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WYNDHAM HOTEL CORPORATION
FIRST AMENDMENT
TO SENIOR SECURED REVOLVING CREDIT AGREEMENT
This FIRST AMENDMENT TO SENIOR SECURED REVOLVING CREDIT
AGREEMENT (this "AMENDMENT") is dated as of July 30, 1997 and entered into by
and among WYNDHAM HOTEL CORPORATION, a Delaware corporation (the "COMPANY"),
the financial institutions party to the Credit Agreement referred to below (the
"LENDERS") and BANKERS TRUST COMPANY, as agent for Lenders (the "AGENT"), and,
for purposes of Section 4 hereof, the Credit Support Parties listed on the
signature pages hereof, and is made with reference to that certain Senior
Secured Revolving Credit Agreement dated as of May 29, 1996 (the "CREDIT
AGREEMENT"), by and among the Company, the Lenders party thereto and the Agent.
Capitalized terms used herein without definition shall have the same meanings
herein as set forth in the Credit Agreement.
RECITALS
WHEREAS, the Company and Lenders desire to amend the Credit
Agreement to (i) increase the aggregate amount of the Commitments by
$50,000,000, (ii) permit Clubhouse Hotels, Inc. ("CLUBHOUSE") to merge with the
Company, (ii) permit the Company to make certain debt Investments in Homegate
Hospitality, Inc. ("HOMEGATE"), (iv) amend certain financial covenants, (v)
make certain revisions to the method of calculating the Borrowing Base, (vi)
permit the Company to make certain equity Investments in American General
Hospitality Corporation and American General Hospitality Operating Partnership,
L.P., (vii) permit the Company to enter into franchise agreements, (viii) to
permit, subject to the limitations provided herein, the Company to make
Investments in connection with certain franchise agreements, and (ix) make
certain other amendments as set forth below:
NOW, THEREFORE, in consideration of the premises and the
agreements, provisions and covenants herein contained, the parties hereto agree
as follows:
SECTION 1. AMENDMENTS TO THE CREDIT AGREEMENT
1.1 AMENDMENTS TO SECTION 1: PROVISIONS RELATING TO
DEFINED TERMS
A. Subsection 1.1 of the Credit Agreement is hereby
amended by adding thereto the following definitions, which shall be inserted in
proper alphabetical order:
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"`CLUBHOUSE ACQUISITION' means the merger of Clubhouse Hotels,
Inc. with and into WHC Acquisition Corporation in accordance with the
provisions of the Clubhouse Merger Agreement."
"`CLUBHOUSE MERGER AGREEMENT' means that certain Agreement and
Plan of Merger dated as of July 21, 1997 Clubhouse Hotels, Inc., the
Company and WHC Acquisition Corporation, as such agreement may be
amended, supplemented or otherwise modified from time to time."
"`CLUBHOUSE PROPERTIES' means, collectively, each real
property, together with all Improvements thereon, and all fixtures
attached thereto and all personal property used in connection
therewith, acquired by WHC Acquisition Corporation pursuant to the
Clubhouse Acquisition."
"`FIRST AMENDMENT' means that certain First Amendment to
Senior Secured Revolving Credit Agreement dated as of July 30, 1997 by
and among the Company, the Lenders and the Agent."
"`FIRST AMENDMENT EFFECTIVE DATE' means the date the First
Amendment became effective in accordance with its terms."
"`WHC FRANCHISE' means WHC Franchise Corporation, a Delaware
corporation."
B. The definition of "ACQUISITION" contained in
subsection 1.1 of the Credit Agreement is hereby amended by adding the phrase
"and the acquisition by WHC Acquisition Corporation of the Clubhouse
Properties" at the end of such definition.
C. The definition of "BORROWING BASE" contained in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"`BORROWING BASE' means, as of any date of determination from and
after the Funding Availability Date through and including the Maturity Date,
the amount determined by the Agent as of the last day of the preceding month
or, if subsequent thereto, the most recent Addition Date or Release Date, that
is equal to the sum of the following:
(i) the sum of the Pool A Property Amounts in respect of
all Pool A Properties as of such date of determination; provided that
the calculation of the amount referred to in this clause (i) shall
exclude (a) the amount, if any, by which the Pool A Property Amount
with respect to any Pool A Property (other than the Xxxx Xxxx Property
and any Additional Pool A Property referred to in clause (c) below) as
of such date of determination otherwise exceeds 25% of the amount
determined pursuant to this clause (i) for such period, (b) the amount,
if any, by which the Pool A Property Amount with respect to the Xxxx
Xxxx Property as of such date of determination, otherwise
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exceeds the correlative percentages of the amount determined
pursuant to this clause (i) indicated for the periods set
forth below:
PERIOD PERCENTAGE
----------------------- -----------
F.A. Date-12/31/96 35%
01/01/97-6/30/97 30%
07/01/97-Maturity Date 25%; and
(c) if the Pool A Amount with respect to an Additional Pool A
Property exceeds 25% of the amount determined pursuant to this clause
(i) as of such Addition Date, the amount, if any, by which the Pool A
Property Amount with respect to such Additional Pool A Property
otherwise exceeds the amount that bears the same percentage
relationship to the amount determined pursuant to this clause (i) as
of such date of determination as the Pool A Property Amount with
respect to such Additional Pool A Property on the Addition Date with
respect thereto bears to the amount determined pursuant to this clause
(i) as of such Addition Date; plus
(ii) the lesser of (a) the sum of the Management Amounts
in respect of all Management Agreements and Servicing Agreements as of
such date of determination and (b) the greater of (x) an amount equal
to 66 2/3% of the amount determined pursuant to the preceding clause
(i) and (y) the amount by which $15,000,000 is greater than the amount
determined pursuant to the preceding clause (i).
The Borrowing Base is subject to (1) reduction from time to
time as provided in subsection 2.4B(iii) and 2.9 and (2) adjustment
from time to time as provided in the definitions of Pool A Property
Amount, Property EBITDA, Management Amount and Management EBITDA,
respectively."
D. The definition of "MANAGEMENT AMOUNT" contained in
subsection 1.1 of the Credit Agreement is hereby amended by (i) deleting
clause (i) thereof and substituting the following therefor:
"(i) with respect to each Management Agreement or Servicing
Agreement, the product of (a) 3.00 multiplied by (b) the Management
EBITDA for such Management Agreement or Servicing Agreement, as the
case may be, for the 12 most recently completed calendar months ending
not less than 30 days before such date of determination for which the
Agent has received the financial statements with respect to such
Management Agreement or Servicing Agreement required to be delivered
pursuant to subsection 6.1(ii) of subsection 7.16A(ii), as the case
may be;"
and (ii) deleting clause (ii) thereof.
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E. The definition of "MANAGEMENT EBITDA" contained in
subsection 1.1 of the Credit Agreement is hereby amended by (i) deleting ";
and" at the end of paragraph (y) thereof and substituting the punctuation "."
therefor and (ii) deleting paragraph (z) therefrom.
