EXHIBIT 10.29
FOURTH 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 Co-Lead Agent and Syndication Agent,
FIRST UNION NATIONAL BANK,
as Documentation Agent
and
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
Dated as of March 11, 0000
XXXX XX XXXXXXX SECURITIES LLC
and
FLEET SECURITIES INC.,
as Co-Lead Arrangers
and
BANC OF AMERICA SECURITIES LLC,
as
Sole Book Manager
TABLE OF CONTENTS
PAGE
SECTION 1.
DEFINITIONS AND ACCOUNTING TERMS
1.01 Defined Terms.......................................................................................... 2
1.02 Use of Certain Terms................................................................................... 39
1.03 Accounting Terms....................................................................................... 39
1.04 Rounding............................................................................................... 39
1.05 Exhibits and Schedules................................................................................. 39
1.06 References to Agreements, Exhibits and Laws............................................................ 40
SECTION 2.
THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01 Committed Loans........................................................................................ 40
2.02 Borrowings, Conversions and Continuations of Committed Loans........................................... 41
2.03 Swing Line Loans....................................................................................... 42
2.04 Borrowings of Swing Line Loans......................................................................... 42
2.05 Letters of Credit...................................................................................... 43
2.06 Prepayments; Mandatory Amortization.................................................................... 47
2.07 Reduction or Termination of Commitments................................................................ 50
2.08 Principal and Interest; Default Rate................................................................... 50
2.09 Fees................................................................................................... 51
2.10 Computation of Interest and Fees....................................................................... 52
2.11 Making Payments........................................................................................ 53
2.12 Funding Sources........................................................................................ 54
2.13 Extension of Maturity Date............................................................................. 54
SECTION 3.
TAXES, YIELD PROTECTION AND ILLEGALITY
3.01 Taxes.................................................................................................. 55
3.02 Illegality............................................................................................. 57
3.03 Inability to Determine Rates........................................................................... 58
3.04 Increased Cost and Reduced Return; Capital Adequacy.................................................... 58
3.05 Breakfunding Costs..................................................................................... 59
3.06 Matters Applicable to all Requests for Compensation.................................................... 59
3.07 Survival............................................................................................... 59
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SECTION 4.
CONDITIONS TO EFFECTIVENESS
4.01 Conditions to the Amended and Restated Credit Agreement................................................ 60
4.02 Conditions to all Extensions of Credit................................................................. 62
SECTION 5.
REPRESENTATIONS AND WARRANTIES
5.01 Existence and Qualification; Power..................................................................... 63
5.02 Power; Authorization; Enforceable Obligations.......................................................... 63
5.03 No Legal Bar........................................................................................... 64
5.04 Financial Statements; No Material Adverse Effect....................................................... 64
5.05 Litigation............................................................................................. 65
5.06 No Default............................................................................................. 65
5.07 Ownership of Property; Liens........................................................................... 65
5.08 Taxes.................................................................................................. 65
5.09 Margin Regulations; Investment Company Act; Public Utility Holding Company Act; REIT and Tax Status;
Stock Exchange Listing................................................................................. 66
5.10 ERISA Compliance....................................................................................... 67
5.11 Intangible Assets...................................................................................... 68
5.12 Compliance With Laws................................................................................... 68
5.13 Environmental Compliance............................................................................... 68
5.14 Insurance.............................................................................................. 69
5.15 GP Loans............................................................................................... 69
5.16 Subsidiaries; Interests in Other Entities; Changes in Organizational Structure......................... 69
5.17 Matters Relating to Pledged Collateral................................................................. 70
5.18 Disclosure............................................................................................. 71
SECTION 6.
AFFIRMATIVE COVENANTS
6.01 Financial Statements................................................................................... 71
6.02 Certificates, Notices and Other Information............................................................ 72
6.03 Payment Obligations.................................................................................... 75
6.04 Preservation of Existence.............................................................................. 75
6.05 Maintenance of Properties.............................................................................. 75
6.06 Maintenance of Insurance............................................................................... 75
6.07 Compliance With Laws................................................................................... 76
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6.08 Inspection Rights...................................................................................... 76
6.09 Keeping of Records and Books of Account................................................................ 76
6.10 Compliance with ERISA.................................................................................. 76
6.11 Compliance With Agreements............................................................................. 77
6.12 Use of Proceeds........................................................................................ 77
6.13 Communication with Accountants......................................................................... 77
6.14 Maintenance of REIT Status; Stock Exchange Listing..................................................... 77
6.15 Solvency............................................................................................... 77
6.16 Further Assurances..................................................................................... 77
6.17 Unconsolidated Partnership Distributions............................................................... 78
SECTION 7.
NEGATIVE COVENANTS
7.01 Indebtedness........................................................................................... 79
7.02 Liens and Negative Pledges............................................................................. 80
7.03 Fundamental Changes.................................................................................... 81
7.04 Dispositions........................................................................................... 83
7.05 Investments............................................................................................ 84
7.06 Lease Obligations...................................................................................... 85
7.07 Restricted Payments.................................................................................... 85
7.08 ERISA.................................................................................................. 85
7.09 Change in Nature of Business........................................................................... 86
7.10 Transactions with Affiliates........................................................................... 86
7.11 Use of Proceeds........................................................................................ 86
7.12 Intentionally Omitted.................................................................................. 87
7.13 Limitations on Upstreaming............................................................................. 87
7.14 Financial Covenants.................................................................................... 87
7.15 Change in Auditors..................................................................................... 88
7.16 Special Covenants Relating to the REIT................................................................. 88
7.17 Taxation of Borrowers.................................................................................. 89
SECTION 8.
