AIMCO PROPERTIES, L.P.
FIRST AMENDMENT
TO CREDIT AGREEMENT
This FIRST AMENDMENT TO CREDIT AGREEMENT (this "AMENDMENT") is dated
as of May 8, 1998 (the "Amendment Effective Date") and entered into by and among
AIMCO PROPERTIES, L.P., a Delaware limited partnership ("BORROWER"), the
financial institutions listed on the signature pages hereof ("LENDERS") and BANK
OF AMERICA NATIONAL TRUST AND SAVINGS ASSOCIATION, as agent for Lenders
("AGENT"), and BANKBOSTON, N.A. as one of the Lenders and the Documentation
Agent and is made with reference to that certain Credit Agreement dated as of
January 26, 1998, (as amended by this Amendment, the "CREDIT AGREEMENT"), by and
among Borrower, Lenders and Agent. Capitalized terms used in this Amendment
without definition are used as defined in the Credit Agreement. The Guarantor
Subsidiaries set forth on pages S-6 through S-9 are only a party to this
Amendment for the purposes of Section 5 and are not a party to the Credit
Agreement.
RECITAL
WHEREAS, Borrower and Lenders desire to amend the Credit Agreement to
(a) provide for an increase in the Aggregate Commitment to $125,000,000 until
November 1, 1998 and thereafter reduce the Aggregate Commitment to $50,000,000,
(b) increase the maximum amount of Unencumbered Management Entity Value from
$12,500,000 to $50,000,000 until November 1, 1998 and thereafter reduce such
maximum amount to $12,500,000, (c) modify certain of the financial covenants
contained in the Credit Agreement and (d) make certain other amendments as more
specifically set forth below;
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: PROVISIONS RELATING
TO DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby amended by
adding thereto the following definitions, which shall be inserted into
subsection 1.1 in the proper alphabetical order:
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"AMBASSADOR POOL PORTFOLIO" means the aggregate Indebtedness in respect of
individual Properties in the original principal amount of $203,580,000 secured
by or issued in connection in with the following reimbursement agreements: (a)
Amended and Restated Master Reimbursement Agreement, dated as of December 1,
1996, by and between Federal National Mortgage Association ("▇▇▇▇▇▇ ▇▇▇") and
Ambassador VIII, L.P., as amended and assigned; and (b) Master Reimbursement
Agreement (Pool-2 Properties), dated as of December 1, 1996, by and between
▇▇▇▇▇▇ Mae and Ambassador I, L.P., as amended and assigned.
"CEDAR CREEK PROPERTY" means that certain Qualified Property comprised of a
392 unit apartment project and related properties, situated in San Antonio,
Texas.
"FNMA/WASHINGTON CONDITION" means the date on which the Lenders shall have
determined that FNMA Washington Mortgage Facility Documents shall have been
amended or modified to conform the financial and other covenants of the AIMCO
Parties (as defined in the FNMA/Washington Mortgage Facility Documents) to the
covenants of Borrower set forth in Section 7.16 of the Credit Agreement, the
determination of such conformity shall be made by Lenders in their sole
discretion.
"MARKETABLE SECURITIES" means the securities of any Person which securities
are treated by such Person as "marketable securities" in accordance with GAAP
and which are quoted on the New York Stock Exchange, American Stock Exchange or
the Nasdaq National Market. On any date of determination, the value of any
Marketable Securities shall be determined in accordance with GAAP.
"REDUCTION DATE" means November 1, 1998.
"TRANCHE A" means the portion of the Aggregate Commitments available under
the Credit Agreement prior to May 8, 1998, in an amount not to exceed
$50,000,000.
"TRANCHE B" means the $75,000,000 portion of the Aggregate Commitments
which is made available from and after May 8, 1998 and which may only be
borrowed if Tranche A is fully disbursed. Availability under Tranche B shall
terminate on the Business Day prior to the Reduction Date.
