) will be providing a guaranty for which Guarantor
(other than the REIT) has been paid a guarantee fee. Capitalized terms used but
not defined herein will have the meanings set forth in the Credit Agreement. As
used herein, the term "Facility" shall refer individually to each of the credit
facilities available to the Borrower under the Credit Agreement.
Guaranty
1. Guaranty of Loan.
(a) Absolute Guaranty. Guarantor absolutely, unconditionally and
irrevocably guaranties to Administrative Agent and the Lenders the full payment
of the Indebtedness (as hereinafter defined), and unconditionally agrees to pay
to Administrative Agent and the Lenders the full amount of the Indebtedness.
This is a guaranty of payment, not of collection. If Borrower defaults in the
payment when due of the Indebtedness or any part of it, Guarantor will in lawful
money of the United States pay to Administrative Agent and the Lenders, on
demand, all sums due and owing on the Indebtedness, including all interest,
charges, fees and other sums, costs and expenses.
(b) Guaranty Prohibition. If, in accordance with Section 6.16(c) of the
Credit Agreement, any Guarantor is prohibited from providing this Guaranty under
its existing financing arrangements, current as of even date herewith, such
Guarantor shall have no obligation under this Guaranty.
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2. Loan. In this Guaranty, the term "Indebtedness" is broadly defined to
mean and include all primary, secondary, direct, indirect, fixed and contingent
obligations of Borrower to pay principal, interest, prepayment charges, breakage
costs, late charges, loan fees and any other fees, charges, sums, costs and
expenses that may be owing at any time under the Loan Documents, and shall
include, without limitation, all liabilities and obligations of the Borrower
with respect to Letters of Credit issued under the Credit Agreement, as any or
all of such obligations may from time to time be modified, amended, extended or
renewed. If the amount outstanding under the Indebtedness is determined by a
court of competent jurisdiction, that determination shall be conclusive and
binding on Guarantor, regardless of whether Guarantor was a party to the
proceeding in which the determination was made or not.
3. Rights of Administrative Agent and the Lenders. Guarantor authorizes
Administrative Agent or any Lender to perform any or all of the following acts
at any time in its sole discretion, all without notice to Guarantor and without
affecting Guarantor's obligations under this Guaranty:
(a) Administrative Agent or the Requisite Lenders may alter any terms of
the Indebtedness or any part of it, including renewing, compromising, extending
or accelerating, or otherwise changing the time for payment of, or increasing or
decreasing the rate of interest on, the Indebtedness or any part of it.
(b) Administrative Agent or any Lender may take and hold security for the
Indebtedness or this Guaranty, accept additional or substituted security for
either, and subordinate, exchange, enforce, waive, release, compromise, fail to
perfect and sell or otherwise dispose of any such security in accordance with
the terms of the Indebtedness.
(c) Administrative Agent or any Lender may direct the order and manner of
any sale of all or any part of any security now or later to be held for the
Indebtedness or this Guaranty, and Administrative Agent or any Lender may also
bid at any such sale.
(d) Administrative Agent or any Lender may apply any payments or recoveries
from Borrower, Guarantor or any other source, and any proceeds of any security,
to Borrower's obligations under the Loan Documents in such manner, order and
priority as Administrative Agent or such Lender may elect, whether or not those
obligations are guarantied by this Guaranty or secured at the time of the
application.
(e) Administrative Agent or any Lender may release Borrower of its
liability for the Indebtedness or any part of it.
(f) Administrative Agent or any Lender may substitute, add or release any
one or more Guarantors, other guarantors or endorsers.
(g) In addition to the Indebtedness, Administrative Agent or any Lender may
extend other credit to Borrower, and may take and hold security for the credit
so extended, all without affecting Guarantor's liability under this Guaranty.
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4. Guaranty to be Absolute. Guarantor expressly agrees that until the
Indebtedness is paid and performed in full and each and every term, covenant and
condition of this Guaranty is fully performed, Guarantor shall not be released
by or because of:
(a) Any act or event (other than payment and performance in full of the
Indebtedness) which might otherwise discharge, reduce, limit or modify
Guarantor's obligations under this Guaranty;
(b) Any waiver, extension, modification, forbearance, delay or other act or
omission of Administrative Agent or any Lender, or its failure to proceed
promptly or otherwise as against Borrower, Guarantor or any security;
(c) Any action, omission or circumstance that might increase the likelihood
that Guarantor may be called upon to perform under this Guaranty or that might
affect the rights or remedies of Guarantor as against Borrower;
(d) Any dealings occurring at any time between Borrower and Administrative
Agent or any Lender, whether relating to the Indebtedness or otherwise; or
(e) Any action of Administrative Agent or any Lender described in Section 3
above.