EVENTS OF DEFAULT AND REMEDIES
8.01 Events of Default...................................................................................... 89
8.02 Remedies Upon Event of Default......................................................................... 94
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SECTION 9.
ADMINISTRATIVE AGENT
9.01 Appointment and Authorization of Administrative Agent................................................. 96
9.02 Delegation of Duties.................................................................................. 96
9.03 Liability of Administrative Agent..................................................................... 97
9.04 Reliance by Administrative Agent...................................................................... 97
9.05 Notice of Default..................................................................................... 98
9.06 Credit Decision; Disclosure of Information by Administrative Agent.................................... 98
9.07 Indemnification of Administrative Agent............................................................... 99
9.08 Administrative Agent in Individual Capacity........................................................... 99
9.09 Successor Administrative Agent........................................................................ 99
9.10 Co-Lead Agents........................................................................................ 100
SECTION 10.
MISCELLANEOUS
10.01 Amendments; Consents.................................................................................. 100
10.02 Transmission and Effectiveness of Notices and Signatures.............................................. 102
10.03 Attorney Costs, Expenses and Taxes.................................................................... 103
10.04 Binding Effect; Assignment............................................................................ 103
10.05 Set-Off............................................................................................... 106
10.06 Sharing of Payment.................................................................................... 106
10.07 No Waiver; Cumulative Remedies........................................................................ 107
10.08 Usury................................................................................................. 108
10.09 Counterparts.......................................................................................... 108
10.10 Integration; Conflicts with Other Loan Documents...................................................... 108
10.11 Nature of Lenders' Obligations........................................................................ 108
10.12 Survival of Representations and Warranties............................................................ 109
10.13 Indemnity by Borrowers................................................................................ 109
10.14 Nonliability of Lenders............................................................................... 110
10.15 No Third Parties Benefited............................................................................ 110
10.16 Severability.......................................................................................... 111
10.17 Confidentiality....................................................................................... 111
10.18 Headings.............................................................................................. 112
10.19 Time of the Essence................................................................................... 112
10.20 [Intentionally Omitted]............................................................................... 112
10.21 Governing Law......................................................................................... 112
10.22 Waiver of Right to Trial by Jury...................................................................... 112
10.23 Exclusive Jurisdiction................................................................................ 112
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10.24 Notice of Claims; Claims Bar.......................................................................... 113
10.25 Borrowers' Obligations................................................................................ 113
10.26 Lender Covenant....................................................................................... 117
10.27 Release of Collateral and Guarantee Obligations....................................................... 117
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EXHIBITS
A Form of Request for Extension of Credit
B Form of Compliance Certificate
C-1 Form of Committed Loan Note
C-2 Form of Swing Line Note
D Form of Assignment and Acceptance
E [Intentionally omitted]
F Form of Opinions of Counsel
G Form of Borrowers Pledge Agreement
H-1 Form of Guaranty Document (Revolver Guarantors)
H-2 Form of Guaranty Document (Casden Guarantors)
I Form of Intra-Company Loan Subordination Agreement
J Form of GP Loan Note
K Form of Control Agreement
L Intercreditor Agreement
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SCHEDULES
1.01A Construction/Renovation
1.01B GP Loans
1.01C Guarantors
1.01D Management Entities
1.01E Collateral
2.01 Commitments and Pro Rata Shares
5.03-A Transfer Restrictions in Organization Documents
5.03-B Transfer Restrictions in Contractual Obligations
5.05 Litigation
5.08 Taxes
5.10 ERISA Compliance
5.13 Environmental Compliance
5.16 Organizational Chart
7.01(d) Existing Recourse Indebtedness
7.01(i) Other Existing Indebtedness
7.01(k) Existing Bond Indebtedness
7.01(m) Existing Cross-Collateralized and Cross-Defaulted Indebtedness
10.02 Offshore and Domestic Lending Offices, Addresses for Notices
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FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
This FOURTH AMENDED AND RESTATED CREDIT AGREEMENT
("AGREEMENT") is entered into as of March 11, 2002, 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"), Issuing Lender
and a Co-Lead Agent, FLEET NATIONAL BANK ("FLEET"), as a Lender, a Co-Lead
Agent, and Syndication Agent, and FIRST UNION NATIONAL BANK ("FIRST UNION"), as
a Lender and Documentation Agent.
RECITALS
WHEREAS, 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, entered into that certain Third
Amended and Restated Credit Agreement dated as of November 6, 2001 (as amended,
the "ORIGINAL AGREEMENT");
WHEREAS, the REIT and the other Persons party thereto have
entered into the Casden Merger Agreement (as hereinafter defined) pursuant to
which, among other things, (i) Casden Properties Inc. will be merged with and
into the REIT or into a wholly-owned subsidiary of the REIT, (ii) Borrowers will
acquire all of the outstanding capital Stock of National Partnership Investments
Corp. and (iii) a subsidiary of Borrowers will acquire a 20% membership interest
in a limited liability company expected to be called Casden Properties LLC
(collectively, along with the other transactions contemplated by the Casden
Merger Agreement, the "TRANSACTION");
WHEREAS, pursuant to the Casden Credit Agreement (defined
below), LCPI (defined below) and other financial institutions have agreed to
provide a term loan facility of up to $287,000,000 to the REIT, AIMCO and NHP
Management to provide for the consummation of the Casden Acquisition (defined
below);
WHEREAS, the Lenders have agreed to amend and restate various
terms and provisions of the Original Agreement to permit the Casden Acquisition
and the Casden Loan (defined below) to occur;
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:
"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 __, 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 ___, 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 Affiliates' pro-rata share of Net Operating
Income, including the Borrowers', Guarantors' and their respective 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.
