SIXTH AMENDMENT TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT

Exhibit 10.1

SIXTH AMENDMENT TO
AMENDED AND RESTATED
SENIOR SECURED CREDIT AGREEMENT

among

Apartment Investment and Management Company,
AIMCO Properties, L.P., and
AIMCO/Bethesda Holdings, Inc.,

as the Borrowers,
the Guarantors and
Pledgors named herein,

Bank of America, N.A.,
as Administrative Agent, Swing Line Lender
and L/C Issuer

and

The Other Financial
Institutions Party Hereto

Dated as of May 1, 2009

BANC OF AMERICA SECURITIES LLC

and

KEYBANC CAPITAL MARKETS

as Joint-Lead Arrangers

and

Joint Book Managers and Bookrunners

SIXTH AMENDMENT TO
AMENDED AND RESTATED
SENIOR SECURED CREDIT AGREEMENT

This SIXTH AMENDMENT TO AMENDED AND RESTATED SENIOR SECURED CREDIT AGREEMENT (this “ Amendment ”) is dated as of May 1, 2009 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 ”), and AIMCO/BETHESDA HOLDINGS, INC., a Delaware corporation (“ AIMCO/Bethesda ”) (the REIT, AIMCO and AIMCO/Bethesda collectively referred to herein as “ Borrowers ”), BANK OF AMERICA, N.A. (“ Bank of America ”), as Administrative Agent (in such capacity, “ Administrative Agent ”) and as Swing Line Lender and L/C Issuer, and the Lenders party hereto, and is made with reference to that certain Amended and Restated Senior Secured Credit Agreement, dated as of November 2, 2004, by and among Borrowers, each lender from time to time party thereto, BANK OF AMERICA, N.A., as Administrative Agent and as Swing Line Lender and L/C Issuer, and KeyBank National Association, as Syndication Agent (the “ Credit Agreement ”), as amended by that certain First Amendment to Amended and Restated Senior Secured Credit Agreement, dated June 16, 2005 (the “ First Amendment ”), as amended by that certain Second Amendment to Amended and Restated Senior Secured Credit Agreement, dated March 22, 2006 (the “ Second Amendment ”), as amended by that certain Third Amendment to Amended and Restated Senior Secured Credit Agreement, dated August 31, 2007 (“ Third Amendment ”), as amended by that certain Fourth Amendment to Amended and Restated Senior Secured Credit Agreement, dated September 14, 2007 (“ Fourth Amendment ”), and as amended by that certain Fifth Amendment to Amended and Restated Senior Secured Credit Agreement, dated September 9, 2008 (“ Fifth Amendment ”) (the Credit Agreement as amended by the First Amendment, Second Amendment, Third Amendment, Fourth Amendment, Fifth Amendment and this Amendment is referred to herein as the “ Amended Agreement ”). Capitalized terms used in this Amendment shall have the meanings set forth in the Amended Agreement unless otherwise defined herein.

RECITALS

WHEREAS , Borrowers desire to amend the Amended Agreement as more particularly set forth below;

WHEREAS , pursuant to the Amended Agreement, the amendments set forth herein require the consent of the Required Lenders, and the Required Lenders have consented hereto;

NOW, THEREFORE , in consideration of the agreements, provisions and covenants contained herein, the parties agree as follows:

Section 1. AMENDMENTS TO THE CREDIT AGREEMENT

A. The defined term “Applicable Revolving Rate” is deleted and replaced with:

““ Applicable Revolving Rate ” means the following percentages per annum, based upon the Leverage Ratio as set forth in the most recent Compliance Certificate received by Administrative Agent pursuant to Section 6.02(b) :

Applicable Revolving Rate

Any increase or decrease in the Applicable Revolving Rate resulting from a change in the Leverage Ratio shall become effective as of the first Business Day immediately following the date a Compliance Certificate is delivered pursuant to Section 6.02(b) ; provided , however , that if a Compliance Certificate is not delivered when due in accordance with such Section, then Pricing Level 3 shall apply as of the first Business Day after the date on which such Compliance Certificate was required to have been delivered until the date such Compliance Certificate is delivered. The Applicable Revolving Rate in effect from the Sixth Amendment Effective Date through the date of delivery of the Compliance Certificate for the quarter ended March 31, 2009 shall be determined based on Pricing Level 2.”

B. The defined term “Applicable Unused Fee” is deleted and replaced with:

““ Applicable Unused Fee ” means 0.45% per annum based upon the Usage (as such term is defined below) as of the date of determination. As used in this definition, the term “Usage” shall mean on each date of determination the percentage of usage of the Revolving Commitments obtained by subtracting the average daily Total Revolving Outstandings for the most recent fiscal quarter ending prior to the date of determination from the aggregate Revolving Commitments then in effect.”

C. The defined term “Audited Financial Statements” is deleted and replaced with:

““ Audited Financial Statements ” means the audited consolidated balance sheet of the REIT for the fiscal year ended December 31, 2008, and the related consolidated statements of income or operations, shareholders’ equity and cash flows for such fiscal year of the REIT, including the notes thereto.”

D. The defined term “Base Rate Loan” is deleted and replaced with:

““ Base Rate Loan ” means a Committed Loan that bears interest based on the Base Rate or the Applicable Revolving Base Rate.”

E. The defined term “Capital Expenditure Reserve” is deleted and replaced with:

““ Capital Expenditure Reserve ” means, as of any date of determination, the product of (a) an amount not less than $350.00 (which amount is subject to adjustment as provided below but shall never be less than $350), and (b) the Borrowing Group’s Share of apartment units owned as of such date of determination; provided , however , that an apartment unit shall be excluded from the foregoing calculation if, at the date of determination, a mortgage lender with respect to such apartment unit holds a funded reserve for future capital improvements for such apartment unit. Administrative Agent may review the Capital Expenditure Reserve on December 31, 2009 and as of the last day of each subsequent calendar year (a “Review Date”) and, upon written notice to the Borrowers provided within 30 days after delivery of the Compliance Certificate relating to such calendar year, increase the per unit dollar amount in clause (a) above by an amount not to exceed the lesser of (i) $24.50 per year per unit or (ii) the amount by which the actual amount of Capital Expenditures per unit for the apartment units (the “Actual CapEx Amount”) in clause (b) for the prior four calendar quarters exceeds $350 plus any prior annual increases; provided , however , that if the Actual CapEx Amount declines from one year to the next, then the per unit dollar amount in clause (a) above shall automatically decrease as of each Review Date to an amount equal to the greater of (x) $350 per unit and (y) the Actual CapEx Amount for the prior four calendar quarters.”

F. The defined term “Construction/Renovation” is deleted and replaced with:

““ Construction/Renovation ” means the Borrowing Group’s Share of any New Construction or any substantial rehabilitation, redevelopment, renovation and/or expansion of any multi-family property which, in the case of rehabilitation, redevelopment, renovation or expansion, involves the repositioning or upgrading of such multi-family property with respect to comparable multi-family properties located in the proximate geographic area, excluding any Moderate Redevelopment. The Borrowing Group’s Share of Properties under Construction/Renovation as of the Closing Date are listed on Schedule 1.01C attached hereto.”

G. The defined term “Default Rate” is deleted and replaced with:

““ Default Rate ” means (a) when used with respect to Obligations other than Letter of Credit Fees and Revolving Loans, an interest rate equal to (i) the Base Rate plus (ii) the Applicable Term Rate, if any, applicable to Base Rate Loans plus (iii) 3% per annum; provided , however , that with respect to a Eurodollar Rate Loan that is a Term B Loan, the Default Rate shall be an interest rate equal to the interest rate (including any Applicable Term Rate) otherwise applicable to such Loan plus 3% per annum, (b) when used with respect to Obligations other than Letter of Credit Fees and Term Loans, an interest rate equal to (i) the Applicable Revolving Base Rate plus (ii) the highest Applicable Revolving Rate (regardless of the then applicable Leverage Ratio), if any, applicable to Base Rate Loans that are Revolving Loans plus (iii) 3% per annum; provided , however , that with respect to a Eurodollar Rate Loan that is a Revolving Loan, the Default Rate shall be an interest rate equal to the highest Applicable Revolving Rate (regardless of the then applicable Leverage Ratio) plus 3% per annum and (c) when used with respect to Letter of Credit Fees, a rate equal to the Applicable Revolving Rate plus 3% per annum.”

H. The defined term “EBITDA” is deleted and replaced with:

““ EBITDA ” means, for any period and for any Person, an amount equal to such Person’s Net Income for such period plus (a) the following, to the extent deducted in calculating such Net Income: (i) such Person’s Interest Expense plus other costs related to amortization of fees and expenses relating to the issuance of indebtedness for such period, (ii) the provision for Federal, state and local income taxes payable by such Person for such period, (iii) such Person’s depreciation and amortization expense for such period, (iv) other non-cash expenses of such Person reducing such Net Income for such period which do not represent a cash item in such period or any future period and (v) restructuring, severance, reserves or similar charges in an aggregate amount not to exceed $22,800,000 for any such period which includes the fiscal quarter commenced on October 1, 2008 and minus (b) the following to the extent included in calculating such Net Income: (i) Federal, state and local income tax credits of the Person for such period and (ii) all non-cash items increasing such Person’s Net Income for such period, excluding non-cash items for which cash was received in a prior period or will be received in a future period.”

I. The defined term “Eurodollar Rate Loan” is deleted and replaced with:

““ Eurodollar Rate Loan ” means a Committed Loan that bears interest at a rate based on the Eurodollar Rate or the Applicable Revolving Eurodollar Rate.”

J. The defined term “Fixed Charges” is deleted and replaced with:

““ Fixed Charges ” means, for any period, the sum of (i) Total Interest Expense for such period, plus (ii) Total Scheduled Amortization for such period (without double counting amounts funded with reserve accounts or sinking funds if already taken into account in determining Fixed Charges for such period or any prior period), plus (iii) dividends accrued (whether or not declared or payable) on any shares of preferred Stock and/or preferred Partnership Units of the Borrowers or any of their Subsidiaries outstanding during such period, which preferred securities are owned at any time during such period by Persons other than the Borrower and their Subsidiaries.”

K. The defined term “Funded Indebtedness” is deleted and replaced with:

““ Funded Indebtedness ” means, as of any date of determination, for any Person, the sum of (a) the outstanding principal amount of all obligations, whether current or long-term, for borrowed money (including Obligations hereunder) and all obligations evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than surety bonds and bonds supporting utility deposits or other comparable security deposits), (b) all purchase money Indebtedness, (c) all direct obligations arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties, and similar instruments, (d) all obligations in respect of the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business), (e) Attributable Indebtedness in respect of capital lease obligations, (f) without duplication, all Guarantees with respect to outstanding Indebtedness of the types specified in clauses (a) through (e) above, and (g) all Indebtedness of the types referred to in clauses (a) through (f) above of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person or its Subsidiary is a general partner or joint venturer with liability for joint venture obligations, unless such Indebtedness is expressly made not Recourse to the Person or such Subsidiary; provided , however , that solely for purposes of Sections 7.03(g) and 7.11 and the definitions relating to calculations of financial covenants contained therein and for purposes of determining the Applicable Revolving Rate, “Funded Indebtedness” shall exclude Intra-Company Debt, deferred income taxes, security deposits, accounts payable and accrued liabilities and any prepaid rent (as such terms are defined under GAAP).”

L. The defined term “Funds From Operations” is deleted and replaced with:

““ Funds From Operations ” means, with respect to Borrowers and their Subsidiaries on a consolidated basis, net income calculated in accordance with GAAP, excluding gains or losses from debt restructuring and sales of property, plus depreciation and amortization (excluding amortization of financing costs), and after adjustments for unconsolidated partnerships and joint ventures (with adjustments for unconsolidated partnerships and joint ventures calculated to reflect funds from operations on the same basis) and the payment of dividends on preferred Stock, as interpreted by the National Association of Real Estate Investment Trusts in its April 1, 2002, White Paper; provided, however, the following shall be excluded when calculating “Funds From Operations”: (i) non-cash adjustments for preferred Stock issuance costs, (ii) non-cash adjustments for loan amortization costs, and (iii) non-cash adjustments for impairment losses on real estate development assets, net of any tax benefit.”

M. The defined term “Gross Asset Value” is deleted and replaced with:

““ Gross Asset Value ” means, as of any date of determination and without double counting any item, the sum of the Borrowing Group’s Share of the following:

(i) Cash (including Restricted Cash but excluding any Cash held in funds for Capital Expenditures and actually deducted in the determination of Capital Expenditure Reserve as provided in the definition thereof), funds held in sinking funds or interest reserves and Cash held in escrow in connection with property exchanges under Section 1031 of the Code, and Cash Equivalents;

(ii) Notes Receivable valued at net realizable value as of such date of determination in accordance with GAAP;

(iii) with respect to all real estate assets wholly or partially owned by such Person(s) throughout the most recent four calendar quarters ending on or prior to such date of determination (other than Development Assets), the Adjusted Total NOI attributable to such real estate assets for such four quarter period divided by the Applicable Capitalization Rate;

(iv) with respect to all real estate assets wholly or partially owned on such date of determination, but acquired less than four calendar quarters but at least one calendar quarter preceding such date of determination (other than Development Assets), the Adjusted Total NOI attributable to such real estate assets for any period that such Person(s) owned such assets measured on an annualized basis and divided by the Applicable Capitalization Rate;

(v) with respect to all real estate assets wholly or partially owned on such date of determination, but acquired less than one calendar quarter preceding such date of determination (other than Development Assets), 100% of the purchase price paid by such Person(s) for such assets;

(vi) 100% of the book value (determined in accordance with GAAP) of Development Assets and Unimproved Land owned as of such date of determination; and

(vii) an amount equal to 400% of the aggregate EBITDA attributable to, without duplication, property and asset management fees of the Borrowing Group for the four consecutive fiscal quarter period preceding such date of determination.”

N. The defined term “Indebtedness” is deleted and replaced with:

““ Indebtedness ” means, as to any Person, at a particular time, without duplication, all of the following, whether or not included as indebtedness or liabilities in accordance with GAAP:

(a) all obligations of such Person for borrowed money and all obligations of such Person evidenced by bonds, debentures, notes, loan agreements or other similar instruments (other than surety bonds and bonds supporting utility deposits or other comparable security deposits);

(b) all direct or contingent obligations of such Person arising under letters of credit (including standby and commercial), bankers’ acceptances, bank guaranties and similar instruments;

(c) net obligations of such Person under any Swap Contract;

(d) all obligations of such Person to pay the deferred purchase price of property or services (other than trade accounts payable in the ordinary course of business);

(e) indebtedness (excluding prepaid interest thereon) secured by a Lien on property owned or being purchased by such Person (including indebtedness arising under conditional sales or other title retention agreements), whether or not such indebtedness shall have been assumed by such Person or is limited in recourse;

(f) capital lease obligations of such Person;

(g) all obligations of such Person (other than Qualified Redemption Obligations) to purchase, redeem, retire, defease or otherwise make any payment in respect of any Equity Interest in such Person, valued, in the case of a redeemable preferred interest, at the liquidation preference plus accrued and unpaid dividends; and

(h) all Guarantees of such Person in respect of any of the foregoing.

For all purposes hereof, the Indebtedness of any Person shall include the Indebtedness of any partnership or joint venture (other than a joint venture that is itself a corporation or limited liability company) in which such Person is a general partner or a joint venturer with liability for joint venture obligations, unless such Indebtedness is expressly made non-recourse to such Person. The amount of any net obligation under any Swap Contract on any date shall be deemed to be the Swap Termination Value thereof as of such date. The amount of any capital lease as of any date shall be deemed to be the amount of Attributable Indebtedness in respect thereof as of such date. Solely for purposes of Sections 7.03(g) and 7.11 and the definitions relating to calculations of financial covenants contained therein and for purposes of determining the Applicable Revolving Rate, “ Indebtedness ” shall exclude Intra-Company Debt, deferred income taxes, security deposits, accounts payable and accrued liabilities and any prepaid rent (as such terms are defined under GAAP).”

O. The defined term “L/C Issuer” is deleted and replaced with:

““ L/C Issuer ” means (a) Bank of America, in its capacity as issuer of Letters of Credit issued by it hereunder, together with its successors in such capacity or (b) any other Lender or Lenders selected by the Borrowers and reasonably satisfactory to the Administrative Agent, in its capacity as issuer of Letters of Credit issued by such Lender hereunder, together with its successors in such capacity; provided that under no circumstances shall there be more than three L/C Issuers at any time.”

P. The defined term “Letter of Credit Sublimit” is deleted and replaced with:

““ Letter of Credit Sublimit ” means an amount equal to $100,000,000. The Letter of Credit Sublimit is part of, and not in addition to, the Aggregate Commitments.”

Q. The defined term “Qualified Redemption Obligations” is deleted and replaced with:

““ Qualified Redemption Obligations ” means, (i) in the case of AIMCO, the obligation of AIMCO to acquire or redeem issued Partnership Units which obligation AIMCO may elect to satisfy with shares of common Stock of the REIT and (ii) any obligation of a Person to redeem or repurchase an Equity Interest in such Person either (a) upon the happening of a change of control or other conditional event which is not reasonably likely to occur and which condition is set forth in the applicable securities and which event has in fact not occurred prior to the date of determination hereunder, or (b) at the holder’s option (except following or as a result of circumstances described in clause (a) above) only after the date which is one year after the Maturity Date or (c) at any time on or subsequent to the one year anniversary of the Maturity Date. In all events, “Qualified Redemption Obligations” include all preferred Equity Interests which are convertible only into common Stock of the REIT.”

R. The defined term “Recourse” is deleted and replaced with:

““ Recourse ” means, with respect to any Indebtedness or Guarantee of any Person, that such Indebtedness or Guarantee is recourse to the general assets and/or properties of such Person (except as provided below); provided, however, that with respect to Indebtedness secured by real property which is characterized as “nonrecourse” or which is only Recourse to the real property of the Person except for limitations to the “nonrecourse” nature of the obligation or Indebtedness or Guarantees which are recourse to a Person or such Person’s assets and/or properties only upon the occurrence of certain events such as those set forth in (a) through (k) below, such Indebtedness or Guarantees shall only be deemed “Recourse” if and to the extent the nonrecourse exceptions (if any) are for the Person’s liability for the following under the applicable loan documentation and any of the events described in clauses (a) through (k) have occurred and the lender or holder of such Indebtedness or Guarantee has given written notice of the occurrence thereof: (a) fraud, waste, material misrepresentation, or willful misconduct; (b) indemnification with respect to environmental matters or failure to comply with Environmental Laws; (c) failure to maintain required insurance policies; (d) misapplication of insurance proceeds, condemnation awards and tenant security deposits; (e) breach of covenants relating to unpermitted transfers or encumbrances of real property or other collateral; (f) misappropriation or misapplication of property income; (g) breach of covenants relating to unpermitted transfers of interests in a Person; (h) failure to deliver books and records; (i) failure to pay transfer fees or charges; (j) bankruptcy filings or (k) other matters similar to those set forth in clauses (a) through (j) above or otherwise constituting customary exceptions for nonrecourse financings. An obligation of a Person that is not Recourse to the general assets and/or properties of such Person shall not be considered a “Recourse” obligation; an obligation of a Person that is contingent upon the occurrence of certain events shall not be considered a “Recourse” obligation unless any of the events or circumstances described in clauses (a) through (k) above have occurred and the lender or holder of such Indebtedness or Guarantee has given written notice of the occurrence of such events (in which case the amount of such obligation shall be limited to reasonably anticipated liability resulting from the occurrence of such events or circumstances). Indebtedness of a Single Purpose Entity secured by that Single Purpose Entity’s assets shall not be considered a “Recourse” obligation of such Single Purpose Entity.”

S. The defined term “Recourse Indebtedness” is deleted and replaced with:

““ Recourse Indebtedness ” means that portion of Total Funded Indebtedness in which the Recourse of the applicable lender or lenders to the obligor for non-payment is not limited to such lender’s Lien on an asset or assets, including any guarantee of payment by a member of the Borrowing Group to the extent such guarantee is Recourse to such Borrowing Group member but in any event excluding any Indebtedness or Guarantees which are not Recourse at the applicable date of determination. “Recourse Indebtedness” shall include any Indebtedness consisting of preferred Stock or preferred Partnership Units which are not Qualified Redemption Obligations but are otherwise mandatorily redeemable or redeemable at the option of the holder thereof. If a Person is a Single Purpose Entity which owns a real property asset and has Indebtedness which is not limited in recourse to that real property asset, such Indebtedness shall not be considered “Recourse Indebtedness”, provided no other member of the Borrowing Group has guaranteed such Indebtedness on a Recourse basis as of the applicable date of determination.”

T. The defined term “Revolving Commitment” is deleted and replaced with:

““ Revolving Commitment ” means, as to each Revolving Lender, its obligation to (a) make Revolving Loans to the Borrowers pursuant to Section 2.01, (b) purchase participations in L/C Obligations, and (c) purchase participations in Swing Line Loans, in an aggregate principal amount at any one time outstanding not to exceed the amount set forth opposite such Revolving Lender’s name on Schedule 2.15(d) or in the Assignment and Assumption pursuant to which such Revolving Lender becomes a party hereto, as applicable, as such amount may be adjusted from time to time in accordance with this Agreement. The aggregate Revolving Commitment shall not exceed $180,000,000, unless increased pursuant to Section 2.15 .”

U. The defined term “Revolving Commitment Termination Date” is deleted and replaced with:

““ Revolving Commitment Termination Date ” means the later of (a) May 1, 2011 and (b) if the Existing Revolving Commitment Termination Date is extended pursuant to Section 2.14 , such extended Existing Revolving Commitment Termination Date as determined pursuant to such Section 2.14 .”

V. The defined term “Swingline Sublimit” is deleted and replaced with:

““ Swing Line Sublimit ” means an amount equal to $50,000,000. The Swing Line Sublimit is part of, and not in addition to, the Revolving Commitments.”

W. The defined term “Threshold Amount” is deleted and replaced with:

““ Threshold Amount ” means (a) with respect to Indebtedness that is not Recourse Indebtedness, $250,000,000 individually or in the aggregate, and (b) with respect to Indebtedness which is Recourse Indebtedness, $35,000,000 individually or in the aggregate; provided that solely for purposes of determining the Threshold Amount, Indebtedness relating to NAPICO assets shall be calculated as equal to Borrowing Group’s Share thereof to the extent that such share (x) is an administrative non-controlling interest, and (y) amounts to less than 5% of the interest in any such NAPICO asset.”

X. The defined term “Total Funded Indebtedness” is deleted and replaced with:

““ Total Funded Indebtedness ” means, for any period and without double counting, the sum of the Borrowing Group’s Share of (a) Funded Indebtedness, minus (b) its share of any debt service reserves or sinking funds with respect to such Funded Indebtedness.”

Y. The defined term “Total Secured Indebtedness” is deleted and replaced with:

““ Total Secured Indebtedness ” means, as of any date of determination and without double counting any item, the aggregate amount of Total Funded Indebtedness that is secured by a Lien (excluding Indebtedness secured solely by cash in debt service reserves or sinking funds), plus any Total Funded Indebtedness described in the last sentence of the definition of Recourse Indebtedness which is otherwise not secured by a Lien; provided , however , that the Obligations shall be excluded from the calculation of Total Secured Indebtedness.”