Guarantor hereby acknowledges that absent this Section 4, Guarantor might
have a defense to the enforcement of this Guaranty as a result of one or more of
the foregoing acts, omissions, agreement, waivers or matters. Guarantor hereby
expressly waives and surrenders any defense to its liability under this Guaranty
based upon any of the foregoing acts, omissions, agreements, waivers or matters.
It is the purpose and intent of this Guaranty that the obligations of Guarantor
under it shall be absolute and unconditional under any and all circumstances.
5. Guarantor's Waivers. Guarantor waives:
(a) All statutes of limitations as a defense to any action or proceeding
brought against Guarantor by Administrative Agent or any Lender, to the fullest
extent permitted by law;
(b) Any right it may have to require Administrative Agent or any Lender to
proceed against Borrower, proceed against or exhaust any security held from
Borrower, or pursue any other remedy in Administrative Agent's or any Lender's
power to pursue;
(c) Any defense based on any claim that Guarantor's obligations exceed or
are more burdensome than those of Borrower;
(d) Any defense based on: (i) any legal disability of Borrower, (ii) any
release, discharge, modification, impairment or limitation of the liability of
Borrower to Administrative Agent or any Lender from any cause, whether consented
to by Administrative Agent or any Lender or arising by operation of law or from
any bankruptcy or other voluntary or involuntary
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proceeding, in or out of court, for the adjustment of debtor-creditor
relationships ("Insolvency Proceeding"), and (iii) any rejection or
disaffirmance of the Indebtedness, or any part of it, or any security held for
it, in any such Insolvency Proceeding;
(e) Any defense based on any action taken or omitted by Administrative
Agent or any Lender in any Insolvency Proceeding involving Borrower, including
any election to have Administrative Agent's or that Lender's claim allowed as
being secured, partially secured or unsecured, any extension of credit by Lender
to Borrower in any Insolvency Proceeding, and the taking and holding by
Administrative Agent or any Lender of any security for any such extension of
credit;
(f) All presentments, demands for performance, notices of nonperformance,
protests, notices of protest, notices of dishonor, notices of acceptance of this
Guaranty and of the existence, creation, or incurring of new or additional
indebtedness, and demands and notices of every kind except for any demand or
notice by Administrative Agent or any Lender to Guarantor expressly provided for
in Section 1;
(g) Any defense based on or arising out of any defense that Borrower may
have to the payment or performance of the Indebtedness or any part of it; and
(h) Any defense based on or arising out of any action of Administrative
Agent or any Lender described in Sections 3 or 4 above.
6. Waivers of Subrogation and Other Rights.
(a) During the existence of an Event of Default by Borrower, Administrative
Agent or any Lender, without prior notice to or consent of Guarantor, may elect
to: (i) foreclose either judicially or nonjudicially against any real or
personal property security it may hold for the Indebtedness, (ii) accept a
transfer of any such security in lieu of foreclosure, (iii) compromise or adjust
the Indebtedness or any part of it or make any other accommodation with Borrower
or Guarantor, or (iv) exercise any other remedy against Borrower or any
security. No such action by Administrative Agent or any Lender shall release or
limit the liability of Guarantor, who shall remain liable under this Guaranty
after the action, even if the effect of the action is to deprive Guarantor of
any subrogation rights, rights of indemnity, or other rights to collect
reimbursement from Borrower for any sums paid to Administrative Agent or any
Lender, whether contractual or arising by operation of law or otherwise.
Guarantor expressly agrees that under no circumstances shall it be deemed to
have any right, title, interest or claim in or to any real or personal property
to be held by Administrative Agent or any Lender or any third party after any
foreclosure or transfer in lieu of foreclosure of any security for the
Indebtedness.