2
"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) 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 Fourth Amended and Restated Credit Agreement,
as amended, restated, extended, supplemented or otherwise modified in writing
from time to time.
"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, (i) (a) during the period from the
Closing Date to and including July 31, 2002, and (b) if the Casden Loan has not
been indefeasibly paid in full, during the period from and including August 1,
2002 to and including the date upon which the Casden Loan has been indefeasibly
paid in full, 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 1.85:1 230 80
but Less Than 2.00:1
3 Less Than 1.85:1 255 105
(ii) during the period from and including the later of (a) August 1,
2002, or (b) the day after the date upon which the Casden Loan has been
indefeasibly paid in full, to the Revolving Commitment Termination 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) and the Credit Rating in effect on such date (if
applicable):
3
APPLICABLE MARGIN
(IN BASIS POINTS PER ANNUM)
FIXED CHARGE COVERAGE RATIO
PRICING LEVEL AND CREDIT RATING OFFSHORE RATE + BASE RATE +
------------- ----------------- --------------- -----------
1 Greater Than or Equal to 2.00:1 160 20
and Threshold Rating achieved
2 Greater Than or Equal to 2.00:1 190 45
3 Greater Than or Equal to 1.85:1 210 70
but Less Than 2.00:1
4 Less Than 1.85:1 235 95
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 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 255 basis points per annum.
"Applicable Percentage" means (i) with respect to Net Disposition
Proceeds from any Disposition of any Casden Pledged Collateral (A) received
during the period from the Closing Date through and including the first
anniversary of the Closing Date, 50%, (B) received after the first anniversary
of the Closing Date, 75% and (C) received after the occurrence and during the
continuation of an Event of Default under the Casden Credit Agreement, 100%, and
(ii) with respect to Net Refinancing Proceeds of any Refinancing of any Casden
Pledged Collateral (A) received during the period from the Closing Date through
and including the first anniversary of the Closing Date, 0%, (B) received after
the first anniversary of the Closing Date, 75% and (C) received after the
occurrence and during the continuation of an Event of Default under the Casden
Credit Agreement, 100%. In no event will any change in the percentage of Net
Disposition Proceeds or Net Refinancing Proceeds payable to the Casden Lenders
under Section 2.03 of the Casden Loan Agreement be deemed to change the
Applicable Percentage hereunder.
4
"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, 2000, 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 other than (x)
Lenders and any Affiliates of Lenders, Administrative Agent, Issuing Lender,
Syndication Agent, Documentation Agent, or any Co-Lead Agent or Co-Lead Arranger
from time to time party to a Loan Document and (y) the Lenders (as defined in
the Casden Credit Agreement) party to the Intercreditor Agreement.
"Borrowers Pledge Agreement" means the Borrowers Pledge Agreement
executed and delivered by the Borrower Parties party thereto on the Closing Date
in connection with this Agreement, substantially in the form of Exhibit G
annexed hereto, as such Borrowers Pledge Agreement may hereafter be amended,
supplemented or otherwise modified from time to time.
5
"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.
"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, (i) directly or indirectly acquired by, or merged into, Borrowers
and/or their Affiliates from time to time as provided in the Casden Merger
Agreement or (ii) which, after giving effect to the Transaction, will be
directly or
6
indirectly owned by Borrowers or any of their Subsidiaries as a result of or in
connection with the Transaction.
"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 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 __, 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 from time to time
in accordance with the Intercreditor Agreement.
"Casden Guarantors" means (x) any Person formed or to be formed by
the Borrower Parties as part of the Casden Acquisition, (y) any Person
comprising Casden, which is directly and wholly-owned by Borrowers and (z) any
Person comprising Casden which is required to guaranty the Obligations pursuant
to Section 6.16(c). The Casden Guarantors as of the Closing Date are set forth
on Part B of Schedule 1.01C.
"Casden Loan" means that certain term loan facility in an amount not
to exceed $287,000,000 which has been extended or will be 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.
"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 date
hereof.
"Casden Pledge Agreement" means that certain pledge agreement
executed and delivered by the Borrower Parties party thereto on the Closing Date
in connection with the Casden Loan, as it may be amended, supplemented or
otherwise modified from time to time in accordance with the Intercreditor
Agreement.
"Casden Pledged Collateral" means the equity interests in DevCo and
National Partnership Investments Corp., and the Casden Guarantors owned by any
of the Borrowers or
7
their Affiliates and the Park La Brea and Westwood Village Properties Notes. The
Casden Pledged Collateral existing on the Closing Date is listed on Part A of
Schedule 1.01E.
"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 or any lender under the Casden Credit
Agreement 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.
"Closing Date" means the date all the conditions precedent in
Section 4.01 are satisfied or waived in accordance with Section 4.01.
"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.
8
"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 Lenders, a Lien on any
real, personal or mixed property of that Person as security for the Obligations.
"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.
"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
9
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 Closing 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 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.
10
"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 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 Closing Date, First Union
National Bank. 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.
11
"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.
"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 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
12
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 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.
13
"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 Closing Date that has not expired
or been cancelled as of the 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 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.