F. The definition of "POOL A PROPERTY AMOUNT" contained in
subsection 1.1 of the Credit Agreement is hereby amended and restated in its
entirety as follows:
"`POOL A PROPERTY AMOUNT' means, as of any date of determination, the
following:
(i) with respect to a Pool A Property (other than the
Xxxx Xxxx Property) listed on Schedule 5.4A1 annexed hereto as of the
Effective Date, the product of (a) the applicable factor set forth
below as of such date of determination multiplied by (b) the Property
EBITDA for such Pool A Property for the 12 most recently completed
calendar months ending not less than 30 days before such date of
determination for which the Agent has received the financial
statements with respect to such Properties required to be delivered
pursuant to subsection 6.1(i):
PERIOD PERCENTAGE
--------------------- ----------
1/1/97 - 1/31/98 4.75
2/1/98 - 12/31/98 3.75
1/1/99 - thereafter 3.50
; provided that such Pool A Property Amount shall not be greater than
an amount equal to 65% of the value thereof specified in the Appraisal
with respect to such Pool A Property most recently approved by the
Agent on or before such date of determination; or
(ii) with respect to the Xxxx Xxxx Property, the product
of (a) the applicable factor set forth below as of such date of
determination multiplied by (b) the Property EBITDA for the Xxxx Xxxx
Property for the 12 most recently completed calendar months ending not
less than 30 days before such date of determination for which the
Agent has received the financial statements with respect to such
Property required to be delivered pursuant to subsection 6.1(i):
PERIOD PERCENTAGE
-------------------- ----------
1/1/97 - 1/31/98 4.00
2/1/98 - 12/31/98 2.75
1/1/99-thereafter 2.75
; provided that such Pool A Property Amount shall not be greater than
the least of (1) the Pool A Property Amount with respect to the Xxxx
Xxxx Property as of the Funding Availability Date (without giving
effect to clause (z)(2) of the definitions of Property EBITDA), (2) an
amount equal to 40% of the value thereof specified on the Appraisal
with respect to the Xxxx Xxxx Property most recently approved by the
Agent on or before such date of determination, (3) zero during any
period in which there shall
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have occurred and be continuing a material adverse change in the
business, operations, condition (financial or otherwise) or prospects
of Xxxx Xxxx Partnership that shall have resulted, or could reasonably
be expected to result, from the occurrence of events or the existence
of conditions that have not, or could not reasonably be expected to,
affect other resort hotels in the Caribbean of a type, quality and
character similar to that of the Xxxx Xxxx Property in substantially
the same manner and to substantially the same extent and (4)
$14,000,000; or
(iii) with respect to each Additional Pool A Property
(other than an Additional Pool A Property referred to in the following
clause (iv)), the product of (a) the applicable factor specified from
time to time by the Agent, in its sole discretion, for such Additional
Pool A Property multiplied by (b) the Property EBITDA for such
Additional Pool A Property for the 12 most recently complete calendar
months ending not less than 30 days before the applicable date of
determination for which the Agent has received the financial
statements with respect to such Properties required to be delivered
pursuant to subsection 6.1(i) or 7.16A(i), as the case may be;
provided that such Pool A Property Amount shall not be greater than an
amount equal to 65% of the value thereof specified in the Appraisal
with respect to such Pool A Property most recently approved by the
Agent on or before such date of determination; or
(iv) with respect to each Additional Pool A Property for
which a Major Renovation/Restoration shall occur, or shall be
scheduled to commence, on or before the first anniversary of the
Addition Date with respect thereto, the amount that is equal to 35% of
the sum of (a) the cash purchase price therefor paid therefor by the
Company on or before such date of determination plus (b) the actual
cost of such Major Renovation/ Restoration paid by the Company on or
before such date of determination; provided that, as of any date of
determination after the completion of such Major
Renovation/Restoration that shall occur on or before the end of 12
complete calendar months ending not less than 30 days before the
applicable date of determination for which the Agent has received the
financial statements with respect to such Additional Pool A Property
required to be delivered pursuant to subsection 6.1(i), such Pool A
Property Amount shall not be greater than an amount equal to 35% of
the value thereof, on an as-completed basis, specified in the
Appraisal with respect to such Additional Pool A Property as of a date
not earlier than 30 days before such date of completion provided
further that if a certificate of substantial completion has been
delivered to the Agent with respect to one or more of the Properties
listed on Schedule 1.1C annexed hereto, the applicable percentage with
respect to such Properties for purposes of this clause (iv) shall be
50% instead of 35%; and
(v) with respect to the Commerce Property, the amount which is
50% of the amount otherwise calculated pursuant to this definition
(without giving effect to clause (z) in the definition of Property
EBITDA) if the Company shall not yet have acquired the superior ground
lease with respect to the Commerce Property and the Leasehold interest
under such superior ground lease shall not have merged with the
Commerce Lease, in each case on terms satisfactory to the Agent in its
sole discretion."
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G. The definition of "RELATED DOCUMENTS" contained in
subsection 1.1 of the Credit Agreement is hereby amended by deleting the phrase
"Acquisition Documents" contained in such subsection and substituting the
phrase "Acquisition Agreements, the Clubhouse Merger Agreement" therefor.
H. The definition of "RELEASE PRICE" contained in subsection
1.1 of the Credit Agreement is hereby amended by deleting the phrase "the DAB
Notes or the Affiliate Notes" from the penultimate proviso contained in such
definition and substituting the following therefor "the DAB Notes, the
Affiliate Notes, and any Collateral acquired in the Clubhouse Acquisition and
not subject to clause (i), (ii) or (iii) above."
1.2 AMENDMENTS TO SECTION 2: AMOUNTS AND TERMS OF COMMITMENTS
AND LOANS
A. Subsection 2.1A(i) of the Credit Agreement is hereby
amended by deleting the last sentence thereof and substituting the following
therefor:
"The amount of each Lender's Revolving Commitment and such
Lender's Pro Rata Share as of the First Amendment Effective
Date is set forth opposite its name on Schedule 2.1A annexed
hereto and the aggregate amount of the Revolving Commitments
on the First Amendment Effective Date is $150,000,000;
provided, however, that the Revolving Commitments of the
Lenders shall be adjusted to give effect to any assignments of
the Revolving Commitments pursuant to subsection 9.1; provided
further however, that the amount of the Revolving Commitments
shall be automatically reduced by the amount of any reductions
to the Revolving Commitments made pursuant to subsection
2.4B(ii)."
1.3 AMENDMENT TO SECTION 6: COMPANY'S AFFIRMATIVE COVENANTS
A. Subsection 6.20A of the Credit Agreement is hereby amended
by inserting the phrase ", undeveloped land" immediately after the phrase "Pool
B Property" in such subsection.
1.4 AMENDMENTS TO SECTION 7: COMPANY'S NEGATIVE COVENANTS
A. Subsection 7.1 of the Credit Agreement is hereby amended
by (i) deleting the word "and" from the end of clause (ix) thereof, (ii)
renumbering existing clause (x) as clause "(xi)" and (iii) inserting the
following as new clause (x) in such subsection:
"(x) Knoxville C.I. Associates, LLP, Omaha C.I.
Associates, L.P., Overland Park C.I. Associates, L.P., Atlanta
C.I. Associates II, L.P. and Wichita C.I. Associates III, L.P.
