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EXHIBIT 10.3 EXECUTION COPY
AMENDED AND RESTATED INTERCREDITOR AND
COLLATERAL AGENCY AGREEMENT
THIS AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
(this "AGREEMENT") is made as of May 30, 2003 by and among BANK OF AMERICA, N.A.
("BANK OF AMERICA"), in its capacity as collateral agent (and in such capacity,
together with its successors in such capacity or any Lenders or group of Lenders
acting in such capacity, "COLLATERAL AGENT" hereunder), Bank of America in its
capacity as administrative agent (and in such capacity, together with its
successors in such capacity, "REVOLVER AGENT" hereunder) for the Revolver
Lenders (as hereinafter defined), Bank of America in its capacity as
administrative agent (and in such capacity, together with its successors in such
capacity, "TERM AGENT" hereunder) for the Term Lenders (as hereinafter defined),
LEHMAN COMMERCIAL PAPER INC. ("LEHMAN"), in its capacity as administrative agent
(and in such capacity, together with its successors in such capacity, "CASDEN
AGENT" hereunder), for the Casden Lenders (as hereinafter defined), and AIMCO
PROPERTIES, L.P., a Delaware limited partnership ("AIMCO"), AIMCO/BETHESDA
HOLDINGS, INC., a Delaware corporation ("AIMCO/BETHESDA"), NHP MANAGEMENT
COMPANY, a District of Columbia corporation ("NHP MANAGEMENT") and APARTMENT
INVESTMENT AND MANAGEMENT COMPANY, a Maryland corporation ("REIT") (REIT, AIMCO,
AIMCO/Bethesda and NHP Management together with their successors and assigns are
collectively referred to as "REVOLVER BORROWERS"; REIT, AIMCO, AIMCO/Bethesda
and NHP Management together with their successors and assigns are collectively
referred to as "TERM BORROWERS"; and REIT, AIMCO and NHP Management and their
respective successors and assigns are collectively referred to as "CASDEN
BORROWERS", the Revolver Borrowers, Term Borrowers and Casden Borrowers are
collectively referred to as "BORROWERS"), with reference to the following facts:
A. Revolver Borrowers, Bank of America, as agent and as a lender, and
the financial institutions party thereto, executed that certain Credit Agreement
dated as of August 16, 1999, as amended by (i) that certain Amended and Restated
Credit Agreement dated March 15, 2000, (ii) that certain First Amendment to
$345,000,000 Amended and Restated Credit Agreement dated as of April 14, 2000,
(iii) that certain Second Amended and Restated Credit Agreement dated as of
September 20, 2000, (iv) that certain Third Amended and Restated Credit
Agreement dated as of November 6, 2001, (v) that certain Fourth Amended and
Restated Credit Agreement dated as of March 11, 2002, (vi) that certain Consent
and Waiver, dated as of June 12, 2002, (vii) that certain Second Amendment to
Fourth Amended and Restated Credit Agreement, dated as of August 5, 2002, (viii)
that certain Fifth Amended and Restated Credit Agreement, dated as of February
14, 2003, (ix) that certain First Amendment to Fifth Amended and Restated Credit
Agreement, dated as of May 9, 2003 (the "FIRST AMENDMENT"), and (x) that certain
Second Amendment to Fifth Amended and Restated Credit Agreement, dated of even
date herewith (the "REVOLVER CREDIT AGREEMENT AMENDMENT") (as so amended, and as
hereafter may be amended from time to time in accordance with this Agreement,
the "REVOLVER CREDIT AGREEMENT"). Pursuant to the Revolver Credit Agreement, the
Revolver Lenders have committed to make loans and certain other credit
facilities to Revolver Borrowers in the maximum principal amount of $500,000,000
(the "REVOLVER LOAN").
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B. Casden Borrowers, Lehman, as agent and as a lender, and the
financial institutions party thereto, executed that certain Interim Credit
Agreement, dated as of March 11, 2002, as amended by (i) that certain First
Amendment and Waiver, dated as of June 12, 2002, (ii) that certain Second
Amendment, dated as of August 2, 2002, (iii) that certain Third Amendment, dated
as of February 14, 2003, (iv) that certain Fourth Amendment, dated as of May 9,
2003 (the "FOURTH AMENDMENT"), and (v) that certain Fifth Amendment, dated of
even date herewith (the "CASDEN CREDIT AGREEMENT AMENDMENT") (as so amended, and
as hereafter may be amended from time to time in accordance with this Agreement,
the "CASDEN CREDIT AGREEMENT"). Pursuant to the Casden Credit Agreement, the
Casden Lenders have made loans to Casden Borrowers in the original principal
amount of $287,000,000 and on the date hereof the outstanding principal balance
of such loans has been reduced to approximately $104,000,000 (the "CASDEN
LOAN").
C. Concurrently herewith, Term Borrowers, Bank of America, as agent and
as a lender, and the financial institutions party thereto, are executing that
certain Term Loan Credit Agreement (as hereafter may be amended from time to
time in accordance with this Agreement, the "TERM CREDIT AGREEMENT") with
respect to a term loan to Term Borrowers in the original principal amount of
$250,000,000 (the "TERM LOAN").
D. Casden Lenders and Revolver Lenders have consented to the Term Loan
pursuant to the Fourth Amendment and the First Amendment, respectively.
Concurrently herewith, Casden Borrowers, Casden Agent and the Casden Lenders are
entering into the Casden Credit Agreement Amendment and Revolver Borrowers,
Revolver Agent and the Revolver Lenders are entering into the Revolver Credit
Agreement Amendment, in each case, to make the specific changes to their
respective Loan Documents in order to implement the Term Loan.
E. Agents (as defined below), Borrowers and Collateral Agent desire to
execute and deliver this Agreement to evidence, among other things, the
agreement of the parties that each Loan and the Loan Documents for each Loan and
the rights of each Lender thereunder (except as expressly set forth otherwise
herein), including, in each case, recourse to Collateral and recourse to
Guarantors are and will be PARI PASSU to the other Loans and Loan Documents, and
the rights of the Lenders thereunder (except as expressly set forth otherwise
herein) will be pro rata in accordance with the respective Benefited Obligations
of each such Lender as specifically set forth herein, and to further set forth
the relative rights and obligations of the parties hereto.
NOW THEREFORE, in consideration of the mutual covenants and agreements
contained herein and for other good and valuable consideration, the receipt and
sufficiency of which are hereby conclusively acknowledged, the parties hereto
agree as follows:
1. DEFINITIONS: As used in this Agreement, the following terms
will have the following meanings:
"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
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direct or cause the direction of the management and policies of such Person
whether by contract or otherwise.
"AGENT(S)" means Casden Agent, Revolver Agent and/or Term Agent.
"AGENT DEFAULT NOTICE" is defined in SECTION 5F.
"AGREEMENT" is defined in the first paragraph.
"BANK OF AMERICA" is defined in the first paragraph.
"BANKRUPTCY CODE" means the United States Bankruptcy Code, 11 U.S.C.
Sections 101 ET SEQ.
"BENEFITED OBLIGATIONS" means (a) all Revolver Indebtedness, (b) all
Casden Indebtedness, (c) all Term Indebtedness, and (d) all other amounts
payable by any Borrower Party under this Agreement, any Guaranty and the
Borrowers Pledge Agreements (including, without limitation, the fees and
expenses of the Collateral Agent).
"BENEFITED PARTIES" means the holders, from time to time, of the
Benefited Obligations.
"BORROWER DEFAULT NOTICE" is defined in SECTION 5F.
"BORROWERS" is defined in the preamble.
"BORROWER PARTY" or "BORROWER PARTIES" means any or all of the obligors
under any of the Loans, including the Casden Borrowers, Revolver Borrowers, and
the Term Borrowers and the respective guarantors and pledgors thereunder.
"BORROWERS PLEDGE AGREEMENT(S)" means the Casden Borrowers Pledge
Agreement, the Term Borrowers Pledge Agreement and the Revolver Borrowers Pledge
Agreement.
"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 any Agent's lending office is located.
"CASDEN AGENT" is defined in the first paragraph.
"CASDEN BORROWERS" is defined in the first paragraph.
"CASDEN BORROWERS PLEDGE AGREEMENT" means the Borrowers Pledge
Agreement, dated as of March 11, 2002, by and among the pledgors named therein
and entered into in connection with the Casden Credit Agreement.
"CASDEN CREDIT AGREEMENT" is defined in RECITAL B.
"CASDEN DEFAULT" means the occurrence of an "Event of Default" under
the Casden Loan Documents.
