EXHIBIT 10.32
INTERIM CREDIT AGREEMENT
AMONG
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.
AND
NHP MANAGEMENT COMPANY,
AS BORROWERS,
▇▇▇▇▇▇ COMMERCIAL PAPER INC.
AS ADMINISTRATIVE AGENT,
▇▇▇▇▇▇ COMMERCIAL PAPER INC.,
AS SYNDICATION AGENT
AND
THE OTHER FINANCIAL
INSTITUTIONS PARTY HERETO
DATED AS OF MARCH 11, 2002
AND
▇▇▇▇▇▇ BROTHERS INC.
AS
SOLE LEAD ARRANGER AND BOOKRUNNER
TABLE OF CONTENTS
SECTION I. DEFINITIONS AND ACCOUNTING TERMS ........................... 1
1.01. Defined Terms ............................................. 1
1.02. Use of Certain Terms ...................................... 34
1.03. Accounting Terms .......................................... 35
1.04. Rounding .................................................. 35
1.05. Exhibits and Schedules .................................... 35
1.06. References to Agreements, Exhibits and Laws ............... 35
SECTION II. THE COMMITMENTS AND EXTENSIONS OF CREDIT ................... 35
2.01. Loans ..................................................... 35
2.02. Borrowings, Conversions and Continuations of Loans ........ 36
2.03. Prepayments; Mandatory Amortization; Additional
Mandatory Prepayments ..................................... 37
2.04. Pro Rata Treatment and Payments ........................... 39
2.05. Principal and Interest; Default Rate ...................... 39
2.06. Fees ...................................................... 39
2.07. Computation of Interest and Fees .......................... 40
2.08. Making Payments ........................................... 40
2.09. Funding Sources ........................................... 41
2.10. Collateral ................................................ 41
2.11. Extension of Maturity Date ................................ 41
SECTION III. TAXES, YIELD PROTECTION AND ILLEGALITY ..................... 42
3.01. Taxes ..................................................... 42
3.02. Illegality ................................................ 44
3.03. Inability to Determine Rates .............................. 45
3.04. Increased Cost and Reduced Return; Capital Adequacy ....... 45
3.05. Breakfunding Costs ........................................ 46
3.06. Matters Applicable to all Requests for Compensation ....... 46
3.07. Survival .................................................. 46
SECTION IV. CONDITIONS PRECEDENT TO EXTENSION OF CREDIT ................ 47
4.01. Conditions of Initial Extension of Credit ................. 47
SECTION V. REPRESENTATIONS AND WARRANTIES ............................. 50
5.01. Existence and Qualification; Power ........................ 50
5.02. Power; Authorization; Enforceable Obligations ............. 50
5.03. No Legal Bar .............................................. 51
5.04. Financial Statements; No Material Adverse Effect .......... 51
5.05. Litigation ................................................ 52
5.06. No Default ................................................ 52
5.07. Ownership of Property; Liens .............................. 52
5.08. Taxes ..................................................... 52
5.09. Margin Regulations; Investment Company Act; Public
Utility Holding Company Act; REIT and Tax Status;
Stock Exchange Listing .................................... 53
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5.10. ERISA Compliance .......................................... 53
5.11. Intangible Assets ......................................... 55
5.12. Compliance With Laws ...................................... 55
5.13. Environmental Compliance .................................. 55
5.14. Insurance ................................................. 56
5.15. Omitted ................................................... 56
5.16. Subsidiaries; Interests in Other Entities; Changes in
Organizational Structure .................................. 56
5.17. Matters Relating to Pledged Collateral .................... 56
5.18. Disclosure ................................................ 57
SECTION VI. AFFIRMATIVE COVENANTS ...................................... 58
6.01. Financial Statements ...................................... 58
6.02. Certificates, Notices and Other Information ............... 59
6.03. Payment Obligations ....................................... 61
6.04. Preservation of Existence ................................. 62
6.05. Maintenance of Properties ................................. 62
6.06. Maintenance of Insurance .................................. 62
6.07. Compliance With Laws ...................................... 63
6.08. Inspection Rights ......................................... 63
6.09. Keeping of Records and Books of Account ................... 63
6.10. Compliance with ERISA ..................................... 63
6.11. Compliance With Agreements ................................ 63
6.12. Use of Proceeds ........................................... 64
6.13. Communication with Accountants ............................ 64
6.14. Maintenance of REIT Status; Stock Exchange Listing ........ 64
6.15. Solvency .................................................. 64
6.16. Further Assurances ........................................ 64
6.17. Unconsolidated Partnership Distributions .................. 65
SECTION VII. NEGATIVE COVENANTS ......................................... 65
7.01. Indebtedness .............................................. 65
7.02. Liens and Negative Pledges ................................ 68
7.03. Fundamental Changes ....................................... 69
7.04. Dispositions .............................................. 71
7.05. Investments ............................................... 71
7.06. Lease Obligations ......................................... 72
7.07. Restricted Payments ....................................... 72
7.08. ERISA ..................................................... 73
7.09. Change in Nature of Business .............................. 73
7.10. Transactions with Affiliates .............................. 73
7.11. Use of Proceeds ........................................... 74
7.12. [Reserved] ................................................ 74
7.13. Limitations on Upstreaming ................................ 74
7.14. Financial Covenants ....................................... 74
7.15. Change in Auditors ........................................ 75
7.16. Special Covenants Relating to the REIT .................... 75
7.17. Taxation of AIMCO ......................................... 76
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SECTION VIII. EVENTS OF DEFAULT AND REMEDIES ............................. 76
8.01. Events of Default ......................................... 76
8.02. Remedies Upon Event of Default ............................ 81
SECTION IX. ADMINISTRATIVE AGENT ....................................... 82
9.01. Appointment and Authorization of Administrative Agent ..... 82
9.02. Delegation of Duties ...................................... 82
9.03. Liability of Administrative Agent ......................... 83
9.04. Reliance by Administrative Agent .......................... 83
9.05. Notice of Default ......................................... 84
9.06. Credit Decision; Disclosure of Information by
Administrative Agent ...................................... 84
9.07. Indemnification of Administrative Agent ................... 85
9.08. Administrative Agent in Individual Capacity ............... 85
9.09. Successor Administrative Agent ............................ 85
SECTION X. MISCELLANEOUS .............................................. 86
10.01. Amendments; Consents ...................................... 86
10.02. Transmission and Effectiveness of Notices and Signatures .. 87
10.03. Attorney Costs, Expenses and Taxes ........................ 88
10.04. Binding Effect; Assignment ................................ 89
10.05. Set-Off ................................................... 92
10.06. Sharing of Payment ........................................ 92
10.07. No Waiver; Cumulative Remedies ............................ 93
10.08. Usury ..................................................... 93
10.09. Counterparts .............................................. 93
10.10. Integration; Conflicts with Other Loan Documents .......... 94
10.11. Nature of Lenders' Obligations ............................ 94
10.12. Survival of Representations and Warranties ................ 94
10.13. Indemnity by Borrowers .................................... 94
10.14. Nonliability of Lenders ................................... 95
10.15. No Third Parties Benefited ................................ 96
10.16. Severability .............................................. 96
10.17. Headings .................................................. 96
10.18. Time of the Essence ....................................... 96
10.19. GOVERNING LAW ............................................. 96
10.20. WAIVERS OF JURY TRIAL ..................................... 97
10.21. Submission To Jurisdiction; Waivers ....................... 97
10.22. Borrowers' Obligations .................................... 97
10.23. Confidentiality ........................................... 101
10.24. The Lead Arranger and the Syndication Agent ............... 102
10.25. Release of Collateral and Guarantee Obligations ........... 102
10.26. Delivery of Lender Addenda ................................ 102
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EXHIBITS
FORM OF
A Request for Extension of Credit
B Compliance Certificate
C Note
D Notice of Assignment and Acceptance
E [Intentionally omitted]
F Opinion of Counsel
G Borrowers Pledge Agreement
H-1 Guaranty (Casden Guarantors)
H-2 Guaranty (REIT and Non-Casden Guarantors)
I Intra-Company Loan Subordination Agreement
J Intercreditor Agreement
K Lender Addendum
SCHEDULES
1.01A Construction/Renovation Properties
1.01B GP Loans
1.01C Guarantors
1.01D Management Entities
1.01E Collateral
1.01F Ratings
5.03A Transfer Restrictions in Organization Documents
5.03B 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 Addresses for Notices
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INTERIM CREDIT AGREEMENT
This INTERIM CREDIT AGREEMENT ("Agreement") is entered into as of
March 11, 2002, by and among APARTMENT INVESTMENT AND MANAGEMENT COMPANY, a
Maryland corporation ("REIT"), AIMCO PROPERTIES, L.P., a Delaware limited
partnership ("AIMCO") and NHP MANAGEMENT COMPANY, a District of Columbia
corporation ("NHP Management") (collectively, REIT, AIMCO and NHP Management are
defined as "Borrowers"), each lender from time to time party hereto
(collectively, "Lenders" and individually, a "Lender"), and ▇▇▇▇▇▇ COMMERCIAL
PAPER INC. ("LCPI"), as Administrative Agent ("Administrative Agent"), and as a
Lender and Syndication Agent.
RECITALS
WHEREAS, the REIT and the other Persons party thereto have entered
into the 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 Merger
Agreement, the "Transaction"); and
WHEREAS, the Lenders have agreed to provide a term loan facility of
up to $287,000,000 to Borrowers to (i) finance the Transaction, (ii) fund
initial capital expenditures relating to the Transaction, (iii) pay related fees
and expenses, (iv) fund certain loan advances for the development of the Park La
Brea and Westwood Village properties and (v) fund other working capital
purposes;
NOW, THEREFORE, in consideration of the mutual covenants and
agreements herein contained, the parties hereto covenant and agree as follows:
SECTION I. DEFINITIONS AND ACCOUNTING TERMS
1.01. Defined Terms.
As used in this Agreement, the following terms shall have the
meanings set forth below:
"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 ▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇. ▇▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
as sellers, together with any amendments or modifications thereto approved by
Administrative Agent in writing.
"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 Loan Documents for such
period), plus (iii) dividends accrued (whether or not
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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 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 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 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 ▇▇▇▇▇▇ Commercial Paper Inc., 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 on 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, ▇▇▇▇▇▇ Brothers Inc.), and the officers,
directors, employees, agents and attorneys-in-fact of such Persons and
Affiliates.
"Affiliate", as applied to any Person, means any other Person
directly or indirectly controlling, controlled by, or under direct or indirect
common control with, that Person. A Person shall be deemed to be "controlled by"
any other Person if such other Person possesses, directly or indirectly, power
(a) to vote 10% or more of the securities (on a fully diluted basis) 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 Interim Credit Agreement, as amended,
restated, extended, supplemented or otherwise modified in writing from time to
time.