14
"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 principal
amortization in respect of the Obligations, and principal amortization required
under the Casden Loan Documents but only to the extent such principal
amortization is funded from "Net Issuance Proceeds", "Net Disposition Proceeds",
"Net Refinancing Proceeds", or "Net Indebtedness Proceeds" (each as defined in
the Casden Credit Agreement existing on the date hereof) and such proceeds are
applied in accordance with, and are in the amounts provided in, Section 2.03 of
the Casden Credit Agreement existing on the date hereof, regardless of whether
such proceeds are paid directly to the lenders under the Casden Credit Agreement
or such proceeds are applied initially to the Loan and then funded to the
lenders under the Casden Credit Agreement pursuant to Section 2.06 hereof)
during such period, 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 95% 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, 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
15
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 $351,723,934 outstanding as of
September 30, 2001 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:
(i) 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;
(ii) GP Loans valued at net realizable value as of such date of
determination determined in accordance with GAAP;
(iii) 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 9.5%;
(iv) 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
16
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
9.5%;
(v) 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;
(vi) the gross book value of Real Property Assets Under Development
as of such date of determination; and
(vii) 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
Exhibits H-1 or H-2 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 Closing 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 Closing 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 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,
17
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.
"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 exchangeable, is, or upon the happening of any event
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 has, or upon the happening of an event or passage of time would have, a
redemption or similar payment due, 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,
18
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
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.
"Intercreditor Agreement" means the Intercreditor and Subordination
Agreement entered into as of the date hereof between Borrowers, Administrative
Agent, borrowers party to the Casden Credit Agreement, and LCPI, in its capacity
as administrative agent under the Casden Loan, attached hereto as Exhibit L, as
amended from time to time, as provided therein.
"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.
19
"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 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 pursuant to 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.
20
"Issuing Lender" means Bank of America, or any successor issuing
lender hereunder.
"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.
"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 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.
22
"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 after giving effect to
the Transaction, 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 after giving effect to the Transaction, 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, 2004, 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
MINIMUM MULTIPLES IN
TYPE OF ACTION AMOUNT EXCESS THEREOF
-------------- ------ --------------
Borrowing of, prepayment of, or $2,000,000 $ 500,000
Conversion into, Base Rate Loans
(other than Swing Line Loans)
Borrowing of or prepayment of Swing $1,000,000 $ 500,000
Line Loans
Borrowing of, prepayment of, $5,000,000 $1,000,000
Continuation of, or Conversion
into, Offshore Rate Loans
Reduction in Commitments $5,000,000 $1,000,000
Assignments (other than with $3,000,000 $1,000,000
respect to 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 $1,000,000 $1,000,000
Affiliate 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, 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 with such
Disposition and (ii) payment of the outstanding principal amount of,
24
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, 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 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, 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 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
25
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.
"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
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
26
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.
"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;
(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;
27
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
(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;
28
(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 and 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.
"Ordinary Course of Business" means, in respect of any
transaction involving a Person, the ordinary course of such Person's business,
substantially as intended to be conducted by any such Person as of the Closing
Date, and undertaken by such Person in good faith and not for purposes of
evading any covenant or restriction in any Contractual Obligation of such
Person.
"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" has the meaning listed in the recitals to
this Agreement.
"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 Closing Date through and including the
29
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 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 Casden 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 second-priority basis to Administrative Agent pursuant to
the Borrowers Pledge Agreement.
"Park La Brea and Westwood Village Properties Notes" means,
collectively, that certain Mezzanine Loan Secured Note to be 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
to be 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 to be 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 to be 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
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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.
"Park La Brea Construction Debt" means Recourse Indebtedness
of AIMCO to be incurred in connection with AIMCO performing its obligations
under the Contingent Acquisition Note and consisting of either (i) the
assumption of existing third party construction financing for the development,
construction and stabilization of Park La Brea or (ii) the incurrence of
replacement construction financing solely to repay such third party construction
financing.
"Park Vista Construction Financing" means Recourse
Indebtedness consisting of Guaranty Obligations of Borrowers, Guarantors or
their respective Subsidiaries incurred in connection with real Property acquired
directly or indirectly by AIMCO which consists of 624 units located in Los
Angeles, California.
"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.
"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.
"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 of the
Borrower Parties upon which a Lien is purported to be created by any Collateral
Document, including, without limitation, the Casden Pledged Collateral and the
Revolver Pledged Collateral.
"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.
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"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.
"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).
32
"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 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):
33
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 prepayment of Swing Line Loans 2:00 p.m. Same date as such Borrowing or prepayment
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 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);
34
(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 Guarantor" means any Person other than a Casden
Guarantor, which Person is required to guaranty the Obligations pursuant to
Section 6.16(c). The Revolver Guarantors as of the Closing Date are set forth on
Part A of Schedule 1.01C.
"Revolver Pledged Collateral" means any and all Property upon
which a Lien is purported to be created by any Collateral Document to secure the
obligations of Borrowers under this Credit Agreement and which does not
constitute Casden Pledged Collateral. The Revolver Pledged Collateral existing
on the Closing Date is listed on Part A of Schedule 1.01E.
"Revolving Commitment Termination Date" means July 31, 2004.
"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.
"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
35
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.
"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,
36
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 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.
"Threshold Amount" means $5,000,000.
"Threshold Rating" means a Credit Rating equal to or higher
than (a) "BBB-" from S&P or (1) "Baa3" from Xxxxx'x.