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"CASDEN INDEBTEDNESS" means, collectively, all (i) principal
indebtedness under the Casden Credit Agreement, (ii) interest (including
interest at the default rate of interest provided for in the Casden Loan
Documents on the principal indebtedness under the Casden Loan Documents), fees,
expenses, charges or other amounts accruing on or after the filing of any
petition in bankruptcy or for reorganization at the rate or in the amount
otherwise applicable thereto, whether or not any such interest, fees, expenses,
charges or other amounts is an allowed claim, and (iii) premiums and fees
(including post-petition fees and costs, including attorneys fees), if any, and
other amounts, indebtedness, obligations and liabilities of Casden Borrowers and
their respective Subsidiaries or Affiliates, whether now existing or hereafter
incurred or created, payable, owing or due to Casden Lenders under or with
respect to the Casden Loan Documents.
"CASDEN LENDERS" means, collectively, the Casden Agent and the
"Lenders" as defined in the Casden Credit Agreement.
"CASDEN LOAN" is defined in RECITAL B.
"CASDEN LOAN DOCUMENTS" means the Casden Credit Agreement, any notes
executed in connection therewith, and any other document, agreement or
instrument now, heretofore or hereafter executed and delivered by or on behalf
of Casden Borrowers or any Borrower Party (as defined in the Casden Credit
Agreement) with or in favor of Casden Lenders in connection with the Casden
Loan, together with any supplement, modification, amendment, restatement,
extension or renewal of any such document, agreement or instrument.
"CODE" means the Uniform Commercial Code as the same may from time to
time be in effect in the State of California.
"COLLATERAL" is defined in the Borrowers Pledge Agreements.
"COLLATERAL AGENT" is defined in the first paragraph.
"COLLATERAL DOCUMENTS" is defined in each of the Credit Agreements.
"CREDIT AGREEMENT(S)" means, collectively, the Revolver Credit
Agreement, the Casden Credit Agreement and/or the Term Credit Agreement.
"DIRECTING PARTY" means, with respect to any particular instruction
given to the Collateral Agent, each Party (and each Benefited Party represented
by such Party) that has the authority to give instruction to the Collateral
Agent and has given such instruction.
"ENFORCEMENT" means the commencement of enforcement, collection
(including judicial or non-judicial foreclosure), appointment of a receiver or
similar proceedings with respect to realizing on the Collateral, among other
things, to collect Proceeds for distribution as provided hereunder.
"ENFORCEMENT PARTY(IES)" means (a) any Agent(s) which have a Payment
Default outstanding under their respective Credit Agreement at any time during
the Standstill Period (which Payment Default has not been cured or waived) or
(b) if all Agents are included within
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the preceding clause (a), Supermajority Lenders (as the term "Supermajority
Lenders" is defined in each Credit Agreement).
"EVENT OF DEFAULT" means a Casden Default, Revolver Default and/or a
Term Default.
"GUARANTY(IES)" is defined in each Credit Agreement.
"GUARANTOR(S)" is defined in each Credit Agreement.
"INDEBTEDNESS" means the Casden Indebtedness, the Revolver
Indebtedness and the Term Indebtedness, collectively.
"LEHMAN" is defined in the first paragraph.
"LENDER(S)" means any Casden Lender, Term Lender and/or Revolver
Lender.
"LENDER GROUP(S)" means, in each case, the Lenders comprising the
Casden Lenders, the Lenders comprising the Term Lenders and/or the Lenders
comprising the Revolver Lenders, as applicable.
"LOAN(S)" means the Revolver Loan, the Casden Loan and/or the Term
Loan.
"LOAN DOCUMENT(S)" means, with respect to Revolver Lenders, the
Revolver Loan Documents, with respect to Casden Lenders, the Casden Loan
Documents and/or with respect to the Term Lenders, the Term Loan Documents.
"MAJORITY BENEFITED PARTIES" means on any date of determination the
Lenders, considered as a single class, holding more than 50% of the sum of (i)
the combined Commitments of the Revolver Lenders under the Revolver Credit
Agreement (as defined therein on the date hereof, as may be reduced from time to
time) or, if such Commitments are terminated, the aggregate unpaid principal
amount of the Loans (plus the aggregate undrawn amount available for drawing
letters of credit under the Revolver Credit Agreement and all unreimbursed
payments and disbursements under such letters of credit) under the Revolver
Credit Agreement, PLUS (ii) the aggregate unpaid principal amount of the Loans
under the Casden Credit Agreement (as defined therein on the date hereof, as may
be reduced from time to time), PLUS (iii) the aggregate unpaid principal amount
of the Loans under the Term Credit Agreement (as defined therein on the date
hereof, as may be reduced from time to time).
"NON-DIRECTING PARTY" means, with respect to any particular instruction
given to the Collateral Agent, each Party (and each Benefited Party represented
by such Party) that has not given or agreed with such instruction given to the
Collateral Agent.
"NOTIFYING AGENT" is defined in SECTION 5F
"OPINION OF COUNSEL" means a written opinion of an attorney or firm of
attorneys which is not an employee of the Person requesting such opinion or any
Affiliate of such Person but which may be outside counsel engaged or retained by
such Person, which opinion is furnished to each Benefited Party.
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"PARTY(IES)" means, individually, any of the Lenders, Agents or
Collateral Agent.
"PAYMENT DEFAULT" means (i) an Event of Default under Sections 8.01(a)
or (b) of any Credit Agreement or (ii) an Event of Default pursuant to which any
Lender Group has accelerated their Loan pursuant to Section 8.02 of the
applicable Credit Agreement.
"PAYMENT DEFAULT DATE" means (i) the date of the Payment Default
described in clause (i) of the definition of Payment Default or (ii) the date of
the acceleration described in clause (ii) of the definition of Payment Default.
"PAYMENT DEFAULT NOTICE" is defined in SECTION 4A.
"PAYMENT DEFAULT PERIOD" is defined in SECTION 4A.
"PERSON" means any individual, trustee partnership, corporation,
limited liability company, business trust, joint stock company, trust,
unincorporated association, bank, business association firm, joint venture,
governmental authority or other entity.
"PRO RATA SHARE" means, as of any date of determination, with respect
to any Lender, the proportion that such Lender's share of the outstanding
Benefited Obligations represents with respect to all outstanding Benefited
Obligations of all the Lenders.
"PROCEEDING" means any insolvency, bankruptcy, receivership,
custodianship action, proceeding or case, assignment for the benefit of
creditors, liquidation, reorganization, readjustment, composition or other
similar action, proceeding, or case, whether under any bankruptcy,
reorganization or insolvency law or laws, federal or state, or any law, federal
or state, relating to relief of debtors, readjustment of indebtedness,
reorganization, composition or extension, or any proceeding for any partial or
total liquidation, liquidating distribution, dissolution or other winding-up,
voluntary or involuntary, whether or not involving insolvency or bankruptcy
proceedings.
"PROCEEDS" has the meaning assigned to it under the Code and, in any
event, includes, but is not limited to, (a) any and all proceeds of any
collection, sale or other disposition of the Collateral, (b) any and all amounts
from time to time paid or payable under or in connection with any of the
Collateral and (c) amounts collected by the Collateral Agent or any Lender by
way of off-set, deduction or counterclaim or otherwise.
"RECEIVING AGENT" is defined in SECTION 5F.
"REPAYMENT EVENT" is defined in SECTION 16.
"REQUISITE NOTICE" means, unless otherwise provided herein, (a)
irrevocable written notice to the intended recipient or (b) 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
must be delivered to such recipient at the address or telephone number specified
herein or as otherwise designated by such recipient by Requisite Notice to each
other party hereto. Any written notice delivered in connection herewith must be
in the form, if any, prescribed in the applicable section hereof and may be
delivered as provided herein. Any notice
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sent by other than hardcopy must be promptly confirmed by a telephone call to
the recipient and, if requested by either Revolver Agent, Term Agent, Casden
Agent or Collateral Agent, as applicable, by a manually-signed hardcopy
thereof.
"REVOLVER AGENT" is defined in the first paragraph.
"REVOLVER BORROWERS" is defined in the first paragraph.
"REVOLVER BORROWERS PLEDGE AGREEMENT" means the Borrowers Pledge
Agreement, dated as of March 11, 2002, by and among the pledgors named therein
and entered into in connection with the Revolver Credit Agreement.
"REVOLVER CREDIT AGREEMENT" is defined in RECITAL A.
"REVOLVER DEFAULT" means the occurrence of an "Event of Default" under
the Revolver Loan Documents.
"REVOLVER INDEBTEDNESS" means, collectively, all (i) principal
indebtedness under the Revolver Credit Agreement, including the amount of any
letters of credit issued thereunder, (ii) interest (including interest at the
default rate of interest provided for in the Revolver Loan Documents on the
principal indebtedness under the Revolver Loan Documents), fees, expenses,
charges or other amounts accruing on or after the filing of any petition in
bankruptcy or for reorganization at the rate or in the amount otherwise
applicable thereto, whether or not any such interest, fees, expenses, charges or
other amounts is an allowed claim, and (iii) premiums and fees (including
post-petition fees and costs, including attorneys fees), if any, and other
amounts, indebtedness, obligations and liabilities of Revolver Borrowers and
their respective Subsidiaries or Affiliates, whether now existing or hereafter
incurred or created, payable, owing or due to Revolver Lenders under or with
respect to the Revolver Loan Documents.
