MASTER INDEMNIFICATION AGREEMENT
BY AND AMONG
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
XYZ HOLDINGS LLC
AND THE OTHER PARTIES SIGNATORY HERETO
Dated as of December 3, 2001
MASTER
INDEMNIFICATION AGREEMENT
This Master Indemnification Agreement (this "Agreement") is made
as of December 3, 2001, by and among Apartment Investment and Management
Company, a Maryland corporation ("AIMCO"), AIMCO Properties, L.P., a
Delaware limited partnership ("AIMCO OP"), XYZ Holdings LLC, a Delaware
limited liability company ("XYZ"), the Casden Group (as defined herein) and
the Blackacre Entity (as defined herein).
WITNESSETH
WHEREAS, AIMCO has entered into an Agreement and Plan of Merger,
dated as of December 3, 2001 (the "Casden Merger Agreement"), with Casden
Properties Inc., a Maryland corporation ("Casden") and XYZ;
WHEREAS, AIMCO and a wholly owned subsidiary of AIMCO ("AIMCO
Merger Sub") have entered into an Agreement and Plan of Merger, dated as of
December 3, 2001 (the "Park La Brea Merger Agreement" and, together with
the Casden Merger Agreement, the "Merger Agreements"), with Casden Park La
Brea Inc., a Maryland corporation ("CPLB");
WHEREAS, AIMCO OP, Casden, Casden Properties Operating
Partnership, L.P., a Delaware limited partnership ("Casden OP"), and
certain of the limited partners of Casden OP have entered into a OP Unit
Contribution Agreement, dated as of December 3, 2001 (the "OP Unit
Contribution Agreement");
WHEREAS, AIMCO OP, Alan I. Casden, AIC REIT Properties LLC, a
Delaware limited liability company, Casden Investment Corp., a California
corporation, and National Partnership Investments Corp., a California
corporation, have entered into a Contribution Agreement, dated as of
December 3, 2001 (the "Casden Contribution Agreement," together with the OP
Unit Contribution Agreement, the "Contribution Agreements");
WHEREAS, AIMCO, the Casden Indemnitors (as defined herein), Casden
Builders, Inc., CPLB and NAPICO, Inc. have entered into a Tax
Indemnification and Tax Contest Agreement, dated as of December 3, 2001
(the "Tax Indemnity Agreement"), providing for certain indemnification
rights and obligations of the parties thereto; and
WHEREAS, as a condition to consummating the transactions
contemplated by the Merger Agreements and the Contribution Agreements
(collectively, the "Acquisition Agreements"), and as an inducement to do
so, the parties hereto are entering into this Agreement.
NOW, THEREFORE, in consideration of the foregoing and the mutual
premises, representations, warranties, covenants and agreements contained
herein, the parties hereto, intending to be legally bound hereby, agree as
follows:
Section 1. Definitions. Capitalized terms used but not
defined herein shall have the meanings assigned to such terms in the Casden
Merger Agreement. In addition, the following terms shall have the
respective meanings ascribed thereto:
"18-Month Securities" shall mean the Casden 18-Month Securities
and the Blackacre 18-Month Securities.
"24-Month Securities" shall mean the Casden 24-Month Securities
and the Blackacre 24-Month Securities.
"Acquisition Agreements" shall have the meaning set forth in the
Recitals.
"Affiliate" shall mean, with respect to any person or entity, any
person or entity which, directly or indirectly, controls, is controlled by,
or is under common control with, the specified person or entity.
"AIMCO Common Stock" shall mean shares of AIMCO's Class A Common
Stock, par value $.01 per share, issued pursuant to the Acquisition
Agreements and any other securities issuable in respect thereof, whether as
a dividend or distribution, in connection with a stock split, merger,
recapitalization or otherwise.
"AIMCO Indemnitees" shall mean AIMCO, AIMCO OP, and their present
and future Affiliates, and the Representatives of the foregoing.
"AIMCO OP Units" shall mean partnership common units of AIMCO OP
issued pursuant to the Acquisition Agreements and any other securities
issuable in respect thereof, whether as a distribution, in connection with
a split of such common units, merger, recapitalization or otherwise.
"AIMCO Parties" shall mean AIMCO and AIMCO OP and "AIMCO Party"
shall mean either of them.
"AIMCO Securities" shall mean AIMCO Common Stock or AIMCO OP
Units.
"Blackacre 18-Month Securities" shall mean AIMCO Securities
designated by AIMCO and the Blackacre Entity and issued to the Blackacre
Entity in the Merger that have a Value of $25 million, subject to reduction
pursuant to Section 9(g).
"Blackacre 24-Month Securities" shall mean AIMCO Securities
designated by AIMCO and the Blackacre Entity and issued to the Blackacre
Entity in the Merger that have a Value of $25 million, subject to reduction
pursuant to Section 9(g).
"Blackacre Entity" shall mean Cerberus Partners, L.P., a Delaware
limited partnership.
"Blackacre Permitted Transferee" shall mean any Affiliate of the
Blackacre Entity; provided, however, any such Permitted Transferee shall
have agreed to be bound by all of the terms of this Agreement pursuant to
an agreement reasonably acceptable to AIMCO.
"Blackacre Securities" shall mean the Blackacre 18-Month
Securities and the Blackacre 24-Month Securities.
"Cap Reduction Date" shall mean the date that is 180 days after
the first anniversary of the Closing Date.
"Casden 18-Month Securities" shall mean AIMCO Securities
designated by AIMCO and Casden and issued to Alan I. Casden in the Merger
that have a Value of $23 million, subject to reduction pursuant to Section
9(g).
"Casden 24-Month Securities" shall mean AIMCO Securities
designated by AIMCO and Casden issued to Alan I. Casden in the Merger that
have a Value of $49 million, subject to reduction pursuant to Section 9(g).