B. SUBSECTION 1.1 of the Credit Agreement is hereby further amended
by deleting each of the following definitions:
(a) Aggregate Commitment;
(b) Applicable Margin;
(c) Commitment Percentage;
(d) Consolidated EBITDA;
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(e) Consolidated-EBITDA-to-Fixed Charges Ratio;
(f) Consolidated EBITDA-to-Interest Ratio;
(g) Consolidated Interest Expense;
(h) Consolidated Total Indebtedness;
(i) EBITDA;
(j) FNMA/Washington Mortgage Facility Documents;
(k) Gross Asset Value;
(l) Guarantor Subsidiaries;
(m) Net Operating Income; and
(n) Unencumbered Asset Pool NOI.
therefrom in their entirety and substituting the following therefor:
"AGGREGATE COMMITMENT" means the combined Commitments of the Lenders in
respect of Tranche A and Tranche B which is $125,000,000; provided, however,
that in all events and from and after the Reduction Date, the Aggregate
Commitment shall only include the Commitments of the Lenders in respect of
Tranche A, the amount of which shall not exceed $50,000,000.
"APPLICABLE MARGIN" means (a), with respect to Base Rate Loans, the
Applicable Base Rate Margin, and (b) with respect to LIBOR Loans, the Applicable
LIBOR Margin; provided, however, that with respect to the portion of any LIBOR
Loan funded in respect of Tranche B, the Applicable LIBOR Margin shall not apply
and instead the applicable spread for purposes of the Applicable Margin shall be
90 basis points.
"COMMITMENT PERCENTAGE" means, as to any Lender, (a) with respect to
Tranche A, the percentage equivalent of such Lender's Commitment, divided by the
total Commitments set forth in Schedule 2.1(a)(i) under Tranche A, (b) with
respect to Tranche B, the percentage equivalent of such Lender's Commitment,
divided by the total Commitments set forth in Schedule 2.1(a)(i) under Tranche
B, and (c) with respect to the Aggregate Commitment, the percentage equivalent
of such Lender's Commitment divided by the Aggregate Commitment.
"CONSOLIDATED EBITDA" means, for any period, and without double counting
any item, the sum of the Adjusted EBITDA for the Borrower, the REIT and their
respective Subsidiaries for such period on a consolidated basis, PLUS the
Borrower's pro-rata share of
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aggregate EBITDA for each of the Management Entities, PLUS the Borrower's
pro-rata share of Adjusted EBITDA in respect of any unconsolidated Person.
"CONSOLIDATED EBITDA-TO-FIXED CHARGES RATIO" means for any period of
determination, the ratio computed as follows:
Consolidated EBITDA-to-Fixed [Consolidated EBITDA]
Charges Ratio= divided by
Consolidated Fixed Charges
"CONSOLIDATED EBITDA-TO-INTEREST RATIO" means for any period of
determination, the ratio computed as follows:
Consolidated EBITDA-to-Interest [Consolidated EBITDA]
Ratio= divided by
Consolidated Interest Expense
"CONSOLIDATED INTEREST EXPENSE" means for any period of determination, and
without double counting any item, an amount equal to (a) the sum of the Interest
Expense for the Borrower, the REIT and their proportionate share of the Interest
Expense of their respective Subsidiaries for such period plus the Borrower's
pro-rata share of Interest Expense in respect of any unconsolidated Person,
excluding amounts expended for amortization of loan costs, plus (b), only for
purposes of calculating the Unencumbered Asset Pool NOI-to-Unsecured-Interest
Ratio, the amount of any Management Company Attributable Interest Expense.
"CONSOLIDATED TOTAL INDEBTEDNESS" means as of any date, and without double
counting any item, the aggregate amount of Total Indebtedness for Borrower, the
REIT and their respective Subsidiaries as of such date, plus the Borrower's
pro-rata share of Total Indebtedness in respect of any unconsolidated Person.
"EBITDA" means, for any period, the sum determined in accordance with GAAP,
of the following, for any Person (in the case of Borrower or the REIT, before
deducting for minority interests in Borrower) (a) the net income (or net loss)
of such Person during such Period PLUS (b) all consolidated amounts, plus
Borrower's pro-rata share of unconsolidated amounts, treated as expenses 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), 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) and (ii) any amortization of capitalized financing expenses
or charges related to restructuring of Indebtedness.
"FNMA/WASHINGTON MORTGAGE FACILITY DOCUMENTS" means all documents relating
to credit facilities in an amount up to $50,000,000 secured by Properties not in
the Unencumbered Asset Pool now or hereafter provided to Borrower for general
partnership
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purposes including (i) a Master Credit Facility Agreement, dated as of February
4, 1998, by and among the REIT, the Borrower, AIMCO/Bluffs, L.L.C., AIMCO
Chesapeake, L.P., AIMCO Elm Creek, L.P., AIMCO Lakehaven, L.P., AIMCO Los
Arboles, L.P. and Washington Mortgage Financial Group, Ltd. and (ii) all
amendments, extensions and renewals of any of the foregoing, including any of
the foregoing necessary to satisfy the FNMA/Washington Condition.