"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
37
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 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 the preferred
Stock issued by Borrowers and Guarantors; provided that the $75,000,000 in Class
B preferred stock (or such lesser amount as is then outstanding) issued by the
REIT shall be excluded from the calculation of Total Obligations as at any date
that such Class B preferred stock remains fully convertible to the REIT's common
Stock at the option of the holder and the REIT's common Stock traded at a market
price during the five (5) trading days preceding such date that exceeds $30.45
per share.
"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.
"Transaction" is defined in the Recitals of this Agreement.
"Transition Period" means the period beginning on the Closing
Date and ending 180 days thereafter.
"Tri-Party Agreement" means, collectively, the four Tri-Party
and Construction Completion Agreements each dated as of _________, 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
38
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.
"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.
"Villa Azure Construction Financing" means Recourse
Indebtedness consisting of Guaranty Obligations of Borrowers, Guarantors or
their respective Subsidiaries incurred in connection with real Property acquired
directly or indirectly by AIMCO which consists of 394 units located in Anaheim,
California.
"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
39
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.
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 date hereof, 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.
40
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 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.
41
(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.
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.
42
(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.
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, on the first (1st) Business Day after such request is made,
43
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 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 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
44
Letter of Credit Action is not permitted hereunder or Issuing Lender determines
that such 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]
45
(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;
46
(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 accept documents that appear on
their face to be in order, without responsibility for further
47
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 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 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
48
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 exceeds 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 Closing 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; provided, however, that to the
extent (and only to the extent) Net Issuance Proceeds from the issuance
of Stock or Partnership Units by Casden are required to be used and are
actually used to reduce outstanding obligations under the Casden Credit
Agreement, Borrowers shall not be required to cause such Net Issuance
Proceeds to be applied to the Loans until the obligations under the
Casden Credit Agreement are reduced to zero.
(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 Closing 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;
provided, however, that to the extent (and only to the extent) the
Applicable Percentage of Net Disposition Proceeds from the Disposition
of any Casden Asset are required to be used and are actually used to
reduce outstanding obligations under the Casden Credit Agreement,
Borrowers shall not be required to cause such Applicable Percentage of
such Net Disposition Proceeds to be
49
applied to the Loans until the obligations under the Casden Credit
Agreement are reduced to zero.
(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 Closing 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; provided, however, that to the extent (and only to the
extent) the Applicable Percentage of the Net Refinancing Proceeds from
the refinancing of any Indebtedness secured in whole or in part by any
Casden Asset are required to be used and are actually used to reduce
outstanding obligations under the Casden Credit Agreement, Borrowers
shall not be required to cause such Applicable Percentage of such Net
Refinancing Proceeds to be applied to the Loans until the obligations
under the Casden Credit Agreement are reduced to zero.
(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 Closing 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; provided, however, that to the extent (and only to
the extent) Net Indebtedness Proceeds from any Indebtedness in respect
of any or all of the Casden Assets are required to be used and are
actually used to reduce outstanding obligations under the Casden Credit
Agreement, Borrowers shall not be required to cause such Net
Indebtedness Proceeds to be applied to the Loans until the obligations
under the Casden Credit Agreement are reduced to zero.
(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.
50
(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:
SCHEDULED REPAYMENT OF
OUTSTANDING OBLIGATIONS
SCHEDULED REPAYMENT DATE IN THE EVENT OF EXTENSION
OF THE MATURITY DATE
PURSUANT TO SECTION 2.13
October 31, 2004 12.5%
January 31, 2005 12.5%
April 30, 2005 12.5%
July 31, 2005 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.
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 a 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.
(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
51
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. Except as provided below, 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 until the later of July 30,
2002 or the date upon which the Casden Loan has been indefeasibly paid in full,
and thereafter Borrower shall pay a facility fee equal to the following amounts
per annum, based upon the Fixed Charge Coverage Ratio as set forth in the
applicable Compliance Certificate received by Administrative Agent pursuant to
Section 6.02(b) and the Credit Rating in effect on such date (as applicable) as
provided below (provided that, notwithstanding the foregoing, if the Casden Loan
is paid in full on a date other than the last day of a Fee Payment Period, then
the amount of the facility fee shall continue at 0.200% per annum times the
Combined Commitments as in effect when such payment is due until the last day of
the applicable Fee Payment Period in which the Casden Loan is fully repaid, and
thereafter Borrower shall pay a facility fee based upon the Fixed Charge
Coverage Ratio):
FACILITY FEE
(IN BASIS POINTS PER ANNUM)
PRICING LEVEL FIXED CHARGE COVERAGE FACILITY FEE
RATIO AND CREDIT RATING
1 (> or =) 2.00:1 and 15
Threshold Rating achieved
2 (> or =) 2.00:1 15
3 (> or =) 1.85:1 but 20
< 2.00:1
4 < 1.85:1 20
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Subject to the foregoing, the facility fee shall be determined based
on the Compliance Certificate delivered to Administrative Agent pursuant to
Section 6.02(b) hereof and under the Original Agreement (as applicable) with
respect to the fiscal quarter period ending one fiscal quarter prior to the
applicable Fee Payment Date; provided, however, that if, after the Closing Date,
Borrowers fail to timely deliver a Compliance Certificate, the facility fee
payable for the applicable quarterly period shall be the highest level set forth
above until the next Fee Payment Date. Borrowers have previously paid the
facility fee for the period from August 16, 2001 to but not including July 31,
2002 under the Original Agreement. Commencing from and including July 31, 2002,
the facility fee shall be due and payable in arrears on September 1, 2002 and
the first day following each three-calendar-month period thereafter and also on
the Revolving Commitment Termination Date (each, a "FEE PAYMENT DATE"). 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.