"AIMCO" is defined in the preamble.
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"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, with respect to Base Rate Loans, 2.00%
per annum, and with respect to Offshore Rate Loans, 3.00% per annum, provided
that in each case, if at any time (i) any credit rating of either AIMCO's or the
REIT's obligations under their respective senior unsecured debt or either
AIMCO's or the REIT's corporate credit rating is downgraded from its current
level on the Closing Date as set forth on Schedule 1.01F by either ▇▇▇▇▇'▇ or
S&P or (ii) the credit rating of this Agreement, if rated, is downgraded from
its initial rating by either ▇▇▇▇▇'▇ or S&P, the Applicable Margin for Base Rate
Loans shall be 2.25% per annum and the Applicable Margin for Offshore Rate Loans
shall be 3.25% for the period beginning on the effective date of such downgrade
until the date such rating is at least the level in effect on the Closing Date
or such initial rating, as the case may be.
"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.
"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 Prime Rate in effect
for such day. "Prime Rate" shall mean the prime lending rate as set forth on the
British Banking Association Telerate Page 5 (or such other comparable page as
may, in the opinion of the Administrative Agent, replace such page for the
purpose of displaying such rate), as in effect form time to time. Any change in
the Base Rate due to a change in the Federal Funds Rate or the Prime Rate shall
be effective as of the opening of business on the effective day of such change
in the Federal Funds Rate or the Prime Rate, respectively.
"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 the REIT for or on behalf of AIMCO or NHP Management, as
applicable.
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"Borrower Party" means Borrowers or any Person other than (x)
Lenders and any Affiliates of Lenders, Administrative Agent, Syndication Agent,
or the Lead Arranger from time to time party to a Loan Document and (y) the
Lenders (as defined in the Revolving 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, substantially in the form of Exhibit G annexed hereto, as such Borrowers
Pledge Agreement may thereafter be amended, supplemented or otherwise modified
from time to time.
"Borrowing" and "Borrow" each mean, a borrowing hereunder consisting
of Loans of the same type made on the same day and, other than in the case of
Base Rate Loans, having the same Interest Period.
"Business Day" means any day other than a Saturday, Sunday, or other
day on which commercial banks are authorized to close under the Laws of, or are
in fact closed in, the state where Lender's lending office is located and, if
such day relates to any Offshore Rate Loan, means any such day on which dealings
in Dollar deposits are conducted by and between banks in the offshore Dollar
interbank market.
"Capital Expenditures" means, for any period and with respect to any
Person, the aggregate of all expenditures by such Person for the acquisition or
leasing of fixed or capital assets or additions to equipment or Property
(including replacements, capitalized repairs and improvements during such
period, but excluding Enhancements and Initial Capital Expenditures) which
should be capitalized under GAAP on a consolidated balance sheet of such Person.
For the purpose of this definition, the purchase price of equipment which is
purchased simultaneously with the trade-in of existing equipment owned by such
Person or with insurance proceeds shall be included in "Capital Expenditures"
only to the extent of the gross amount of such purchase price, less the credit
granted by the seller of such equipment for such equipment being traded in at
such time, or the amount of such proceeds, as the case may be.
"Capital Expenditure Reserve" means as of any date of determination,
the product of (a) $400 per apartment unit (subject to adjustment as provided
below), and (b) the sum of (i) the number of apartment units owned by Borrowers,
any Guarantors or any of their Wholly-Owned Subsidiaries during such period plus
(ii) the number of apartment units that constitute Non-Wholly Owned Properties
which is proportionate to the ownership interest of any Borrower, any Guarantors
or any of their Wholly-Owned Subsidiaries in such Non-Wholly Owned Properties,
measured at the end of the most recent calendar quarter ending prior to such
date of determination. Administrative Agent shall review the Capital Expenditure
Reserve as of the last day of each calendar year and, based on such review,
shall adjust the per apartment unit charge in clause (a) hereof to the extent
necessary to cause the Capital Expenditure Reserve to equal or exceed the
Borrowers', the 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.
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"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 and (i) directly or indirectly acquired by, or merged into,
Borrowers and/or their Affiliates from time to time as provided in the Merger
Agreement or (ii) which, after giving effect to the Transaction, will be
directly or 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 Merger Agreement, including, without limitation
the "OP Unit Contribution Agreement" and "Casden Contribution Agreement" (as the
foregoing terms are defined in the 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,
including, without limitation, pursuant to the Merger Agreement and the
interests to be acquired pursuant to the "OP Unit Contribution Agreement" and
"Casden Contribution Agreement" (as the foregoing terms are defined in the
Merger 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 Pledged Collateral" means the equity interests in DevCo,
NAPICO and the Casden Guarantors owned by any of the Borrowers or their
Affiliates and any Park La Brea and Westwood Village Properties Notes, now
existing, in the future existing, or existing on the Closing Date, including,
without limitation, the Casden Assets 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;
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(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 ▇▇▇▇▇'▇;
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 any balances of the Borrowers or any
Subsidiary held by any Lender or lenders under the Revolving 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 ▇▇▇▇▇'▇ 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-Borrower" is defined in Section 10.22.
"Code" means the Internal Revenue Code of 1986, as amended from time
to time.
"Collateral" means all Property of the Borrower Parties, now owned
or hereafter acquired, upon which a Lien is purported to be created by any
Collateral Document, including, without limitation, the Casden Pledged
Collateral and the Non-Casden Pledged Collateral.
"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" is a collective reference to the Commitments
of the Lenders. The original aggregate Combined Commitments on the Closing Date
are $287,000,000.
"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 on Schedule 1 to the Lender Addendum delivered by such Lender,
or, as the case may be, in the Assignment and Acceptance pursuant to which such
Lender became a party hereto, as the same may be changed from time to time
pursuant to the terms hereof.
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"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 Borrowers and their respective Subsidiaries on a
consolidated basis determined in conformity with GAAP.
"Consolidated Operations EBITDA" means, for any period, the sum of
the amounts for such period of (a) Consolidated Net Income, plus (b)
Consolidated Interest Expense, plus (c) total depreciation expense, plus (d)
total amortization expense, plus (e) provisions for taxes based on income, plus
(f) other non-cash items or non-cash charges reducing Consolidated Net Income
arising in the ordinary course of business (including impairment charges against
goodwill) less other non-cash items increasing Consolidated Net Income arising
in the ordinary course of business minus (g) to the extent included in
Consolidated Net Income, the sum of (1) Borrowers' and their Subsidiaries'
earnings or losses from unconsolidated partnerships and unconsolidated
subsidiaries plus (2) income from Borrowers' and their Subsidiaries' minority
interests in other entities plus (3) interest income from intercompany notes,
all of the foregoing, except as otherwise noted, as determined on a consolidated
basis for Borrowers and their Subsidiaries in conformity with GAAP.
"Construction/Renovation" means any New Construction or any
substantial rehabilitation, renovation and/or expansion by Borrowers or any of
their Subsidiaries or unconsolidated subsidiaries of any multi-family Property
which, in the case of rehabilitation, renovation or expansion, involves the
repositioning or upgrading of such multi-family Property with respect to
comparable multi-family properties located in the proximate geographic area.
Properties under Construction/Renovation as of the Closing Date are listed on
Schedule 1.01A.
"Contingent Acquisition Notes" means, collectively, (a) the certain
Promissory Note from AIMCO, as maker, in favor of XYZ Holdings LLC ("XYZ"), as
holder, pursuant to a Tri-Party Agreement secured by a pledge of the membership
interests in ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC owned by a Subsidiary of the REIT, (b) the
certain Promissory Note from AIMCO, as maker, in favor of XYZ, as holder,
pursuant to a Tri-Party Agreement secured by a pledge of the membership
interests in Casden Park La Brea A LLC owned by a Subsidiary of the REIT, (c)
the certain Promissory Note from AIMCO, as maker, in favor of XYZ, as holder,
pursuant to a Tri-
8
Party Agreement secured by a pledge of the membership interests in Casden Park
La Brea B LLC owned by a Subsidiary of the REIT, (d) the certain Promissory Note
from AIMCO, as maker, in favor of XYZ, as holder, pursuant to a Tri-Party
Agreement secured by a pledge of the membership interests in Casden Park La Brea
C LLC owned by a Subsidiary of the REIT, provided that, the aggregate principal
amount of the Contingent Acquisition Notes shall not exceed $655,000,000 and
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 Notes" 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.
"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.
"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.
9
"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.
"Development Properties" means the Properties located in Park La
Brea, Los Angeles, California and Westwood Village, Los Angeles, California.
"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
Borrowers or any Subsidiary thereof.
"Dollar" and "$" means lawful money of the United States of America.
"EBITDA" means, for any period, the sum, determined in accordance
with GAAP, of the following, for any Person (a) the net income (or net loss) of
such Person during such period plus (b) all amounts on a consolidated basis
treated as expenses or non-cash charges for depreciation, Interest Expense and
the amortization of intangibles of any kind to the extent included in the
determination of such net income (or loss) (including impairment charges against
goodwill), plus (c) all accrued taxes on or measured by income to the extent
included in the determination of such net income (or loss); provided, however,
that net income (or loss) shall be computed for these purposes without giving
effect to (i) extraordinary losses or extraordinary gains (including gains or
losses from the sale of Properties), (ii) any amortization of capitalized
financing expenses or charges related to restructuring of Indebtedness
(excluding such expenses or charges in connection with renewals or extensions of
existing Indebtedness in the Ordinary Course of Business), and (iii) such
Person's minority interests in operating partnerships.
"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 a Lender; (d) another Lender; (e) any other
person which is an "accredited investor" (as defined in Regulation D under the
10
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 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
11
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.
"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.
"Extension of Credit" means (a) the Borrowing of Loans, or (b) the
Conversion or Continuation of any Loans (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 ▇▇▇▇▇▇ Commercial
Paper Inc. on such day on such transactions as determined by Administrative
Agent.
12
"Fee Letter" means the side letter dated as of January 7, 2002 by
and between Borrowers, the Arranger and the Administrative Agent.
"Finance Subsidiary" means AIMCO Properties Finance Partnership,
L.P., a Delaware limited partnership.
"Finance Subsidiary Loan" means, collectively, (i) the loan in the
amount of $95,387,690 made by the Finance Subsidiary to the REIT on or around
September 12, 1995, as evidenced by that certain Promissory Note, dated as of
September 12, 1995, executed by the REIT, in favor of the Finance Subsidiary,
which loan has been assumed by AIMCO pursuant to that certain Redemption
Agreement, dated as of April 15, 1996, between the REIT and AIMCO, among others,
and (ii) the loan in the amount of $3,000,000 made by the Finance Subsidiary to
the REIT on or around September 6, 1995, as evidenced by that certain Promissory
Note, dated as of September 6, 1995, executed by the REIT, in favor of the
Finance Subsidiary.