"Casden Group" shall mean Alan I. Casden, The Casden Company and
Casden Investment Corp.
"Casden Indemnitees" shall mean XYZ, the Casden Group and the
Blackacre Entity, and their present and future Affiliates, and the
Representatives of the foregoing.
"Casden Indemnitors" shall mean XYZ, the Casden Group and the
Blackacre Entity.
"Casden OP Partners" shall mean the partners of Casden OP (other
than Casden).
"Casden Parties" shall mean all parties to the Acquisition
Agreements other than the AIMCO Parties.
"Casden Party" shall mean any of the Casden Parties.
"Casden Permitted Transferee" shall mean with respect to Alan I.
Casden, (A) any spouse or lineal descendant of Alan I. Casden; (B) any
spouse of any Person described in clause (A) above; (C) each trust created
solely for the benefit of one or more of Alan I. Casden and any Persons
described in clauses (A) and (B) above; (D) each Person in such Person's
capacity as a custodian or guardian of any property of one or more of Alan
I. Casden or any of the Persons described in clauses (A) and (B) above; (E)
any partnership, corporation, limited liability company or other Person all
of the capital stock of which is owned directly or indirectly by Alan I.
Casden or any of the Persons described in clauses (A) through (D) above;
and (F) any Affiliate of Alan I. Casden or by any combination of such
Persons; provided, however, that any Transfer to a Permitted Transferee
described in clauses (A) through (F) shall be solely for the purpose of
estate planning of Alan I. Casden or any Person described in clause (A) or
(B); and provided further, however, any such Permitted Transferee shall
have agreed to be bound by all of the terms of this Agreement pursuant to
an agreement reasonably acceptable to AIMCO.
"Casden Securities" shall mean the Casden 18-Month Securities and
the Casden 24-Month Securities.
"Closing Date" shall mean the date on which the merger
contemplated by the Casden Merger Agreement is consummated.
"Damages" shall mean any loss, liability, claim, damage, expense
(including costs of investigation and defense and reasonable attorneys'
fees) or diminution of value whatsoever, whether direct or indirect, known
or unknown, and whether or not involving a Third-Party Claim; provided,
however, that Damages shall not include any fines, penalties or special,
consequential, punitive or exemplary damages of an AIMCO Indemnitee or a
Casden Indemnitee unless such damages are awarded, paid or setoff pursuant
to a Third Party Claim.
"Person" shall mean an individual, corporation, partnership,
trust, association, limited liability company or any other entity or
organization, including a government or political subdivision or an agency
or instrumentality thereof.
"Proceeding" shall mean any action, arbitration, audit, hearing,
investigation, litigation, or suit (whether civil, criminal,
administrative, investigative or informal) commenced, brought, conducted,
threatened in writing or heard by or before, or otherwise involving any
court, governmental authority or arbitrator.
"Representatives" shall mean, with respect to any person or
entity, the directors, officers, partners, members, stockholders,
employees, trustees, counsel, controlling persons (if any), representatives
and agents, and each of the heirs, executors, successors and assigns of any
of the foregoing, of the specified person or entity.
"Third Party Claim" shall mean a written claim made or a
Proceeding brought by a Person other than an AIMCO Indemnitee or a Casden
Indemnitee or Casden Indemnitor.
"Transfer" shall mean, with respect to any asset, the direct or
indirect sale, assignment, pledge, encumbrance, hypothecation or other
disposition of such asset, or granting of any option to purchase such
asset.
"Value" shall mean, as of any date, and (A) with respect to any
shares of AIMCO Common Stock, the number of such shares multiplied by the
sum of (i) the AIMCO Common Stock Price and (ii) the amount of any
dividends that have accrued on a share of AIMCO Common Stock from the
Effective Time that have not been paid as of such date, and (B) with
respect to any AIMCO OP Units, the number of such AIMCO OP Units multiplied
by the sum of (i) the AIMCO Common Stock Price and (ii) the amount of any
distributions that have accrued on an AIMCO OP Unit from the Effective Time
that have not been paid as of such date (if any).
Section 2. Indemnification by Casden Indemnitors. Subject
to the terms and conditions set forth in this Agreement, the Casden
Indemnitors shall indemnify (without duplication), defend and hold harmless
the AIMCO Indemnitees for, and will pay to the AIMCO Indemnitees the amount
of, any Damages suffered or incurred by or asserted against any AIMCO
Indemnitee, arising, directly or indirectly, from or in connection with:
(a) any breach of any representation or warranty
made by any Casden Party in any of the Acquisition Agreements (other than
the Casden OP Partners in the OP Unit Contribution Agreement);
(b) any breach by any Casden Party of any
covenant or obligation of it in any of the Acquisition Agreements (other
than the Casden OP Partners in the OP Unit Contribution Agreement);
(c) any claim by any Person for brokerage or
finder's fees or commissions or similar payments based upon any agreement
or understanding alleged to have been made by any such Person with any
Casden Party (or any Person acting on behalf of any of them) in connection
with any of the transactions contemplated by any of the Transaction
Documents;
(d) any fees or expenses of CSFB, Monga LLC,
Gibson, Dunn & Crutcher LLP, Deloitte & Touche LLP, Katten Muchin Zavis and
Schulte, Roth & Zabel LLP (for services rendered to and at the request of
any of the Casden Parties) related to the Transactions that are incurred or
are due and payable after the date hereof (other than any such fees and
expenses to the extent deducted from the REIT Merger Consideration pursuant