"REVOLVER LENDERS" means, collectively, the Revolver Agent and the
"Lenders" as defined in the Revolver Credit Agreement.
"REVOLVER LOAN" is defined in RECITAL A.
"REVOLVER LOAN DOCUMENTS" means the Revolver Credit Agreement, any
notes executed in connection therewith, and any other document, agreement or
instrument now, heretofore or hereafter executed and delivered by or on behalf
of any Revolver Borrower or Borrower Party (as defined in the Revolver Credit
Agreement) with or in favor of Revolver Lenders in connection with the Revolver
Loan, together with any supplement, modification, amendment, restatement,
extension or renewal of any such document, agreement or instrument.
"STANDSTILL PERIOD" means a period commencing on the date a Payment
Default occurs under any Credit Agreement and ending on the earlier of (A) the
date which is 120 days after the Payment Default Date or (B) the cure or waiver
of the Payment Default (in accordance with the terms of the applicable Credit
Agreement) which gave rise to the commencement of the Standstill Period;
PROVIDED that, in no event shall the period referred to in clause (A) be
extended due to any other Payment Default occurring during such 120 day period.
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"TERM AGENT" is defined in the first paragraph.
"TERM BORROWERS" is defined in the first paragraph.
"TERM BORROWERS PLEDGE AGREEMENT" means the Borrowers Pledge Agreement,
dated as of May 30, 2003, by and among the pledgors named therein and entered
into in connection with the Term Credit Agreement.
"TERM CREDIT AGREEMENT" is defined in RECITAL C.
"TERM DEFAULT" means the occurrence of an "Event of Default" under the
Term Loan Documents.
"TERM INDEBTEDNESS" means, collectively, all (i) principal indebtedness
under the Term Credit Agreement, (ii) interest (including interest at the
default rate of interest provided for in the Term Loan Documents on the
principal indebtedness under the Term Loan Documents), fees, expenses, changes
or other amounts accruing on or after the filing of any petition in bankruptcy
or for reorganization at the rate or in the amount otherwise applicable thereto,
whether or not any such interest, fees, expenses, charges or other amounts is an
allowed claim, and (iii) premiums and fees (including post-petition fees and
costs, including attorneys fees), if any, and other amounts, indebtedness,
obligations and liabilities of Term Borrowers and their respective Subsidiaries
or Affiliates, whether now existing or hereafter incurred or created, payable,
owing or due to Term Lenders under or with respect to the Term Loan Documents.
"TERM LENDERS" means, collectively, the Term Agent and the "Lenders" as
defined in the Term Credit Agreement.
"TERM LOAN" is defined in RECITAL C.
"TERM LOAN DOCUMENTS" means the Term Credit Agreement, any notes
executed in connection therewith, and any other document, agreement or
instrument now, heretofore or hereafter executed and delivered by or on behalf
of any Term Borrower or Borrower Party (as defined in the Term Credit Agreement)
with or in favor of Term Lenders in connection with the Term Loan, together with
any supplement, modification, amendment, restatement, extension or renewal of
any such document, agreement or instrument.
2. COLLATERAL AGENT.
A. APPOINTMENT OF COLLATERAL AGENT. Each of Revolver Agent,
Term Agent and Casden Agent, on behalf of each Lender under the applicable
Credit Agreement, hereby confirms, pursuant to their respective Credit
Agreements, that the applicable Lender Groups have appointed irrevocably
(subject to replacement of the Collateral Agent as provided in each Credit
Agreement) Bank of America, N.A. as "COLLATERAL AGENT" hereunder to take such
action on such Agents' behalf under the provisions of this Agreement and each
Borrowers Pledge Agreement and to exercise such powers and perform such duties
as are expressly delegated to Collateral Agent under the Credit Agreements and
each of the Borrowers Pledge Agreements, together with such powers as are
reasonably incidental thereto. In connection with the foregoing appointment,
each Agent hereby irrevocably transfers and assigns to Collateral Agent all of
such Agent's
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rights, duties and obligations as a "Secured Party" under the Casden
Borrowers Pledge Agreement and the Revolver Borrowers Pledge Agreement to
take any Enforcement action with respect to the Collateral. Each Agent and
Borrowers acknowledge that "Indemnified Liabilities" under Section 10.13 of
each Credit Agreement includes any liability imposed on Collateral Agent as a
result of the actions or failure to act of any other Party which is a
predecessor "Secured Party" under the Casden Borrowers Pledge Agreement or
the Revolver Borrowers Pledge Amendment prior to the Collateral Agent's
performance of its duties and obligations under any the Casden Borrowers
Pledge Agreement or the Revolver Borrowers Pledge Amendment, to the extent
applicable, in accordance with this Agreement.
B. DECISIONS RELATING TO ADMINISTRATION AND EXERCISE
OF REMEDIES.
(1) With respect to commencing Enforcement,
Collateral Agent acknowledges and agrees that (a) an Enforcement shall
only be permitted during a Standstill Period with the consent of either (x)
each Agent or (y) Majority Benefited Parties, and (b) on the date after the
expiration of such Standstill Period pursuant to clause (A) of the definition
thereof, if no Enforcement has commenced, Collateral Agent must commence
Enforcement according to the written instructions of the Enforcement Parties
with respect to the Collateral, unless each Agent directs Collateral Agent to
not commence such Enforcement.
(2) The Collateral Agent agrees to
administer each Borrowers Pledge Agreement and the Collateral and to make
such demands and give such notices under the Borrowers Pledge Agreements as
the Majority Benefited Parties may request in writing, provided that after
the expiration of a Standstill Period pursuant to clause (A) of the
definition thereof, if no Enforcement has commenced, such administration
shall be pursuant to the written instructions of the Enforcement Parties, and
to take such action to enforce such Borrowers Pledge Agreements and to
realize upon, collect and dispose of the Collateral or any portion thereof
according to the written instructions of the Enforcement Parties; PROVIDED,
THAT, the Collateral Agent shall not be required to take any action (i) that
in the Opinion of Counsel to the Collateral Agent is contrary to law or to
the terms of this Agreement, any Borrowers Pledge Agreement or any Credit
Agreement, or that would in the Opinion of Counsel to the Collateral Agent
subject the Collateral Agent or any of its officers, employees, agents or
directors to liability, and (ii) until the Collateral Agent shall be
indemnified to its reasonable satisfaction by one or more of the Benefited
Parties against any and all loss, cost, expense or liability in connection
therewith.
(3) Each Party agrees that the
Collateral Agent shall act as the Majority Benefited Parties may request
(regardless of whether any individual Party or Benefited Party agrees,
disagrees or abstains with respect to such request), provided that after the
expiration of a Standstill Period pursuant to clause (A) of the definition
thereof, if no Enforcement has commenced, the Collateral Agent shall act in
accordance with the written instructions of the Enforcement Parties unless
all Agents agree otherwise in writing and that the Collateral Agent shall
have no liability for acting in accordance with such instructions of the
Enforcement Parties (provided such action does not conflict with the express
terms of this Agreement or any Credit Agreement). The Collateral Agent shall
give prompt notice to all Parties of action to enforce any Borrowers Pledge
Agreement; PROVIDED, HOWEVER, that the failure
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to give any such notice shall not impair the right of the Collateral Agent to
take any such action or the validity or enforceability under this Agreement
of the action so taken.
(4) Each Party agrees that the only right
of a Non-Directing Party under the Borrowers Pledge Agreements is for
Benefited Obligations held by such Non-Directing Party to be secured by the
Collateral for the period and to the extent provided in such Borrowers Pledge
Agreements and in this Agreement and to receive their Pro Rata Share of the
Proceeds of the Collateral, as provided in this Agreement.
(5) The Collateral Agent may at any time
request approval from all Benefited Parties as to any course of action or
other matter relating hereto or to any Borrowers Pledge Agreement. Directions
given by the Majority Benefited Parties, Enforcement Parties or all Agents to
the Collateral Agent hereunder shall be in writing and, except as otherwise
provided in this Agreement, shall be binding on all Benefited Parties,
including all Non-Directing Parties, for all purposes so long as such
directions are lawful and do not violate any Credit Agreement.
(6) Nothing in this Agreement shall
affect the rights of any Party to give any Borrower Party notice of any
default, accelerate or make demand for payment of their respective Benefited
Obligations under the Credit Agreements or take any other action to collect
amounts due other than an Enforcement, subject to the provisions of SECTIONS
3 and 6. Subject to SECTIONS 2B(1) and 2B(2), if the Majority Benefited
Parties, Enforcement Parties or all of the Agents instruct the Collateral
Agent to take any action, commence any proceedings or otherwise proceed
against the Collateral or enforce any Borrowers Pledge Agreement, and such
action or proceedings are or may be defective without the joinder of all
Parties, then each other Party shall join in such actions or proceedings.