"GROSS ASSET VALUE" means, with respect to Borrower, the REIT and their
respective Subsidiaries on a consolidated basis, and without double counting any
item, the sum of: (a) Borrower's, REIT's, or their respective Subsidiaries'
Adjusted EBITDA in respect of Qualified Properties for the prior four calendar
quarter period through the end of the most recent quarter, capitalized at the
Apartment Property Cap Rate, PLUS (b) Borrower's, REIT's, or their respective
Subsidiaries' share of Adjusted EBITDA in respect of Unqualified Properties for
the prior four calendar quarter period through the end of the most recent
quarter, capitalized at the Apartment Property Cap Rate, PLUS (c) an amount
equal to the EBITDA of the Management Entities from the commencement of the
prior calendar quarter period annualized and then multiplied by 8.0, PLUS
(d) all cash (including Restricted Cash) and the fair market value of all Cash
Equivalents held as of the last day of such quarter, PLUS (e) from and after the
satisfaction of the FNMA/Washington Condition, the amount of Marketable
Securities owned by such Person; provided, however, that no more than
$25,000,000 of Marketable Securities shall be included in the calculation of
Gross Asset Value. For purposes of the definition of Gross Asset Value with
respect to any Stabilized Property which has been Stabilized and owned for fewer
than four calendar quarters, Adjusted EBITDA shall be adjusted in respect of
such Property by annualizing the Net Operating Income from the date on which the
Property was Stabilized and owned through the date of determination. In the
case of any Property which has been owned for less than one calendar quarter,
Adjusted EBITDA shall be adjusted in respect of such Property by annualizing the
Net Operating Income for the immediately prior, complete calendar quarter,
notwithstanding that during such period the Stabilized Property was not owned by
Borrower.
"GUARANTOR SUBSIDIARIES" means AIMCO Holdings QRS, Inc., a Delaware
corporation, AIMCO/OTC QRS, Inc., a Delaware corporation, AIMCO Holdings, L.P.,
a Delaware limited partnership, AIMCO-GP, Inc., a Delaware corporation,
AIMCO-LP, Inc., a Delaware corporation, AIMCO Properties Finance Corp., a
Delaware corporation, AIMCO Somerset, Inc., a Delaware corporation, NHP
Management Company, a District of Columbia corporation, Property Asset
Management Services, L.P., a Delaware limited partnership, Property Asset
Management Services, Inc., a Delaware corporation, Property Asset Management
Services-CA, LLC, a California limited liability company, and Ambassador II,
L.P., a Delaware limited partnership, together with such other Persons that
execute and deliver to the Agent for the ratable benefit of the Lenders a
guaranty of the Obligations in the form of EXHIBIT F1 if the Person is a
qualified REIT subsidiary or EXHIBIT F2 if the Person is not a qualified REIT
subsidiary.
"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
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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 assumed to be four
percent (4%) of gross receipts (whether or not actually paid pursuant to a
separate management contract or otherwise) and real estate taxes and insurance
premiums actually paid by Borrower 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). There shall be no deduction for any expense not involving a cash
expenditure, such as depreciation.
"UNENCUMBERED ASSET POOL NOI" means, for any period, with respect to the
Unencumbered Asset Pool, the sum of (X) (1) aggregate Net Operating Income
during the preceding four calendar quarters (or, if such Properties were
Stabilized, Qualified Properties for at least one calendar quarter but less than
four calendar quarters the annualized aggregate Net Operating Income from the
date such Properties became Stabilized, Qualified Properties), plus (2), in the
case of Properties which have been Qualified Properties for less than one
calendar quarter, the annualized aggregate Net Operating Income for the
preceding calendar quarter immediately preceding the quarter in which it became
a Qualified Property plus (3), in the case of the Cedar Creek Property, until
such time as it becomes a Stabilized Property for at least one calendar quarter,
the annualized aggregate Net Operating Income during the calendar quarter ending
March 31, 1998, MINUS (Y) the aggregate amount of Capital Expenditures for all
such Properties for the corresponding periods in an amount equal to $300 per
apartment unit per annum in each of such Properties, during such period, or
annualized period, as applicable.