to the terms of the Casden Merger Agreement);
(e) any claims, suits, actions or proceedings
based on facts or circumstances existing or arising prior to the Closing
Date including, without limitation, (i) the suits entitled In Re Real
Estate Associates Limited Partnership Litigation v. Casden et al. and
Nausatauvicus et al. v. NAPICO et al. (other than ordinary course
litigation set forth on Section 4.6(i) of the Casden Disclosure Letter,
Section 4.6(i) of the CPLB Disclosure Letter (as defined in the Park La
Brea Merger Agreement) covered by insurance policies (subject only to any
deductibles stated in such policies)) held by Casden and/or any of its
subsidiaries and (ii) any claims, suits, actions or proceedings filed by or
on behalf of any Person that is a holder of any OP Units (as defined in the
OP Unit Contribution Agreement) that has not executed and delivered the OP
Unit Contribution Agreement prior to the Closing Date;
(f) the employment or termination of employment
of the Transferred Employees;
(g) any (i) severance arrangements with respect
to any Transferred Employees, (ii) severance arrangements set forth on
Section 4.8(a) of the Casden Disclosure Letter other than payments to any
Affected Employee arising as a result of AIMCO's termination of his or her
employment after the Effective Time, (iii) severance arrangements with
employees of Casden or any of its subsidiaries which arrangements are not
set forth on Section 4.8(a) of the Casden Disclosure Letter, (iv)
stay-bonus agreements with executive officers of Casden or the Casden
Subsidiaries and (v) stay-bonus agreements with employees of Casden or the
Casden Subsidiaries (other than any such agreement that provides for
compensation not in excess of $100,000 individually or $500,000 in the
aggregate);
(h) any payment, or obligation to make a
payment, to any employee, officer or director of Casden or any of its
subsidiaries arising as a result of the transactions contemplated by any of
the Transaction Documents;
(i) the cost of any "in the money" options
outstanding as of the Closing Date not taken into account in the
calculation of the REIT Merger Consideration pursuant to Section 2.2 of the
Casden Merger Agreement;
(j) any actual or alleged breach of fiduciary
duty by Casden or any of its subsidiaries, affiliates or representatives to
any partner, member, stockholder, creditor or other Person that occurred or
is alleged to have occurred on or prior to the Closing Date; and
(k) Third Party Claims arising from any illegal,
fraudulent or tortious action or conduct by Casden, or any of its
subsidiaries, affiliates or representatives on or prior to the Closing
Date.
The liability of the Casden Group, on the one hand, and the
Blackacre Entity, on the other hand, shall be several, but not joint, in
proportion to the percentages set forth on Schedule A hereto. The liability
of XYZ under this Section 2 shall be joint and several with all other
Casden Indemnitors. The liability of the Casden Group, as among the members
thereof, under this Section 2 shall be joint and several with respect to
the sum of the percentages set forth on Schedule A hereto for all members
of the Casden Group. No Casden Indemnitor other than XYZ shall be required
to make any payment under this Section 2 unless and until thirty (30) days
have elapsed from the date on which it has been finally determined that the
Casden Indemnitors are liable under this Section 2 and XYZ has failed to
satisfy any indemnification obligation or pay any Damages.
Section 3. Indemnification by AIMCO. Subject to the terms
and conditions set forth in this Agreement, AIMCO shall indemnify, defend
and hold harmless the Casden Indemnitees for, and will pay to the Casden
Indemnitees the amount of, any Damages suffered or incurred by or asserted
against any Casden Indemnitee, arising, directly or indirectly, from or in
connection with:
(a) any breach of any representation or warranty
made by any AIMCO Party in any of the Acquisition Agreements;
(b) any breach by any AIMCO Party of any
covenant or obligation of it in any of the Acquisition Agreements;
(c) any claim by any Person for brokerage or
finder's fees or commissions or similar payments based upon any agreement
or understanding alleged to have been made by any such Person with any
AIMCO Party (or any Person acting on behalf of any of them) in connection
with any of the transactions contemplated by any of the Transaction
Documents;
(d) one-half of the first $1.2 million of
Transfer Taxes incurred in connection with transactions contemplated by the
Casden Merger Agreement and all Transfer Taxes in excess of $1.2 million;
(e) any Third Party Claim arising from any
illegal, fraudulent or tortious action or conduct by AIMCO or any of its
subsidiaries on or prior to the Closing Date; and
(f) any actions taken by, or omissions of, the
Surviving Corporation or any of the AIMCO Subsidiaries following the
Effective Time relating to the assets or entities (or businesses conducted
by such entities) being acquired pursuant to the Acquisition Agreements
(other than with respect to the matters set forth in Section 2 hereof for
which the Casden Indemnitors have agreed to indemnify the AIMCO
Indemnitees).
Section 4. Procedure for Indemnification-Third Party
Claims.
(a) Promptly after receipt by an indemnified
party under Section 2 or 3 of notice of any Third Party Claim against it,
such indemnified party will, if a claim is to be made against an
indemnifying party under such section, give written notice to the
indemnifying party of the commencement of such Third Party Claim. The
failure to notify the indemnifying party, however, will not relieve the
indemnifying party of any liability that it may have to any indemnified
party, except to the extent that the indemnifying party demonstrates that
the defense of such action is actually prejudiced by the indemnified
party's failure to give such notice.