FEE PAYMENT DATES BASED ON THE FIXED CHARGE FEE PAYMENT PERIOD
COVERAGE RATIO FOR THE
PERIOD ENDED
September 1, 2002 June 30, 2002 July 31, 2002
to and including
August 31, 2002
December 1, 2002 September 30, 2002 September 1, 2002
to and including
November 31, 2002
March 1, 2003 December 31, 2002 December 1, 2002
to and including
February 28, 2003
June 1, 2003 March 31, 2003 March 1, 2003
to and including
May 31, 2003
September 1, 2003 June 30, 2003 June 1, 2003
to and including
August 31, 2003
December 1, 2003 September 30, 2003 September 1, 2003
to and including
November 31, 2003
53
March 1, 2004 December 31, 2003 December 1, 2003
to and including
February 28, 2004
June 1, 2004 March 31, 2004 March 1, 2004
to and including
May 31, 2004
July 31, 2004 March 31, 2004 June 1, 2004
to and including
July 31, 2004
(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) Arrangement Fee. On the Closing Date, Borrowers shall pay to BAS
an arrangement fee, if any, in the amount agreed upon by letter agreement
between Borrowers and BAS. Such arrangement fee is for the services of BAS in
arranging the credit facilities under this Agreement and is fully earned on the
date paid. The arrangement fee paid to BAS is solely for its own account and is
nonrefundable.
(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 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.
54
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 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
55
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, 2005.
(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.
(e) This section shall supercede any provisions in Section 10.01 to
the contrary.
56
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 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
57
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 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;
58
(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 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
59
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 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.
60
(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 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.
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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:
(a) Unless waived by all Lenders (or by Administrative Agent with
respect to immaterial matters, or items specified in subsections (iv) or (v)
below, that the Borrowers have given assurances satisfactory to Administrative
Agent that they will be delivered promptly following the 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 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;
(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;
62
(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
Lenders, a valid and (upon such filing and recording and delivery)
perfected first priority security interest in the Pledged Collateral
comprising the Revolver Pledged Collateral and a perfected second
priority security interest in the Pledged Collateral comprising the
Casden 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 Revolver
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 Revolver Pledged Collateral
evidencing any Pledged Collateral.
(ix) a pro forma Compliance Certificate for the succeeding two
years after the Closing Date, which shall be in form and substance
satisfactory to Administrative Agent
(x) execution and delivery of the Intercreditor Agreement;
(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 thereby; 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.
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(b) Any fees required to be paid on or before the 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 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 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 Casden 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 Closing Date, to the extent HUD's approval is
required.
(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
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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, and to specifically list (1) the total aggregate amount of
principal amortization under the Casden Loan and (2) the total amount of
principal amortization under the Casden Loan which is funded from "Net Issuance
Proceeds", "Net Disposition Proceeds", "Net Refinancing Proceeds", or "Net
Indebtedness Proceeds" (each as defined in the Casden Agreement existing on the
date hereof), to the extent such proceeds are applied in accordance with Section
2.03 of the Casden Credit Agreement.
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 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
65
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 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 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
66
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 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
with respect to the Casden Assets during the Transition Period or 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
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Report, (i) all tax returns filed by Borrowers and their Subsidiaries are
complete and correct in all material respects, except with respect to the Casden
Assets during the Transition Period and 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 (and with respect to the
Casden Assets only during the Transition Period, To The Best Knowledge Of
Borrowers, 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 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.
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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.
(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
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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.
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
70
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 Closing 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.
5.15 GP LOANS. All GP Loans are evidenced by a GP Loan Note which has
been delivered to Administrative 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.
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5.17 MATTERS RELATING TO PLEDGED COLLATERAL.
(a) Creation, Perfection and Priority of Liens. The execution and
delivery of the Collateral Documents by Borrowers and the other applicable
Borrower Parties, together with (i) the actions taken on or prior to the date
hereof pursuant to Section 4.01(a)(viii), and (ii) the delivery to
Administrative Agent of any Pledged Collateral not previously delivered to
Administrative Agent are effective to create in favor of Administrative Agent
for the benefit of Lenders, as security for the Secured Obligations (as defined
in the Borrowers Pledge Agreement), a valid and perfected first priority Lien on
all of the Revolver Pledged Collateral and a valid and perfected second priority
lien on all of the Casden 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 Administrative 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 Administrative 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
Administrative Agent pursuant to any of the Collateral Documents or (ii) the
exercise by Administrative 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.
(c) Absence of Third-Party Filings. Except such as may have been
filed in favor of (i) Administrative Agent as contemplated by Section 5.17(a),
or (ii) in connection with the Casden Loan Documents, 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.
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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.
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
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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.
6.02 CERTIFICATES, NOTICES AND OTHER INFORMATION.
Deliver to Administrative Agent and each Lender, in form and detail
satisfactory to Administrative Agent and the Requisite Lenders:
(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 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 Administrative Agent concurrently with 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 Revolver Guarantor and Casden Guarantor, and such Guarantor's pro rata
share of Total Corporate EBITDA (provided that the Management Entities' pro rata
shares of Total Corporate EBITDA may be combined for purposes of this updated
Schedule 1.01C), (5) an updated Schedule 1.01E (Collateral), which updated
schedule will identify all Revolver Pledged Collateral and Casden
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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;
(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
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(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 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.
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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 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
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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.
(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.
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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.
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.