Z.  The defined term “Unfunded Pension Liability” is deleted and replaced with:

““ Unfunded Pension Liability ” means the excess of a Pension Plan’s benefit liabilities under Section 4001(a)(16) of ERISA, over the current value of that Pension Plan’s assets, determined in accordance with the assumptions used for funding the Pension Plan pursuant to Section 430 of the Code for the applicable plan year.”

AA. The following defined terms shall be deleted:

“ Casden ”

“ Casden Acquisition ”

“ Contingent Acquisition Note ”

“ Investment Affiliate ”

“ Mirror Notes ”

“ Mirror Notes Stock ”

“ NAPICO Notes ”

“ Real Estate Company ”

“ REAL Litigation ”

“ REAL Litigation Settlement Agreement ”

“ REAL Litigation Guarantee ”

BB.  The following defined terms in Section 1.01 shall be inserted in the correct alphabetical location:

““ Activation Notice ” means a written notice delivered by the Borrowers to the Administrative Agent on or before May 1, 2009 stating that, pursuant to Section 2.15(d), the New Revolving Commitments (as defined in Section 2.15(d) ) shall become effective.”

““ Applicable Capitalization Rate ” means 8.00%, subject to adjustment to an amount not to exceed 8.50% in accordance with Section 2.14(a) .”

““ Applicable Revolving Base Rate ” means for any day a fluctuating rate per annum equal to the higher of (a) the Federal Funds Rate plus 1/2 of 1%, (b) the Eurodollar Rate applicable for a one month Interest Period plus 1.25%, and (c) the rate of interest in effect for such day as publicly announced from time to time by Bank of America as its “prime rate.” The “prime rate” is a rate set by Bank of America based upon various factors including Bank of America’s costs and desired return, general economic conditions and other factors, and is used as a reference point for pricing some loans, which may be priced at, above, or below such announced rate. Any change in such rate announced by Bank of America shall take effect at the opening of business on the day specified in the public announcement of such change.”

““ Applicable Revolving Eurodollar Rate ” means, for any Interest Period with respect to a Eurodollar Rate Loan, the rate per annum equal to the British Bankers Association LIBOR Rate (“ BBA LIBOR ”), as published by Reuters (or other commercially available source providing quotations of BBA LIBOR as designated by the Administrative Agent from time to time) at approximately 11:00 a.m., London time, two Business Days prior to the commencement of such Interest Period, for Dollar deposits (for delivery on the first day of such Interest Period) with a term equivalent to such Interest Period; provided, however, that the Applicable Revolving Eurodollar Rate shall never be less than the Eurodollar Rate Floor. If such rate is not available at such time for any reason, then the “Applicable Revolving Eurodollar Rate” for such Interest Period shall be the rate per annum determined by the Administrative Agent to be the rate at which deposits in Dollars for delivery on the first day of such Interest Period in same day funds in the approximate amount of the Eurodollar Rate Loan being made, continued or converted by Bank of America (or such amount as determined by Administrative Agent) and with a term equivalent to such Interest Period would be offered by Bank of America’s London Branch to major banks in the London interbank eurodollar market at their request at approximately 4:00 p.m. (London time) two Business Days prior to the commencement of such Interest Period.”

““ Eurodollar Rate Floor ” means 2.00%.”

““ Existing Revolving Commitment Termination ” has the meaning specified in Section 2.15(d).”

““ Fronting Fee ” has the meaning specified in Section 2.03(j).”

““ Impacted Lender ” means a Revolving Lender (a) that is a Defaulting Lender, or (b) as to which (i) the L/C Issuer has a good faith belief that such Revolving Lender has defaulted in fulfilling its obligations under one or more other syndicated credit facilities (and in such other credit facilities such Revolving Lender has been treated as a defaulting or otherwise impacted lender), or (ii) an entity that Controls such Revolving Lender has been deemed insolvent or become subject to a bankruptcy or other similar proceeding. No Impacted Lender shall have any right to approve or disapprove any amendment, waiver or consent under this Agreement, except that the Commitment of such Impacted Lender