"Fixed Charge Coverage Ratio" means, as of any date of
determination, the ratio of (a) Adjusted Total Corporate EBITDA for the four
fiscal quarter period ending on such date to (b) Fixed Charges during such
period.
"Fixed Charges" means, for any period, the sum of (i) Total Interest
Expense for such period, plus (ii) Total Scheduled Amortization for such period
(excluding Scheduled Amortization for Borrowers, Guarantors and their respective
Subsidiaries provided for hereunder and additional amortization under the 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 Borrowers or any of their Subsidiaries during such period.
"Funds From Operations" means, with respect to Borrowers and their
Subsidiaries on a consolidated basis, net income calculated in accordance with
GAAP, excluding gains or losses from debt restructuring and sales of property,
plus real estate depreciation and amortization (excluding amortization of
financing costs), plus amortization associated with the purchase of property
management companies, and after adjustments for unconsolidated partnerships and
joint ventures (with adjustments for unconsolidated partnerships and joint
ventures calculated to reflect funds from operations on the same basis) together
with adjustments for the non-cash deferred portion of any income tax provision
for unconsolidated subsidiaries and the payment of dividends on preferred Stock,
as interpreted by the National Association of Real Estate Investment Trusts in
its March, 1995, White Paper on Funds From Operations.
"GAAP" means generally accepted accounting principles and practices
at any date of determination in respect of a business conducting a business the
same as or similar to that of Borrowers, including, without limitation, those
set forth in applicable bulletins, opinions, pronouncements, statements and
interpretations issued by the Accounting Principles Board, the American
Institute of Certified Public Accountants and the Financial Accounting Standard
Board, which are applicable to the circumstances as of the date of
determination.
"Governing State" means the State of New York.
"Governmental Authority" means (a) any international, foreign,
federal, state, county or municipal government, or political subdivision
thereof, (b) any governmental or quasi-
13
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 Loans" means that certain Indebtedness loaned by AIMCO to its
Affiliates, whether secured or unsecured, evidenced by promissory 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:
(a) 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;
(b) GP Loans valued at net realizable value as of such date of
determination determined in accordance with GAAP;
(c) 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%;
(d) with respect to all real estate assets wholly or partially owned
by such Person(s) on such date of determination, but acquired less than four
calendar quarters but at least one calendar quarter preceding such date of
determination (other than Real Property Assets Under Development), the Adjusted
Total NOI attributable to such real estate assets for the number of full
calendar quarters that such Person(s) owned such assets measured on an
annualized basis and divided by 9.5%;
(e) 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;
(f) the gross book value of Real Property Assets Under Development
as of such date of determination; and
(g) an amount equal to 400% of Management EBITDA for the four
consecutive fiscal quarter period preceding such date of determination.
"Guarantor Subsidiary" means each Subsidiary of Borrowers that
executes and delivers a counterpart of the applicable Guaranty on the Closing
Date or from time to time
14
thereafter pursuant to Section 6.16(c), and collectively are referred to herein
as the "Guarantor Subsidiaries."
"Guarantors" means, collectively, the Guarantor Subsidiaries and the
Casden Guarantors, and each is a "Guarantor." The Casden Guarantors as of the
Closing Date are set forth on Part B of Schedule 1.01C and all other Guarantors
as of the Closing Date are set forth in Part A of Schedule 1.01C attached
hereto.
"Guaranty" means a guaranty of the Obligations, in the form of
Exhibits H-1 and H-2 attached hereto, and any documents relating to such
guaranty as Administrative Agent requires, duly executed by the Guarantors, as
applicable, together with the guaranties delivered pursuant to Section 6.16(c),
and "Guaranties" means all of such guaranties collectively.
"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, 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.
15
"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, 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 and any prepaid rent (as such terms are defined under GAAP)
and that portion of the Contingent Acquisition Notes, 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 and the
Administrative Agent and the
16
borrowers party to the Revolving Credit Agreement and Bank of America, N.A. in
its capacity as Revolver Administrative Agent, attached hereto as Exhibit J, as
amended from time to time.
"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, 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 one month, interest shall also be paid on the date which falls
every month after the beginning of such Interest Period; and (c) as to all
Loans, the Maturity Date; provided further that interest accruing at the Default
Rate shall be payable from time to time at any time upon demand of
Administrative Agent.
"Interest Period" means, for each Offshore Rate Loan, (a) initially,
the period commencing on the date such Offshore Rate Loan is disbursed,
Continued as, or Converted into, an Offshore Rate Loan and (b) thereafter, the
period commencing on the last day of the 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 ten (10) Interest Periods in effect at any
time.
17
"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.
"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.
"Lead Arranger" means ▇▇▇▇▇▇ Brothers Inc., in its capacity as sole
lead arranger hereunder.
"Lender" means each lender from time to time party hereto.
"Lender Addendum" means with respect to any initial Lender, a Lender
Addendum, substantially in the form of Exhibit K, to be executed and delivered
by such Lender on the Closing Date as provided in Section 10.26.
18
"Lending Office" means, as to any Lender, the office or offices of
such Lender described in such Lender's Lender Addendum, or such other office or
offices as such Lender may from time to time notify Borrowers and Administrative
Agent.
"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.
"Loan Percentage" means as to any Lender at any time, the percentage
which such Lender's Commitment then constitutes of the Combined Commitments (or,
at any time after the Closing Date, the percentage which the aggregate principal
amount of such Lender's Loans then outstanding constitutes of the aggregate
principal amount of the Loans then outstanding).
"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.
19
"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.
"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 has or could reasonably be expected to have any material adverse effect
whatsoever upon (a) the validity or enforceability of any Loan Document or the
rights and remedies of the Administrative Agents and the Lenders thereunder, or
(b) 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 (c) 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 March __, 2004, as it may be earlier
terminated or extended in accordance with the terms hereof.
"Merger Agreement" means that certain Agreement and Plan of Merger
dated as of December 3, 2001 among the REIT, Casden Properties Inc. and XYZ
Holdings LLC in effect on the date hereof, including all documents executed in
connection therewith or attached as exhibits thereto.
"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:
MULTIPLES IN
EXCESS
TYPE OF ACTION MINIMUM AMOUNT THEREOF
Borrowing, prepayment of, or
Conversion into, Base Rate Loans $2,000,000 $ 500,000
Borrowing, prepayment of,
Continuation of, or Conversion
into, Offshore Rate Loans $5,000,000 $1,000,000
Assignments (other than with
respect to the entire amount
of a Lender's Commitment, in
which event the Minimum Amount
shall be such Commitment amount) $1,000,000 $ 500,000
20
"Moody's" means ▇▇▇▇▇'▇ 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.
"NAPICO" means National Partnership Investment Corp., a California
corporation.
"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, 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
21
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 refinanced by such Refinancing
Indebtedness (including any amounts satisfying AIMCO's obligations under the
Contingent Acquisition Notes), 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-Casden Entities" means any Person other than Casden and the
Casden Guarantors.
"Non-Casden Pledged Collateral" means any and all collateral pledged
to secure the Obligations of Borrowers under the Revolving Loan Documents and
which does not constitute Casden Pledged Collateral, as listed on Part B of
Schedule 1.01E.
22
"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.
"Note" means a promissory note made by Borrowers in favor of a
Lender evidencing Loans made by such Lender, substantially in the form of
Exhibit C (collectively, the "Notes").
"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 Borrowing" means any Loan or portion thereof designated or
redesignated by Borrowers as an Offshore Borrowing pursuant to Section 2.
"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 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
23
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 banks in
London to major banks in the offshore dollar market at their request at
approximately 11:00 a.m. (London time) two (2) 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 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 a Borrower or another Wholly-Owned Subsidiary of
Borrowers; and
(e) Dispositions of Property or Properties which generate Net
Disposition Proceeds of less than $1,000,000 per Property and $10,000,000 in the
aggregate, provided the aggregate amount of Net Disposition Proceeds generated
by all such Dispositions shall not exceed $10,000,000 during any four
consecutive fiscal quarter period;
provided, however, that no such Disposition shall be for less than the fair
market value of the property being disposed of.
"Ordinary Course Indebtedness" means:
(a) Indebtedness under the Loan Documents;
(b) Indebtedness under bonds supporting utility deposits or
insurance or other comparable security deposits or property taxes, in each case
incurred in the Ordinary Course of Business; and
(c) Indebtedness arising from the honoring of a check, draft or
similar instrument against insufficient funds.
24
"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;
(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
25
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 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.
"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 Oxford Borrowers and/or their Affiliates as
provided in the Acquisition Agreement from time to time, collectively.
"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 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 Acquisition Agreement); provided, however
"Oxford Assets" shall not include any assets, rights or interests in Oxford held
by Borrowers, their Subsidiaries or their 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 not exceeding
$70,000,000 at any time outstanding to finance the development, construction and
stabilization of the Park La Brea and
26
Westwood Village Properties as contemplated in the Merger Agreement, provided
that such loans shall be represented by the Park La Brea and Westwood Village
Properties Notes which shall be pledged to Administrative Agent pursuant to the
Borrowers Pledge Agreement.
"Park La Brea and Westwood Village Properties Notes" means,
collectively, (i) 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), (ii) 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),
(iii) 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 (iv) 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").
"Park La Brea Construction Debt" means Recourse Indebtedness of
AIMCO to be incurred in connection with AIMCO performing its obligations under
the Contingent Acquisition Notes 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 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 which is (or was within the
last five years) maintained or contributed to by a Borrower Party or by any
trade or business (whether or
27
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 the Casden Pledged Collateral and/or the
Non-Casden Pledged Collateral, as applicable.
"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 multiple
employer 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 Multiemployer Plan.
"Real Estate Company" means each of ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ LLC, ▇▇▇▇▇▇ 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 (6) 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
28
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).
"Register" is defined in Section 10.04(c).
"REIT" means Apartment Investment and Management Company, a Maryland
corporation.
"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 for an
Extension of Credit 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.
"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 outstanding,
Lenders holding Loans aggregating more than 50% of the aggregate outstanding
principal amount of the Loans.