(b) If any Third Party Claim referred to in
Section 4(a) is made or brought against an indemnified party and it gives
notice to the indemnifying party of the commencement of any Third Party
Claim, the indemnifying party will be entitled to participate in the
defense of such Third Party Claim and, to the extent that it wishes (unless
(i) the indemnifying party is also a party to such Third Party Claim and
the indemnified party determines in good faith to that joint representation
would be inappropriate, or (ii) the indemnifying party fails to provide
reasonable assurance to the indemnified party of its financial capacity to
defend such Third Party Claim and provide indemnification with respect to
such Third Party Claim), to assume the defense of such Third Party Claim
with counsel reasonably satisfactory to the indemnified party and, after
notice from the indemnifying party to the indemnified party of its election
to assume the defense of such Third Party Claim, the indemnifying party
will not, as long as it diligently conducts such defense, be liable to the
indemnified party under this Section 4 for any fees of other counsel or any
other expenses with respect to the defense or investigation of such Third
Party Claim, in each case, subsequently incurred by the indemnified party
in connection with the defense of such Third Party Claim. If the
indemnifying party assumes the defense of a Third Party Claim, (i) it will
be a rebuttable presumption for purposes of this Agreement that such Third
Party Claim is within the scope of, and subject to indemnification under,
this Agreement; (ii) no compromise or settlement of such claims may be
effected by the indemnifying party without the indemnified party's consent,
which consent shall not be unreasonably withheld or delayed; and (iii) the
indemnified party will have no liability with respect to any compromise or
settlement of such claims effected without its consent. If notice is given
to an indemnifying party of any Third Party Claim and the indemnifying
party does not, within ten business days after the indemnified party's
notice is given, give notice to the indemnified party of its election to
assume the defense of such Third Party Claim, the indemnifying party will
be bound by any determination made in the proceeding in which such Third
Party Claim is brought, or any compromise or settlement of such Third Party
Claim effected by the indemnified party.
(c) Notwithstanding the foregoing, if an
indemnified party determines in good faith that there is a reasonable
probability that a Third Party Claim may adversely affect it or its
Affiliates other than as a result of monetary damages for which it would be
entitled to indemnification under this Agreement, the indemnified party
may, by notice to the indemnifying party, assume the exclusive right to
defend, compromise, or settle such Third Party Claim, but the indemnifying
party will not be bound by any determination of a proceeding in which such
Third Party Claim is brought, or any compromise or settlement of such Third
Party Claim effected without its consent (which may not be unreasonably
withheld).
(d) The Casden Indemnitors and AIMCO hereby
consent to the non-exclusive jurisdiction of any court in which a
Third-Party Claim is brought against any indemnified party for purposes of
resolving issues of indemnity under this Agreement, or for the purpose of
resolving any of the matters alleged herein, and agree that process may be
served on them with respect to such a claim anywhere in the world.
(e) XYZ shall use commercially reasonable
efforts to defend and prosecute each action set forth on Section 4.6(ii) of
the Casden Disclosure Letter.
(f) Until and including the Closing Date, Casden
shall use commercially reasonable efforts to defend and prosecute all
litigation set forth on Section 4.6(i) of the Casden Disclosure Letter and
shall take every step reasonably necessary to cooperate and assist in the
transition of control over that litigation to AIMCO. After the Closing
Date, the Casden Indemnitors shall, and XYZ shall cause Development LLC and
its employees to, fully cooperate in the litigation, at AIMCO's reasonable
request, by, without limitation, providing access to their employees,
principals, agents or other witnesses. Any out-of-pocket expenses relating
to the foregoing sentence shall be the sole responsibility of AIMCO, and
AIMCO shall reimburse the appropriate Casden Indemnitor for all such
expenses.
Section 5. Procedure for Indemnification-Other Claims. A
claim for indemnification for any matter not involving a Third Party Claim
may be asserted by written notice to the party from whom indemnification is
sought.
Section 6. Time Limitations.
(a) The indemnifying parties will have no
liability under this Agreement (other than Sections 2(e), 2(j), 2(k), 3(e)
and 3(f)) unless, on or before the second anniversary of the Closing Date,
the indemnified party notifies the indemnifying party of a claim specifying
the factual basis of that claim in reasonable detail to the extent then
known by the indemnified party.
(b) Notwithstanding anything to the contrary in
this Agreement or any of the Acquisition Agreements, prior to the Closing
Date, if any of the AIMCO Parties has knowledge (as defined in the Casden
Merger Agreement) of any breach by any of the Casden Parties, or if any of
the Casden Parties has knowledge of any breach by any of the AIMCO Parties,
of any representation, warranty or covenant contained in any of the
Acquisition Agreements, then (i) within ten business days of acquiring such
knowledge, AIMCO (in the case of knowledge acquired by an AIMCO Party) or
XYZ (in the case of knowledge acquired by a Casden Party) shall deliver to
the other a notice setting forth the factual basis of such breach or
inaccuracy in reasonable detail to the extent then known and a reasonable
calculation of anticipated Damages resulting therefrom to the extent then
known (a "Preclosing Notice"), (ii) the alleged breaching party shall have
thirty (30) days following receipt of the Preclosing Notice to cure such
breach (a "Cure Period"), and (iii) the parties shall cooperate with one
another in connection with any attempts to cure such breach, including, to
the extent that the Cure Period extends beyond the Closing Date, by
providing the alleged breaching party with reasonable access to the
personnel of the other party and its subsidiaries existing immediately
prior to the Effective Time.
Section 7. Limitations on Amount.
(a) The Casden Indemnitors will have no
liability under Section 2(a) or 2(b) of this Agreement unless and until the
total of all Damages with respect to such matters exceeds $10,000,000.
Thereafter, the Casden Indemnitors will be liable under Section 2(a) or
2(b) for the total of all Damages, and not merely the excess, up to a
maximum of (i) $188,000,000 for claims and Third Party Claims for which
notice has been given on or prior to the Cap Reduction Date, or (ii) the
lesser of (x) $188,000,000 minus the aggregate amount of all claims paid
and Third Party Claims paid on or prior to the Cap Reduction Date and (y)
$131,000,000, in each case, for claims and Third Party Claims for which
notice is given after the Cap Reduction Date but on or prior to the second
anniversary of the Closing Date; provided, however, that the limitations
set forth in this Section 7(a) and the $10,000,000 threshold shall not
apply to (i) any other paragraph of Section 2 of this Agreement, (ii) any
intentional breach of any covenant or agreement in any of the Acquisition
Agreements or (iii) illegal actions or fraud.