(b) Regardless of whether Guarantor may have made any payments to Lender,
Guarantor hereby waives: (i) all rights of subrogation, all rights of indemnity,
and any other rights to collect reimbursement from Borrower for any sums paid to
Administrative Agent or any Lender, whether contractual or arising by operation
of law (including the United States Bankruptcy Code or any successor or similar
statute) or otherwise, (ii) all rights to enforce any remedy
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that Lender may have against Borrower, and (iii) all rights to participate in
any security now or later to be held by Administrative Agent or any Lender for
the Indebtedness, in each case until the full and indefeasible payment and
performance of all Indebtedness, and all obligations of the Guarantors
hereunder.
(c) Guarantor waives all rights and defenses arising out of an election of
remedies by the Administrative Agent or any Lender, even though that election of
remedies may affect Guarantor's rights of subrogation and reimbursement against
the Borrower by the operation of law or otherwise. In addition, Guarantor waives
all rights and defenses that Guarantor may have because the Borrower's
indebtedness is secured by real property. This means, among other things, that
Administrative Agent and the Lenders may collect from Guarantor without first
foreclosing on any real or personal property collateral pledged by the Borrower.
7. Revival and Reinstatement. If Administrative Agent or any Lender is
required to pay, return or restore to Borrower or any other person any amounts
previously paid on the Indebtedness because of any Insolvency Proceeding of
Borrower, any stop notice or any other reason, the obligations of Guarantor
shall be reinstated and revived and the rights of Administrative Agent and such
Lender shall continue with regard to such amounts, all as though they had never
been paid.
8. Information Regarding Owner. Before signing this Guaranty, Guarantor
investigated the financial condition and business operations of Borrower and
such other matters as Guarantor deemed appropriate to assure itself of
Borrower's ability to discharge its obligations under the Loan Documents.
Guarantor assumes full responsibility for that due diligence, as well as for
keeping informed of all matters that may affect Borrower's ability to pay and
perform its obligations to the Administrative Agent and the Lenders. Neither
Administrative Agent nor any Lender has any duty to disclose to Guarantor any
information which such party may have or receive about Borrower's financial
condition, business operations, or any other circumstances bearing on its
ability to perform.
9. Subordination. Any rights of Guarantor, whether now existing or later
arising, to receive payment on account of any indebtedness (including interest)
owed to it by Borrower or any Subsidiary thereof or to receive any payment from
Borrower or any such Subsidiary other than those payments or distributions
permitted under Sections 7.07 and 7.10 of the Credit Agreement shall at all
times be subordinate as to lien and time of payment and in all other respects to
the full and prior repayment of the Indebtedness. Guarantor shall not be
entitled to enforce or receive payment of any sums hereby subordinated until the
Indebtedness has been paid and performed in full and any such sums received in
violation of this Guaranty shall be received by Guarantor in trust for the
Administrative Agent and the Lenders.
10. Financial Information. Guarantor shall keep true and correct financial
books and records, using generally accepted accounting principles consistently
applied, or such other accounting principles as the Requisite Lenders in their
reasonable judgment may find acceptable from time to time. Guarantor represents,
warrants and covenants to Administrative Agent and the Lenders that all
financial information with respect to the Guarantor delivered or to
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be delivered to Administrative Agent and the Lenders by the Borrower with
respect to Guarantor under Section 6.01 of the Credit Agreement is or shall be
true and correct and fairly presents or will fairly present the financial
position of the Guarantor for the applicable period. Guarantor shall promptly
provide Administrative Agent and the Lenders with any additional audited
financial information that Guarantor may obtain, and such other information
concerning its affairs and properties as Administrative Agent or any Lender may
reasonably request, including, without limitation, signed copies of any tax
returns if requested by Administrative Agent or the Lenders.
11. Guarantor's Representations and Warranties. Guarantor represents and
warrants that:
(a) All financial statements delivered to Administrative Agent or the
Lenders were or will be prepared in accordance with generally accepted
accounting principles, or such other accounting principles as may be acceptable
to the Requisite Lenders at the time of their preparation, consistently applied;
(b) There has been no material adverse change in Guarantor's financial
condition since the dates of the statements most recently furnished to
Administrative Agent and the Lenders; and
(c) All representations and warranties given on behalf of or with respect
to Guarantor contained in Article V of the Credit Agreement and in any other
Loan Document or certification made in connection with the Credit Agreement are
true and correct.