"Requisite Notice" means, unless otherwise provided herein,
irrevocable written notice to the intended recipient or 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 (x) in the case of the Lenders, each Lender as set forth in an
administrative questionnaire delivered to the Administrative Agent or on
Schedule I to the Lender Addendum to which such Lender is a party or, in the
case of a Lender which becomes a party to this Agreement pursuant to an
Assignment and Acceptance, in such Assignment and Acceptance, (y) in the case of
the Administrative Agent, the Administrative Agent's Office and (z) in the case
of Borrowers, Borrowers at the address specified in Schedule 10.02 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
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Section 10.02. Any notice sent by other than hardcopy shall be promptly
confirmed by a telephone call to the recipient and, if requested by
Administrative Agent, by a manually-signed hardcopy thereof.
"Requisite Time" means, with respect to any of the actions listed
below, the time and date set forth below opposite such action (all times are
local time (standard or daylight) as observed in the Governing State):
TYPE OF ACTION TIME DATE OF ACTION
Delivery of Request for Extension
of Delivery Credit for, or notice
for:
Borrowing of, prepayment of, or 12:00 noon 1 Business Day prior to such
Conversion into, Base Rate Loans Borrowing, prepayment or
Conversion
Borrowing of, prepayment of, 12:00 noon 3 Business Days prior to such
Continuation of, or Conversion Borrowing, prepayment,
into, Offshore Rate Loans Conversion or Continuation
Payments by Lenders or Borrowers 12:00 noon On date payment is due
to 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);
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(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 Administrative Agent" means the Administrative Agent under
the Revolving Loan Documents.
"Revolving Credit Agreement" means that certain Fourth Amended and
Restated Credit Agreement dated as of March __, 2002, as further amended from
time to time in accordance with the Intercreditor Agreement between AIMCO and
the other borrowers parties thereto and the lenders party thereto and any
renewals, refinancings or replacement thereof permitted under Section 7.01(j).
"Revolving Loan Documents" means the Revolving Credit Agreement and
the "Loan Documents" as defined therein, as amended from time to time in
accordance with the Intercreditor Agreement.
"Revolver Payment Default" is defined in the Intercreditor
Agreement.
"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
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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
outstanding, Lenders holding Loans aggregating more than 66-2/3% of the
aggregate outstanding principal amount of the Loans.
"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,
32
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.
"Syndication Agent" means, as of the Closing Date, ▇▇▇▇▇▇ Commercial
Paper Inc. The Syndication Agent shall have no responsibilities or duties in
addition to those of a Lender as provided under this Agreement.
"Threshold Amount" means $5,000,000.
"To The Best Knowledge Of" means, when modifying a representation,
warranty or other statement of any Person, that the fact or situation described
therein is known by such Person (or, in the case of a Person other than a
natural Person, known by any officer of such Person) making the representation,
warranty or other statement, or with the exercise of reasonable due diligence
under the circumstances (in accordance with the standard of what a reasonable
Person in similar circumstances would have done) would have been known by such
Person (or, in the case of a Person other than a natural Person, would have been
known by an officer of such Person).
"Total Combined Debt" means, as of any date of determination and
without double counting any item, the sum of (a) the aggregate amount of all
Indebtedness of Borrowers and their respective consolidated Subsidiaries as of
such date, plus (b) the Borrowers' and their Subsidiaries' pro-rata share of all
Indebtedness of any unconsolidated Person in which they have an equity interest.
Notwithstanding the foregoing, Intra-Company Debt, accounts payable, security
deposits, accrued liabilities and prepaid rents shall be excluded from the
calculation of "Total Combined Debt."
"Total Corporate EBITDA" means, for any period, the sum of (a)
Consolidated Operations EBITDA for such period, plus (b) Unconsolidated
Subsidiaries EBITDA for such period, plus (c) Unconsolidated Partnerships EBITDA
for such period.
"Total Interest Expense" means for any period, without double
counting any item, the sum of (a) Consolidated Interest Expense of Borrowers,
the Guarantors and their respective Subsidiaries for such period, plus (b)
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
33
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) 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.
"Transition Period" means the period beginning on the Closing Date
and ending 180 days thereafter.
"Tri-Party Agreement" means any Tri-Party and Construction
Completion Agreement dated as of _____________, 2002, among the REIT, AIMCO, XYZ
Holdings LLC, DevCo and any Real Estate Company.
"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 Borrowers' and the Guarantors' pro-rata share of each
of the following: (a) the net income (or loss) for such period taken as a single
accounting period, plus (b) Interest Expense for such period, plus (c) total
depreciation and amortization expense for such period, plus (d) other non-cash
items or non-cash charges reducing net income arising in the ordinary course of
business (including impairment charges against goodwill) less other non-cash
items increasing net income arising in the ordinary course of business during
such period minus (e) any gains with respect to the sale of any Properties, all
of the foregoing as determined in conformity with GAAP for the unconsolidated
partnerships in which any Borrower or any Guarantor has an equity interest.
"Unconsolidated Subsidiaries EBITDA" means, for any period, an
amount equal to the sum of the Borrowers' and the Guarantors' pro-rata share of
each of the following: (a) the net income (or loss) for such period taken as a
single accounting period, plus (b) Interest Expense for such period, plus (c)
provisions for taxes based on income for such period, plus (d) total
depreciation and amortization expense for such period, plus (e) other non-cash
items or non-cash charges reducing net income arising in the ordinary course of
business (including impairment charges against goodwill) less other non-cash
items increasing net income arising in the ordinary course of business during
such period minus (f) any gains with respect to the sale of any Properties, all
of the foregoing as determined in conformity with GAAP for the unconsolidated
subsidiaries in which any Borrower or any Guarantor has an equity interest.
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"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 under
the Revolving Credit Agreement 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 ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Member LLC and its direct
and indirect Subsidiaries and their respective real estate Properties.
"Wholly-Owned Subsidiary" means a Subsidiary of any Borrower 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 (A) AIMCO and/or (B) the REIT and/or (C) NHP
Management; provided, however, that where such term is qualified with respect to
a specific Person (e.g., "Wholly Owned Subsidiary of the REIT") such term means
a Subsidiary of which one hundred percent (100%) of the Stock or other equity or
other beneficial interests (in the case of Persons other than corporations) is
owned directly or indirectly by the specified Person.
1.02. Use of Certain Terms.
(a) All terms defined in this Agreement shall have the defined
meanings when used in any certificate or other document made or delivered
pursuant hereto or thereto, unless otherwise defined therein.
(b) As used herein, unless the context requires otherwise, the
masculine, feminine and neuter genders and the singular and plural include one
another.
(c) The words "herein" and "hereunder" and words of similar import
when used in this Agreement shall refer to this Agreement as a whole and not to
any particular provision of this Agreement. The word "including" when used
herein is not intended to be exclusive and means "including, without
limitation." References herein to a Section, subsection or clause shall refer to
the appropriate Section, subsection or clause in this Agreement.
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(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.
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 II. THE COMMITMENTS AND EXTENSIONS OF CREDIT
2.01. Loans.
(a) Subject to the terms and conditions set forth in this
Agreement, each Lender severally agrees to make term loans (each a "Loan") to
Borrowers on the Closing Date. Subject to the terms and conditions set forth in
this Agreement, each Lender severally agrees to Convert and Continue Loans until
the Maturity Date as Borrowers may from time to time request in an amount not to
exceed the amount of the Commitment of such Lender, and the aggregate of all
Commitments 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 Loans until the Maturity Date as set forth herein without
premium or penalty. Loans that are repaid or prepaid may not be reborrowed.
36
(b) 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. Upon request of a Lender, 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 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.
2.02. Borrowings, Conversions and Continuations of Loans.
(a) Borrowers may irrevocably request a Borrowing, and, from time
to time Conversion or Continuation of 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. The Loans made on the Closing Date shall initially be Base Rate Loans
and all 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 thereof by Requisite
Notice. In the case of a Borrowing of Loans, each Lender shall make the funds
for its Loans 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 the
applicable Borrower 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) 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.
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2.03. Prepayments; Mandatory Amortization; Additional Mandatory
Prepayments.
(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 prepay the Loans, in whole or in part in at least the Minimum
Amount therefor or in full without premium or penalty. Administrative Agent will
promptly notify each Lender thereof. Any prepayment of an Offshore Rate Loan
shall be accompanied by all accrued interest thereon, together with the costs
set forth in Section 3.05.
(b) Mandatory Amortization. Borrowers shall make mandatory
amortization payments, (i) on the date which is the first anniversary of the
Closing Date, in an amount equal to $97,000,000 less the aggregate amount of any
voluntary prepayments or mandatory prepayments made pursuant to Sections 2.03(a)
and 2.03(c), respectively, on or prior to the date of such payment and (ii) on
the Maturity Date, in an amount equal to the aggregate principal amount of all
outstanding Loans.
(c) Mandatory Prepayments.
(i) Net Issuance Proceeds. Subject to the terms of the
Intercreditor Agreement, no later than the fifth Business Day after
the date of receipt by Borrowers, the Guarantors or any of their
Subsidiaries of Net Issuance Proceeds (except any such Net Issuance
Proceeds received from the sale of partnership interests in Park La
Brea) after the Closing Date, Borrowers shall apply an aggregate
amount equal to 100% of such Net Issuance Proceeds to prepay the
Loans and pay accrued and unpaid interest thereon; provided,
however, that, upon the occurrence and during the continuation of a
Revolver Payment Default, Net Issuance Proceeds from the issuance of
Stock or Partnership Units by Non-Casden Entities are not required
to be applied to prepay the Loans provided such amounts are used to
reduce outstanding obligations under the Revolving Credit Agreement,
if any, until any such obligations are reduced to zero, and
thereafter such Net Issuance Proceeds shall be used to prepay the
Loans.
(ii) Net Disposition Proceeds. Subject to the terms of the
Intercreditor Agreement, no later than the fifth Business Day after
the date of receipt by 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, (x) with respect to any
such Net Disposition Proceeds received during the period beginning
on the Closing Date and ending on the date which is the first
anniversary of the Closing Date, 50% of such Net Disposition
Proceeds, (y) with respect to any such Net Disposition Proceeds
received thereafter, 75% of such Net Disposition Proceeds and (z)
with respect to any such Net Disposition Proceeds received from the
Disposition of any Casden Asset after the occurrence and during the
continuation of an Event of Default, 100% of such Net Disposition
Proceeds; provided, however, that, upon the occurrence and during
the continuation of a Revolver Payment Default, Net
38
Disposition Proceeds from the Disposition of any asset (other than
the Casden Assets) are not required to be applied to prepay the
Loans provided such amounts are used to reduce outstanding
obligations under the Revolving Credit Agreement, if any, until any
such obligations are reduced to zero, and thereafter such Net
Disposition Proceeds shall be used to prepay the Loans.