(7) If the Collateral Agent has been
notified in writing that an Event of Default has occurred, the Collateral
Agent shall notify the Benefited Parties and shall notify the Borrowers of
such determination. Upon receipt of a notice from a Benefited Party of the
occurrence of an Event of Default, the Collateral Agent shall promptly give
notice of such Event of Default to all Benefited Parties and the Borrowers.
Collateral Agent shall (a) take such action with respect to such event as may
be requested by Majority Benefited Parties; PROVIDED, that the Collateral
Agent shall not be required to take any action (i) that in the Opinion of
Counsel to the Collateral Agent is contrary to law or to the terms of this
Agreement, any Borrowers Pledge Agreement or any Credit Agreement, or that
would in the Opinion of Counsel to the Collateral Agent subject the
Collateral Agent or any of its officers, employees, agents or directors to
liability, and (ii) until the Collateral Agent shall be indemnified to its
reasonable satisfaction by one or more of the Benefited Parties against any
or all loss, cost, expense or liability in connection therewith and (b)
provided that after the expiration of a Standstill Period pursuant to clause
(A) in the definition thereof, if no Enforcement has commenced, the
Collateral Agent shall act in accordance with the Enforcement Parties'
written instructions unless all Agents agree otherwise in writing).
(8) No Lender shall directly or indirectly
take any action, consent to the taking of any action, or cause or assist any
Person to take any action, to challenge the validity, legality, perfection,
priority or enforcement of any Borrowers Pledge Agreement or
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Enforcement of the Liens of any Borrowers Pledge Agreement on the Collateral.
Subject to the terms and conditions of this Agreement, no Lender shall
directly or indirectly take any action, consent to the taking of any action,
or cause or assist any Person to take any action, to challenge, object to,
compete with or impede in any matter any act taken or proceeding commenced by
another Party in connection with the Enforcement of the Benefited
Obligations. No Lender nor any Agent shall take any act to foreclose on or
otherwise realize upon any Collateral now or hereafter securing the Benefited
Obligations, or otherwise enforce any Collateral Document, security
agreement, deed of trust, mortgage, lien instrument or other encumbrance now
or hereafter securing or given in connection with the Benefited Obligations,
except through the Collateral Agent in accordance with this Agreement.
(9) In the event there is a Payment Default
under two or more Credit Agreements, each Agent agrees that if any other
Agent proposes instructions of the Enforcement Parties to deliver to
Collateral Agent, other than instructions agreed to by each Agent described
in clause (a) of the definition of Enforcement Parties, then such proposed
instructions shall promptly be submitted by such Agent to such Agent's Lender
Group and the Lenders in such Lender Group shall be allowed to review and
vote on such instructions. In connection with any Enforcement, each Agent
acknowledges that Collateral Agent shall have the power and authority to
dispose of or otherwise realize upon Collateral free and clear of any Liens
of any Agent created by or through any of the Collateral Documents or other
Loan Documents.
(10) If any Lender or Agent attempts to
violate any provision of this Agreement, Collateral Agent, for the benefit
of the Lenders (in Collateral Agent's or Borrower Parties' name), may seek
injunctive or other equitable relief to prevent or stop such person's
actions, it being agreed that legal remedies may be inadequate. Collateral
Agent shall not be liable for any impairment or nonpayment of the Benefited
Obligations that results, directly or indirectly, from the exercise by
Collateral Agent of any of the rights or remedies under the Loan Documents,
this Agreement or under applicable law, except to the extent caused by the
gross negligence or willful misconduct of Collateral Agent.
(11) Notwithstanding anything to the contrary
in any Borrowers Pledge Agreement or any Credit Agreement, while any of the
Benefited Obligations are outstanding, the Agents on behalf of the Lenders in
their Lender Group agree that from and after the date hereof, provided the
Borrower Parties comply in all respects with the provisions of the Term
Borrowers Pledge Agreement including, without limitation, covenants with
respect to the delivery of Pledged Collateral to the extent required under
any Credit Agreement, the covenants and the representations and warranties
contained in the Term Borrowers Pledge Agreement, then such compliance shall
be deemed to be compliance with all other Borrowers Pledge Agreements.
C. APPLICATION OF MONIES AND PROCEEDS.
(1) Any and all monies and Proceeds
received by the Collateral Agent or a Benefited Party (net of
reimbursement of the reasonable costs and expenses of collection of each
Agent as provided under such Agent's Credit Agreement) in connection with a
demand for payment during a Payment Default Period or an Enforcement shall be
delivered to the Collateral Agent and applied and distributed promptly by the
Collateral Agent as follows:
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FIRST: To the payment of the unpaid
reasonable costs and expenses, if any, of the sale, collection
or other realization of the Collateral, including reasonable
fees and expenses of counsel, and all reasonable expenses,
liabilities and advances made or incurred by the Collateral
Agent in connection therewith;
SECOND: To each Benefited Party in the
amount of its Pro Rata Share of all such Proceeds; PROVIDED,
THAT, with respect to Benefited Obligations consisting of the
undrawn amounts of outstanding Letters of Credit (defined in
the Revolver Credit Agreement) under the Revolver Credit
Agreement, payment shall be made to the Collateral Agent, to
be retained as Collateral, for the ratable portion of the
Benefited Obligations consisting of such undrawn amounts of
outstanding Letters of Credit (provided that (i) if any such
Letter of Credit is drawn upon, the Collateral Agent shall pay
to the Benefited Party that issued such Letter of Credit the
ratable portion of the amount of cash held as Collateral
therefor pursuant to this clause which is allocable to the
amount drawn upon such Letter of Credit; and (ii) if and to
the extent that any such Letter of Credit shall expire or
terminate, the amount of cash held as Collateral therefor
pursuant to this clause shall be applied in accordance with
this SECTION 2C); for purposes of determining the Pro Rata
Share of all Benefited Obligations sharing in any such
distribution, (i) the amount of the outstanding Revolver
Indebtedness shall be deemed to be the principal amount of the
Revolver Indebtedness then outstanding and all accrued
interest and fees with respect thereto, (ii) the amount of the
outstanding Casden Indebtedness shall be deemed to be the
principal amount of the Casden Indebtedness then outstanding
plus all accrued interest and fees with respect thereto, and
(iii) the amount of the outstanding Term Indebtedness shall be
deemed to be the principal amount of the Term Indebtedness
then outstanding and all accrued interest and fees with
respect thereto; and
THIRD: After payment in full of all
Benefited Obligations, to the payment to or upon the order of
Borrowers, or to whomsoever may be lawfully entitled to
receive the same or as a court of competent jurisdiction may
direct, of any surplus then remaining from monies and such
Proceeds.
Until such monies or Proceeds are so applied and distributed, the Collateral
Agent shall hold such monies or Proceeds in its custody in accordance with its
regular procedures for handling deposited funds.
(2) Payments by the Collateral Agent in
respect of (i) the Revolver Indebtedness shall be made to the Revolver Agent
for distribution to the Revolver Lenders in accordance with the Revolver
Credit Agreement; (ii) the Casden Indebtedness shall be made to the Casden
Agent for distribution to the Casden Lenders in accordance with the Casden
Credit Agreement; and (iii) the Term Indebtedness shall be made to the Term
Agent for distribution to the Term Lenders in accordance with the Term Credit
Agreement.
D. NOTICE OF DEFAULT. Collateral Agent shall not be deemed to
have knowledge or notice of the occurrence of any event that could give rise to
an Event of Default,
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unless Collateral Agent shall have received written notice from an Agent
referring to this Agreement, describing such event and stating that such
notice is a "notice of default". Collateral Agent will notify Lenders and
Borrowers of its receipt of any such notice.
E. CREDIT DECISION; DISCLOSURE OF INFORMATION BY COLLATERAL
AGENT. Each Lender acknowledges that none of Collateral Agent-Related Persons
(as defined in each Credit Agreement) has made any representation or warranty to
it, and that no act by Collateral Agent hereinafter taken, including any review
of the affairs of Borrowers and their Subsidiaries, shall be deemed to
constitute any representation or warranty by any Collateral Agent-Related Person
to any Lender as to any matter, including without limitation, whether Collateral
Agent-Related Persons have disclosed material information in their possession.
Each Lender, including any Lender by assignment, represents to Collateral Agent
that it has, independently and without reliance upon any Collateral
Agent-Related Person 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.
Each Lender also represents that it will, independently and without reliance
upon any Collateral Agent-Related Person 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 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
Collateral Agent herein, Collateral 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 Collateral Agent-Related Persons.