12. Covenants of Guarantor. Guarantor covenants and agrees that it shall
comply with and perform all covenants given on behalf of or with respect to
Guarantor (whether expressly or as a Subsidiary) contained in Sections 6 and 7
of the Credit Agreement and in all other Loan Documents.
13. Intentionally Omitted.
14. Intentionally Omitted.
15. Authorization; No Violation. Guarantor is authorized to execute,
deliver and perform under this Guaranty, which is a valid, binding, and
enforceable obligation of Guarantor in accordance with its terms, except as
enforceability may be limited by bankruptcy, insolvency, reorganization,
moratorium, or similar laws affecting creditor's rights generally. The
execution, delivery and performance of this Guaranty are not in violation of any
applicable law, regulation or ordinance, or any order or ruling of any court or
governmental agency applicable to the Guarantor. The Guaranty does not conflict
with, or constitute a breach or default under, any agreement to which Guarantor
is a party.
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16. Additional and Independent Obligations. Guarantor's obligations under
this Guaranty are in addition to its obligations under any future guaranties,
each of which shall remain in full force and effect until it is expressly
modified or released in a writing signed by Administrative Agent and consented
to by the Lenders. Guarantor's obligations under this Guaranty are independent
of those of Borrower on the Indebtedness. Administrative Agent or the Lenders
may bring a separate action, or commence a separate arbitration proceeding
against Guarantor without first proceeding against Borrower, any other person or
any security that Administrative Agent or any Lender may hold, and without
pursuing any other remedy. None of Administrative Agent's or any Lender's rights
under this Guaranty shall be exhausted by any action by Administrative Agent or
any Lender until the Indebtedness has been paid and performed in full in cash.
17. No Waiver; Consents; Cumulative Remedies. Each waiver by Administrative
Agent or the Lenders must be in writing, and no waiver shall be construed as a
continuing waiver. No waiver shall be implied from Administrative Agent's or any
Lender's delay in exercising or failure to exercise any right or remedy against
Borrower, Guarantor or any security. Consent by Administrative Agent or the
Lenders to any act or omission by Borrower or Guarantor shall not be construed
as a consent to any other or subsequent act or omission, or as a waiver of the
requirement for Administrative Agent's or the Lenders' consent to be obtained in
any future or other instance. All remedies of Administrative Agent and each
Lender against Borrower and Guarantor are cumulative.
18. No Release. Except as otherwise provided in Section 1, Guarantor shall
not be released, in whole or in part, from its obligations under this Guaranty
except by a writing signed by Administrative Agent and all the Lenders.
19. Heirs, Successors and Assigns; Participations. The terms of this
Guaranty shall bind and benefit the heirs, legal representatives, successors and
assigns of Administrative Agent, the Lenders and Guarantor; provided, however,
that Guarantor may not assign this Guaranty, or assign or delegate any of its
rights or obligations under this Guaranty, without the prior written consent of
Administrative Agent in each instance. Without notice to or the consent of
Guarantor, Administrative Agent and any Lender may disclose any and all
information in its possession concerning Guarantor, this Guaranty and any
security for this Guaranty to any actual or prospective purchaser of any
securities issued or to be issued by Administrative Agent or such Lender, and to
any actual or prospective purchaser or assignee of any participation or other
interest in the Indebtedness and this Guaranty.
20. Notices.
(a) Delivery. All notices, requests and other communications provided for
hereunder shall be in writing (including, unless the context expressly otherwise
provides, telegraphic, telex, facsimile transmission or cable communication) and
mailed, telegraphed, telexed or delivered to the recipient's address specified
on the signature pages hereof, or to such other address as shall be designated
by such party in a written notice to the other party.
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(b) Receipt. All such notices and communications shall, when transmitted by
overnight delivery, telegraphed, telecopied by facsimile, telexed or cabled, be
effective when delivered for overnight delivery or to the telegraph company,
transmitted by telecopier, confirmed by telex answerback or delivered to the
cable company, respectively, or if delivered, upon delivery.