(iii) Net Refinancing Proceeds. Subject to the terms of the
Intercreditor Agreement, no later than the fifth Business Day after
the date of receipt by Borrowers or any of their Subsidiaries of Net
Refinancing Proceeds from any Refinancing Indebtedness, Borrowers
shall prepay the Loans and pay accrued and unpaid interest thereon
in an aggregate amount equal to, (x) on or after the date which is
one year after the Closing Date, 75% of such Net Refinancing
Proceeds and (y) with respect to any Net Refinancing Proceeds
received from the refinancing of any loan, debt or other obligations
secured in whole or in part by any Casden Asset after the occurrence
and during the continuation of an Event of Default, 100% of such Net
Refinancing Proceeds; provided, however, that, upon the occurrence
and during the continuation of a Revolver Payment Default, Net
Refinancing Proceeds from the refinancing of any loan, debt or other
obligation secured in whole or in part by any asset (other than any
Casden Asset) shall be used to first reduce outstanding obligations
under the Revolving Credit Agreement, if any, until any such
obligations are reduced to zero, and thereafter such Net Refinancing
Proceeds shall be used to prepay the Loans; and
(iv) Net Indebtedness Proceeds. Subject to the terms of the
Intercreditor Agreement, no later than the fifth Business Day after
the date of receipt by Borrowers or any of their Subsidiaries of Net
Indebtedness Proceeds from any Indebtedness incurred by the
Borrowers or 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, upon the occurrence and
during the continuation of a Revolver Payment Default, Net
Indebtedness Proceeds from any Indebtedness incurred by Borrowers
and their Subsidiaries (other than Casden or any of its
Subsidiaries) shall be used to first reduce outstanding obligations
under the Revolving Credit Agreement, if any, until any such
obligations are reduced to zero, and thereafter such Net
Indebtedness Proceeds shall be used to prepay the Loans.
(d) Application of Prepayments.
(i) Unless otherwise instructed by Borrowers, any
prepayments pursuant to Section 2.03(a), (b) or (c) 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
39
other Offshore Rate Loans then outstanding, in the forward order of
such Offshore Rate Loans' stated maturities.
(ii) Each payment received pursuant to this Section 2.03(d)
shall be applied to reduce the scheduled installments of principal
of the Loans in order of maturity.
2.04. Pro Rata Treatment and Payments. Each borrowing by Borrowers
from the Lenders hereunder shall be made pro rata according to the respective
Loan Percentages of the Lenders. Each payment in respect of principal or
interest in respect of the Loans and each payment in respect of fees payable
hereunder shall be applied to the amounts of such obligations owing to the
Lenders pro rata according to the respective amounts then due and owing to the
Lenders. Amounts prepaid on account of the Loans may not be reborrowed.
2.05. Principal and Interest; Default Rate.
(a) If not sooner paid (including repayments pursuant to Section
2.03), Borrowers agree to pay the outstanding principal amount of each Loan on
the Maturity Date.
(b) Subject to subsection (e) below, Borrowers shall pay interest
on the unpaid principal amount of each Loan (before, during and after a Default
or an Event of Default, before and after maturity, before and after judgment,
and before and after the commencement of any proceeding under any Debtor Relief
Laws) from the date borrowed until paid in full (whether by acceleration or
otherwise) on each applicable Interest Payment Date at a rate per annum equal to
the interest rate determined in accordance with the definition of such type of
Loan, plus the Applicable Margin.
(c) Each Offshore Rate Loan shall bear interest for each day
during the Interest Period with respect thereto at a rate per annum equal to the
Offshore Rate determined for such day plus the Applicable Margin. Borrowers will
have the option of Offshore Rate Loans with terms of 1, 2, 3 or 6 months, and
Borrowers will be allowed a maximum of six (6) Offshore Rate Loans at any one
time.
(d) Each Base Rate Loan shall bear interest at a rate per annum
equal to the Base Rate plus the Applicable Margin.
(e) 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.
2.06. Fees.
Borrowers shall pay to Administrative Agent certain fees as and when
designated in the Fee Letter.
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2.07. Computation of Interest and Fees.
Interest, fees and commissions payable pursuant hereto shall be
calculated on the basis of a 360-day year for the actual days elapsed, except
that, with respect to Base Rate Loans on which interest is calculated on the
basis of the Prime Rate, the interest thereon shall be calculated on the basis
of a 365- (or 366-, as the case may be) day year for the actual days elapsed.
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.
2.08. 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.
(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) Unless Borrowers 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
41
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 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.
2.09. 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.
2.10. Collateral.
The payment and performance of the Obligations are and shall be
secured by the Pledged Collateral.
2.11. 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 (i) the statements in such certificate are true and correct
and (ii) the aggregate principal amount of Loans outstanding on March __, 2004
is equal or less than $93,000,000, 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: (x) corporate
resolutions and incumbency certificates of Borrowers dated as of the Extension
Effective Date approving such extension, (y) new or amended Notes, if requested
by any new or affected Lender, evidencing such new or extended Commitments and
(z) an acknowledgment and consent from each Guarantor affirming the
effectiveness of the 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 March __, 2005.
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(d) Borrowers shall pay to Administrative Agent, for the benefit
of the Lenders, an extension fee equal to 0.30% times the aggregate principal
amount of Loans outstanding on March __, 2004. 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.
SECTION III. 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 net income, and franchise taxes (in lieu of
net income) imposed on it, by the jurisdiction under the Laws of which
Administrative Agent or such Lender is organized, maintains a Lending Office or
otherwise is engaged in a trade or 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.
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(d) Each Lender that is not a "United States person" within the
meaning of Section 7701(a)(30) of the Code (a "Foreign Lender") agrees that:
(i) such Lender shall deliver to the Administrative Agent,
prior to receipt of any payment subject to withholding under the
Code (or upon accepting an assignment of an interest herein), two
duly signed completed copies of either IRS Form W-8BEN ("Form
W-8BEN") or any successor thereto (relating to such Person and
entitling it to an exemption from, or reduction of, withholding tax
on all payments to be made to such Person by 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
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 and
(B) promptly notify the Administrative Agent of any change in
circumstances which would modify or render invalid any claimed
exemption or 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;
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(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
45
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 the Lenders 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
46
shall pay to such Lender such additional amounts as will compensate such
Lender for such increased cost or reduction.
(b) If any Lender determines that any change in or the
interpretation of any Laws have the effect of reducing the rate of return on the
capital of such Lender or compliance by such Lender (or its Lending Office) or
any corporation controlling such Lender as a consequence of such Lender's
obligations hereunder (taking into consideration its policies with respect to
capital adequacy and such Lender's desired return on capital), then from time to
time upon demand of such Lender (with a copy to Administrative Agent), Borrowers
shall pay to such Lender such additional amounts as will compensate such Lender
for such reduction.
3.05. Breakfunding Costs.
Upon demand of any Lender (with a copy to Administrative Agent) from
time to time, Borrowers shall promptly compensate such Lender for and hold such
Lender harmless from any loss, cost or expense incurred by it as a result of:
(a) any Continuation, Conversion, payment or prepayment of any
Offshore Rate Loan on a day other than the last day of the Interest Period for
such Loan (whether voluntary, mandatory, automatic, by reason of acceleration,
or otherwise); or
(b) any failure by any Borrower (for a reason other than the
failure of such Lender to make a Loan) to prepay, borrow, Continue or Convert
any Offshore Rate Loan on the date or in the amount notified by such Borrower;
including any loss of anticipated profits and any loss or expense arising from
the liquidation or reemployment of funds obtained by it to maintain such
Offshore Rate Loan or from fees payable to terminate the deposits from which
such funds were obtained. Borrowers shall also pay any customary administrative
fees charged by such Lender in connection with the foregoing.
3.06. Matters Applicable to all Requests for Compensation.
A certificate of Administrative Agent claiming compensation under
this Section 3 and setting forth the additional amount or amounts to be paid to
it hereunder shall be conclusive in the absence of clearly demonstrable error.
In determining such amount, Administrative Agent 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 IV. CONDITIONS PRECEDENT TO EXTENSION OF CREDIT.
4.01. Conditions of Initial Extension of Credit.
The obligation of each Lender to make the initial Extension of
Credit is subject to satisfaction of the following conditions precedent:
(a) Administrative Agent's receipt of the following, each of which
shall be originals unless otherwise specified, each properly executed by a
Responsible Officer, as applicable, 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, (b) an Acknowledgment
and Consent in the form attached to the Borrowers Pledge Agreement,
executed and delivered by any issuer of the Pledge Collateral that
is not a Borrower Party and (c) a Lender Addendum executed and
delivered by each Lender and accepted by Borrowers;
(ii) Notes executed by Borrowers in favor of each Lender
requesting a Note, each in a principal amount equal to such Lender's
Loan;
(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(e) and 4.01(g) have been satisfied and (B) there has been no
event or circumstances since the date of the Audited Financial
Statements which has a Material Adverse Effect;
(vi) opinions of counsel to the Borrower Parties
substantially in the form of Exhibit F hereto;
(vii) execution and delivery of the Intra-Company Loan
Subordination Agreement;
(viii) execution and delivery of the Intercreditor Agreement;
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(ix) audited consolidated financial statements of the REIT
for fiscal years 1999 and 2000, and unaudited interim consolidated
financial statements of the REIT for each fiscal quarter following
December 31, 2000, as available, which shall be reasonably
satisfactory to Lenders;
(x) written business plans for Borrowers' fiscal years
2002-2005 in such detail as reasonably required by Administrative
Agent including, among other things, written analysis of the
business and prospects of the Borrowers and their Subsidiaries for
the period from the Closing Date through the Maturity Date, which
shall be reasonably satisfactory to Lenders;
(xi) a certification and written analysis of the chief
financial officer or treasurer of Borrowers which, to the
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;
(xii) 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 Casden Pledged Collateral and a perfected second
priority security interest in the Pledged Collateral comprising the
Non-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) 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 Casden
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 Casden Pledged Collateral
evidencing any Pledged Collateral (other than the Park La Brea
and Westwood Village Properties Notes);
(xiii) 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; and
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(xiv) a pro forma consolidated balance sheet of the Borrowers
as of September 30, 2001, adjusted to give effect to the closing of
the Casden Acquisition and the financings contemplated thereby as if
such transactions had occurred as of such date.
(b) Any fees required to be paid on or before the Closing Date
shall have been paid, including all fees referred to in Section 2.06.
(c) Administrative Agent shall have received evidence satisfactory
to it that the fees and related costs incurred as of the Closing Date in
connection with the Casden Acquisition and all other transactions contemplated
thereby have not, and are not reasonably expected to, exceed $17,000,000 in the
aggregate.
(d) 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.
(e) 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) in all material respects.
(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) 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 5.03B 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
Revolving Credit Agreement, and no Default or Event of Default shall have
occurred and be continuing.
(h) 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 its 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).
(i) 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.