F. INDIVIDUAL CAPACITY. Collateral 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 Collateral Agent
hereunder and without notice to or consent of the Lenders. Each Agent, on behalf
of its respective Lenders, acknowledges that, pursuant to such activities,
Collateral 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
acknowledges that Collateral Agent shall be under no obligation to provide such
information to them. With respect to its Loans, Collateral 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 Collateral Agent, and the terms "Lender" and
"Lenders" shall include Collateral Agent in its individual capacity.
3. AMENDMENTS TO THE LOAN DOCUMENTS.
A. Notwithstanding any contrary provision in any of the Loan
Documents, but without derogating the provisions of SECTION 5, the first
priority lien on and security interest
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in the Collateral and Lenders' rights therein provided for in this Agreement
automatically, and without any notice to, consent of, or action by any other
party whatsoever, will extend to all modifications (including increases in
the amount of the Loans), renewals, refinancing, replacements and extensions
whatsoever of any of the Loan Documents and the Loans. Any such modification,
renewal, refinancing, replacement, or extension of the Loan Documents will
not affect the rights, duties and privileges of Lenders hereunder with
respect to the Loan Documents, as so modified, refinanced, replaced or
extended.
B. No release or waiver by any Lender of any rights against
any "Person" under the applicable Loan Documents will require notice to or
consent of the other Lenders, or any other party, nor will any such release or
waiver operate as a defense to or release of any of the obligations of the other
Lenders. In furtherance of and without limiting the generality of the foregoing
provisions of this SECTION 3B, all Agents on behalf of all Lenders hereby agree
and consent that, without notice to or assent by any other Lender, that a Lender
or Agent may exercise or refrain from exercising any right, remedy or power
granted to them under the applicable Loan Documents or any other right, remedy
or power at law or in equity or otherwise with respect to the applicable
Indebtedness or any collateral security or lien (legal or equitable) held, given
or intended to be given therefor, subject to the terms and provisions of this
Agreement.
4. PAYMENTS ON ANY INDEBTEDNESS PRIOR TO PAYMENT DEFAULT;
PAYMENTS OF INTEREST BY BORROWER AFTER A PAYMENT DEFAULT; TURNOVER
OF AMOUNTS TO COLLATERAL AGENT.
A. So long as no Payment Default has occurred and is then
continuing, Lenders will be entitled to collect from Borrowers all or any
portion of the Indebtedness then outstanding by Borrowers under the applicable
Loan Documents in accordance with the terms of such Loan Documents. Upon the
occurrence of a Payment Default, Collateral Agent shall deliver a Requisite
Notice to each Agent with a copy to the Borrowers (a "PAYMENT DEFAULT NOTICE").
During the period (the "PAYMENT DEFAULT PERIOD") commencing upon receipt of a
Payment Default Notice and until the applicable Payment Default is cured by the
indefeasible payment of Cash or Cash Equivalents or otherwise (if not cured by
indefeasible payment of Cash or Cash Equivalents, to Collateral Agent's
satisfaction in its sole and absolute discretion), each Agent and/or Lender
shall deliver any and all Cash, Cash Equivalents, securities or other property
received by such Agent and/or Lender on account of the Indebtedness to the
Collateral Agent to be applied in accordance with SECTION 2C hereof promptly
upon receipt thereof.
B. Notwithstanding any provision of SECTION 4A to the
contrary, interest payments received during a Payment Default Period and to
which the provisions of this SECTION 4 apply, will be shared ratably by the
Lender Groups with Benefited Obligations outstanding as follows:
(i) If any Agent receives any interest
payment (including default interest) (after deducting the amount of any
reasonable costs and expenses of the Collateral Agent and any other Agent
hereunder or under the Collateral Documents) to which this SECTION 4B applies
during any Payment Default Period in excess of such Agent's Lender Group's
Proportionate Share, such Agent shall, within two Business Days after
receiving such payment, turn over to the Collateral Agent for the benefit of
the other Lender Groups the amount
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of such excess interest. Any payment of interest so turned over shall not be
deemed a payment of interest under the Loan Documents for the Lender Group
turning over such payment.
(ii) After delivery of a Payment Default
Notice, any payment of interest (including default interest) made by
Borrowers to any Agent shall be accompanied by a certificate of a Responsible
Officer of Borrowers certifying the Proportionate Share of each Lender Group
on such date.
(iii) As used in this SECTION 4B,
"PROPORTIONATE SHARE" means, as of any date of determination,
with respect to each Lender Group, the ratio, expressed as a percentage, of
(X) interest (including default interest) accrued under the Loan Documents
for such Lender Group on the date the applicable interest payment was
received to (Y) the aggregate amount of interest (including default interest)
accrued under the Loan Documents of all Lender Groups on the date such
payment was received.
5. OTHER RIGHTS AND OBLIGATIONS OF LENDERS REGARDING THE LOANS.
A. None of the Lenders will amend, modify or otherwise alter
their Loan Documents in any manner which materially and adversely affects (i)
the other Lenders without the prior written consent of the other Lenders
constituting Requisite Lenders (as defined in the applicable Credit Agreement as
of the date hereof) under their respective Loan Documents, which consent shall
not be unreasonably withheld or delayed and shall be deemed given if not
affirmatively withheld within ten Business Days after Requisite Notice thereof
has been delivered to Agents for such other Lenders, provided each Agent has
promptly delivered notice thereof to the applicable Lender Group. For purposes
of this Agreement, a modification, amendment or alteration will "materially and
adversely affect" the other Lenders if it individually, or when taken together
with other modifications, amendments or alterations, (i) increases or extends
the scope of the Borrowers' and/or the Guarantors' obligations under the subject
Loan Documents, including, without limitation, increasing the amounts available
to be borrowed thereunder, (ii) changes the maturity of any of Borrowers'
obligations under the subject Loan Documents (other than an extension of the
maturity as provided in SECTION 2.11 of the Casden Credit Agreement and SECTION
2.13 of the Revolver Credit Agreement) or otherwise changes, in any material
respect, any other scheduled date for payments under the subject Loan Documents,
(iii) makes more burdensome Borrowers' obligations under the subject Loan
Documents, including, without limitation, Borrowers' obligations under any
covenants contained in the subject Loan Documents, (iv) can reasonably be
expected to adversely impact the ability of the Borrowers to perform their
obligations under the respective Loan Documents or other Lenders' Loan Documents
or (v) in any way changes the provisions of such Credit Agreement relating to
the appointment, removal or replacement of the Collateral Agent. Notwithstanding
any of the foregoing, if any amendment, modification or other alteration of any
Loan Document is approved by Lenders under the Credit Agreement to be amended,
modified or altered in accordance with the terms of the applicable Credit
Agreement in effect on the date hereof (or as amended pursuant hereto), and a
substantially equivalent amendment, modification or other alteration to the
other Lenders' Loan Documents is concurrently approved by the applicable Lenders
in accordance with the terms of such other Credit Agreements in effect on the
date hereof, then no consent of the other Lenders, shall be required with
respect to such amendment, modification or alteration of the Lenders' Loan
Documents. It is agreed and understood that (A)
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an amendment of the percentages set forth in SECTION 2.03(c)(ii) of the
Casden Credit Agreement will not be a material amendment hereunder, (B)
delivery of updated schedules, guaranties or other information or documents
by Borrowers, as contemplated under the Credit Agreements as of the date
hereof and (C) reductions in the Commitments (as defined in the Revolver
Credit Agreements) provided for in Section 2.07 of the Revolver Credit
Agreement as of the date hereof, and/or the Borrowers' exercise of its option
to increase the Revolver Commitments under Section 2.01 of the Revolver
Credit Agreement are not deemed to be an amendment, modification or other
alteration under this SECTION 5A .
B. Lenders will not be entitled to record or file any
mortgage, deed of trust, financing statement or any other lien or encumbrance
against Borrowers, or any real property or other property now or hereafter owned
by Borrowers and/or their respective Affiliates with respect to the Collateral;
PROVIDED, however, if any Agent reasonably believes that any mortgage, deed of
trust, financing statement or any other lien or encumbrance against Borrowers,
or any real property or other property now or hereafter owned by Borrowers
and/or their respective Affiliates with respect to the Collateral is not
properly filed or recorded then after giving Collateral Agent reasonable time in
which to so file or record (not to exceed 5 Business Days), such Agent shall be
entitled to file or record such document or instrument, on behalf of and in the
name of the Collateral Agent.
C. Lenders will not be entitled to sell, assign or otherwise
transfer their respective Loans or Loan Documents without causing such assignee
to acknowledge that such Loan Documents and assignee's rights as a Lender are
subject to the provisions hereof.
D. Each Agent will deliver to the other Agents, concurrently
with delivery of the same to Borrowers, a copy of each notice delivered to each
Borrower under its Loan Documents.
E. Each Agent, within five Business Days after request by
another Agent, will verify, in writing, the status of and payments made under
such Agent's Loan Documents.