may become and remain liable with respect to Indebtedness in
an aggregate principal amount not to exceed $23,793,274 owed
to Salomon Brothers Inc. on the First Amendment Effective Date
and assumed by WHC
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Acquisition Corporation pursuant to the Clubhouse Acquisition;
provided that the Company and each of its Subsidiaries shall
comply with each provision of subsection 7.15A(iii) (except
that, for the purpose of determining compliance with clause
(e) of subsection 7.15A(iii), the Indebtedness owned on the
First Amendment Effective Date to Salomon Brothers Inc. shall
be deemed to be Pool C Indebtedness;"
B. Subsection 7.3 of the Credit Agreement is hereby amended
by (i) inserting the phrase "franchise agreement," immediately after the phrase
"modifying any" in the first paragraph thereof, (ii) deleting the word "and"
from the end of clause (x) thereof and (iii) inserting the following
immediately after clause (xi):
"(xii) so long as no Event of Default or Potential Event
of Default is continuing, the Company and its Subsidiaries may
make Investments in American General Hospitality Corporation
and its Subsidiaries in an aggregate amount not to exceed
$5,000,000 in connection with the execution of one or more
franchise agreements between WHC Franchise and American
General Hospitality Corporation or one of its Subsidiaries;
(xiii) so long as no Event of Default or Potential
Event of Default is continuing, if the Company shall have
determined that making such Investment, becoming liable with
respect to such Guaranty or making such payment, in each case
pursuant to this subsection 7.3(xiii), is necessary to secure
a franchise agreement that is an upscale full service hotel,
garden style hotel or resort hotel or mid-scale limited
service hotel operating under the Clubhouse brand name, in
each case located in the United States of America, or to
secure an extension, renewal or modification of such franchise
agreement, the Loan Parties and their respective Subsidiaries
may, subject to subsection 7.10, (a) make equity or debt
Investments in the owner of such franchised property, (b)
become liable with respect to Guaranties of Indebtedness or
other obligations of such Persons and (c) make payments to
such Persons or their respective Affiliates provided that (1)
the sole purpose of each such Person shall be to acquire, own,
renovate, operate and dispose of a franchised property that is
an upscale full service hotel, a garden style hotel or a
resort hotel or mid-scale, limited service hotel operating
under the Clubhouse brand name, in each case; (2) the Company
shall have entered into a franchise agreement with such Person
with respect to such franchised property (or an extension,
renewal or modification thereof, as the case may be); (3) the
Loan Parties and their respective Subsidiaries shall comply
with subsection 7.17; (4) the aggregate amount of the
outstanding Investments, outstanding Guaranties and payments
made by the Loan Parties and their respective Subsidiaries, in
each case as permitted by subsections 7.3(vi), (vii), (viii),
(xii) and (xiii) does not (and after giving effect to such
additional investment Guaranty or payment pursuant to this
subsection 7.3(xiii) would not) exceed $50,000,000; (5) the
aggregate amount of the outstanding Investments, outstanding
Guaranties and payments made by the Loan Parties and their
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respective Subsidiaries does not (and after giving effect to
such investment, Guaranty or payment pursuant to this
subsection 7.3(xiii) would not exceed $5,000,000; (6) the sum
of the aggregate amount of outstanding Investments,
outstanding Guaranties and payments made by the Loan Parties
and their respective Subsidiaries in, to or for the benefit of
the owner of such franchised property and its Affiliates
(which owner and its Affiliates together shall not number more
than 5 Affiliated Owners) pursuant to subsections 7.3(vi),
(vii), (viii) and (xii) and (xiii), shall not exceed
$7,500,000 at any time; (7) if such Franchised Property is an
upscale full service hotel or a resort hotel or mid-scale,
limited service hotel, such Investment, Guaranty or payment
shall not exceed $500,000; and (8) if such Franchised Property
is a garden style hotel, such Investment, Guaranty or payment
shall not exceed $300,000;
(xiv) the Company may make loans to Homegate Hospitality,
Inc. and its Subsidiaries in an aggregate principal amount not
to exceed $30,000,000 at any time; provided that each such
loan shall have a term (including all extension options) not
to exceed twelve years and be secured by a second priority
Lien on each real estate project financed, in whole or in
part, with proceeds of such loan or, upon a permanent
refinancing of the Loan from the Company, a security interest
in Homegate Hospitality, Inc.'s interest in the applicable
Subsidiary that owns the applicable real estate project; and
(xiv) the Company and its Subsidiaries may make
Investments in three Joint Ventures on the effective date of
the Clubhouse Merger in accordance with the provisions of the
Clubhouse Merger Agreement; provided that in no event shall
the Company be a partner in, or incur any Contingent
Obligations in respect of, any such Joint Venture except that
WHC may incur Contingent Obligations in respect of a wrongful
acts guaranty related to Marquis Hotel Associates (Pittsburgh)
in favor of Midland Loan Services, L.P."
C. Subsection 7.7 of the Credit Agreement is hereby amended
by (i) deleting the word "and" from the end of clause (vii) in such subsection,
(ii) deleting the punctuation "." from the end of clause (viii) in such
subsection and substituting "; and" therefor and (iii) adding the following at
the end of such subsection:
"(ix) the Company and WHC Acquisition Corporation may
consummate the Clubhouse Acquisition."
D. Subsection 7.6C of the Credit Agreement is hereby amended
by deleting the percentage "50%" from each place it occurs in such subsection
and substituting "55%" in each case instance therefor.
E. Subsection 7.6F of the Credit Agreement is hereby amended
by deleting the phrase "5.00 to 1.00" from the chart contained in such
subsection and substituting the phrase "5.40 to 1.00" therefor.
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F. Subsection 7.6G of the Credit Agreement is hereby amended
by deleting the phrase "5.75 to 1.00" from the chart contained in such
subsection and substituting the phrase "6.15 to 1.00" therefor.
G. Subsection 7.10 of the Credit Agreement is hereby amended
by (i) adding the phrase "and (vi) Investments permitted pursuant to subsection
7.3(xiv)" at the end of such subsection, (ii) adding the phrase "or subsection
7.3(xiv)" after the phrase "referred to in subsection 7.3(v)" and (iii) adding
the phrase "and make Investments permitted pursuant to subsection 7.3(xiv)" at
the end of clause (viii)(A) in such subsection.
H. Subsection 7.14(i) of the Credit Agreement is hereby
amended by (i) inserting the phrase "development," immediately after the
phrase "restoration," in clause (a) thereof, (ii) adding the following at the
end of clause (a) in such subsection:
"; provided that, the aggregate amount of expenditures by the
Company and its Subsidiaries for the acquisition of land
and/or development of garden style hotels shall not exceed
$10,000,000, measured on a cumulative basis from the First
Amendment Effective Date"
and (iii) amending existing clause (d) thereof to be clause "(f)" and inserting
the following as clauses (d) and (e):
"(d) ownership, renovation, restoration,
management, operation and disposition of mid- scale, limited
service hotels acquired in the Clubhouse Acquisition,
(e) the management of, and the entering into
franchise agreements with respect to, upscale, full service
garden or resort hotels or mid-scale, limited service hotels
operated under the Clubhouse brand name,"
I. Subsection 7.14(iii) of the Credit Agreement is hereby
amended by inserting the phrase "and Investments permitted pursuant to
subsection 7.3(xiv)" immediately after the phrase "generated by the Other
Managed Property" in the parenthetical contained in such subsection.
J. Subsection 7.15A of the Credit Agreement is hereby
amended by (i) adding the following at the end of clause (i) in such
subsection:
"; provided however that, with respect to each Clubhouse
Property (other than any Clubhouse Property subject on the
First Amendment Effective Date to a Lien in favor of Salomon
Brothers Inc), if each of the other conditions set forth in
subsection 7.15A are satisfied with respect to such Clubhouse
Property, the Lenders shall be deemed to have approved such
Clubhouse Property as an Additional Pool A Property."
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and (ii) inserting the phrase "or subsection 7.1(x)" at the end of clause
(iii)(d) in such subsection.
K. Subsection 7.16(A) of the Credit Agreement is hereby
amended by inserting the phrase "or a mid-scale, limited service hotel
operated under the Clubhouse brand name" immediately after the phrase "or
resort hotel" (i) in clause (a) in subsection 7.16A(i) and (ii) in clause
(a)(1) in subsection 7.16A(ii).
L. Subsection 7.17B of the Credit Agreement is hereby
amended by inserting (i) the phrase "except to the extent permitted pursuant to
subsection 7.3(xii)," at the beginning of clause (ii) in such subsection and
adding the following at the end thereof:
"; provided further, that Company may enter into franchise
agreements with respect to the operation of mid-scale, limited
service hotels operated under the "Clubhouse" brand name."
M. Section 7 of the Credit Agreement is hereby amended by
adding the following subsection at the end thereof:
"7.21 RESTRICTIONS ON CERTAIN SUBSIDIARIES.
A. Unless and until C.I. General, LLC, C.I. Manager, Inc.,
C.I. Wichita General LLC and C.I. Wichita Manager Inc. (each a
"RESTRICTED SUBSIDIARY" and collectively the "RESTRICTED SUBSIDIARIES"
(i) execute counterparts to each of the Subsidiary Guaranty, Security
Agreement, Omnibus Management and Liquor License Agreement and
Environmental Indemnity and (ii) take all other actions reasonably
requested by Agent to grant a perfected, first priority security
interest in its respective property, none of the Restricted
Subsidiaries shall (a) engage in any business or conduct any
operations other than the ownership of the equity interests owned by
such Restricted Subsidiary on the First Amendment Effective Date or
(b) own any material assets other than the equity interests owned by
such Restricted Subsidiary on the First Amendment Effective Date.