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
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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 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 Person in which the
Borrowers own any equity interest becoming a Material Entity or (iii) the
acquisition by the Borrowers of any Person which constitutes a Material Entity
after giving effect to such acquisition, in each case after the Closing Date,
Borrowers shall indicate whether such Person is a Revolver Guarantor or a Casden
Guarantor, and Borrowers shall cause such Person (so long as such Person is not
prohibited from doing so by law or contractual obligations) 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-1 or H-2, as applicable.
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. All such agreements, documents and other instruments
required to be delivered to Administrative Agent pursuant to this Section
6.16(c) shall be delivered collectively at the same time a Compliance
Certificate is delivered to Administrative Agent pursuant to Section 6.02(b).
Additionally, Borrowers shall cause such additional Subsidiaries of the
Borrowers and/or such other Persons in which the Borrowers own any equity
interest to become a Guarantor pursuant to this Section 6.16(c) so that at all
times the Guarantors (together with the REIT, AIMCO/Bethesda and NHP
Management), collectively, represent not less than 75% of Total Corporate EBITDA
for the immediately preceding fiscal quarter.
(d) Park La Brea and Westwood Village Properties Notes. No later
than 3 Business Days after the date of issuance of any Park La Brea and Westwood
Village Properties Note, deliver such Park La Brea and Westwood Village
Properties Note to the administrative agent under the Casden Loan Documents,
subject to the terms of the Intercreditor Agreement. Concurrently with the
delivery of any Park La Brea and Westwood Village Properties Note to the
administrative agent under the Casden Loan Documents, Borrowers shall deliver to
Administrative Agent a certificate executed by a Responsible Officer
representing and warranting that AIMCO Investment Services, Inc. is the legal,
record and beneficial owner of such Park La Brea and Westwood Village Properties
Note free and clear of any Lien except for Ordinary Course Liens and liens
permitted hereunder.
6.17 UNCONSOLIDATED PARTNERSHIP DISTRIBUTIONS.
Use its 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
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Operating Income of such Person in accordance with such Person's partnership,
operating or incorporation agreements and sound business practices.
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 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 Casden Loan Documents) in an aggregate principal amount not to exceed at
any time an amount equal to the sum of (v) $120,000,000, plus (w) 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, plus (x) until the earlier of June 30, 2002 and the date
that the Villa Azure Construction Financing is refinanced, the lesser of
$75,000,000 or any portion of the Villa Azure Construction Financing which
constitutes Recourse Indebtedness, plus (y) until the earlier of September 30,
2002 and the date that the Park Vista Construction Financing is refinanced, the
lesser of $27,200,000 or any portion of the Park Vista Construction Financing
which constitutes Recourse Indebtedness, plus (z) commencing upon the earlier of
October 1, 2002 and the date on which the Indebtedness described in both clauses
(x) and (y) have been refinanced, Indebtedness consisting of Park La Brea
Construction Debt, provided that the aggregate amount of any Park La Brea
Construction Debt included under this clause (z) shall not exceed an aggregate
amount equal to $60,000,000 at any time and shall not be outstanding for longer
than six months from the date of assumption or incurrence, as applicable. Such
Recourse Indebtedness outstanding on the date hereof 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; provided, however, that with respect to any real Property which is
owned by a Person comprising the Casden Pledged Collateral, such Secured
Indebtedness entered into after the Closing Date shall
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not contain provisions prohibiting or restricting the pledge of the Pledged
Collateral required under the Loan Documents;
(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 date
hereof and listed on Schedule 7.01(i);
(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 date hereof
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 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;
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(n) Indebtedness of Borrowers, the Guarantors and their Subsidiaries
pursuant to the Casden Loan Documents, including any Guaranty Obligations in
connection therewith; and
(o) Indebtedness in respect of the Contingent Acquisition Note.
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 date hereof and any
renewals or extensions thereof;
(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
date hereof 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;
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(h) Liens and Negative Pledges arising from Capital Leases entered
into by the Borrower Parties;
(i) Liens and Negative Pledges existing on the date hereof pursuant
to the Casden Credit Agreement, the other Casden Loan Documents, including,
without limitation, the Liens securing the Contingent Acquisition Note; and
(j) Negative Pledges pursuant to the DevCo LLC Agreement.
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 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
so long as (i) if such Stock 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 Stock
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
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 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 Administrative
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 date hereof;
(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);
(g) Investments in Management Entities;
(h) Investments in unimproved land with an aggregate book value not
to exceed 5% of the Gross Asset Value then in effect;
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(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) make 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 date hereof 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 date hereof 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 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
(i) for the exchange of common Stock of the REIT for Partnership Units; and (ii)
that if no Default or Event of Default
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exists under Section 8.01(a), (b) or (c) as a result of a breach of Section
7.14, 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 80% of Funds From Operations for such period or such
amount as may be necessary to maintain REIT Status; provided, however, that
nothing in this Section 7.07 shall prohibit any distribution of Property by any
Borrower Party, or any Affiliate thereof, in the Ordinary Course of Business,
pursuant to such Borrower Party's or Affiliate's Organization Documents.
(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)
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 date hereof; 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.
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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 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 or the Casden Loan Documents or
any other Indebtedness permitted under Section 7.01, (b) customary provisions in
leases, subleases, licenses and other contracts restricting the assignment
thereof, (c) applicable law, (d) Intra-Company Debt, (e) (i) ordinary course
restrictions in joint venture agreements limiting the payment of distributions
to the joint venturers (subject to Section 6.17), and (ii) the DevCo LLC
Agreement, (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,
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and (iii) limitations of 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 1.70:1.00.