F. If at any time after the date of this Agreement: (i) any
Agent (a "NOTIFYING AGENT") delivers to any Borrower Party a written notice that
there has occurred a "Default" or "Event of Default" under such Agent's Loan
Documents (an "AGENT DEFAULT NOTICE"), then the Notifying Agent shall provide a
copy of the Agent Default Notice to the other Agents within two Business Days
thereafter; or (ii) if an Agent (a "RECEIVING AGENT") receives written notice
from any Borrower Party stating that there has occurred a "Default" or "Event of
Default" under the applicable Loan Documents (the "BORROWER DEFAULT NOTICE"),
then such Receiving Agent must provide a copy of the Borrower Default Notice to
the other Agents within two Business Days thereafter.
6. BANKRUPTCY AND CERTAIN WAIVERS WITH RESPECT TO LENDERS.
A. Each Lender acknowledges that all other Lenders have made
material and substantial concessions by entering into their respective Loan
Documents and have relied upon the agreement of each Lender not to seek
modifications of this Agreement or the Loan Documents by resorting to or relying
upon any provision of the Bankruptcy Code or other remedy whatsoever, and
furthermore, but for the agreement of each Lender made herein not to resort to
any provisions of the Bankruptcy Code or other
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remedy to modify the form and substance of this Agreement or the Loan
Documents, the other Lenders would not have entered into their respective
Loan Documents.
B. In the event of any Proceeding involving any Borrowers,
each Lender shall retain the right to vote, file a proof of claim and otherwise
act with respect to their Indebtedness (including the right to vote to accept or
reject any plan of partial or complete liquidation, reorganization, arrangement,
composition, or extension), provided that such Lender or its Affiliates shall
not take any such action which is inconsistent with the provisions of this
Agreement or actions taken by Collateral Agent, and shall not initiate or
prosecute any claim or action in such Proceeding challenging this Agreement, or
actions taken or not taken by Collateral Agent consistent with or as provided in
this Agreement, and shall not oppose or otherwise defend against actions by
Collateral Agent in such Proceeding, including without limitation seeking relief
from automatic stay or similar injunction.
C. To the extent permitted by law, each Lender hereby waives
and agrees not to assert or take advantage of and to cause their Affiliates not
to assert or take advantage of in each case (as a defense or otherwise) as
against Collateral Agent:
(i) any defense that may arise by reason of
the incapacity, lack of authority, death or disability of any other person
or persons or the failure of Collateral Agent or any Lender to file or
enforce a claim against the estate (in administration, bankruptcy or any
other Proceeding) of any other person or persons other than a failure to file
or enforce a proof of claim against the estate of the Borrowers or in any
Proceeding in respect of the Borrowers;
(ii) any failure on the part of Collateral
Agent, or any Lender to ascertain the liability of any party liable for the
Loan Documents or the obligations evidenced or secured thereby;
(iii) demand, presentment for payments,
notice of nonpayment, protest, notice of protest and all other notices of
any kind, or the lack of any thereof, including notice of the existence,
creation or incurring of any new or additional indebtedness or obligation or
of any action or non-action on the part of Collateral Agent, any Lenders, any
endorser or creditor of Borrowers or Lenders or on the part of any other
person whomsoever under this or any other instrument in connection with any
obligation or evidence of indebtedness secured by Collateral held by
Collateral Agent;
(iv) any right or claim or right to cause
a marshalling of the assets of any Borrower or Lender which is
inconsistent with any Borrowers Pledge Agreement;
(v) any principle or provision of law,
statutory or otherwise, which is or might be in conflict with the terms and
provisions of this Agreement or the Loan Documents;
(vi) any duty on the part of Collateral
Agent, any Agent or any Lender to disclose to any other Agent or Lender any
facts Collateral Agent, or such Agent or Lender may now or hereafter know
about Borrowers, regardless of whether Collateral Agent, any Agent or any
Lender has reason to believe that any such facts materially increase the risk
beyond that
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which any other Lender intends to assume or have reason to believe that
such facts are unknown to such Lender or has a reasonable opportunity to
communicate such facts to such Lender, it being understood and agreed that
each Lender is fully responsible for being and keeping informed of the
financial condition of Borrowers and of any and all circumstances bearing on
the risk that liability may be incurred by such Lender hereunder or under the
Loan Documents;
(vii) failure to properly record any
document, failure to secure Borrowers' obligations under the Loan
Documents, or any other lack of due diligence by Collateral Agent, any Agent
or any Lender in obtaining reimbursement or performance from any person or
entity now or hereafter liable for any of the Loan Documents;
(viii) the inaccuracy of any representation or
other provision contained herein or in any of the Loan Documents;
(ix) any sale or assignment of any of the
Loan Documents, in whole or in part, except to the extent that such sale or
assignment results in a transfer of the rights sold or assigned;
(x) any invalidity, irregularity or
unenforceability, in whole or in part, of this Agreement or any one or more
of the Loan Documents;
(xi) any lack of commercial reasonableness
in dealing with any Loan or the Collateral;
(xii) any assertion or claim that the automatic
stay provided by 11 U.S.C. Section 362 (or any successor thereto) (arising
upon the voluntary or involuntary bankruptcy proceeding of any Lender or
Borrower) or any other stay provided under any other debtor relief law
(whether statutory, common law, case law or otherwise) of any jurisdiction
whatsoever, now or hereafter in effect, which may be or - become applicable,
will operate or be interpreted to stay, interdict, condition, reduce or
inhibit the ability of Collateral Agent (acting at the direction of Majority
Benefited Parties) or any Lender to enforce any rights, whether now or
hereafter acquired, which Collateral Agent (acting at the direction of
Majority Benefitted Parties) or Term any Lender may have against any other
Lender;
(xiii) any modifications of any Loan Document
or any obligations of any Lender or relating to the Loan Documents by
operation of law or by action of any court, whether pursuant to Bankruptcy
Code or any other debtor relief law (whether statutory, common law, case law
or otherwise) of any jurisdiction whatsoever, now or hereafter in effect, or
otherwise;
(xiv) any change in the composition of
Revolver Lenders, Casden Lenders, Term Lenders, Revolver Borrowers,
Casden Borrowers or Term Borrowers;
(xv) granting of compromises and
indulgences with respect to the Collateral Documents, as authorized
herein and the Credit Agreements;
(xvi) release of any Pledgor or Collateral as
authorized herein and in the Credit Agreements; and
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(xvii) without limiting the generality of
the foregoing, any rights and benefits which might otherwise be available
to any Lender under California Civil Code Sections 726, 2899 and 3433, and
California Code of Civil Procedure Sections 580a and 580d, and any successor
sections to such sections.
D. Upon the occurrence of any Proceeding, any payment or
distribution of any kind (whether in Cash, Cash Equivalents, securities or other
property) which otherwise would be payable or deliverable upon or with respect
to the Benefited Obligations owed to a Lender, will be paid or delivered
directly to Collateral Agent for application to (in the case of Cash or Cash
Equivalents) or as Collateral for the payment of the Benefited Obligations in
accordance with SECTION 2C.
E. In any Proceeding, Collateral Agent may, and is hereby
irrevocably authorized and empowered (in its own name or in the name of each
Lender), but will have no obligation (unless directed pursuant to this
Agreement), to demand, sue for, collect and receive every payment or
distribution referred to in Section 6 above and give acquittance therefor.
F. Upon the occurrence of any Proceeding, the provisions of
this Agreement will remain in full force and effect and irrespective of the
terms of any plan of reorganization or order in such Proceeding shall apply with
full force and effect.
G. Following the commencement of a Proceeding and upon the
failure of a Lender promptly to do so prior 14 days before the expiration of the
time to file a proof of claim, such Lender agrees to execute, verify, deliver
and file any proofs of claim in respect of the Benefited Obligations requested
by Collateral Agent in connection with any such Proceeding and irrevocably
authorizes, empowers and appoints, any agent designated by Collateral Agent (at
the direction of the Majority Benefited Parties) as such Lender's agent and
attorney-in-fact to execute, verify, deliver and file any such proofs of claim
in respect of the Benefited Obligations of such Lender requested by Collateral
Agent.
H. If any Lender, directly or indirectly, violates the
provisions of this SECTION 6 or attempts to set aside, or causes to be altered
in any manner any term, provision, transfer, lien or other aspect of the Loans
or this Agreement, then such Lender hereby agrees to protect, indemnify and hold
harmless the Collateral Agent and/or the other Lenders from and against any and
all liability, loss, cost, damage or expense incurred by the Collateral Agent
and/or such other Lenders thereby, including, without limitation, the amount of
any liability incurred by the Collateral Agent and/or such other Lenders in any
such action or actions and all costs of defending such action or actions,
including, without limitation, attorneys' fees and expenses. All reasonable
attorneys' fees and expenses incurred by the Collateral Agent and/or such other
Lenders in connection with any such proceeding, including fees and expenses
incurred after the filing of the proceeding (whether or not such fees or
expenses would be allowed under the Bankruptcy Code), will be deemed to be costs
of collection that the Lenders will be required to pay.