50
(j) Administrative Agent shall have received a fully executed (and
duly delivered) copy of the Revolving Credit Agreement and all other Revolving
Loan Documents.
(k) Borrowers shall have publicly distributed a press release
naming the Lead Arranger as its financial advisor for the Casden Acquisition.
(l) Administrative Agent shall have received certified copies of
all publicly filed documents reasonably requested by the Administrative Agent
relating to the following litigation: (i) In Re Real Estate Associates Limited
Partnership Litigation ▇. ▇▇▇▇▇▇ et al. and (ii) Nausatauvicus et al. v. NAPICO
et al.
(m) The Lenders shall have received satisfactory evidence of the
ratings of Borrowers' debt and securities by ▇▇▇▇▇'▇ and S&P in effect on the
Closing Date.
(n) Such other assurances, certificates, documents, consents or
opinions as Administrative Agent, or the Requisite Lenders reasonably may
require.
SECTION V. 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 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 it is a party. 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 hereunder or
with the execution, delivery, performance, validity or enforceability of this
Agreement or any of the other 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
51
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 5.03A, 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 5.03B, or (2) with respect to the transfer or pledging of the Casden
Assets, or (b) constitute a default under any such agreement or instrument
(except for non-monetary defaults concerning the Casden Assets or Oxford
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 Revolver Loan Documents.
5.04. Financial Statements; No Material Adverse Effect.
(a) The Audited Financial Statements (i) were prepared in
accordance with GAAP, except as otherwise expressly noted therein; (ii) are
complete and accurate and fairly present the financial condition of the REIT as
of the date thereof and the results of operations for the period covered thereby
in accordance with GAAP, except as otherwise expressly noted therein; and (iii)
together with the Form 10-K and Form 10-Q filings of the REIT, show all material
indebtedness and other liabilities, direct or contingent, of Borrowers and their
Subsidiaries as of the date thereof, including liabilities for taxes, material
commitments, Contractual Obligations and Indebtedness in accordance with GAAP or
which are required to be disclosed under SEC rules and regulations.
(b) Since the date of the Audited Financial Statements, there has
been no event or circumstance which has had a Material Adverse Effect.
52
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 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
53
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.
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
54
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 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.
55
(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 Borrowers 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 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
56
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. Omitted.
5.16. Subsidiaries; Interests in Other Entities; Changes in
Organizational Structure.
None of Borrowers nor any of their respective Subsidiaries has any
interest in any corporation, partnership or other entity, except (i) as
disclosed in the Organizational Chart set forth as Schedule 5.16 (other than
nondisclosures which, individually or in the aggregate, would not reasonably be
expected to have a Material Adverse Effect), and (ii) for interests acquired
after the date of this Agreement in compliance with Sections 7.03, 7.04 and 7.05
hereof.
5.17. Matters Relating to Pledged Collateral.
(a) Creation, Perfection and Priority of Liens. The execution and
delivery of the Collateral Documents 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)(xii), and (ii) the delivery to Administrative
Agent of any Casden 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 respective Secured Obligations
(as defined in the Borrowers Pledge Agreement in respect of any Pledged
Collateral), a valid and perfected first priority Lien on all of the Casden
Pledged Collateral and a valid and perfected second priority lien on all of the
Non-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
57
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 Revolving 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.
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
58
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 VI. 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 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 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 Borrowers' fiscal year then ended, as the case may be, including the REIT's
and AIMCO's SEC Form 10-Q for such period, all in reasonable detail and
certified by at least two Responsible Officers of Borrowers that such financial
statements are complete and correct and fairly present the financial condition,
results of operations and cash flows of Borrowers 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.
59
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 Revolver
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 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
Casden Pledged Collateral and Non-Casden Pledged Collateral as of the period
covered by such Compliance Certificate, (6) an updated Schedule 7.01(m)
(Existing Cross-Collateralized and Cross-Defaulted Indebtedness), which updated
schedule will identify all cross-collateralized and cross-defaulted Indebtedness
of 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;
60
(d) promptly after the same are available, copies of each
annual report, proxy or financial statement or other report or communication
sent to the stockholders of the REIT, and copies of all annual, regular,
periodic and special reports and registration statements which the REIT may file
or be required to file with the SEC under Sections 13 or 15(d) of the Securities
Exchange Act of 1934, and not otherwise required to be delivered to
Administrative Agent pursuant hereto;
(e) promptly after the occurrence thereof, notice of any
Default or Event of Default, and the occurrence or existence of any event or
circumstance that is likely to become a Default or Event of Default and each
such notice shall describe with particularity the clause or provision of this
Agreement or other Loan Document that has been breached or violated;
(f) promptly after the commencement thereof, notice of
any litigation, investigation or proceeding affecting any Borrower Party (i)
where the amount involved exceeds the Threshold Amount, (ii) in which injunctive
relief or similar relief is sought, which relief, if granted, would reasonably
be expected to have a Material Adverse Effect; (iii) in which the relief sought
is an injunction or other stay of the performance of any Loan Document or (iv)
required to be reported to the SEC pursuant to the Exchange Act;
(g) promptly after the occurrence of any of the following
ERISA events affecting Borrowers or any member of their Controlled Group,
together with a copy of any notice with respect to such event that may be
required to be filed with any Governmental Authority and any notice delivered by
a Governmental Authority to Borrowers or any member of their Controlled Group
with respect to such event, notice of any of the following:
(i) an ERISA Event where the aggregate liability
is likely to exceed $1,000,000;
(ii) the adoption of any new Plan that is subject
to Title IV of ERISA or Section 412 of the Code by any member
of the Controlled Group;
(iii) the adoption of any amendment to a Plan that
is subject to Title IV of ERISA or Section 412 of the Code, if
such amendment results in a material increase in benefits or
Unfunded Pension Liabilities; or
(iv) the commencement of contributions by any
member of the Controlled Group to any Plan that is subject to
Title IV of ERISA or Section 412 of the Code;
(h) promptly after the occurrence thereof, notice of any
Material Adverse Effect;
(i) notice of any material change in accounting policies
or financial reporting practices by Borrowers or any of their Subsidiaries;
(j) promptly after the occurrence thereof, notice of (i)
any and all material enforcement, cleanup, removal or other governmental or
regulatory actions instituted, completed or threatened against Borrowers, any
Management Entity or any of their Subsidiaries or any of
61
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;
(o) promptly after the occurrence thereof, notice of any
downgrade in any credit rating of (i) either AIMCO's or the REIT's obligations
under its respective senior unsecured debt or either AIMCO's or the REIT's
corporate credit rating is downgraded from its current level on the Closing Date
as set forth on Schedule 1.01F by either ▇▇▇▇▇'▇ or S&P or (ii) this Agreement
from its initial rating, if any, by either ▇▇▇▇▇'▇ or S&P; and
(p) promptly, such other data and information as from
time to time may be reasonably requested by Administrative Agent, or, through
Administrative Agent or any Lender.
Each notice pursuant to Sections 6.02(e) through (l) and (n) shall be
accompanied by a statement of two (2) Responsible Officers of Borrowers setting
forth details of the occurrence referred to therein and, if applicable, the
provisions of this Agreement affected, and stating what action Borrowers have
taken and propose to take with respect thereto.
6.03. Payment Obligations.
Pay and discharge as the same shall become due and payable and
otherwise comply with all their respective obligations and liabilities,
including (a) all tax liabilities, assessments and governmental charges,
Ordinary Course Liens or levies imposed on any Borrower Party or its
Subsidiaries or on its income or profits or any of its Properties, except for
any such tax, assessment, charge or levy which is (i) an Ordinary Course Lien
under subsection (b) of the definition of such term or (ii) being contested in
good faith by appropriate
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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 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).
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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.
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,
64
(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 the Loans to (i) finance the Transaction,
(ii) fund initial capital expenditures relating to the Transaction, (iii) pay
related fees and expenses and (iv) fund loan advances in an amount not exceeding
$70,000,000 for the development of the Development Properties and (v) fund other
working capital purposes.
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 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
65
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 Borrowers of any Person which is a Material Entity, (ii) any Person
in which Borrowers own any equity interest becoming a Material Entity or (iii)
the acquisition by 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 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 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
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 note to the Administrative Agent.
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 Operating Income of such Person in
accordance with such Person's partnership, operating or incorporation agreements
and sound business practices.
SECTION VII. 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 their respective Subsidiaries to, directly or indirectly:
7.01. Indebtedness.
Create, incur, assume or suffer to exist any Indebtedness,
except:
(a) Ordinary Course Indebtedness;
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(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 Revolving 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 (1) $151,000,000 or (2) 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 (1)
$75,000,000 or (2) 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 (1)
$27,200,000 or (2) 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 (1) 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 (2)
shall not be outstanding for longer than six months from the date of
assumption or incurrence, as applicable,
which 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 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;
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(h) Indebtedness of 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), (i) or (n); 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;
(n) Indebtedness under the Revolving Loan Documents,
including any Guaranty Obligations in connection therewith; and
(o) Indebtedness in respect of the Contingent Acquisition
Notes.
Nothing contained in this Section 7.01 shall be deemed to
excuse any lack of compliance by Borrowers or any of their Subsidiaries with the
terms of Section 7.14.
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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 Sections 7.01(d), (e), (h) or (i) on real and personal
Properties and not constituting ownership interests in Borrowers or any of the
Subsidiaries of Borrowers and any renewals or extensions thereof; 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 Borrowers or any of their respective Subsidiaries
after the date hereof securing Indebtedness permitted by Sections 7.01(d) or
(e); provided that (i) such Liens existed at the time such Person becomes a
Subsidiary of any Borrower or any of their respective Subsidiaries and were not
incurred or otherwise created in anticipation thereof, and (ii) any such Lien is
not expanded to cover any other Property of such Person after the time such
Person becomes a Subsidiary of any Borrower or any of their respective
Subsidiaries;
(g) Licenses, leases or subleases granted to other
Persons in the Ordinary Course of Business not materially interfering with the
conduct of the business of the Borrower Parties taken as a whole;
(h) Liens and Negative Pledges arising from Capital
Leases entered into by the Borrower Parties;
(i) Liens and Negative Pledges existing on the date
hereof, and any renewals or extensions thereof, pursuant to the Revolving Credit
Agreement and the other Revolving Loan Documents; provided that no such Lien is
spread to cover any additional Property and that the amount of Indebtedness
secured thereby is not increased; and
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(j) Liens and Negative Pledges pursuant to the DevCo LLC
Agreement and in connection with the Contingent Acquisition Notes.