(b) AIMCO will have no liability under Section
3(a) or 3(b) of this Agreement unless and until the total of all Damages
with respect to such matters exceeds $10,000,000. Thereafter, AIMCO will be
liable under Section 3(a) or 3(b) for the total of all Damages, and not
merely the excess, up to a maximum of (i) $188,000,000 for claims and Third
Party Claims for which notice has been given on or prior to the Cap
Reduction Date, or (ii) the lessor of (x) $188,000,000 minus the aggregate
amount of all claims paid and Third Party Claims paid on or prior to the
Cap Reduction Date and (y) $131,000,000, in each case, for claims and Third
Party Claims for which notice has been given after the Cap Reduction Date,
but on or prior to the second anniversary of the Closing Date; provided,
however, that the limitations set forth in this Section 7(b) and the
$10,000,000 threshold shall not apply to (i) any other paragraph of Section
3 of this Agreement, (ii) any intentional breach of any covenant or
agreement in any of the Acquisition Agreements or (iii) illegal actions or
fraud.
Section 8. Right of Set-Off; Escrow of Certain Amounts.
Upon notice to the Casden Indemnitors specifying in reasonable detail the
basis for such set-off, the AIMCO Parties and their subsidiaries may set
off any amount (the "Set-Off Amount") to which any AIMCO Indemnitee may be
entitled under this Agreement against any monies, dividends (other than
dividends on AIMCO Common Stock) or payments properly due and owing to any
Casden Indemnitor pursuant to this Agreement or any of the Transaction
Documents (except the Consulting Agreement for which no set off shall be
effected); provided, however, that (i) with respect to any WW Deferred
Amount (as defined in the Tri-Party Agreement) payable to XYZ under the
Tri-Party Agreement, the AIMCO Parties may set off only amounts
representing claims for Damages that relate to WW (as defined in the
Tri-Party Agreement) and (ii) with respect to any PLB A Deferred Amount,
PLB B Deferred Amount or PLB C Deferred Amount (as such terms are defined
in the Tri-Party Agreement) payable to XYZ under the Tri-Party Agreement,
the AIMCO Parties may set off only amounts representing claims for Damages
that relate to PLB A, PLB B or PLB C (as such terms are defined in the
Tri-Party Agreement). After delivery of such notice, the AIMCO Parties
shall cause the Set-Off Amount to be deposited into escrow with an escrow
agreement and an escrow agent reasonably acceptable to the parties. The
escrow agreement shall provide that the Set-Off Amount shall be held by the
escrow agent until such time as the claim for indemnification under this
Agreement has been finally determined in accordance with this Agreement or
by a court of competent jurisdiction. The escrow agreement shall further
provide that (i) if it is determined that an AIMCO Indemnitee is entitled
to any portion of the Set-Off Amount, the escrow agent shall pay such
portion of the Set-Off Amount, together with interest accrued thereon, to
the AIMCO Parties and, thereafter, the amount to which the AIMCO Indemnitee
is entitled pursuant to this Agreement shall be reduced by such Set-Off
Amount; and (ii) if it is determined that an AIMCO Indemnitee is not
entitled to any portion of the Set-Off Amount, the escrow agent shall pay
such portion of the Set-Off Amount, together with interest accrued thereon,
to the Casden Indemnitor to whom such amount was payable. Neither the
exercise of nor the failure to exercise such right of set-off will
constitute an election of remedies or limit any AIMCO Indemnitee in any
manner in the enforcement of any other remedies that may be available to
it.
Section 9. Restrictions on Transfer of Securities.
(a) Prior to the Cap Reduction Date, Alan I.
Casden shall not Transfer any Casden 18-Month Securities and the Blackacre
Entity shall not Transfer any Blackacre 18-Month Securities.
(b) Prior to the second anniversary of the
Closing Date, Casden shall not Transfer any Casden 24-Month Securities and
the Blackacre Entity shall not Transfer any Blackacre 24-Month Securities.
(c) In the event that on the Cap Reduction Date,
any claim for indemnification by an AIMCO Indemnitee has been made pursuant
to this Agreement which has not yet been finally resolved and paid, the
restrictions on Transfers set forth in Section 9(a) and Section 9(b) shall
be extended until each such claim is fully resolved and paid, but only with
respect to AIMCO Securities with a Value equal to the amount of such
outstanding claims and, in respect of each Casden Indemnitor, only to the
extent of its pro rata amount of such claims as specified in Schedule A
hereto. In the event that on the second anniversary of the Closing Date,
any claim for indemnification by an AIMCO Indemnitee has been made pursuant
to this Agreement which has not yet been finally resolved and paid, the
restrictions on Transfers set forth in Sections 9(a) and (b) shall be
extended until each such claim is fully resolved and paid, but only with
respect to AIMCO Securities with a Value equal to the aggregate asserted
value of all such outstanding claims and, in respect of each Casden
Indemnitor, only to the extent of its pro-rata amount of such claims as
specified in Schedule A hereto.
(d) Notwithstanding the transfer restrictions set
forth in Sections 9(a), (b) and (c), Alan I. Casden may Transfer AIMCO
Securities to any Casden Permitted Transferee and the Blackacre Entity may
Transfer AIMCO Securities to any Blackacre Permitted Transferee; and Alan I.
Casden and the Blackacre Entity may enter into hedge transactions so long as
the third party(ies) to any such transaction (the "Hedgee") acknowledges
AIMCO's rights to the AIMCO Securities pursuant to this Agreement in form and
in substance reasonably satisfactory to AIMCO to such effect. Each party will
use their respective reasonable best efforts to consummate any such hedging
transaction, including executing such further documents and instruments and
taking such further actions as reasonably requested by another party, and to
obtain such acknowledgement from any such Hedgee (or otherwise structure such
transaction in a manner reasonably satisfactory to AIMCO).