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7. INVALIDATED PAYMENT.
If any amount distributed by the Collateral Agent to a
Benefited Party in accordance with the provisions of this Agreement is
subsequently required to be returned or repaid by the Collateral Agent or such
Benefited Party to the Borrowers or any Affiliate thereof or their respective
representatives or successors in interest, whether by court order, settlement or
otherwise (a "REPAYMENT EVENT"), the Collateral Agent shall thereafter apply
monies (including, without limitation, Proceeds) received in a manner consistent
with the terms of this Agreement such that all Benefited Parties receive such
portion of the payments as would have been received had the original payment
which gave rise to such Repayment Event not occurred. If a Repayment Event
occurs which results in the Collateral Agent being required to return or repay
any amount distributed by it under this Agreement, the Benefited Party to which
such amount was distributed shall, promptly upon its receipt of a notice thereof
from the Collateral Agent, pay the Collateral Agent such amount; PROVIDED, THAT
if any Benefited Party shall fail to promptly pay such amount to the Collateral
Agent, the Collateral Agent may deduct such amount from any amounts payable
thereafter to such Benefited Party under this Agreement.
8. LEGENDING. The faces of the instruments evidencing the
Revolver Indebtedness, the Casden Indebtedness and the Term Indebtedness
will be inscribed with the following legend:
"ALL RIGHT, TITLE AND INTEREST OF ________________
______________________ UNDER THIS INSTRUMENT IS
EXPRESSLY SUBJECT TO THAT CERTAIN AMENDED AND RESTATED
INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT DATED AS
OF MAY 30, 2003, BY AND AMONG BANK OF AMERICA, N.A., AS
AGENT FOR REVOLVER LENDERS, BANK OF AMERICA, N.A., AS
AGENT FOR TERM LENDERS, BANK OF AMERICA, N.A., AS
COLLATERAL AGENT, AIMCO PROPERTIES, L.P., AIMCO/BETHESDA
HOLDINGS, INC., NHP MANAGEMENT COMPANY, APARTMENT
INVESTMENT AND MANAGEMENT COMPANY AND LEHMAN COMMERCIAL
PAPER INC., AS AGENT FOR CASDEN LENDERS."
9. SUCCESSORS AND ASSIGNS. This Agreement will bind the
parties hereto, the Lenders and their respective successors and will
inure to the benefit of the parties hereto, the Lenders and their
permitted successors and assigns.
10. NON-RELIANCE ON OTHER LENDERS. Each party hereto covenants that it
will, independently and without reliance upon any other party hereto, and based
on such documents and information as it will deem appropriate at the time, make
its own credit analysis, appraisals and decisions in taking or not taking action
under this Agreement and the Loan Documents it holds and to make such
investigation as it deems necessary to inform itself as to the business,
operations, property, financial and other condition and creditworthiness of
Borrowers.
11. FURTHER ASSURANCES. Agents on behalf of their respective Lenders
agree, within ten (10) days after request therefor by any other party hereto, at
the sole cost and expense of the
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requesting party, to do, execute, acknowledge and deliver all and every such
further acts, deeds, conveyances, documents, and instruments as the requesting
party may reasonably request for better assuring and evidencing of the foregoing
provision, PROVIDED THAT such acts, deeds, conveyances, documents and
instruments (a) do not increase the rights of the requesting party or any other
party, or diminish the obligations of the requesting party or any other party,
hereunder and (b) are otherwise consistent with the terms, provisions and intent
of this Agreement; provided, further, however, that any requests of Collateral
Agent pursuant to this Section 11 for reasonable and necessary further
assurances to confirm and clarify the authority of the Collateral Agent to act
as an agent or "Secured Party" pursuant to this Agreement and the Collateral
Documents shall not be subject to the restrictions in clause (a) of the
preceding proviso.
12. NOTICES. Notices, requests, demands, directions, agreements
and documents delivered in connection herewith must be transmitted by Requisite
Notice to the number and address set forth below, may be delivered by the
following modes of delivery and will be effective as follows:
<Table>
<Caption>
--------------------------------- ------------------------------------------------------
MODE OF DELIVERY EFFECTIVE ON EARLIER OF ACTUAL RECEIPT AND:
--------------------------------- ------------------------------------------------------
Courier Scheduled delivery date
--------------------------------- ------------------------------------------------------
Facsimile When transmission in legible form complete
--------------------------------- ------------------------------------------------------
Mail Fourth Business Day after deposit in U.S. mail first
class postage pre-paid
--------------------------------- ------------------------------------------------------
Personal delivery When received
--------------------------------- ------------------------------------------------------
Telephone When conversation completed
--------------------------------- ------------------------------------------------------
</Table>
A. Agents and Lenders are entitled to rely and act on any
communications purportedly given by or on behalf of Revolver Borrowers, Casden
Borrowers and Term Borrowers 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. Revolver Borrowers, Casden Borrowers or Term Borrowers, as
applicable, will indemnify such Agents and Lenders, as applicable, from any
loss, cost, expense or liability as a result of relying on any communications
permitted herein.
B. Signatures on communications may be transmitted by
facsimile, electronic mail or other digital transmission only with the consent
of the Casden Agent, Revolver Agent or Term Agent, as applicable, in its
respective sole discretion in each instance. The effectiveness of any such
signatures accepted by such applicable agent will, subject to applicable Law (as
defined in the applicable Credit Agreement), have the same force and effect as
manual signatures and will be binding on all Borrower Parties, Agents, Lenders
and Collateral Agent. Each agent may also require that any such signature be
confirmed by a manually-signed hardcopy thereof.
21
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If to Revolver Lenders: Bank of America N.A.
Portfolio Management
CA5-80 1-22-03
600 Montgomery Street, 22nd Floor
San Francisco, CA 94111
Attn: Frank Stumpf
Fax: 415-913-3445
If to Term Lenders: Bank of America N.A.
Portfolio Management
CA5-80 1-22-03
600 Montgomery Street, 22nd Floor
San Francisco, CA 94111
Attn: Frank Stumpf
Fax: 415-913-3445
If to Casden Lenders: Lehman Commercial Paper Inc.
101 Hudson Street
Jersey City, NJ 07302
Attn: Diane Albanese
Fax: 201-524-2023
If to Collateral Agent: Bank of America N.A.
Portfolio Management
CA5-80 1-22-03
600 Montgomery Street, 22nd Floor
San Francisco, CA 94111
Attn: Frank Stumpf
Fax: 415-913-3445
If to Revolver Borrowers,
Casden Borrowers or
Term Borrowers: AIMCO Properties, LP
4582 South Ulster Street Parkway
Suite 1100
Denver, Colorado 80237
Attn: Paul McAuliffe
Executive Vice President/Chief Financial
Officer
Fax: 303-691-4317
Notices will be deemed delivered upon receipt, refusal to accept delivery, or
inability to deliver as a result of change of address as to which change no
notice was given to the party or parties sending the notice, in each case as
indicated on the return receipt.
13. RIGHTS CUMULATIVE: WAIVERS. Except as expressly provided to
the contrary elsewhere in this Agreement, the rights of each of the parties
under this Agreement are cumulative and may be exercised as often as such party
considers appropriate. The rights of
22
<Page>
each of the parties hereto will not be capable of being waived or varied
other than by an express waiver or variation in writing. Except as may be
expressly provided to the contrary elsewhere in this Agreement, any failure
to exercise or any delay in exercising any of such rights will not operate as
a waiver or variation of that or any other such right. Except as may be
expressly provided to the contrary elsewhere in this Agreement, any defective
or partial exercise of any of such rights will not preclude any other or
further exercise of that or any other such right. No act or course of conduct
or negotiation on the part of any party will in any way preclude such party
from exercising any such right or constitute a suspension or any variation of
any such right.
14. SECTION HEADINGS; TITLE. Section headings in this Agreement
and its title are for reference purposes only and will not affect in any way the
meaning or interpretation of this Agreement or of any provision hereof.
15. CONSTRUCTION OF CERTAIN WORDS AND PHRASES. Unless the context
otherwise requires, when used herein, the singular will be deemed to include the
plural, the plural will be deemed to include each of the singular, and pronouns
of one or no gender will be deemed to include the equivalent pronoun of the
other or no gender. Wherever the words "including" or "included" are used in
this Agreement, such words will be deemed to be followed by the phrase "without
limitation."
16. AMENDMENT. Except as provided below, this Agreement may be
amended only by an instrument in writing executed by Revolver Agent, Casden
Agent, Term Agent, Revolver Borrowers, Casden Borrowers and Term Borrowers.