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 Borrowers or any Guarantor or any combination
thereof;
(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; and
(v) Borrowers may (x) consummate the Casden
Acquisition and (y) acquire through merger, consolidation or
otherwise, additional equity interests in the managing members
of the Real Estate Companies after the Closing Date as
contemplated by the 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
70
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 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 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 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 ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and/or
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ 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).
(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 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
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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 2.03(c)(ii).
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;
(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);
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(j) Investments in GP Loans 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;
(m) the Casden Acquisition, including, (i) 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 in
the Merger Agreement; and
(n) Investments in the direct or indirect Stock or
Partnership Units of the Park La Brea or Westwood Village Properties as
contemplated in the 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 exists under Sections 8.01(a), (b) or (c) as a result of a breach of
Section 7.14, 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.
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(b) (i) Permit any Subsidiary to make a demand under any
Intra-Company Debt which is payable upon demand at any time after the Maturity
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.
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, (f) loans and advances to officers and directors of Borrowers and
their respective Subsidiaries,
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(g) the Park La Brea and Westwood Village Properties Loans and (h) the other
transactions contemplated by the 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 (5) 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. [Reserved].
7.13. Limitations on Upstreaming.
Agree to any restriction or limitation on the making of
Restricted Payments from any Subsidiary of a Borrower to any 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 a Borrower to any Borrower or
any other Subsidiary of Borrowers, except for such restrictions existing or by
reason of (a) any restrictions existing under the Loan Documents, the Revolving
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 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.
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(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 (b), (f) and (g) 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 (a), (c), (d) and (e) 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 (b), (f) and (g) 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 (a), (c), (d) and (e) 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, ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ LLP and Deloitte &
Touche LLP.
7.16. Special Covenants Relating to the REIT.
In the case of the REIT:
(a) Make any disposition of or encumber, pledge or
hypothecate, whether directly or indirectly, all or any portion of its interest
in AIMCO or any Subsidiary at any time or any rights to distributions or
dividends therefrom other than to AIMCO or a Wholly-Owned Subsidiary, other than
any pledges of equity interests in connection with this Agreement and the
Revolving Credit Agreement;
76
(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 AIMCO.
In the case of AIMCO, become an association taxable as a
corporation and not be taxed as a partnership under the Code.
SECTION VIII. EVENTS OF DEFAULT AND REMEDIES.
8.01. Events of Default.
Any one or more of the following events shall constitute an
Event of Default:
(a) Borrowers fail to pay any principal on any Extension
of Credit as and on the date when due; or
(b) Borrowers fail to pay any interest on any Extension
of Credit, or any fees due hereunder or amount payable to Administrative Agent
or any Lender under any Loan Document within five days after the date due; or
(c) Any default occurs in the observance or performance
of any agreement contained in Sections 6.12, 6.14, 6.16(d) or 7; or
(d) [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
77
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 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 Guarantors'
or any Subsidiaries' ownership percentage of the
Nonrecourse Debt Obligor,
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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 Sections 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 the 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 the
Indebtedness or Guaranty Obligation 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 Borrowers or any of their Subsidiaries to pay or
perform any obligation with respect to an item of Intra-Company Debt
shall be deemed a breach or default hereunder if such failure to pay or
perform is in compliance with the Intra-Company Loan Subordination
Agreement.)
(h) Any Loan Document, at any time after its execution
and delivery and for any reason other than the agreement of all Lenders or
satisfaction in full of all the Obligations, ceases to be in full force and
effect (other than in accordance with its terms) or is declared by a court of
competent jurisdiction to be null and void, invalid or unenforceable in any
respect; or any Borrower Party denies that it has any or further liability or
obligation under any Loan Document, or purports to revoke, terminate or rescind
any Loan Document to which it is a party; or
(i) A final judgment against any Borrower Party is
entered for the payment of money (for a liability not covered by insurance) in
excess of the Threshold Amount, or any non-monetary final judgment is entered
against any Borrower Party which has a Material Adverse Effect and, in each case
if such judgment remains unsatisfied without procurement of a
79
stay of execution within 30 calendar days after the date of entry of judgment
or, if earlier, five (5) 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; (ix) a violation of section 404 or 405 of
ERISA or the exclusive benefit rule under section 401(a) of the Code if such
violation might reasonably be expected to expose a member or members of the
Controlled Group to monetary liability in excess of $5,000,000; (x) any member
of the Controlled Group is assessed a tax under section 4980B of the Code in
excess of $5,000,000; or (xi) the occurrence of any combination of events listed
in clauses (iii) through (x) that involves a potential liability, net increase
in aggregate Unfunded Pension Liabilities, unfunded liabilities, or any
combination thereof, in excess of $5,000,000; or
(l) [Intentionally Omitted]
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(m) [Intentionally Omitted]
(n) (i) Any provision of any Guaranty shall for any
reason (other than pursuant to the terms thereof) cease to be valid and binding
on or enforceable against Borrowers or other Persons party thereto (except to
the extent that the same results solely from an act or omission of
Administrative Agent or the Lenders), or Borrowers or such Person shall so state
in writing or bring an action to limit its obligations or liabilities
thereunder; or (ii) any party to any Guaranty (other than the Administrative
Agent or Lenders) shall fail to perform or observe (A) any term, covenant or
agreement in Section 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 such Guaranty, and such failure shall
continue unremedied for a period of 20 days after the earlier of (I) the date
upon which a Responsible Officer of Borrowers knew or received written notice of
such failure or (II) the date upon which written notice thereof is given to
Borrowers (or any Subsidiary party thereto) by Administrative Agent; or (iii)
any Guaranty shall for any reason be partially (including with respect to future
advances) or wholly revoked or invalidated, or otherwise cease to be in full
force and effect; or (iv) any Guarantor shall contest in any manner the validity
or enforceability thereof or deny that such Guarantor has any further liability
or obligation thereunder; or
(o) (i) Any "Person," or a "group" of related "Persons"
(as such terms are used for purposes of Sections 13(d) and 14(d) of the Exchange
Act whether or not applicable), shall acquire (a) beneficial ownership of in
excess of 50% of the outstanding voting Stock of the REIT or other voting
interest having ordinary voting power to elect a majority of the directors,
managers or trustees of the REIT (irrespective of whether at the time stock of
any other class or classes shall have or might have voting power by reason of
the happening of any contingency) or (b) all or substantially all of the
Properties of Borrowers, or (ii) a majority of the Board of Directors of the
REIT, at any time, shall be composed of Persons other than (a) Persons who were
members of the Board of Directors on the date of this Agreement, or (b) Persons
who subsequently become members of the Board of Directors and who either (x) are
appointed or recommended for election with the affirmative vote of a majority of
the directors in office as of the date of this Agreement or (y) are appointed or
recommended for election with the affirmative vote of a majority of the Board of
Directors of the REIT then in office; or
(p) Borrowers, any Guarantor, or any of their respective
Subsidiaries shall lose, through suspension, termination, impoundment,
revocation, failure to renew or otherwise, any license or permit material to
Borrowers, Guarantors and their respective Subsidiaries, taken as a whole; or
(q) Borrowers, any Guarantor, or any of their respective
Subsidiaries or any of their respective Properties shall become subject to one
or more Liens for costs or damages in excess of $5,000,000, individually or in
the aggregate, and in each case under any Environmental Law and such Liens shall
remain in place for thirty (30) days after the creation thereof; or
(r) If at any time after the incurrence of any
Intra-Company Debt, a Borrower or any of its Subsidiaries is not the holder of
such Intra-Company Debt; or if any modification or amendment with respect to the
payment terms of any Intra-Company Debt is entered into without the prior
written consent of the Requisite Lenders; or
81
(s) Any event not otherwise described in this Section
8.01 occurs which has a Material Adverse Effect; or
(t) If at any time ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇▇ 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 the
Revolving Credit Agreement or any of the other Revolving 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), Requisite Lenders may request Administrative Agent to, and
Administrative Agent thereupon shall 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.
(b) Upon the occurrence of any Event of Default described
in Section 8.01(j):
(i) all obligations of Administrative Agent or
Lenders to extend credit or convert or continue Loans shall
automatically terminate without notice to or demand upon
Borrowers, which are expressly waived by Borrowers; and
(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.
(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
82
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 IX. ADMINISTRATIVE AGENT.
9.01. Appointment and Authorization of Administrative
Agent.
Each Lender hereby irrevocably (subject to Section 9.09)
appoints, designates and authorizes Administrative Agent to take such action on
its behalf under the provisions of this Agreement and each other Loan Document
and to exercise such powers and perform such duties as are expressly delegated
to it by the terms of this Agreement or any other Loan Document, together with
such powers as are reasonably incidental thereto. Notwithstanding any provision
to the contrary contained elsewhere in this Agreement or in any other Loan
Document, Administrative Agent shall not have any duties or responsibilities,
except those expressly set forth herein, nor shall Administrative Agent have or
be deemed to have any fiduciary relationship with any Lender, and no implied
covenants, functions, responsibilities, duties, obligations or liabilities shall
be read into this Agreement or any other Loan Document or otherwise exist
against Administrative Agent. Without limiting the generality of the foregoing
sentence, the use of the term "agent" in this Agreement with reference to
Administrative Agent is not intended to connote any fiduciary or other implied
(or express) obligations arising under agency doctrine of any applicable law.
Instead, such term is used merely as a matter of market custom, and is intended
to create or reflect only an administrative relationship between independent
contracting parties.
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.
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9.03. Liability of Administrative Agent.
None of Administrative Agent-Related Persons shall (i) be
liable for any action taken or omitted to be taken by any of them under or in
connection with this Agreement or any other Loan Document or the transactions
contemplated hereby (except for its own gross negligence or willful misconduct),
or (ii) be responsible in any manner to any of Lenders for any recital,
statement, representation or warranty made by Borrowers or any Subsidiary or
Affiliate of Borrowers, or any officer thereof, contained in this Agreement or
in any other Loan Document, or in any certificate, report, statement or other
document referred to or provided for in, or received by Administrative Agent
under or in connection with, this Agreement or any other Loan Document, or the
validity, effectiveness, genuineness, enforceability or sufficiency of this
Agreement or any other Loan Document, or for any failure of Borrowers or any
other party to any Loan Document to perform their obligations hereunder or
thereunder. No Administrative Agent-Related Person shall be under any obligation
to any Lender to ascertain or to inquire as to the observance or performance of
any of the agreements contained in, or conditions of, this Agreement or any
other Loan Document, or to inspect the Properties, books or records of any
Borrower or any of Borrowers' Subsidiaries or Affiliates.
9.04. Reliance by Administrative Agent.
(a) Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any writing, resolution, notice,
consent, certificate, affidavit, letter, telegram, facsimile, telex or telephone
message, statement or other document or conversation believed by it to be
genuine and correct and to have been signed, sent or made by the proper Person
or Persons, and upon advice and statements of legal counsel (including counsel
to Borrowers), independent accountants and other experts selected by
Administrative Agent. The 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 10.4 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.