B. During the continuance of an Event of Default or
Potential Event of Default, neither Company nor any of its
Subsidiaries shall make any Investments in Knoxville C.I. Associates,
LLP, Omaha C.I. Associates, L.P., Overland Park C.I. Associates, L.P.,
Atlanta C.I. Associates II, L.P., Wichita C.I. Associates III, L.P.,
Westmont c.I. Associates, Limited Partnership or Savannah C.I.
Associates, L.P.
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1.5 AMENDMENTS TO SCHEDULES
A. The Credit Agreement is hereby amended by deleting
Schedules 2.1A, 4.1G, 5.4A1, 5.4A3 and 5.4I therefrom and substituting in place
thereof new Schedules 2.1A, 4.1G, 5.4A1, 5.4A3 and 5.4I in the form attached as
Annex A to this Amendment.
B. Schedule 5.3 to the Credit Agreement is hereby amended by
adding to such Schedule the Contingent Obligations set forth in Annex B hereto.
C. The Credit Agreement is hereby amended by adding as
Schedule 1.1C thereto the Schedule attached as Annex C hereto.
SECTION 1 CONDITIONS TO EFFECTIVENESS
Section 1 of this Amendment shall become effective only upon
the satisfaction of all of the following conditions precedent (the date of
satisfaction of such conditions being referred to herein as the "FIRST
AMENDMENT EFFECTIVE DATE"):
A. CORPORATE DOCUMENTS. On or before the First Amendment
Effective Date, the Company shall deliver to Lenders (or to Agent for Lenders
with sufficient originally executed copies, where appropriate, for each Lender
and its counsel) the following with respect to the Company and each other Loan
Party party to an Amendment Document (as hereinafter defined), each, unless
otherwise noted, dated the First Amendment Effective Date:
1. Certified copies of its Certificate of Incorporation,
together with a good standing certificate from the Secretary of State
of the State of Delaware, each dated a recent date prior to the First
Amendment Effective Date;
2. Copies of its Bylaws, certified as of the First
Amendment Effective Date by its corporate secretary or an assistant
secretary;
3. Resolutions of its Board of Directors approving and
authorizing the execution, delivery, and performance of this
Amendment, an amendment to the Subsidiary Guaranty, substantially in
the form attached hereto as Annex D (the "SUBSIDIARY GUARANTY
AMENDMENT"), the Amended and Restated Security Agreement substantially
in the form attached hereto as Annex E, and the Mortgage Amendments
(as hereinafter defined) and approving and authorizing the execution,
delivery and payment of Notes representing the additional Commitments
contemplated by this Amendment (collectively, the "ADDITIONAL NOTES"
and, together with this Amendment, the Subsidiary Guaranty Amendment
and the Mortgage Amendments, the "AMENDMENT DOCUMENTS"), in each case
to the extent such Loan Party is a party to such Amendment Document,
certified as of the First Amendment Effective Date by its corporate
secretary or an assistant secretary as being in full force and effect
without modification or amendment;
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4. Signature and incumbency certificates of the officers
executing the Amendment Documents; and
5. An officer's certificate certifying that the articles
and bylaws of each Loan Party other than Company have not been amended
or otherwise modified since the Effective Date.
B. CERTAIN AMENDMENT DOCUMENTS. The Agent shall have
received counterparts of this Amendment, the Subsidiary Guaranty Amendment and
the Additional Notes, in each case originally executed by each of the parties
thereto.
C. SECURITY INTERESTS. The Company shall have taken or
caused to be taken all such actions as may be necessary or reasonably requested
by Agent to give Agent a valid, continuing, enforceable and perfected first
priority Lien on or first priority security interest in the Collateral as of
the First Amendment Effective Date. Such actions shall include the following:
1. the delivery of each of the documents and
satisfaction of each of the conditions set forth in subsection
7.15A(i) of the Credit Agreement with respect to each Additional Pool
A Property acquired by WHC Acquisition Corporation pursuant to the
Clubhouse Acquisition (the "CLUBHOUSE POOL A PROPERTIES");
2. the delivery to Agent of fully executed and
acknowledged counterparts of an amendment to the Mortgage in form and
substance satisfactory to Agent (such amendments, collectively, the
"MORTGAGE AMENDMENTS") for each Pool A Property owned in fee
directly by the Company (the "COMPANY-OWNED POOL A PROPERTIES"), and
the delivery of evidence satisfactory to Agent that counterparts of
the Mortgage Amendments have been or will be recorded in all places
necessary or desirable to maintain valid and enforceable first
priority Liens on the fee simple or leasehold interests of the
Company, as applicable, in the Company-Owned Pool A Properties as of
the First Amendment Effective Date in favor of Agent, as mortgagee (or
as beneficiary in those jurisdictions where the Lien is granted to a
trustee for the benefit of Agent);
3. the delivery to Agent of a title report or commitment
(together with copies of all documents listed therein as exceptions to
title) dated not more than 90 days prior to the First Amendment
Effective Date with respect to each Pool A Property and pro forma
Title Policies (or date-down endorsements) dated not more than 30 days
prior to the First Amendment Effective Date with respect to each Pool
A Property, each reasonably satisfactory in form and substance to
Agent;
4. the delivery to Agent of opinions of Kansas and Texas
counsel as to the enforceability of the Mortgage Amendments to be
recorded in such states and such other matters as Agent shall
reasonably request, which opinions shall be dated the First
12
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Amendment Effective Date, addressed to Agent and the Lenders and
otherwise in form and substance reasonably satisfactory to Agent;
5. the delivery to Agent of signed endorsements to the
Title Policies or marked title commitments ("DATE-DOWN POLICIES")
insuring on the First Amendment Effective Date fee simple or leasehold
title to each of the Company-Owned Pool A Properties vested in the
Company and insuring the first priority of the Liens created under the
Mortgages amended by the Mortgage Amendments in an aggregate amount,
when combined with the title insurance provided in the Title Policies
delivered for the Clubhouse Pool A Properties pursuant to clause (a)
above, not less than $150,000,000, in each case subject only to
Permitted Encumbrances, and such other title exceptions as are
satisfactory to Agent. Such Date-Down Policies shall be reinsured
with title insurance companies acceptable to Agent in amounts as
required by Agent subject to facultative reinsurance agreements in
form satisfactory to Agent. In addition, the Company shall have paid
to the Title Company or to the appropriate Governmental Authority all
expenses and premiums of the Title Company in connection with the
issuance of such Date-Down Policies or in connection with any Loan
hereunder and an amount equal to the recording and stamp taxes
(including mortgage recording, intangible and similar taxes) payable
in connection with recording each Mortgage Amendment in the
appropriate county or parish land offices or in connection with any
Loans hereunder;
6. the delivery to the Title Company of such
certificates and affidavits as the Title Company may reasonably
require in connection with the issuance of the Date-Down Policies;
7. the execution and delivery by each Subsidiary of the
Company of the Amended and Restated Security Agreement substantially
in the form attached as Annex E hereto; and
8. the delivery to Agent of evidence reasonably
satisfactory to Agent that all other filings, recordings and other
actions Agent deems necessary or advisable to establish, continue,
perfect and preserve the Liens granted to Agent in the Collateral as
of the First Amendment Effective Date shall have been made.
D. ADDITIONAL MANAGEMENT AGREEMENTS. The Company shall have
delivered each of the documents and satisfied each of the conditions set forth
in subsection 7.16A(i) of the Credit Agreement with respect to each Additional
Management Agreement acquired by Management Corp. or any other Subsidiary of
the Company pursuant to the Clubhouse Acquisition.