(e) Notwithstanding the transfer restrictions
set forth in Sections 9(a), (b), (c) and (d), Alan I. Casden and the
Blackacre Entity may Transfer AIMCO Securities (i) in an arm's-length
transaction to an unrelated party provided that proceeds of such Transfer
equal to the Value of the securities transferred are placed into an escrow
account solely for the benefit of the AIMCO Indemnitees in satisfaction of
the indemnification obligations of Alan I. Casden and the Blackacre Entity
under this Agreement, pursuant to an escrow agreement reasonably
satisfactory to AIMCO or (ii) if collateral satisfactory to AIMCO, in its
sole and absolute discretion, or cash is provided to secure the Casden
Indemnitors' obligations hereunder pursuant to security agreements and
other documentation satisfactory to AIMCO, in its reasonable discretion.
(f) The Casden Group and Blackacre hereby agree
that all certificates representing any AIMCO Security subject to the
restrictions on Transfer set forth in this Section 9 shall include a legend
describing such restrictions on Transfer; provided, however, that AIMCO
agrees to remove any such legends on such certificates not required under
applicable securities laws in connection with any transaction or
arrangement described in Section 9(e) that is reasonably satisfactory to
AIMCO. AIMCO shall not, and shall instruct any transfer agent or registrar
for the AIMCO securities not to, effect any Transfer of any such AIMCO
Securities except to the extent permitted in this Section 9, and any
purported Transfer in violation of this Section 9 shall be null and void.
(g) The AIMCO Parties agree to accept from the
Casden Indemnitors, in satisfaction of all or any portion of any
indemnification obligation under this Agreement, AIMCO Securities received
pursuant to the Casden Merger Agreement with a Value equal to the amount of
such obligation. The Value of AIMCO Securities subject to the restrictions
on Transfer set forth in Sections 9(a) and 9(b) shall be reduced
automatically by the Value of any AIMCO Securities transferred to an AIMCO
Party pursuant to this Agreement or the Tax Indemnity Agreement by (i) Alan
I. Casden or the Blackacre Entity, as the case may be, or (ii) by another
Casden Indemnitor, if such Casden Indemnitor has indicated that such
Transfer is made in satisfaction of the obligations of Alan I. Casden or
the Blackacre Entity and notifies AIMCO of the allocation of such reduction
as between the Casden Securities and the Blackacre Securities, in each
case, in satisfaction of any indemnification obligation, with such
reduction applied first to the 18-Month Securities and, when the 18-Month
Securities are depleted, to the 24-Month Securities.
Section 10. Insurance Proceeds.
(a) Except to the extent that any provision of
this Agreement specifically denominates an amount due pursuant to this
Agreement as interest in respect of a delayed payment, any indemnity
payments by an indemnifying party to an indemnified party under this
Agreement will be treated by the parties as an adjustment to the
consideration received under the Acquisition Agreements to the extent
permitted by law.
(b) The Damages under this Agreement shall be
computed net of any third party insurance proceeds actually received by the
indemnified party pursuant to an insurance policy with respect to such
Damages, net of the direct cost of obtaining insurance as a consequence of
such Damages. If any such reduction is determined after payment by the
indemnified party of any amounts otherwise required to be paid pursuant to
this Agreement, the indemnified party shall repay to the indemnifying
party, within thirty (30) days of such determination, any amount the
indemnifying party would not have had to pay pursuant to this Agreement had
such determination been made at the time of such payment. The indemnified
party shall use commercially reasonable efforts to make insurance claims
relating to any claim, liability or Damages for which indemnification is
provided under this Agreement.
Section 11. Tax Indemnification. Notwithstanding anything
in this Agreement to the contrary, no Casden Indemnitor shall have any
liability under this Agreement for any Damages relating to Taxes (as
defined in the Tax Indemnity Agreement), which Damages shall be governed
exclusively under the Tax Indemnity Agreement.
Section 12. REIT Savings Clause. Notwithstanding anything
in this Agreement to the contrary, in no event shall any amount paid to the
AIMCO Indemnitees pursuant to this Agreement in any tax year exceed the
maximum amount that can be paid in such year without causing AIMCO to fail
to meet the requirements of sections 856(c)(2) and (3) of the Code (the
"REIT Requirements") for such year, determined as if the payment of such
amount did not constitute income described in Sections 856(c)(2)(A)-(H) and
856(c)(3)(A)-(I) of the Code ("Qualifying Income") as determined by
independent accountants to AIMCO. If the amount payable for any tax year
under the preceding sentence is less than the amount which the indemnifying
party would otherwise be obligated to pay to the AIMCO Indemnitees pursuant
to this Agreement (the "Indemnifiable Amount"), the AIMCO Indemnitees shall
so notify the indemnifying party, and the indemnifying party shall (at the
AIMCO Indemnitees' sole cost and expense) place the remaining portion of
the Indemnifiable Amount in escrow and shall not execute any
instrumentation permitting a release of any portion thereof to the AIMCO
Indemnitees, and the AIMCO Indemnitees shall not be entitled to any such
amount, unless and until the indemnifying party and escrow holder receive
(all at the AIMCO Indemnitees' sole cost and expense) notice from AIMCO,
together with either (a) an opinion of AIMCO's tax counsel to the effect
that such amount, if and to the extent paid, would not constitute gross
income which is not Qualifying Income or (b) a letter from AIMCO's
independent accountants indicating the maximum amount that can be paid at
that time to the AIMCO Indemnitees without causing AIMCO to fail to meet
the REIT Requirements for any relevant taxable year, together with either a
ruling from the IRS issued to AIMCO or an opinion of AIMCO's tax counsel to
the effect that such payment would not be treated as includible in the
income of AIMCO for any prior taxable year, in which event the escrow
holder shall pay such maximum amount. The indemnifying party's and escrow
holder's obligation to pay any unpaid portion of the Indemnifiable Amount
shall terminate ten (10) years from the date of this Agreement and, upon
such date, escrow holder shall remit any remaining funds in escrow to the
indemnifying party and the indemnifying party shall have no obligation to
make any further payments to the AIMCO Indemnitees notwithstanding that the
entire Indemnifiable Amount has not been paid as of such date.