(c) Reliance. Administrative Agent and each Lender shall be entitled to
rely on the authority of any person purporting to be a person authorized by
Guarantor to give such notice, and neither Administrative Agent nor any Lender
shall have any liability to Guarantor or any other person on account of any
action taken or not taken by Administrative Agent or such Lender in reliance
upon such telephonic or facsimile notice. The obligation of Guarantor hereunder
shall not be affected in any way or to any extent by any failure by Lender to
receive written confirmation of any telephonic or facsimile notice or the
receipt by Administrative Agent or a Lender of a confirmation which is at
variance with the terms understood by Administrative Agent or such Lender to be
contained in the telephonic or facsimile notice.
21. Rules of Construction. In this Guaranty, the word "Borrower" includes
both the named Borrower and any other person who at any time assumes or
otherwise becomes primarily liable for all or any part of the obligations of the
named Borrower on the Indebtedness. The word "person" includes any individual,
company, trust or other legal entity of any kind. If this Guaranty is executed
by more than one person, the word "Guarantor" includes all such persons. The
word "include(s)" means "include(s), without limitation," and the word
"including" means "including, but not limited to." When the context and
construction so require, all words used in the singular shall be deemed to have
been used in the plural and vice versa. No listing of specific instances, items
or matters in any way limits the scope or generality of any language of this
Guaranty. All headings appearing in this Guaranty are for convenience only and
shall be disregarded in construing this Guaranty.
22. Governing Law. This Guaranty shall be governed by, and construed in
accordance with, the laws of the State of California, without regard to its
choice of law rules.
23. Costs and Expenses. If any lawsuit or arbitration is commenced which
arises out of, or which relates to this Guaranty, the Loan Documents or the
Indebtedness, the prevailing party shall be entitled to recover from each other
party such sums as the court or arbitrator may adjudge to be reasonable
attorneys' fees (including allocated costs for services of in-house counsel) in
the action or proceeding, in addition to costs and expenses otherwise allowed by
law. In all other situations, including any Insolvency Proceeding, Guarantor
agrees to pay all of the Administrative Agent's and each Lender's costs and
expenses, including attorneys' fees (including allocated costs for services of
the Administrative Agent's and each Lender's in-house counsel) which may be
incurred in any effort to collect or enforce the Indebtedness or any part of it
or any term of this Guaranty. Without limiting any rights of the Administrative
Agent or Lenders under the Credit Agreement, all amounts of any kind due and
payable under this Guaranty (whether for principal, interest, and other costs
under the Indebtedness, or for costs, fees, and expenses for which the
Guarantors are directly responsible hereunder, or otherwise) shall accrue
interest from the time the Administrative Agent or the Lenders make demand
therefor
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hereunder until paid in full in cash to such Administrative Agent or the Lenders
at the Base Rate, as defined in the Credit Agreement, plus three (3%) percentage
points, except to the extent that any such amounts are then accruing interest
under the Indebtedness, in which case such Base Rate plus 3% interest rate shall
not be applied if the effect would be to compound the interest to which such
obligations are subject to under the Indebtedness.
24. Covenant. Each Guarantor hereby agrees that it will make dividend
payments on its outstanding preferred stock with its excess cash to the extent
such cash is not required by the Guarantor for its business, consistent with
prudent business practices and its cash requirements.
25. Integration; Modifications. This Guaranty (a) integrates all the terms
and conditions mentioned in or incidental to this Guaranty, (b) supersedes all
oral negotiations and prior writings with respect to its subject matter, and (c)
is intended by Guarantor, Administrative Agent and the Lenders as the final
expression of the agreement with respect to the terms and conditions set forth
in this Guaranty and as the complete and exclusive statement of the terms agreed
to by Guarantor, Administrative Agent and the Lenders. No representation,
understanding, promise or condition shall be enforceable against any party
hereto unless it is contained in this Guaranty. This Guaranty may not be
modified except in a writing signed by both Administrative Agent (with the
consent of the Requisite Lenders) and Guarantor. No course of prior dealing,
usage of trade, parol or extrinsic evidence of any nature shall be used to
supplement, modify or vary any of the terms hereof. As between Administrative
Agent and the Lenders only, nothing contained in this Guaranty shall alter the
rights and obligations among Administrative Agent and the Lenders set forth in
the Credit Agreement.