E. APPRAISALS. Agent shall have received (i) an
Appraisal of each Pool A Property to be acquired in the Clubhouse Acquisition
dated not more than 60 days prior to the First Amendment Effective Date and
prepared by an Appraiser designated by the Agent, which Appraisal shall be
satisfactory in form and substance to the Agent and shall satisfy all
13
14
applicable regulatory requirements; and (ii) copies of all appraisals, market
studies, and similar information with respect to each of the Pool A Properties
in the possession or under the control of the Company or any of its
Subsidiaries.
F. ESTOPPEL CERTIFICATES. The Company shall deliver or
cause to be delivered to Agent original counterparts of (i) estoppel
certificates and consent agreements with respect to each Additional Management
Agreement acquired pursuant to the Clubhouse Acquisition, satisfactory in form
and substance to the Agent, and duly executed by each owner of the related
Managed Property; (ii) estoppel certificates, reasonably satisfactory in form
and substance to the Agent, duly executed by each holder of Pool C Indebtedness
affecting any Pool C Property the Acquisition of which is effected pursuant to
the Clubhouse Acquisition; and (iii) estoppel certificates, reasonably
satisfactory in form and substance to the Agent, duly executed by each holder
of Indebtedness encumbering the property owned by any Joint Venture an interest
in which is acquired pursuant to the Clubhouse Acquisition
G. LEGAL OPINION. Lenders and their respective counsel
shall have received originally executed copies of one or more favorable written
opinions of Xxxxx Xxxxxxx Rain Xxxxxxx, counsel for Company and each other Loan
Party party to an Amendment Document (an "AMENDMENT LOAN PARTY"), in form and
substance reasonably satisfactory to Agent and its counsel, dated as of the
First Amendment Effective Date.
H. JOINT VENTURE DOCUMENTS. Copies of each Partnership
Agreement, Joint Venture Agreement or other organizational document related to
each of the Investments acquired pursuant to subsection 7.3(xiv) of the Amended
Credit Agreement (as hereinafter defined), in each case certified by an officer
of the Company as true, correct and complete.
I. OTHER PROCEEDINGS. On or before the First Amendment
Effective Date, all corporate and other proceedings taken or to be taken in
connection with the transactions contemplated hereby and all documents
incidental thereto not previously found acceptable by the Agent, acting on
behalf of Lenders, and its counsel shall be satisfactory in form and substance
to the Agent and such counsel, and the Agent and such counsel shall have
received all such counterpart originals or certified copies of such documents
as the Agent may reasonably request.
SECTION 3 THE COMPANY'S REPRESENTATIONS AND WARRANTIES
In order to induce the Agent to enter into this Amendment and
to amend the Credit Agreement in the manner provided herein, the Company
represents and warrants to each Lender that the following statements are true,
correct and complete:
A. CORPORATE POWER AND AUTHORITY. Each Amendment Loan
Party has all requisite corporate power and authority to enter into each
applicable Amendment Document and to carry out the transactions contemplated
by, and perform its obligations under each
14
15
Amendment Document, the Credit Agreement as amended by this Amendment (the
"AMENDED CREDIT AGREEMENT") and the Mortgages, as amended by the Mortgage
Amendments (the "AMENDED MORTGAGES").
B. AUTHORIZATION OF AGREEMENTS. The execution and
delivery of each Amendment Document and the performance of the Amendment
Documents and the Amended Agreements have been duly authorized by all necessary
corporate action on the part of each applicable Amendment Loan Party.
C. NO CONFLICT. The execution and delivery by each
applicable Amendment Loan Party of each Amendment Document and the performance
by each applicable Amendment Loan Party of the Amended Documents and the
Amendment Documents to which such Amendment Loan Party is a party do not and
will not (i) violate any provision of any law or any governmental rule or
regulation applicable to the Company or any of its Subsidiaries, the
Certificate or Articles of Incorporation or Bylaws of the Company or any of its
Subsidiaries or any order, judgment or decree of any court or other agency of
government binding on the Company or any of its Subsidiaries, (ii) conflict
with, result in a breach of or constitute (with due notice or lapse of time or
both) a default under any Contractual Obligation of the Company or any of its
Subsidiaries except for conflicts and breaches which could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse Effect,
(iii) result in or require the creation or imposition of any Lien upon any of
the properties or assets of the Company or any of its Subsidiaries other than
Liens created pursuant to the Security Documents in favor of the Agent, or (iv)
require any approval of stockholders or any approval or consent of any Person
under any Contractual Obligation of the Company or any of its Subsidiaries
except for approvals and consents obtained on or prior to the First Amendment
Effective Date.
D. GOVERNMENTAL CONSENTS. The execution and delivery by
each Amendment Loan Party of each applicable Amendment Document and the
performance by the each applicable Amendment Loan Party of the Amended
Documents and the Amendment Documents do not and will not require any
registration with, consent or approval of, or notice to, or other action to,
with or by, any federal, state or other governmental authority or regulatory
body, except for registrations, consents, approvals, notices or actions made,
obtained or taken on or prior to the First Amendment Effective Date.
E. BINDING OBLIGATION. Each Amendment Document and
Amended Document have been duly executed and delivered by each applicable
Amendment Loan Party and are the legally valid and binding obligations of each
such Amendment Loan Party, enforceable against each such Amendment Loan Party
in accordance with their respective terms, except as may be limited by
bankruptcy, insolvency, reorganization, moratorium or similar laws relating to
or limiting creditors' rights generally or by equitable principles relating to
enforceability.
F. INCORPORATION OF REPRESENTATIONS AND WARRANTIES FROM
CREDIT AGREEMENT. The representations and warranties contained in Section 4 of
the Credit
15
16
Agreement are and will be true, correct and complete in all material respects
on and as of the First Amendment Effective Date to the same extent as though
made on and as of that date, except to the extent such representations and
warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
G. ABSENCE OF DEFAULT. No event has occurred and is
continuing or will result from the consummation of the transactions
contemplated by this Amendment that would constitute an Event of Default or a
Potential Event of Default.
SECTION 4 ACKNOWLEDGEMENT AND CONSENT
The Company is a party to Certain Mortgages, certain
Assignments of Rents and Leases, the Security Agreement, the Trademark
Agreement, the Cash Management Letters, the Omnibus Management and Liquor
License Agreement and certain other Security Documents pursuant to which the
Company has created Liens in favor of the Agent on, or pledged in favor of the
Agent, certain Collateral to secure the Obligations. Each Subsidiary Guarantor
is a party to the Subsidiary Guaranty and the Security Agreement pursuant to
which each such Subsidiary Guarantor has (i) guaranteed the Obligations and
(ii) created Liens in favor of the Agent on certain Collateral to secure the
Obligations. The Company and the Subsidiary Guarantors are collectively
referred to as the "CREDIT SUPPORT PARTIES" and the Subsidiary Guaranty, the
Mortgages, the Assignments of Rents and Leases, the Security Agreement, the
Trademark Agreement, the Cash Management Letters, the Omnibus Management and
Liquor License Agreement and the other Security Documents are collectively
referred to herein as the"Credit Support Documents."
Each Credit Support Party hereby acknowledges that it has
reviewed the terms and provisions of the Credit Agreement and the Amendment
Documents and consents to the amendment of each applicable Loan Document
effected pursuant to the Amendment Documents. Each Credit Support Party hereby
confirms that each Credit Support Document to which it is a party or otherwise
bound and all Collateral encumbered thereby will continue to guaranty or
secure, as the case may be, to the fullest extent possible the payment and
performance of all "Obligations," "Guarantied Obligations" and "Secured
Obligations," as the case may be (in each case as such terms are defined in the
applicable Credit Support Document), including without limitation the payment
and performance of all such "Obligations," "Guarantied Obligations" or "Secured
Obligations," as the case may be, in respect of the Obligations of the Company
now or hereafter existing under or in respect of the Amended Credit Agreement
and the Notes defined therein. Without limiting the generality of the
foregoing, each Credit Support Party hereby acknowledges and confirms the
understanding and intent of such party that, upon the effectiveness of this
Amendment, and as a result thereof, the definition of "Obligations" contained
in the Amended Credit Agreement includes the obligations of the Company under
the Additional Notes.