C. Subsection 1.1 of the Credit Agreement is hereby further amended
by deleting clause (Z) from the definition of Total Available Commitments" and
substituting the following clause (Z):
PLUS (Z) an amount equal to 20% of Unencumbered Management Entity
Value; provided, however, that such amount shall not exceed $50,000,000 and
provided, further, however, that from and after the Reduction Date such amount
shall not exceed $12,500,000;
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1.2 AMENDMENTS TO SECTION 7: BORROWER'S NEGATIVE COVENANTS
A. Section 7.2 of the Credit Agreement is hereby amended by deleting
therefrom subsection 7.2(a) and substituting the following:
(a) EXISTING OR CONTEMPLATED INDEBTEDNESS. Indebtedness of Borrower
and its Subsidiaries outstanding on the Closing Date and described in
SCHEDULE 7.2, including (1) the Indebtedness evidenced or to be evidenced
by the FNMA/Washington Mortgage Facility Documents and the NHP/▇▇▇▇▇▇
Financing or any renewal, refinancing or extension thereof; provided,
however, that any such renewal, refinancing or extension (i) shall not
increase the principal balance thereof or otherwise materially modify the
terms thereof, (ii) 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, and (iii) other than with respect to Indebtedness evidenced or
to be evidenced by the FNMA/Washington Mortgage Facility Documents, shall
have a maturity or weighted-average life not prior to the maturity of
Borrower's obligations under this Agreement and (2) Indebtedness disclosed
on Schedule 7.2(a);
B. Section 7.3 of the Credit Agreement is hereby amended by adding
thereto the following as subsection 7.3(e):
(e) PERMITTED CONTINGENT OBLIGATIONS. Contingent Obligations
specifically described on Schedule 7.3.
C. Section 7.16 of the Credit Agreement is hereby amended by
deleting therefrom subsection 7.16(d) and substituting the following:
(d) Borrower shall not permit the Consolidated EBITDA-to-Fixed
Charges Ratio computed for any fiscal quarter or year to be less than
2.00-to-1.00 unless and until the FNMA/Washington Condition occurs, in
which event such Ratio shall not be less than 1.85-to-1.00 until the
Reduction Date, whereupon such Ratio shall not be less than 2.00-to-1.00.
1.3 SUBSTITUTION OF SCHEDULES
SCHEDULE 2.1(a)(i): LENDERS' COMMITMENTS. SCHEDULE 2.1(a)(i) to the
Credit Agreement is hereby deleted from the Credit Agreement and replaced with
the substituted Schedule 2.1(a)(i)-1 attached hereto and from and after the
Reduction Date Schedule 2.1(a)(i)-1 shall be replaced with Schedule 2.1(a)(i)-2
attached hereto.
SCHEDULE 7.2: PERMITTED INDEBTEDNESS. Schedule 7.2 is hereby amended
by adding thereto the items set forth in Schedule 7.2(a) attached hereto.
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SCHEDULE 7.3: CONTINGENT OBLIGATIONS. Schedule 7.3 is hereby added to
the Credit Agreement.
1.4 UNENCUMBERED ASSET POOL; ADDITIONS AND EXCLUSIONS OF PROPERTIES
SECTION 2.13 of the Credit Agreement is hereby amended by adding
thereto the following as subsection 2.13(c):
(c) CEDAR CREEK PROPERTY. Notwithstanding any contrary
provision of this Section 2.13, if the Cedar Creek Property is a Qualified
Property it shall be added to the Unencumbered Asset Pool, notwithstanding that
it is not a Stabilized Property; provided, however, that if the Cedar Creek
Property fails to qualify as a Stabilized Property by September 30, 1998, then
thereafter it shall be excluded from the Unencumbered Asset Pool.
1.5 AMOUNT AND TERMS OF COMMITMENTS
SECTION 2.1(a)(i) is hereby amended by deleting the entire subsection
and replacing it with the following:
(i) REVOLVING LOANS. Each Lender severally agrees, on the terms and
conditions hereinafter set forth, to make loans to the Borrower (each such loan,
a "Revolving Loan" and all such loans collectively, the "Revolver") from time to
time on any Business Day during the period from the Closing Date to the earlier
of the Conversion Date or the Revolver Maturity Date. The aggregate amount of
the Revolver will not exceed the lesser of the Lender's Revolving Commitment or
such Lender's Commitment Percentage (in each case in respect of Tranche A and/or
Tranche B, as applicable) of the Total Available Commitment.
SECTION 2.1(a)(ii): LETTER OF CREDIT is hereby amended by (a)
deleting the reference therein to $5,000,000 and replacing it with the amount of
$25,000,000 and (b) adding the following sentence to the end of such subsection:
In no event may any Letter of Credit be issued in respect of borrowing
availability under Tranche B.
1.6 OPTIONAL PREPAYMENTS OF LOANS
SECTION 2.5 is hereby amended by adding the following subsection (c)
thereto:
(c) ALLOCATION OF PAYMENTS BETWEEN TRANCHES.
Any payments received under this Section 2.5 shall first be
applied to reduce the Outstanding Amount in respect of Loans funded from Tranche
B and only when the Outstanding Amount of Loans funded from Tranche B has been
reduced to zero, then to the Outstanding Amount in respect of Loans funded from
Tranche A.
1.7 MANDATORY PREPAYMENTS OF LOANS
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SECTION 2.6 is hereby amended by adding the following subsection (c)
thereto:
(c) ALLOCATION OF PAYMENTS BETWEEN TRANCHES.
Any payments received under this Section 2.6 shall first be
applied to reduce the Outstanding Amount in respect of Loans funded from Tranche
B and only when the Outstanding Amount of Loans funded from Tranche B has been
reduced to zero, then to the Outstanding Amount in respect of Loans funded from
Tranche A.
1.8 SECTION 2.10 FEES
SECTION 2.10(c) COMMITMENT FEES is hereby amended by adding the
following to the end of such subsection:
Notwithstanding any other provision of this Section 2.10(c), for
purposes of calculating the commitment fee in respect of the
Tranche B portion of the Aggregate Commitment, such portion shall
be deemed to be available from and after May 8, 1998.
1.9 AMENDMENT TO SECTION 6: AFFIRMATIVE COVENANTS.
SECTION 6 is hereby amended by adding the following subsection
6.17 thereto:
(c) REFINANCE OF AMBASSADOR POOL PORTFOLIO.
Borrower shall refinance not less than 50% of the aggregate
outstanding Indebtedness in respect of the Ambassador Pool
Portfolio on or before May 1, 1999. The refinancing of the
applicable Properties shall comply with all of the applicable
covenants and provisions of the Credit Agreement and, in all
events, such Properties (including cashflow therefrom) shall not
be cross-collateralized to or cross-defaulted to each other or to
any other Properties in connection with all or any portion of
such refinancing.
1.10 AMENDMENTS TO SECTION 8: APPLICATION OF PAYMENTS
A. SECTION 8.2 of the Credit Agreement is hereby amended to add the
following provision as Section 8.2(e):
(e) If the Loans are accelerated as provided in Section 8.2(b), or if
an Event of Default described in Sections 8.1(a), (f) or (g) occurs and is
continuing, then any amounts received by Agent either on account of such
accelerated amounts or during the pendency of such Events of Default, shall be
distributed to the Lenders pro rata in the proportion their respective
Commitment Percentages under Tranche A and/or Tranche B bears to the
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Aggregate Commitments. All other payments, including those received prior to
acceleration or the occurrence and continuation of an Event of Default described
in Sections 8.1(a), (f) or (g), shall be applied as provided in Sections 2.5(c)
or 2.6(c), as applicable.
SECTION 2. ADDITIONAL NOTES
Borrower agrees to execute and deliver to Agent for Lenders an
additional Note (each an "ADDITIONAL NOTE" and collectively the "ADDITIONAL
NOTES"), in the form of the Note with appropriate insertions, to evidence Loans
in excess of the Aggregate Commitment as in effect prior to May 8, 1998. Each
of the parties hereto hereby acknowledges and agrees that each Additional Note
is a Note for all purposes under the Credit Agreement and the other Loan
Documents and that the loans evidenced by the Additional Notes shall constitute
Loans for all purposes under the Credit Agreement and the other Loan Documents.
Loans in respect of Tranche A or Tranche B shall be evidenced by separate Notes,
notwithstanding that the same Lender may be making such Loans.