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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 the Lead Arranger 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 the
Lead Arranger to any Lender as to any matter, including without limitation,
whether Administrative Agent-Related Persons or the Lead Arranger, as the case
may be, have disclosed material information in their possession. Each Lender,
including any Lender by assignment, represents to Administrative Agent that it
has, independently and without reliance upon any Administrative Agent-Related
Person or the 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 the 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 the Lead
Arranger.
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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 hereunder and without
notice to or consent of Lenders. Lenders acknowledge that, pursuant to such
activities, Administrative Agent or its Affiliates may receive information
regarding Borrowers or their Affiliates (including information that may be
subject to confidentiality obligations in favor of such Borrower or such
Affiliate) and acknowledge that Administrative Agent shall be under no
obligation to provide such information to them. With respect to its Loans,
Administrative Agent shall have the same rights and powers under this Agreement
as any other Lender and may exercise the same as though it were not
Administrative Agent, 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
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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.
SECTION X. 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 reduce the amount of or postpone any date fixed for any
payment of any principal prepayment or to amend the provisions of Section 7.14
or of 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 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, 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 amend, modify or waive any provision of Section 2.04 without the consent of
each Lender directly affected thereby; or
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(c) To amend the provisions of the definition of
"Requisite Lenders," "Supermajority Lenders" 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(c) 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 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;
Notwithstanding anything in this Section 10.01 which may be
construed to the contrary, the 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, 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
Fourth Business Day after deposit in U.S. mail
Mail first class postage pre-paid
Personal delivery When received
Telephone When conversation completed
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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 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 shall 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
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Administrative Agent. The agreements in this Section shall survive repayment of
all Obligations.
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
the Administrative Agent and each Lender; 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 and its
Notes); 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 an integral
multiple of the applicable Minimum Amount in excess thereof
and, after giving effect to any partial assignment, the
assigning Lender shall have Loans aggregating at least
$1,000,000;
(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,
Borrowers for their acceptance an Assignment and Acceptance in
substantially the form of Exhibit D, together with a
processing fee (the "Processing Fee") from the assignor of
$3,500 (except that no such Processing Fee shall be payable in
connection with an assignment (A) by or to ▇▇▇▇▇▇ Commercial
Paper Inc. or any Affiliate thereof or (B) to (x) a Lender,
(y) an Affiliate of an assigning Lender or (z) a Related Fund
of an assigning Lender) , provided that, in the case of
assignments made on the same day by a Lender to more than one
Related Fund, only a single processing fee of $3,500 shall be
paid by such assigning Lender; and
(v) such assignment, if not (A) to (x) a Lender,
(y) an Affiliate of an assigning Lender or (z) a Related Fund
of any Lender, or (B) by or to ▇▇▇▇▇▇ Commercial Paper Inc. or
any of its Affiliates, shall require the approval of Borrowers
at all times other than during the existence of a Default or
Event of Default and Administrative Agent (which approval of
Borrowers or Administrative Agent, as the case may be, shall
not be unreasonably withheld,
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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. 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 or
eligibility for reduction of 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.
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(c) Register. The Administrative Agent shall maintain a
copy of each Assignment and Acceptance Agreement delivered to and accepted by it
and a register for the recordation of the names and addresses of the Lenders and
the Commitment of, and principal amount of the Loans owing to, each Lender from
time to time (the "Register"). The entries in the Register shall be conclusive
and binding for all purposes, absent manifest error, and the Borrowers, the
Administrative Agent and the Lenders may treat each Person whose name is
recorded in the Register as a Lender hereunder for all purposes of this
Agreement. Any assignment of any Loan, whether or not evidenced by a Note, shall
be effective only upon appropriate entries with respect thereto being made in
the Register (and each Note shall expressly so provide). Any assignment or
transfer of all or part of a Loan evidenced by a Note shall be registered on the
Register only upon surrender for registration of assignment or transfer of the
Note evidencing such Loan, accompanied by a duly executed Assignment and
Acceptance; 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 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, releasing all or substantially all of the 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. For avoidance of doubt,
the parties to this Agreement acknowledge that the provisions of this Section
concerning assignments of Loans and Notes relate only to absolute assignments
and that such provisions do not prohibit assignments creating security interests
in Loans and Notes, including, without limitation, any pledge or
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assignment by a Lender of any Loan or Note to any Federal Reserve Bank in
accordance with applicable law.
10.05. Set-Off.
In addition to any rights and remedies of Administrative Agent
and Lenders or any assignee or participant of Lenders or any Affiliates thereof
(each, a "Proceeding Party") provided by law, upon the occurrence and during the
continuance of any Event of Default, each Proceeding Party is authorized at any
time and from time to time, without prior notice to Borrowers, any such notice
being waived by Borrowers to the fullest extent permitted by law, to proceed
directly, by right of set-off, banker's lien, or otherwise, against any assets
of the Borrower Parties which may be in the hands of such Proceeding Party
(including all general or 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
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setoff, banker's lien or counterclaim with respect to the participation as fully
as if Lender were the original owner of the Obligation purchased.
10.07. No Waiver; Cumulative Remedies.
(a) No failure by any Lender or Administrative Agent to
exercise, and no delay by any Lender or Administrative Agent in exercising, any
right, remedy, power or privilege hereunder, shall operate as a waiver thereof;
nor shall any single or partial exercise of any right, remedy, power or
privilege under any Loan Document preclude any other or further exercise thereof
or the exercise of any other right, remedy, power or privilege.
(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 Loans
outstanding 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 or of a Lender Addendum 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.
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10.10. Integration; Conflicts with Other Loan Documents.
This Agreement, together with the other Loan Documents and any
letter agreements referred to herein, comprises the complete and integrated
agreement of the parties on the subject matter hereof and supersedes all prior
agreements, written or oral, on the subject matter hereof. There are no
unwritten oral agreements between the parties hereto. In the event of any
conflict between the provisions of this Agreement and those of any other Loan
Document, the provisions of this Agreement shall control and govern; provided
that the inclusion of 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
Loan Percentage 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
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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, 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 waive and agree 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
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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
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 their Affiliates and
Borrowers hereby indemnify and hold 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. 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.
10.18. Time of the Essence.
Time is of the essence of the Loan Documents.
10.19. GOVERNING LAW. THIS AGREEMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES UNDER THIS AGREEMENT SHALL BE
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GOVERNED BY, AND CONSTRUED AND INTERPRETED IN ACCORDANCE WITH, THE LAW OF THE
STATE OF NEW YORK.
10.20. WAIVERS OF JURY TRIAL. BORROWERS, THE ADMINISTRATIVE
AGENT AND THE LENDERS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY
IN ANY LEGAL ACTION OR PROCEEDING RELATING TO THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT AND FOR ANY COUNTERCLAIM THEREIN.
10.21. Submission To Jurisdiction; Waivers. Each Borrower
hereby irrevocably and unconditionally:
(a) submits for itself and its Property in any legal
action or proceeding relating to this Agreement and the other Loan Documents to
which it is a party, or for recognition and enforcement of any judgment in
respect thereof, to the non-exclusive general jurisdiction of the courts of the
State of New York, the courts of the United States of America for the Southern
District of New York, and appellate courts from any thereof;
(b) consents that any such action or proceeding may be
brought in such courts and waives any objection that it may now or hereafter
have to the venue of any such action or proceeding in any such court or that
such action or proceeding was brought in an inconvenient court and agrees not to
plead or claim the same;
(c) agrees that service of process in any such action or
proceeding may be effected by mailing a copy thereof by registered or certified
mail (or any substantially similar form of mail), postage prepaid, to such
Borrower at its address set forth in Schedule 10.02 or at such other address of
which the Administrative Agent shall have been notified pursuant thereto;
(d) agrees that nothing herein shall affect the right to
effect service of process in any other manner permitted by law or shall limit
the right to ▇▇▇ in any other jurisdiction; and
(e) 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.
10.22. Borrowers' Obligations.
Each of the REIT, AIMCO 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).
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(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 may 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 Borrowers; 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) [Omitted].
(d) Information. Each Borrower waives any rights that require
Administrative Agent, and Administrative Agent shall have no obligation to,
provide to Borrowers 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).
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(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 10.22), it being the intention of the parties hereto
that all the Obligations shall be the joint and several obligations of
each Borrower without preferences or distinction among them.
(iii) If and to the extent that any Borrower shall fail to
make any payment with respect to any of the Obligations as and when due
or to perform any of the Obligations in accordance with the terms
thereof, then in each such event the other Borrower will make such
payment with respect to, or perform, such Obligation.
(iv) The Obligations of each Borrower under the provisions of
this Section 10.22 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
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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 10.22 afford grounds for
terminating, discharging or relieving any Borrower, in whole or in
part, from any of its Obligations under this Section 10.22, 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 10.22 shall not be discharged except by performance and
then only to the extent of such performance. The Obligations of each
Borrower under this Section 10.22 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 any 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 name, constitution or place of
formation of any of the Borrowers or the Administrative Agent or any
Lender.
(vi) 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.
(vii) The provisions of this Section 10.22 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,
the Lender, or any 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 10.22 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
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provisions of this Section 10.22 will forthwith be reinstated in
effect, as though such payment had not been made.
(viii) 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.
10.23. 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 Borrowers; (g)
with the consent of 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 nonconfidential
basis from a source other than 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 Extensions of Credit. For the
purposes of this Section,
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"Information" means all information received from Borrowers relating to
Borrowers or their business, other than any such information that is available
to the Administrative Agent or any Lender on a nonconfidential basis prior to
disclosure by Borrowers; provided that, in the case of information received from
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.
10.24. The Lead Arranger and the Syndication Agent. Neither the Lead
Arranger nor the Syndication Agent, in their respective capacities as such,
shall have any duties or responsibilities, and shall incur any liability, under
this Agreement and the other Loan Documents.
10.25. 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 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 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.
10.26. Delivery of Lender Addenda. Each initial Lender shall become a
party to this Agreement by delivering to the Administrative Agent a Lender
Addendum duly executed by such Lender, each Borrower and the Administrative
Agent.
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
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
AIMCO PROPERTIES, L.P.
By: AIMCO-GP, INC., a Delaware corporation
Its: General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
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▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
President
NHP MANAGEMENT COMPANY, a District of
Columbia corporation
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇
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▇▇▇▇▇▇▇ ▇▇▇▇
Executive Vice President
▇▇▇▇▇▇ COMMERCIAL PAPER, INC., as
Administrative Agent and Syndication Agent
By: (ILLEGIBLE)
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Name:
Title: