|
|
|
SECOND AMENDMENT TO
FIFTH AMENDED AND RESTATED
CREDIT AGREEMENT
DATED AS OF MAY 30, 2003
BY AND AMONG
APARTMENT INVESTMENT AND MANAGEMENT COMPANY,
AIMCO PROPERTIES, L.P.,
AIMCO/BETHESDA HOLDINGS, INC., AND
NHP MANAGEMENT COMPANY,
as Borrowers,
BANK OF AMERICA, N.A.,
as Administrative Agent and Letter of Credit Issuing Lender,
and
LENDERS LISTED HEREIN,
as Lenders
{Page}
SECOND AMENDMENT TO
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
This SECOND AMENDMENT TO FIFTH AMENDED AND RESTATED CREDIT
AGREEMENT (this "AMENDMENT") is dated as of May 30, 2003 (the "AMENDMENT
EFFECTIVE DATE") and entered into by and among APARTMENT INVESTMENT AND
MANAGEMENT COMPANY, a Maryland corporation (the "REIT"), AIMCO PROPERTIES, L.P.,
a Delaware limited partnership ("AIMCO"), AIMCO/BETHESDA HOLDINGS, INC., a
Delaware corporation ("AIMCO/BETHESDA") and NHP MANAGEMENT COMPANY, a District
of Columbia corporation ("NHP MANAGEMENT") (the REIT, AIMCO, AIMCO/Bethesda and
NHP Management collectively referred to herein as "BORROWERS"), BANK OF AMERICA,
N.A. ("BANK OF AMERICA"), as Administrative Agent (in such capacity,
"ADMINISTRATIVE AGENT"), and Lenders party hereto, and is made with reference to
that certain Fourth Amended and Restated Credit Agreement, dated as of March 11,
2002 (the "FOURTH AMENDED AND RESTATED CREDIT AGREEMENT"), as amended to date,
including as amended by that certain Fifth Amended and Restated Credit
Agreement, dated as of February 14, 2003, by and among Borrowers, each lender
from time to time party thereto, BANK OF AMERICA, N.A., as Administrative Agent
and Issuing Lender, FLEET NATIONAL BANK, as a Lender and Syndication Agent, and
WACHOVIA BANK NA (formerly known as First Union National Bank), as a Lender and
Documentation Agent, and as amended by the First Amendment (as defined below)
(the "Credit Agreement"), (the Credit Agreement as amended by this Amendment,
the "AMENDED AGREEMENT"). Capitalized terms used in this Amendment shall have
the meanings set forth in the Credit Agreement unless otherwise defined herein.
RECITALS
WHEREAS, Borrowers, Administrative Agent and the Lenders previously
entered into that certain First Amendment to Fifth Amended and Restated Credit
Agreement, dated as of May 9, 2003 (the "FIRST AMENDMENT") pursuant to which all
Lenders consented to the 2003 Term Loan and the changes, modifications,
amendments and supplements to the Credit Agreement necessary to facilitate the
consummation of the 2003 Term Loan; and
WHEREAS, Borrowers and Lenders now desire to amend the Credit Agreement
as more particularly set forth below to reflect all of the specific
modifications, amendments and supplements needed to be made to the Credit
Agreement in connection with the closing of the 2003 Term Loan concurrently
herewith.
WHEREAS, attached hereto as Exhibit A is a conformed Credit Agreement
which contains all of the modifications and changes to the Fourth Amended and
Restated Credit Agreement since March 11, 2002 to the date hereof, together with
all of the specific modifications, amendments and supplements needed to be made
to the Credit Agreement in connection with the closing of the 2003 Term Loan
concurrently herewith (the "Replacement Credit Agreement").
1
{Page}
NOW, THEREFORE, in consideration of the agreements, provisions and
covenants contained herein, the parties agree as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
The Credit Agreement is hereby amended and modified from and after the Amendment
Effective Date as reflected in the Replacement Credit Agreement. Any provision
of the Credit Agreement prior to the Amendment Effective Date which is different
from that set forth in the Replacement Credit Agreement shall be superceded in
all respects by the provisions of the Replacement Credit Agreement, provided
that unless specifically changed in the Replacement Credit Agreement, all
Schedules and Exhibits to the Credit Agreement shall remain unchanged.
SECTION 2. CONDITIONS TO EFFECTIVENESS
This Amendment shall become effective as of the Amendment Effective Date, at
such time that all of the following conditions are satisfied:
A. Borrowers, Administrative Agent and Requisite Lenders shall have
executed this Amendment;
B. Lenders and their respective counsel shall have received originally
executed copies of one or more favorable written opinions of counsel for
Borrowers, Guarantors and Pledgors in form and substance satisfactory to
Administrative Agent and its counsel, dated as of the Amendment Effective Date,
with respect to the validity, binding effect and enforceability of the Credit
Agreement as amended by this Amendment and superceded by the Replacement Credit
Agreement, and due authorization, execution and delivery thereof, and as to such
other matters as Administrative Agent acting on behalf of Lenders may request;
C. Lenders and their respective counsel shall have received executed
resolutions from Borrowers, Guarantors and Pledgors authorizing the entry into
and performance of this Amendment and the Credit Agreement as amended, all in
form and substance satisfactory to Administrative Agent and its counsel;
D. Borrowers shall have paid the fees, costs and expenses of
Administrative Agent's counsel in connection with this Amendment;
E. Lenders and their respective counsel shall have received a
replacement Payment Guaranty, dated as of even date herewith, duly executed by
each Guarantor in the form of EXHIBIT H to the Amended Agreement, which new
Payment Guaranty shall replace, as of the Amendment Effective Date, each
Guarantor's existing Payment Guaranty (Revolver Guarantors) or Payment Guaranty
(Casden Guarantors) dated as of March 11, 2002 (as applicable) pursuant to which
Guarantors have guarantied the Obligations.
F. Lenders and their respective counsel shall have received a copy of a
Borrowers Pledge Agreement, dated as of even date herewith, duly executed by all
2
{Page}
parties thereto in the form of EXHIBIT G-2 to the Amended Agreement, pursuant to
which Pledgors have pledged the Pledged Collateral as security for the Loan.
G. Lenders and their respective counsel shall have received an Amended
and Restated Intercreditor and Collateral Agency Agreement, dated as of even
date herewith, duly executed by all parties thereto in the form of EXHIBIT L to
the Amended Agreement, which Amended and Restated Intercreditor and Collateral
Agency Agreement shall replace, as of the Amendment Effective Date, that certain
Amended and Restated Intercreditor and Subordination Agreement dated as of March
11, 2002, by and among Borrowers, Administrative Agent, borrowers to the Casden
Agreement, and Lehman Commercial Paper Inc., in its capacity as administrative
agent under the Casden Loan.
H. Lenders and their respective counsel shall have received an Amended
and Restated Intra-Company Loan Subordination Agreement, dated as of even date
herewith, duly executed by all parties thereto in the form of EXHIBIT I to the
Amended Agreement, which Intra-Company Loan Subordination Agreement shall
replace, as of the Amendment Effective Date, that certain Intra-Company Loan
Subordination Agreement dated as of March 11, 2002, by and among Borrowers and
each of the Intra-Company Lenders (as defined therein).
I. Lenders and their respective counsel shall have received such
replacement Schedules to the Amended Agreement in connection with Collateral
matters as Administrative Agent shall require.
J. Administrative Agent shall have received evidence satisfactory to it
and its counsel that the Casden Agent and the Casden Lenders (i) have modified,
or concurrently with the Amendment Effective Date will modify, the Casden Loan
and the Casden Credit Agreement in a manner consistent with this Amendment and
otherwise satisfactory to Administrative Agent and the Lenders and
Administrative Agent shall have been provided with true, correct and complete
copies of the documents effecting such modifications to the Casden Loan and
Casden Credit Agreement and (ii) have consented to or waived their right to
consent to the Borrowers', Guarantors' and Pledgors' execution and delivery of
this Amendment.
SECTION 3. BORROWERS' REPRESENTATIONS AND WARRANTIES
In order to induce Requisite Lenders to enter into this Amendment and to amend
the Credit Agreement in the manner provided herein, Borrowers represent and
warrant to each Lender that the following statements are true, correct and
complete:
3.1 CORPORATE POWER AND AUTHORITY. Borrowers have all requisite power and
authority to enter into this Amendment and any other agreements, guaranties or
other operative documents to be delivered pursuant to this Amendment, to carry
out the transactions contemplated by, and perform their obligations under, the
Amended Agreement. Each of the Borrowers, Pledgors and Guarantors is in good
standing in the respective states of their organization on the Amendment
Effective Date.
3
{Page}
3.2 AUTHORIZATION OF AGREEMENTS. The execution and delivery of this Amendment
and the performance of the Amended Agreement have been duly authorized by all
necessary action on the part of Borrowers and the other parties delivering any
of such documents, as the case may be. Except as disclosed on Schedule 3.2, the
|
End of Preview |
Home Intelligence Services Subscriptions News About Us