Section 13. Effect of Investigation. The waiver of any
condition to the obligation of a party to consummate any of the
transactions contemplated by the Acquisition Agreements, where such
condition is based on the accuracy of any representation or warranty, or on
the performance of or compliance with any covenant or obligation shall not
affect the right to indemnification, payment of Damages, or other remedy
based on such representation, warranty, covenant or obligation; provided,
however, that (a) if any AIMCO Party has knowledge (as defined in the
Casden Merger Agreement) prior to the Closing Date of any breach by a
Casden Party of any representation, warranty or covenant in any Acquisition
Agreement and AIMCO did not comply with its Preclosing Notice obligation
pursuant to this Agreement, the AIMCO Indemnitees shall not be entitled to
indemnification pursuant to this Agreement for such breach, as to which it
had knowledge and (b) if any Casden Party has knowledge (as defined in the
Casden Merger Agreement) prior to the Closing Date of any breach by an
AIMCO Party of any representation, warranty or covenant in any Acquisition
Agreement and XYZ did not comply with its Preclosing Notice obligation
pursuant to this Agreement, the Casden Indemnitees shall not be entitled to
indemnification pursuant to this Agreement for such breach, as to which it
had knowledge.
Section 14. Waiver. The rights and remedies of the AIMCO
Indemnitees and Casden Indemnitees under this Agreement are cumulative and
not alternative. Neither the failure nor any delay by any party in
exercising any right, power, or privilege under this Agreement will operate
as a waiver of such right, power, or privilege, and no single or partial
exercise of any such right, power, or privilege will preclude any other or
further exercise of such right, power, or privilege or the exercise of any
other right, power, or privilege. To the maximum extent permitted by
applicable law, (a) no claim or right arising out of this Agreement can be
discharged by one party, in whole or in part, by a waiver or renunciation
of the claim or right unless in writing signed by the other party; (b) no
waiver that may be given by a party will be applicable except in the
specific instance for which it is given; and (c) no notice to or demand on
one party will be deemed to be a waiver of any obligation of such party or
of the right of the party giving such notice or demand to take further
action without notice or demand as provided in this Agreement.
Section 15. Mitigation of Damages. Any indemnified party
in this Agreement shall use commercially reasonable efforts to mitigate
Damages; provided, however, that failure to use commercially reasonable
efforts will relieve the indemnifying party of liability to pay such
Damages if and only to the extent that such failure increases such Damages.
Section 16. Amendments. This Agreement may not be
modified, amended, altered or supplemented, except upon the execution and
delivery of a written agreement executed by the parties hereto.
Section 17. Successors and Assigns. The provisions of
this Agreement shall be binding upon and inure solely to the benefit of
each party hereto, any other Casden Indemnitee, any other AIMCO Indemnitee
and their respective estates, heirs, successors and permitted assigns, and
nothing in this Agreement, express or implied, is intended to confer upon
any other Person any rights or remedies of any nature whatsoever under or
by reason of this Agreement.
Section 18. Entire Agreement. This Agreement and the
other Transaction Documents constitute the entire agreement and supersede
all other prior or contemporaneous oral or written agreements and
understandings among the parties, or any of them, with respect to the
subject matter hereof, and there are no warranties, representations or
other agreements, express or implied, made to any party by any other party
in connection with the subject matter hereof or thereof except as
specifically set forth herein or therein or in the documents delivered
pursuant hereto or in connection herewith.
Section 19. Notices. All notices, consents, requests,
reports, demands or other communications hereunder (collectively,
"Notices") shall be in writing and shall be deemed given (a) when delivered
personally, (b) when sent by reputable overnight courier service, or (c)
when telecopied (which is confirmed by copy sent within one business day by
a reputable overnight courier service) to the parties at the following
addresses (or at such other address for a party as shall be specified by
like notice):
If to AIMCO, to:
Apartment Investment and Management Company
18350 Mt. Langley Avenue, Suite 220
Fountain Valley, CA 92708
Attn: Peter K. Kompaniez
Telephone: (714) 593-1733
Telecopy:(714) 593-1703
and
Apartment Investment and Management Company
2000 South Colorado Boulevard
Tower Two, Suite 2-1000
Denver, CO 80222
Attn: Terry Considine and Harry Alcock
Telephone: (303) 691-4330
Telecopy:(303) 753-9538
with copies (which shall not constitute notice) to:
Skadden, Arps, Slate, Meagher & Flom LLP
4 Times Square
New York, NY 10036
Attn: Joseph A. Coco, Esq.
Telephone: (212) 735-3000
Telecopy: (212) 735-2000
and
Skadden, Arps, Slate, Meagher & Flom LLP
300 South Grand Avenue, Suite 3400
Los Angeles, CA 90071
Attn: Jonathan L. Friedman, Esq.
Telephone: (213) 687-5000
Telecopy: (213) 687-5600
if to any Casden Party, to such Casden Party at:
c/o XYZ Holdings LLC
9090 Wilshire Boulevard
Beverly Hills, CA 90211
Attn: Andrew J. Starrels
Telephone: (310) 385-3057
Telecopy: (310) 273-8418
with copies (which shall not constitute notice) to:
Gibson, Dunn & Crutcher LLP
333 South Grand Avenue
Los Angeles, CA 90071
Attn: Jesse Sharf, Esq. and Scott Calfas, Esq.
Telephone: (213) 229-7638
Telecopy:(213) 229-6638
Blackacre Capital Management, LLC
450 Park Avenue, 28th Floor
New York, NY 10022
Attn: Mark Neporent/Ronald J. Kravit
Telephone: (212) 891-1540
Telecopy: (212) 891-2104
Katten Muchin Zavis
525 West Monroe Street, Suite 1600
Chicago, IL 60661-3696
Attn: Nina Matis, Esq.