SECTION 3. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective on May 8, 1998, if each of the
following conditions are satisfied:
A. Borrower has delivered to Lenders (or to Agent for Lenders with
sufficient originally executed copies, where appropriate, for each Lender and
its counsel) the following, each, unless otherwise noted, dated as of May 8,
1998:
1. A good standing certificate from the Secretary of State of
the State of organization of the REIT and Borrower and each of the
Guarantor Subsidiaries, each dated a recent date prior to or on May 8,
1998;
2. A certificate of the secretary of the REIT certifying that
except as disclosed therein, the Organizational Documents of the REIT,
Borrower and, the Guarantor Subsidiaries have not been modified in any
material respect since January 26, 1998.
3. Resolutions and certificates conforming to the requirements
of Sections 4.1(iv)(A) and (B) of the Credit Agreement authorizing and
approving the Amendment and the other documents to be delivered hereunder
and the borrowing of the Loans in respect of Tranche B; and
4. Executed copies of this Amendment and the Additional Notes
and any required guaranties from the additional Guarantor Subsidiaries.
B. Lenders and their respective counsel shall have received
originally executed copies of one or more favorable written opinions of counsel
for Borrower and the
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Guarantor Subsidiaries in form and substance satisfactory to Agent and its
counsel, dated as of the Amendment Effective Date with respect to the validity,
binding effect and enforceability of the Credit Agreement and due authorization,
execution and delivery thereof, and as to such other matters as Agent acting on
behalf of Lenders may reasonably request.
C. Concurrently with the due execution and delivery of this
Agreement by Borrower, the Agent and each of the Lenders which are the initial
Lenders party to the Credit Agreement, Borrower shall pay to BofA an arrangement
fee in respect of Tranche B as set forth in a separate letter agreement dated as
of May 8, 1998 between Borrower and BofA.
D. Borrower shall pay all amounts which it is required to pay
pursuant to Section 6(B) of this Amendment.
SECTION 4. BORROWER'S REPRESENTATIONS AND WARRANTIES
In order to induce Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Borrower represents and
warrants to each Lender that the following statements are true, correct and
complete:
A. CORPORATE POWER AND AUTHORITY. Borrower has all requisite
corporate power and authority to enter into this Amendment and any other
agreements, guaranties or other operative documents to be delivered by Borrower
pursuant to the Amendment, to issue the Additional Notes and to carry out the
transactions contemplated by, and perform its obligations under, the Credit
Agreement.
B. AUTHORIZATION OF AGREEMENTS. The execution and delivery of this
Amendment and the Additional Notes and the performance of the Credit Agreement
and the issuance, delivery and payment of the Additional Notes have been duly
authorized by all necessary corporate action on the part of Borrower and the
other parties delivering any of such documents, as the case may be.
C. NO CONFLICT. The execution and delivery by Borrower and the
Guarantor Subsidiaries of this Amendment and the performance by Borrower of the
Credit Agreement and the issuance, delivery and payment of the Additional Notes
by Borrower do not and will not (i) violate any provision of any law or any
governmental rule or regulation applicable to Borrower or any of its
Subsidiaries, their respective Organizational Documents or any order, judgment
or decree of any court or other agency of government binding on Borrower, the
REIT or any of their Subsidiaries, (ii) conflict with, result in a breach of or
constitute (with due notice or lapse of time or both) a default under any
Contractual Obligation of Borrower, the REIT or any of their Subsidiaries,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of Borrower, the REIT or any of their Subsidiaries, or
(iv) require any approval of stockholders or any approval or
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consent of any Person under any Contractual Obligation of Borrower, the REIT or
any of their Subsidiaries.
D. GOVERNMENTAL CONSENTS. The execution and delivery by Borrower
and the Guarantor Subsidiaries of this Amendment and the performance by Borrower
and the Guarantor Subsidiaries of the Credit Agreement and the issuance,
delivery and payment of the Additional Notes by Borrower do not and will not
require any registration with, consent or approval of, or notice to, or other
action to, with or by, any federal, state or other governmental authority or
regulatory body.