Each Credit Support Party acknowledges and agrees that any of
the Credit Support Documents to which it is a party or otherwise bound shall
continue in full force and
16
17
effect and that all of its obligations thereunder shall be valid and
enforceable and shall not be impaired or limited by the execution or
effectiveness of this Amendment and the other Amendment Documents. Each Credit
Support Party represents and warrants that all representations and warranties
contained in the Amended Agreement and the Credit Support Documents to which it
is a party or otherwise bound are true, correct and complete in all material
respects on and as of the First Amendment Effective Date to the same extent as
though made on and as of that date, except to the extent such representations
and warranties specifically relate to an earlier date, in which case they were
true, correct and complete in all material respects on and as of such earlier
date.
Each Credit Support Party (other than the Company)
acknowledges and agrees that (i) notwithstanding the conditions to
effectiveness set forth in this Amendment, such Credit Support Party is not
required by the terms of the Credit Agreement or any other Loan Document to
consent to the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement, this Amendment or any other
Loan Document shall be deemed to require the consent of such Credit Support
Party to any future amendments to the Credit Agreement.
SECTION 5 MISCELLANEOUS
A. REFERENCE TO AND EFFECT ON THE CREDIT AGREEMENT AND
THE OTHER LOAN DOCUMENTS.
(a) On and after the First Amendment Effective Date, each
reference in the Credit Agreement to "this Agreement", "hereunder",
"hereof", "herein" or words of like import referring to the Credit
Agreement, and each reference in the other Loan Documents to the
"Credit Agreement", "thereunder", "thereof" or words of like import
referring to the Credit Agreement shall mean and be a reference to the
Amended Credit Agreement.
(b) Except as specifically amended by the Amendment
Documents, the Credit Agreement and the other Loan Documents shall
remain in full force and effect and are hereby ratified and confirmed.
(c) The execution, delivery and performance of the
Amendment Documents shall not, except as expressly provided herein,
constitute a waiver of any provision of, or operate as a waiver of any
right, power or remedy of the Agent or any Lender under, the Credit
Agreement or any of the other Loan Documents.
B. FEES AND EXPENSES. The Company acknowledges that all
costs, fees and expenses as described in subsection 9.2 of the Credit Agreement
incurred by the Agent and its counsel with respect to this Amendment and the
documents and transactions contemplated hereby shall be for the account of the
Company.
17
18
C. HEADINGS. Section and subsection headings in this
Amendment are included herein for convenience of reference only and shall not
constitute a part of this Amendment for any other purpose or be given any
substantive effect.
D. APPLICABLE LAW. THIS AMENDMENT AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER SHALL BE GOVERNED BY, AND SHALL BE
CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF
NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
E. COUNTERPARTS; EFFECTIVENESS. This Amendment may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed and delivered shall be
deemed an original, but all such counterparts together shall constitute but one
and the same instrument; signature pages may be detached from multiple separate
counterparts and attached to a single counterpart so that all signature pages
are physically attached to the same document. This Amendment (other than the
provisions of Section 1 hereof, the effectiveness of which is governed by
Section 2 hereof) shall become effective upon the execution of a counterpart
hereof by the Company, each Credit Support Party, each Lender and the Agent and
receipt by the Agent of written or telephonic notification of such execution
and authorization of delivery thereof.
[Remainder of page intentionally left blank]
18
19
IN WITNESS WHEREOF, the parties hereto have caused this
Amendment to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
WYNDHAM HOTEL CORPORATION
By: /s/ XXXXXXX XXXXXXXXX
-----------------------------------
Title: Authorized Agent
EACH OF THE SUBSIDIARIES LISTED ON SCHEDULE
I HERETO, for purposes of Section 4 hereof,
as a Credit Support Party
By: /s/ XXXXXXX XXXXXXXXX
-----------------------------------
Title: Authorized Agent
DRESDNER BANK AG, NEW YORK BRANCH AND CAYMAN
BRANCH
By: /s/ XXXXXXXX XXXXXXXXX
------------------------------------
Title: Vice President
By: /s/ XXXXXXX X. XXXXX
------------------------------------
Title: Assistant Vice President
BANK ONE, TEXAS, N.A.