Telephone: (312) 902-1061
Telecopy: (312) 902-5560
and
Schulte, Roth & Zabel LLP
919 Third Avenue
New York, NY 10022
Attn: Alan Waldenberg, Esq.
Telephone: (212) 593-5955
Telecopy: (212) 756-2501
Section 20. Governing Law. THIS AGREEMENT shall be
governed by and construed in accordance with the laws of the State of New
York, including Sections 5-1401 and 5-1402 of the New York General
Obligations Law and New York Civil Practice Laws and Rules 327(b).
Section 21. Enforcement. The parties agree that
irreparable damage would occur in the event that any of the provisions of
this Agreement were not performed in accordance with their specific terms
or were otherwise breached. It is accordingly agreed that the parties shall
be entitled to an injunction or injunctions to prevent breaches of this
Agreement and to enforce specifically the terms and provisions of this
Agreement in any court of the United States located in the State of New
York or in New York state court, this being in addition to any other remedy
to which they are entitled under this Agreement, which shall be the
exclusive remedies of the parties with respect to any matters expressly
covered by this Agreement and the Transaction Documents, except as
otherwise expressly provided in this Agreement or the Transaction
Documents. In addition, each of the parties hereto (a) consents to submit
itself to the personal jurisdiction of any federal court located in the
State of New York or any New York state court in the event any dispute
arises out of this Agreement or any of the Transactions, (b) agrees that it
shall not attempt to deny such personal jurisdiction by motion or other
request for leave from any such court, and (c) agrees that it will not
bring any action relating to this Agreement or any of the Transaction
Documents in any court other than a federal or state court sitting in the
State of New York. Each of the Casden Indemnitors hereby appoints XYZ as
its agent for service of process, and service on XYZ shall be deemed
service and notice to all other Casden Indemnitors.
Section 22. Counterparts; Effectiveness. This Agreement
may be executed in two or more counterparts, each of which shall be deemed
to be an original, but all of which shall constitute one and the same
agreement.
Section 23. Interpretation. When a reference is made in
this Agreement to Sections, such reference shall be to a Section of this
Agreement, unless otherwise indicated. The headings contained in this
Agreement are for reference purposes only and shall not affect in any way
the meaning or interpretation of this Agreement. Whenever the words
"include," "includes" or "including" are used in this Agreement, they shall
be deemed to be followed by the words "without limitation."
Section 24. Termination. This Agreement shall
automatically terminate upon the termination of the Casden Merger Agreement
in accordance with its terms. In the event of the termination of this
Agreement pursuant to this Section 24, except as expressly provided in the
Casden Merger Agreement, no party hereto shall have any liability to any
other party with respect to this Agreement or the transactions contemplated
hereby and this Agreement shall be of no further force or effect.
Notwithstanding the foregoing, Sections 16 through 28 of this Agreement
shall survive the termination indefinitely (unless otherwise specifically
provided therein).
Section 25. Severability. The provisions of this
Agreement shall be deemed severable and the invalidity or unenforceability
of any provision shall not affect the validity or enforceability of the
other provisions hereof. Any provision or part of this Agreement which is
invalid or unenforceable in any situation in any jurisdiction shall, as to
such situation and such jurisdiction, be ineffective only to the extent of
such invalidity and shall not affect the enforceability of the remaining
provisions hereof or the validity or enforceability of any such provision
in any other situation or in any other jurisdiction.
Section 26. Construction. The language used in this
Agreement will be deemed to be the language chosen by the parties hereto to
express their mutual intent, and no rule of strict construction will be
applied against any person.
Section 27. Attorneys' Fees. If any action at law or in
equity is necessary to enforce or interpret the terms of this Agreement,
the prevailing party shall be entitled to reasonable attorneys' fees, costs
and necessary disbursements, in addition to any other relief to which such
party may be entitled.
Section 28. Negotiation of Agreement. Each of the parties
acknowledges that it has been represented by independent counsel of its
choice throughout all negotiations that have preceded the execution of this
Agreement and that it has executed the same with consent and upon the
advice of said independent counsel. Each party and its counsel cooperated
in the drafting and preparation of this Agreement and the documents
referred to herein, and any and all drafts relating thereto shall be deemed
the work product of the parties and may not be construed against any party
by reason of its preparation. Accordingly, any rule of law or any legal
decision that would require interpretation of any ambiguities in this
Agreement against the party that drafted it is of no application and is
hereby expressly waived. The provisions of this Agreement shall be
interpreted in a reasonable manner to effect the intentions of the parties
and this Agreement.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement
to be duly executed and delivered as of the date first above written.
APARTMENT AND INVESTMENT
MANAGEMENT COMPANY
By: /s/ Peter Kompaniez
---------------------------------------------
Name: Peter Kompaniez
Title: President
AIMCO PROPERTIES, L.P.
By: /s/ Peter Kompaniez
---------------------------------------------
Name: Peter Kompaniez
Title: President
XYZ HOLDINGS LLC
By: CASDEN INVESTMENT CORP., its managing member
By: /s/ Alan I. Casden
-------------------------------------------
Name: Alan I. Casden
Title: Chairman
THE CASDEN COMPANY
By: /s/ Alan I. Casden
---------------------------------------------
Name: Alan I. Casden
Title: Chairman
CASDEN INVESTMENT CORP.
By: /s/ Alan I. Casden
---------------------------------------------
Name: Alan I. Casden
Title: Chairman
/s/ Alan I. Casden
--------------------------------------------------
ALAN I. CASDEN
CERBERUS PARTNERS, L.P.
By: /s/ Ronald Kravit
---------------------------------------------
Name: Ronald Kravit
Title: Authorized Signatory