Revolver Borrowers, Casden Borrowers and Term Borrowers acknowledge that, so
long as any such change or modification does not impair, expand or modify
Revolver Borrowers', Casden Borrowers' or Term Borrowers' obligations under the
Casden Loan Documents, the Revolver Loan Documents or the Term Loan Documents or
otherwise adversely affect Revolver Borrowers, Casden Borrowers or Term
Borrowers, Revolver Borrowers, Casden Borrowers and Term Borrowers will at the
request of Revolver Lenders, Casden Lenders and Term Lenders, execute any such
amendment to this Agreement.
17. ENTIRE AGREEMENT. This Agreement, the Revolver Loan
Documents, the Casden Loan Documents and the Term Loan Documents constitute the
entire agreements with respect to the subject matter hereof and thereof.
18. COUNTERPARTS. This Agreement may be executed in any number of
counterparts, each of which will be deemed an original, but all of which will
constitute one and the same instrument.
19. CONSTRUCTION OF AGREEMENT. Each party acknowledges that it has
participated in the negotiation of this Agreement, and no provision of this
Agreement will be construed against or interpreted to the disadvantage of any
party hereto by any court or other governmental or judicial authority by reason
of such party having or being deemed to have structured, dictated or drafted
such provision; that each of the parties hereto at all times has had access to
an attorney in the negotiation of the terms of and in the preparation and
execution of this Agreement; and that each of the parties has had the
opportunity to review and analyze this Agreement for a sufficient period of time
before the execution and delivery thereof. In the event any of the Casden
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<page>
Indebtedness, Revolver Indebtedness and/or Term Indebtedness is indefeasibly
paid in full and all Commitments of the Lenders in connection therewith are
irrevocably terminated, then this Agreement shall terminate with respect to
the holders of such Indebtedness and the applicable Agent thereof and all
references to such holders and such Agent and the rights and benefits of such
parties hereunder shall cease and the determination of Pro Rata Shares and
Majority Benefited Parties, among other things, shall be adjusted accordingly.
20. GOVERNING LAW. This agreement will be construed and enforced
under, in accordance with, and governed by the laws of the state of California,
without reference to its conflict of laws principles. The parties agree to
venue in the state of California.
21. WAIVER OF TRIAL BY JURY. THE AGENTS ON BEHALF OF CASDEN
LENDERS, REVOLVER LENDERS AND TERM LENDERS, AS APPLICABLE, HEREBY KNOWINGLY,
VOLUNTARILY AND INTENTIONALLY WAIVE (TO THE EXTENT PERMITTED BY APPLICABLE LAW)
ANY RIGHT THEY MAY HAVE TO A TRIAL BY JURY OF ANY DISPUTE ARISING UNDER OR
RELATING TO THIS AGREEMENT AND AGREE THAT ANY SUCH DISPUTE WILL BE TRIED BEFORE
A JUDGE SITTING WITHOUT A JURY. TO THE FULL EXTENT PERMITTED BY LAW, THE AGENTS
ON BEHALF OF REVOLVER LENDERS, CASDEN LENDERS AND TERM LENDERS, AS APPLICABLE,
HEREBY KNOWINGLY, INTENTIONALLY AND VOLUNTARILY, WITH AND UPON THE ADVICE OF
COMPETENT COUNSEL, (i) SUBMIT TO PERSONAL JURISDICTION IN THE STATE OF
CALIFORNIA OVER ANY SUIT, ACTION OR PROCEEDING BY ANY PERSON ARISING FROM OR
RELATING TO THIS AGREEMENT, (ii) AGREE THAT ANY SUCH ACTION, SUIT OR PROCEEDING
WILL BE BROUGHT IN ANY STATE OR FEDERAL COURT OF COMPETENT JURISDICTION SITTING
IN LOS ANGELES COUNTY, CALIFORNIA, AND (iii) SUBMIT TO THE JURISDICTION OF SUCH
COURTS.
Initial by: Revolver Agent _____ Casden Agent ______ Term Agent______
22. PAYMENTS. Unless otherwise provided herein, all payments
required to be made by one party to the other hereunder will be made in Cash or
by certified or cashier's check drawn on a bank in the United States reasonably
acceptable to the other party or by wire transfer to an account designated by
the recipient party.
23. TIME. Time is of the essence of each and every term and
provision of this Agreement.
24. CONFLICTS. In the event of any conflict or inconsistency
between the terms and provisions of this Agreement and the terms and provisions
of any of the Revolver Loan Documents, the Casden Loan Documents or the Term
Loan Documents, the terms and provisions of this Agreement will control.
25. ATTORNEYS' FEES. If any action is brought by any party against
another party, the prevailing party will be entitled to recover from the other
party reasonable attorneys' fees and costs (including all fees and disbursements
of any law firm or other external counsel, the allocated cost of internal legal
services and all disbursements of internal counsel) incurred in
24
<Page>
connection with the prosecution or defense of such action and in the enforcement
of this Agreement.
26. AGENT; EXERCISE OF RIGHTS. Each Agent, or any successor agent
under the applicable Credit Agreement, will be entitled to exercise all rights
of the applicable Lenders or Agents hereunder in accordance with the provisions
of the applicable Loan Documents, subject to the terms of the Intercreditor
Agreement. Any reference in this Agreement to Revolver Lenders and/or Casden
Lenders and/or Term Lenders taking or not taking any action hereunder including
consenting to any matter or receiving notice shall mean Revolver Agent and/or
Casden Agent and/or Term Agent taking or not taking any such action, as
applicable, provided each Agent acts with the consent, if any, required under
the applicable Loan Documents. The respective rights, duties and obligations of
Casden Agent, Revolver Agent and Term Agent in connection with this Agreement
shall be governed by the terms of the Casden Loan Agreement (with respect to the
Casden Agent), by the Revolver Credit Agreement (with respect to the Revolver
Agent) and by the Term Credit Agreement (with respect to the Term Agent).
27. REVOLVER BORROWERS', CASDEN BORROWERS' AND TERM BORROWERS'
OBLIGATIONS ABSOLUTE. Subject to SECTION 24, without limiting Revolver Lenders',
Casden Lenders' or Term Lenders' obligations hereunder, nothing contained herein
will impair, as between Revolver Borrowers and any Revolver Lender, as between
Casden Borrowers and any Casden Lender or as between Term Borrowers and any Term
Lender, Revolver Borrowers' obligations under the Revolver Loan Documents,
Casden Borrowers' obligations under the Casden Loan Documents or Term Borrowers'
obligations under the Term Loan Documents, each of which obligations of such
Borrowers are absolute and unconditional. With respect to the agreements,
representations, and covenants by Lenders contained herein, each Agent hereby
represents that it has the requisite power and authority to execute this
Agreement on behalf of its respective Lenders and by doing so, bind such Lenders
hereto.
[SIGNATURES ON NEXT PAGE]
25
<Page>
IN WITNESS WHEREOF, Collateral Agent, Revolver Agent, Casden Agent,
Term Agent, Revolver Borrowers, Casden Borrowers and Term Borrowers have each
caused this Agreement to be executed by its duly authorized representative(s) as
of the date first above written.
REVOLVER BORROWERS
TERM BORROWERS:
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By: /S/ Peter K. Kompaniez
-----------------------------------
Peter K. Kompaniez
President
AIMCO/BETHESDA HOLDINGS, INC.,
a Delaware corporation
By: /S/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /S/ Ronald D. Monson
-----------------------------------------
Ronald D. Monson
President
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
a Maryland corporation
By: /S/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
S-1
AMENDED AND RESTATED INTERCREDITOR AND COLLATERAL AGENCY AGREEMENT
<Page>
CASDEN BORROWERS:
AIMCO PROPERTIES, L.P.,
a Delaware limited partnership
By: AIMCO-GP, INC.,
a Delaware corporation
Its: General Partner
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
a Maryland corporation
By: /s/ Peter K. Kompaniez
--------------------------------
Peter K. Kompaniez
President
NHP MANAGEMENT COMPANY,
a District of Columbia corporation
By: /s/ Ronald D. Monson
-----------------------------------------
Ronald D. Monson
President
S-2
<Page>
COLLATERAL AGENT:
BANK OF AMERICA, N.A.,
as Collateral Agent
By: /s/ Frank H. Stumpf
-----------------------------------------
Frank H. Stumpf
Vice President
S-3
<Page>
REVOLVER AGENT:
BANK OF AMERICA, N.A.,
as Revolver Agent
By: /s/ Frank H. Stumpf
-----------------------------------------
Frank H. Stumpf
Vice President
S-4
<Page>
CASDEN AGENT:
LEHMAN COMMERCIAL PAPER INC.,
as Casden Agent
By: /s/ Francis Chang
-----------------------------------------
Francis Chang
Authorized Signatory
S-5
<Page>
TERM AGENT:
BANK OF AMERICA, N.A.,
as Term Agent
By: /s/ Frank H. Stumpf
-----------------------------------------
Frank H. Stumpf
Vice President
S-6