26. Miscellaneous. The illegality or unenforceability of one or more
provisions of this Guaranty shall not affect any other provision. Time is of the
essence in the performance of this Guaranty by Guarantor.
27. Consent to Jurisdiction and Service of Process. ALL JUDICIAL
PROCEEDINGS BROUGHT AGAINST GUARANTOR ARISING OUT OF OR RELATING TO THIS
GUARANTY, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY STATE COURT OF
COMPETENT JURISDICTION IN THE STATE OF CALIFORNIA OR IN THE UNITED STATES
DISTRICT COURT FOR THE CENTRAL DISTRICT OF CALIFORNIA. BY EXECUTING AND
DELIVERING THIS GUARANTY, GUARANTOR, FOR ITSELF AND IN CONNECTION WITH ITS
PROPERTIES, IRREVOCABLY (I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE
NONEXCLUSIVE JURISDICTION AND VENUE OF SUCH COURTS; (II) WAIVES ANY DEFENSE OF
FORUM NON CONVENIENS; (III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH
PROCEEDING IN ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO GUARANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE WITH
SECTION 20; (IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER GUARANTOR IN ANY SUCH PROCEEDING
IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND BINDING SERVICE
IN EVERY RESPECT; (V) AGREES THAT
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ADMINISTRATIVE AGENT RETAINS THE RIGHT TO SERVE PROCESS IN ANY OTHER MANNER
PERMITTED BY LAW OR TO BRING PROCEEDINGS AGAINST GUARANTOR IN THE COURTS OF ANY
OTHER JURISDICTION; AND (VI) AGREES THAT THE PROVISIONS OF THIS SECTION 27
RELATING TO JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE
FULLEST EXTENT PERMISSIBLE UNDER CALIFORNIA CODE OF CIVIL PROCEDURE SECTION
410.40 OR OTHERWISE.
28. Waiver of Jury Trial. GUARANTOR AND ADMINISTRATIVE AGENT HEREBY AGREE
TO WAIVE THEIR RESPECTIVE RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION
BASED UPON OR ARISING OUT OF THIS GUARANTY. The scope of this waiver is intended
to be all-encompassing of any and all disputes that may be filed in any court
and that relate to the subject matter of this transaction, including without
limitation contract claims, tort claims, breach of duty claims, and all other
common law and statutory claims. Guarantor and Administrative Agent acknowledge
that this waiver is a material inducement for Guarantor and Administrative Agent
to enter into a business relationship, that Guarantor and Administrative Agent
have already relied on this waiver in entering into this Guaranty and that each
will continue to rely on this waiver in their related future dealings. Guarantor
and Administrative Agent further warrant and represent that each has reviewed
this waiver with its legal counsel, and that each knowingly and voluntarily
waives its jury trial rights following consultation with legal counsel. THIS
WAIVER IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN
WRITING (OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS
SECTION 28 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL
APPLY TO ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO
THIS AGREEMENT. In the event of litigation, this Guaranty may be filed as a
written consent to a trial by the court.
29. Provisional Remedies, Self-Help and Foreclosure. No provision of this
Guaranty shall limit the right of any party to exercise self-help remedies such
as setoff, foreclosure against or sale of any real or personal property
collateral or security.
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IN WITNESS WHEREOF, the undersigned has executed and delivered
this Guaranty as of the date on the first page.
GUARANTOR:
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY
By:
-----------------------
Xxxxx X. Xxxxxxxxx
President
AIMCO/NHP HOLDINGS, INC.
By:
-----------------------
Xxxxx X. Xxxxxxxxx
President
NHP A&R SERVICES, INC.
By:
-----------------------
Xxxxx X. Xxxxxxxxx
President
NHP MANAGEMENT COMPANY
By:
-----------------------
Name:
Title:
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Address Where Notices are to be Sent:
To Guarantor: 0000 Xxxxx Xxxxxxxx Xxxxxx
00xx Xxxxx
Xxxxxx, Xxxxxxxx 00000
To Administrative Agent: BANK OF AMERICA, N.A.
000 Xxxxx Xxxxxx Xxxxxx, 0xx Xxxxx
Xxx Xxxxxxx, Xxxxxxxxxx 00000
Attention: Manager - Xxxx #0000
To Lenders: Per the Credit Agreement
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