(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".
(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)
$2,679,889,000 plus (y) 85% of the Net Issuance Proceeds of all issuances of
Stock or Partnership Units from and after June 30, 2001.
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, Xxxxxx Xxxxxxxx LLP and Deloitte &
Touche LLP.
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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 in connection with this Agreement and the Casden Credit
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;
(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
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(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
(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
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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
(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
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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 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;
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(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]
(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
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(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 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
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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 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.
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(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.
(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
98
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 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),
99
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 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
100
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 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 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
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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 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, consolidated, liquidated, or wound-up as
specifically provided in Sections 6.04 or 7.03 and after
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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, Administrative Agent may charge, for distribution to Lenders, a
reasonable amendment fee for any amendments to this Agreement made pursuant to
this Section 10.01 if such fee is necessary or, in the reasonable opinion of
Administrative Agent, desirable to effectuate any such amendment.
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.
(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
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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
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 Closing Date; and (b) to pay or reimburse
Administrative 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 or any Lender. Such costs and expenses shall
also include administrative costs of Administrative 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 10.4.
(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 10.4(b), the assignor, the
Administrative Agent and the Borrowers shall make appropriate
arrangements
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so that, if 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 10.4(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
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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; 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), 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
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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 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.
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,
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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.
(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,
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the provisions of this Agreement shall control and govern; provided that the
inclusion of 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, and 10.06 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 Casden Pledged
Collateral; (b) any administrative or investigative proceeding by any
Governmental Authority arising out of or related to a claim,
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demand, action 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 operations of Borrowers or their Affiliates; Borrowers and their Affiliates
shall rely entirely upon their own
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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 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
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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 its
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.
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.
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
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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.
10.23 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 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.
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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. Administrative Agent, 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) Administrative Agent may obtain collateral or additional
collateral; (ii) Administrative Agent may substitute for any or all collateral
regardless of whether the same type or greater or lesser value; (iii)
Administrative Agent may release any or all collateral; (iv) Administrative
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) Administrative Agent may sell or otherwise dispose of any
collateral in such manner or order as Administrative Agent determine in
accordance with the Loan Documents; (vi) Administrative Agent may fail to
perfect, fail to protect the priority of, and fail to ensure any or all liens or
encumbrances; (vii) Administrative 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 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 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 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 may take or fail to take
any other action with respect to any Loan Document or any Borrower; and (xvi)
Administrative 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.
116
(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 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
117
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 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 the Borrower hereunder shall
continue in full force and effect notwithstanding any
absorption, merger, amalgamation or any other change
whatsoever in the
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name, constitution or place of formation of any of the
Borrower or the Administrative Agent or Lender.
(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 the Administrative Agent, 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, 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 Borrower 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 Borrower therefor.
10.26 LENDER COVENANT.
Each Lender hereby covenants and agrees that it shall notify Administrative
Agent, in writing, immediately upon becoming a lender under the Casden Credit
Agreement and upon any Affiliate becoming a Lender under the Casden Credit
Agreement.
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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) take such
actions as shall be required to release its security interest in any Pledged
Collateral being Disposed of in such Disposition, and 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) take such actions as shall be required to release its security interest
in all Pledged Collateral, and to release all guarantee obligations under any
Loan Document. 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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IN WITNESS WHEREOF, the parties hereto have caused this Agreement to be duly
executed as of the date first above written.
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/ XXXXXXX XXXX
-------------------------------------
Xxxxxxx Xxxx
Executive Vice President
BANK OF AMERICA, N.A., as
Administrative Agent
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
Vice President
BANK OF AMERICA, N.A., as
Issuing Lender and a Lender
By: /s/ XXXXX X. XXXXXX
-------------------------------------
Xxxxx X. Xxxxxx
Vice President
FLEET NATIONAL BANK, as Syndication Agent
and a Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
Title: Director
THE BANK OF NOVA SCOTIA, acting through its
San Francisco Agency, as Lender
By: /s/ XXXX XXXXXX
-------------------------------------
Name: Xxxx Xxxxxx
Title: Managing Director
CALIFORNIA BANK & TRUST, a California
banking corporation, as a Lender
By: /s/ XXXXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxxxx X. Xxxxx
Title: AVP. officer
XX XXXXXX CHASE BANK (formerly known as The
Chase Manhattan Bank), a New York banking
corporation, as a Lender
By: /s/ XXXX X. MIX
-------------------------------------
Name: Xxxx X. Mix
Title: Vice President
FIRST UNION NATIONAL BANK, as a Lender
By: /s/ XXX X. XXXX
-------------------------------------
Name: Xxx X. Xxxx
Title: Director
KEYBANK NATIONAL ASSOCIATION, as a Lender
By: /s/ [ILLEGIBLE]
-------------------------------------
Name: [ILLEGIBLE]
Title: Vice President
SOUTHTRUST BANK, N.A., as a Lender
By: /s/ XXX XXXX
-------------------------------------
Name: Xxx Xxxx
Title: Assistant VP
U.S. BANK NATIONAL ASSOCIATION, as a Lender
By: /s/ XXX X. XXXXX
-------------------------------------
Name: Xxx X. Xxxxx
Title: Vice President
NEW YORK LIFE INSURANCE CORP., as a Lender
By: /s/ XXXXXXX X. XXXXX
-------------------------------------
Name: Xxxxxxx X. Xxxxx
Title: Real Estate Vice President