By: ILLEGIBLE
------------------------------------
Title: Vice President
S-1
00
XXX XXXX XX XXXX XXXXXX
By: /s/ P. STIPLISEK
------------------------------------
Title: Relationship Manager
FIRST NATIONAL BANK OF COMMERCE
By: /s/ XXXXX XXXXXXX
------------------------------------
Title: Senior Vice President
THE INDUSTRIAL BANK OF JAPAN TRUST COMPANY
By: /s/ MASUHIRO ITO
------------------------------------
Title: Senior Vice President
BANKERS TRUST COMPANY, individually and as
Agent
By: /s/ XXXXXX X. THIELANDER
-----------------------------------
Title: Vice President
S-2
21
BANK OF SCOTLAND
By: XXXXX XXXXX
------------------------------------
Title: Assistant Vice President
S-3
22
SCHEDULE I
SUBSIDIARIES
1. Wyndham Management Corporation
2. Wyndham IP Corporation
3. GHALP Corporation
4. Xerxes Limited
5. WHC Caribbean Limited
6. Xxxx Xxxx Associates, L.P.
7. WH Interest, Inc.
8. WHC Vinings Corporation
9. Waterfront Management Corporation
10. WHCMB, Inc.
11. Wyndham Hotels & Resorts (Management), Ltd.
12. Xxxxxxx Xxxxxx & Xxxxxxx (Xxxxx) X.X.
00. HEPC Commerce, Inc.
14. HEPC Schaumburg, Inc.
15. HEPC Brookfield, Inc.
16. HEPC Indianapolis, Inc.
17. HEPC Charlotte, Inc.
18. HEPC Xxxx Xxxx, Inc.
19. HEPC GHALP, Inc.
20. HEPC Harbour Island, Inc.
Xxx-X
00
00. HEPC Xxxxxx, Inc.
22. HEPC Xxxxxx Bay, Inc.
23. HEPC Lexington, Inc.
24. HEPC Emerald Plaza, Inc.
25. HEPC Kingston, Inc.
26. HEPC Buckhead, Inc.
27. HEPC Valley Forge, Inc.
28. HEPC Warwick, Inc.
29. HEPC Semi-Ah-Moo, Inc.
30. WH Garden - Albuquerque, Inc.
31. HEPC Pruneyard, Inc.
32. HEPC Aruba Beach, Inc.
33. HEPC Vinings, Inc.
34. HEPC Metrocenter, Inc.
35. HEPC Marin County, Inc.
36. HEPC X'Xxxx, Inc.
37. HEPC Oakbrook Terrace, Inc.
38. HEPC Denver, Inc.
39. HEPC Checkers, Inc.
40. HEPC Waltham, Inc.
41. HEPC Annapolis, Inc.
42. HEPC Piscataway, Inc.
43. HEPC Xxxxxx City, Inc.
Xxx-XX
00
00. HEPC Monrovia, Inc.
45. HEPC Detroit, Inc.
46. HEPC Pittsburgh, Inc.
47. HEPC Burlington, Inc.
48. HEPC Orlando, Inc.
49. HEPC Anatole, Inc.
50. HEPC Northwest Chicago, Inc.
51. HEPC Franklin Plaza, Inc.
52. HEPC Greenspoint, Inc.
53. HEPC Bel Age, Inc.
54. HEPC Bristol, Inc.
55. HEPC Milwaukee, Inc.
56. HEPC Midtown Atlanta, Inc.
57. HEPC Las Colinas, Inc.
58. HEPC Palm Springs, Inc.
59. HEPC Wood Xxxx, Inc.
60. HEPC Orange County, Inc.
61. WH Playhouse Square, Inc.
62. HEPC Pleasanton, Inc.
63. HEPC Novi, Inc.
64. HEPC New Orleans, Inc.
65. HEPC Cedar Rapids, Inc.
66. HEPC Elbow Beach, Inc.
Xxx-XXX
00
00. WH Sugar Bay, Inc.
68. XX XXX, Inc.
69. XX XXX-U, Inc.
70. HEPC Kansas City, Inc.
71. WHC Carribean, Ltd.
72. HEPC Long Term Stay, Inc.
73. HEPC Overland Park, Inc.
74. HEPC Dallas Market Center, Inc.
75. WHCMB Overland Park, Inc.
76. WHCMB Toronto, Inc.
77. HEPC Toronto, Inc.
78. Hotel Del Coronado Management Corporation
79. HEPC Columbus, Inc.
80. WHC Columbus Corporation
81. WHC Franchise Corporation
82. HEPC Sugar Bay Club, Inc.
83. HEPC Atlanta Gwinnett, Inc.
84. HEPC Atlanta Northlake, Inc.
85. HEPC Dedham, Inc.
86. HEPC Salt Lake City, Inc.
87. HEPC Palmas, Inc.
88. WHCMB Utah Private Club Corporation
89. HEPC LaGuardia, Inc.
Xxx-XX
00
00. WHC Salt Lake City Corporation
91. HEPC Marietta, Inc.
92. HEPC Newark, Inc.
93. HEPC Mt. Olive, Inc.
94. HEPC Park Central, Inc.
95. WHC Acquisition Corporation
Sch-V
27
ACKNOWLEDGEMENT AND CONSENT
TO SENIOR SECURED REVOLVING CREDIT AGREEMENT
AS AMENDED
By execution of this ACKNOWLEDGEMENT AND CONSENT (this "CONSENT"), each
of the entities listed on Schedule 1 hereto (each a "NEW SUBSIDIARY") hereby
acknowledges its receipt of and its consent to that certain Senior Secured
Revolving Credit Agreement dated as of May 29, 1996, by and among Wyndham Hotel
Corporation, a Delaware corporation (the "COMPANY"), the financial institutions
party thereto as Lenders and Bankers Trust Company as agent for Lenders, as
amended by the First Amendment to Senior Secured Revolving Credit Agreement
dated as of July 30, 1997 (the "CREDIT AGREEMENT"). All capitalized terms
used herein without definition shall have the meanings given to such terms in
the Credit Agreement.
Each New Subsidiary hereby acknowledges that it has reviewed the terms
and provisions of the Credit Agreement and that it consents to the terms of
each applicable Loan Document. Each New Subsidiary hereby confirms that each
Credit Support Document to which it is a party or otherwise bound and all
Collateral encumbered thereby will guaranty or secure, as the case may be, to
the fullest extent possible the payment and performance of all "Obligations,"
"Guarantied Obligations" and "Secured Obligations," as the case may be (in each
case as such terms are defined in the applicable Credit Support Document).
Each New Subsidiary acknowledges and agrees that (i) such New Subsidiary
is not required by the terms of the Credit Agreement or any other Loan Document
to consent to the amendments to the Credit Agreement effected pursuant to this
Amendment and (ii) nothing in the Credit Agreement or any other Loan Document
shall be deemed to require the consent of such New Subsidiary to any future
amendments to the Credit Agreement.
IN WITNESS WHEREOF, each of the undersigned New Subsidiaries have caused
this Acknowledgement and Consent to be duly executed and delivered by their
respective officers thereunto duly authorized as of July 30, 1997.
EACH OF THE ENTITIES LISTED ON SCHEDULE 1
HERETO, individually and in the capacity as
a member or partner, if applicable, of the
entities listed on Schedule 1 hereto.
By: XXXXXXX XXXXXXXXX
-----------------------------------
Title: Authorized Agent
Sch-VI
28
SCHEDULE 1
New Subsidiaries
1. HEPC Clubhouse, Inc.
2. WHC Airport Corporation
3. Albuquerque C.I. Associates, L.P.
4. C.I. General, LLC
5. C.I. Holding, LLC
6. C.I. Manager, Inc.
7. C.I. Properties, Inc.
8. C.I. Wichita General LLC
9. C.I. Wichita Manager, Inc.
10. ClubHouse Inns of America, Inc.
11. ClubHouse Properties, Inc.
12. ClubHouse Hotels, Inc.
13. ClubHouse Properties of Xxxxxxxxxx, Inc.
14. Xxxxxxxxxx X.X. Associates, L.P.
15. St. Louis C.I. Associates, L.P.
16. Tenth Street C.I., Inc.
17. Topeka, C.I. Associates, L.P.
18. Knoxville C.I. Associates, L.P.
19. Omaha C.I. Associates, L.P.
20. Overland Park C.I. Associates, L.P.
21. Atlanta C.I. Associates II, L.P.
Xxx-XXX
00
00. Wichita C.I. Associates III, L.P.
23. Westmont C.I. Associates, L.P.
24. Savannah C.I. Associates, L.P.
25. Pittsburgh C.I. Inc.
26. Marquis Hotel Associates
Sch-VIII
30
ANNEX A
SCHEDULES
Annex A-1
31
ANNEX B
SUPPLEMENT TO
SCHEDULE 5.3
Annex B-1
32
ANNEX C
SCHEDULE 1.1C
CERTAIN RENOVATED PROPERTIES
1. Dallas Market Center Dallas, Texas
2. Overland Park Overland Park, Kansas
3. Xxxxxxx Xxxxx Xxxxxxx, Xxxxxx
4. Clubhouse Richardson Richardson, Texas
5. Clubhouse St. Louis St. Louis, Missouri
ANNEX C-1
33
ANNEX D
FORM OF AMENDMENT
TO SUBSIDIARY GUARANTY
This SUBSIDIARY GUARANTY AMENDMENT (this ``AMENDMENT'') is dated as
of July 30, 1997 and entered into by EACH OF THE SUBSIDIARIES LISTED ON
SCHEDULE 1 HERETO (each a ``GUARANTOR'' and collectively, the ``GUARANTORS'')
in favor of and for the benefit of BANKERS TRUST COMPANY, as agent for and
representative of (in such capacity herein called the ``GUARANTIED PARTY'') the
financial institutions (``LENDERS'') party to the Credit Agreement referred to
below, and refers to the Subsidiary Guaranty dated as of May 29, 1996 by the
Guarantors in favor of and for the benefit of the Guarantied Party and the
Lenders (the ``GUARANTY''). All capitalized terms used herein without
definition shall have the meanings given to such terms in that certain Senior
Secured Revolving Credit Agreement dated as of May 29, 1996 by and among
Wyndham Hotel Corporation, a Delaware corporation (the ``COMPANY''), the
financial institutions party thereto as Lenders and Bankers Trust Company as
agent for Lenders (the ``CREDIT AGREEMENT''), as amended by the First Amendment
to Senior Secured Revolving Credit Agreement dated as of the date hereof (the
``CREDIT AGREEMENT AMENDMENT'').
RECITALS
WHEREAS, concurrently herewith, the Company, Guarantied Party and
the Lenders are entering into the Credit Agreement Amendment pursuant to which,
among other things, the Lenders are increasing the aggregate amount of the
Commitments by $50,000,000;
WHEREAS, the Company and the Guarantors have requested that the
Guarantied Obligations (as defined in the Guaranty) be limited as provided
herein; and
WHEREAS, subject to the terms and conditions contained herein, the
Guarantied Party has agreed to limit the Guarantied Obligations of certain
Guarantors to the extent provided herein.
NOW THEREFORE, based upon the foregoing, and in order to induce the
Lenders and the Guarantied Party to execute the Credit Agreement Amendment, the
Guarantors and the Guarantied Party hereby agree as follows:
1. Subsection 1.1 of the Guaranty is hereby amended by adding
thereto the following definitions which shall be inserted in proper
alphabetical order:
ANNEX D-1
34
"`CREDIT AGREEMENT AMENDMENT' means that certain First Amendment to
Senior Secured Revolving Credit Agreement dated as of July 30, 1997, by
and among the Company, the Lenders and the Guarantied Party."