E. BINDING OBLIGATION. This Amendment and the Credit Agreement have
been duly executed and delivered by Borrower and the Guarantor Subsidiaries, as
applicable, and are, and the Additional Notes, when executed and delivered, will
be the legally valid and binding obligations of Borrower and the Guarantor
Subsidiaries, as applicable, enforceable against Borrower and/or the Guarantor
Subsidiaries, as applicable, in accordance with their respective terms, except
as may be limited by bankruptcy, insolvency, reorganization, moratorium or
similar laws relating to or limiting creditors' rights generally or by equitable
principles relating to enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM CREDIT
AGREEMENT. The representations and warranties contained in Section 5 of the
Credit Agreement are and will be true, correct and complete in all material
respects on and as of the date hereof to the same extent as though made on and
as of that date, except Section 5.5 and other representations and warranties
solely to the extent such representations and warranties specifically relate to
an earlier date, in which case they were true, correct and complete in all
material respects on and as of such earlier date.
G. ABSENCE OF DEFAULT. No event has occurred and is continuing or
will result from the consummation of the transactions contemplated by this
Amendment that would constitute an Event of Default or a Default.
SECTION 5. ACKNOWLEDGEMENT AND CONSENT
Guarantor Subsidiaries are party to the Guaranties, in each case as
amended through the date hereof, pursuant to which Guarantor Subsidiaries have
guarantied the Obligations. Nothing in this Section 5 shall be construed to
make the Guarantor Subsidiaries a party to the Credit Agreement or to create any
obligation in respect thereof except pursuant to each Guaranty.
Each Guarantor Subsidiary hereby acknowledges that it has reviewed the
terms and provisions of the Credit Agreement and this Amendment and consents to
the amendment of the Credit Agreement effected pursuant to this Amendment. Each
Guarantor Subsidiary hereby confirms that each Guaranty to which it is a party
or otherwise bound will continue to guaranty or secure, as the case may be, to
the fullest extent possible the payment and performance of all of the
"Indebtedness" (as defined in the applicable Guaranty), including
12
without limitation the payment and performance of all such "Indebtedness," as
the case may be, in respect of the Obligations of Borrower now or hereafter
existing under or in respect of the Credit Agreement and the Notes defined
therein. Without limiting the generality of the foregoing, each Guarantor
Subsidiary hereby acknowledges and confirms the understanding and intent of such
party that, upon the effectiveness of this Amendment, and as a result thereof,
the definition of "Obligations" contained in the Credit Agreement includes the
obligations of Borrower under the Additional Notes.
Each Guarantor Subsidiary acknowledges and agrees that any Guaranty to
which it is a party or otherwise bound shall continue in full force and effect
and that all of its obligations thereunder shall be valid and enforceable and
shall not be impaired or limited by the execution or effectiveness of this
Amendment. Each Guarantor Subsidiary represents and warrants that all
representations and warranties contained in the Credit Agreement and the
Guaranty to which it is a party or otherwise bound are true, correct and
complete in all material respects on and as of the Amendment Effective Date to
the same extent as though made on and as of that date, except to the extent such
representations and warranties specifically relate to an earlier date, in which
case they were true, correct and complete in all material respects on and as of
such earlier date.
Each Guarantor Subsidiary other than Borrower acknowledges and agrees
that (i) notwithstanding the conditions to effectiveness set forth in this
Amendment, such Guarantor Subsidiary is not required by the terms of the Credit
Agreement or any other Loan Document to consent to the amendments to the Credit
Agreement effected pursuant to this Amendment and (ii) nothing in the Credit
Agreement, this Amendment or any other Loan Document shall be deemed to require
the consent of such Guarantor Subsidiary to any future amendments to the Credit
Agreement.
SECTION 6. MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND THE OTHER
LOAN DOCUMENTS.
(i) On and after the Amendment Effective Date, each reference in
the Credit Agreement to "this Agreement", "hereunder", "hereof", "herein"
or words of like import referring to the Credit Agreement, and each
reference in the other Loan Documents to the "Credit Agreement",
"thereunder", "thereof" or words of like import referring to the Credit
Agreement shall mean and be a reference to the Credit Agreement, as amended
by this Amendment.
(ii) Except as specifically amended by this Amendment, the Credit
Agreement and the other Loan Documents shall remain in full force and
effect and are hereby ratified and confirmed.
13
(iii) The execution, delivery and performance of this Amendment shall
not, except as expressly provided herein, constitute a waiver of any
provision of, or operate as a waiver of any right, power or remedy of Agent
or any Lender under, the Credit Agreement or any of the other Loan
Documents.
B. FEES AND EXPENSES. Borrower acknowledges that all costs, fees
and expenses incurred by Agent and its counsel with respect to this Amendment
and the documents and transactions contemplated hereby shall be for the account
of Borrower.
C. HEADINGS. Section and subsection headings in this Amendment
are included herein for convenience of reference only and shall not constitute a
part of this Amendment for any other purpose or be given any substantive effect.
D. COUNTERPARTS; EFFECTIVENESS. This Amendment may be executed in
any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed and delivered shall be deemed an
original, but all such counterparts together shall constitute but one and the
same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment shall become
effective upon the execution of a counterpart hereof by Borrower and the
Requisite Lenders, and receipt by Borrower and Agent of written, facsimile or
telephonic notification of such execution and authorization of delivery thereof.
[Signatures on Attached Pages S-1 through S-8]
14
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be duly executed and delivered as of the day and year first written above.
BORROWER
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO -GP, Inc., a Delaware
corporation, its general partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
Notices to be sent to:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇,
Vice President
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
▇-▇
▇ ▇▇ ▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as a Lender and as the Issuing Lender
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notices to be sent to:
Bank of America National Trust
and Savings Association
CRES #1313
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇
Telephone: 213/▇▇▇-▇▇▇▇
Facsimile: 213/228-5389
Payments to be made to:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇.
Loan Accounting ▇▇▇▇ #▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
ABA #: 121 000 358
Credit Account #: 15033-00401
Attention: Unit Representative
Ref: AIMCO Unsecured Revolver
S-2
AGENT
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION,
as Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
---------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Vice President
Notices to be sent to:
Bank of America National Trust and
Savings Association
CRES #1313
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇. ▇▇▇▇▇▇
Telephone: 213/▇▇▇-▇▇▇▇
Facsimile: 213/228-5389
Payments to be made to:
BANK OF AMERICA NATIONAL TRUST
AND SAVINGS ASSOCIATION
ABA #: 121 000 358
Credit Account #: 15033-00401
Attention: Unit Representative
Ref: AIMCO Unsecured Revolver
S-3
BANKBOSTON, N.A., LENDER AND
DOCUMENTATION AGENT
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
---------------------------
Name: ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President
Notices to be sent to:
BankBoston, N.A.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop 01-32-04
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
Payments to be made to:
BANKBOSTON, N.A.
ABA #: ▇▇▇-▇▇▇-▇▇▇
Credit Loan #: 1102655
Attention: ▇▇▇▇▇ ▇▇▇▇▇▇▇/CLS
Ref: AIMCO Unsecured Revolver
S-4
NATIONSBANK, N.A.
By: /s/ Will ▇. ▇▇▇▇▇▇, ▇▇.
---------------------------
Name: Will ▇. ▇▇▇▇▇▇, ▇▇.
Title: Vice President
Notices to be sent to:
NationsBank, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇ ▇▇▇▇▇▇, Vice President
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
Facsimile: ▇▇▇-▇▇▇-▇▇▇▇
Payments to be made to:
ABA No.: 111 000 025
Account No.: Credit GL #136621105 2
At: NationsBank Texas Credit
Support Real Estate
Credit
Reference: Aimco Properties, L.P.
Note #5404751
Attn: ▇▇▇▇▇ ▇▇▇▇▇▇
S-5
GUARANTOR SUBSIDIARIES
Address Where Notices to Guarantors are
to be Sent:
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
APARTMENT INVESTMENT AND
MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice Chairman
AIMCO-GP, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AIMCO-LP, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
S-6
AIMCO HOLDINGS, LP,
a Delaware limited partnership
By: AIMCO HOLDINGS QRS, INC.,
a Delaware corporation,
General Partner
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AIMCO HOLDINGS QRS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AIMCO SOMERSET, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AIMCO PROPERTIES FINANCE CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
S-7
AIMCO PROPERTIES
FINANCE PARTNERSHIP, L.P.,
a Delaware limited partnership
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
AIMCO/OTC QRS, INC.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
Vice President
PROPERTY ASSET MANAGEMENT SERVICES,
INC., a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name:
Its:
PROPERTY ASSET MANAGEMENT SERVICES, L.P.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name:
Its:
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name:
Its:
S-8
PROPERTY MANAGEMENT SERVICES-CALIFORNIA,
LLC, a California limited liability
company
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name:
Its:
AMBASSADOR II, L.P.,
a Delaware limited liability company
By: AMBASSADOR II, Inc.,
a Delaware corporation
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
---------------------------
Name:
Its:
S-9