"`SPECIFIED GUARANTORS' means GHALP Corporation, a Delaware
corporation, Xxxx Xxxx Associates Limited Partnership, a Texas limited
partnership, WHC Vinings Corporation, a Delaware corporation, and WH
Interest, Inc., a Texas corporation, collectively."
"`SPECIFIED MORTGAGES' means the Mortgages, Assignments of Rents
and Leases, Security Agreements and Fixture Filings made from each of the
Specified Guarantors to Guarantied Party."
2. Subsection 2.1(a) of the Guaranty is hereby amended by
deleting the word "and" from the end of such subsection and substituting the
following therefor:
"provided, that with respect to the Specified Guarantors, the
Guarantied Obligations shall not include any Obligations under the
Additional Notes (as defined in the Credit Agreement Amendment);
provided however, that, if at any time from and after the First
Amendment Effective Date any Specified Mortgage shall be amended or
modified for any reason whatsoever, then (i) unless the Agent
agrees otherwise in writing, the limitations set forth in the
preceding proviso shall be of no further force or effect with
respect to the specified Guarantor party to such Specified Mortgage
and (ii) the applicable Specified Guarantor and the Company shall
each use its best efforts to include in such amendment or
modification a provision that increases the principal amount
secured by such Mortgage to the aggregate amount of all Commitments
(or such lesser amount as the Agent shall approve in its sole
discretion)."
3. Except as specifically amended by this Amendment, the Guaranty
shall remain in full force and effect and is hereby ratified and confirmed in
all respects.
4. The execution, delivery and performance of this Amendment
shall not, except as expressly provided herein, amend or constitute a waiver of
any provision of, or operate as an amendment to or a waiver of any right, power
or remedy of the Guarantied Party or the Lenders under the Guaranty, the Credit
Agreement Amendment or any of the Operative Agreements.
5. On and after the First Amendment Effective Date, each
reference in the Guaranty to "this Guaranty," "hereunder," "hereof," "herein"
or words of like import referring to the Guaranty, and each reference in the
other Loan Documents to the "Guaranty," "thereunder," "thereof" or words of
like import referring to the Guaranty shall mean and be a reference to the
Guaranty as amended hereby.
ANNEX D-2
35
6. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
GUARANTORS, GUARANTIED PARTY AND LENDERS HEREUNDER SHALL BE GOVERNED BY, AND
SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE
STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION 5-1401 OF THE GENERAL
OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD TO CONFLICTS OF LAWS
PRINCIPLES.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
ANNEX D-3
36
IN WITNESS WHEREOF, each of the undersigned Guarantors has caused this
Amendment to be duly executed and delivered by its officer thereunto duly
authorized as of the date first written above.
EACH OF THE SUBSIDIARIES
LISTED ON SCHEDULE 1 HERETO
By:
------------------------------------
Name:
Title:
ACKNOWLEDGED AND AGREED:
WYNDHAM HOTEL CORPORATION
By:
-----------------------------------
Name:
Title:
S - 1
37
SCHEDULE 1
SUBSIDIARIES (signatories to Subsidiary Guaranty)
1. Wyndham Management Corporation
2. Wyndham IP Corporation
3. GHALP Corporation
4. Xerxes Limited
5. WHC Caribbean Limited
6. Xxxx Xxxx Associates, L.P.
7. WH Interest, Inc.
8. WHC Vinings Corporation
9. Waterfront Management Corporation
10. WHCMB, Inc.
11. Wyndham Hotels & Resorts (Management), Ltd.
12. Xxxxxxx Xxxxxx & Xxxxxxx (Xxxxx) X.X.
00. HEPC Commerce, Inc.
14. HEPC Schaumburg, Inc.
15. HEPC Brookfield, Inc.
16. HEPC Indianapolis, Inc.
17. HEPC Charlotte, Inc.
18. HEPC Xxxx Xxxx, Inc.
19. HEPC GHALP, Inc.
20. HEPC Harbour Island, Inc.
I-1
38
21. HEPC Xxxxxx, Inc.
22. HEPC Xxxxxx Bay, Inc.
23. HEPC Lexington, Inc.
24. HEPC Emerald Plaza, Inc.
25. HEPC Kingston, Inc.
26. HEPC Buckhead, Inc.
27. HEPC Valley Forge, Inc.
28. HEPC Warwick, Inc.
29. HEPC Semi-Ah-Moo, Inc.
30. WH Garden - Albuquerque, Inc.
31. HEPC Pruneyard, Inc.
32. HEPC Aruba Beach, Inc.
33. HEPC Vinings, Inc.
34. HEPC Metrocenter, Inc.
35. HEPC Marin County, Inc.
36. HEPC X'Xxxx, Inc.
37. HEPC Oakbrook Terrace, Inc.
38. HEPC Denver, Inc.
39. HEPC Checkers, Inc.
40. HEPC Waltham, Inc.
41. HEPC Annapolis, Inc.
42. HEPC Piscataway, Inc.
43. HEPC Xxxxxx City, Inc.
I-2
39
44. HEPC Monrovia, Inc.
45. HEPC Detroit, Inc.
46. HEPC Pittsburgh, Inc.
47. HEPC Burlington, Inc.
48. HEPC Orlando, Inc.
49. HEPC Anatole, Inc.
50. HEPC Northwest Chicago, Inc.
51. HEPC Franklin Plaza, Inc.
52. HEPC Greenspoint, Inc.
53. HEPC Bel Age, Inc.
54. HEPC Bristol, Inc.
55. HEPC Milwaukee, Inc.
56. HEPC Midtown Atlanta, Inc.
57. HEPC Las Colinas, Inc.
58. HEPC Palm Springs, Inc.
59. HEPC Wood Xxxx, Inc.
60. HEPC Orange County, Inc.
61. WH Playhouse Square, Inc.
62. HEPC Pleasanton, Inc.
63. HEPC Novi, Inc.
64. HEPC New Orleans, Inc.
65. HEPC Cedar Rapids, Inc.
66. HEPC Elbow Beach, Inc.
I-3
40
67. WH Sugar Bay, Inc.
68. XX XXX, Inc.
69. XX XXX-U, Inc.
70. HEPC Kansas City, Inc.
71. WHC Carribean, Ltd.
72. HEPC Long Term Stay, Inc.
73. HEPC Overland Park, Inc.
74. HEPC Dallas Market Center, Inc.
75. WHCMB Overland Park, Inc.
76. WHCMB Toronto, Inc.
77. HEPC Toronto, Inc.
78. Hotel Del Coronado Management Corporation
79. HEPC Columbus, Inc.
80. WHC Columbus Corporation
81. WHC Franchise Corporation
82. HEPC Sugar Bay Club, Inc.
83. HEPC Atlanta Gwinnett, Inc.
84. HEPC Atlanta Northlake, Inc.
85. HEPC Dedham, Inc.
86. HEPC Salt Lake City, Inc.
87. HEPC Palmas, Inc.
88. WHCMB Utah Private Club Corporation
89. HEPC LaGuardia, Inc.
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41
90. WHC Salt Lake City Corporation
91. HEPC Marietta, Inc.
92. HEPC Newark, Inc.
93. HEPC Mt. Olive, Inc.
94. HEPC Park Central, Inc.
95. WHC Acquisition Corporation
I-5
42
ANNEX E
FORM OF AMENDED AND RESTATED
SECURITY AGREEMENT
This AMENDED AND RESTATED PLEDGE AND SECURITY AGREEMENT (this
"AGREEMENT") is dated as of __________, 1997 and entered into by and between
WYNDHAM HOTEL CORPORATION, a Delaware corporation (the "COMPANY"), EACH OF
THE SUBSIDIARIES LISTED ON APPENDIX A HERETO (together with the Company, each a
"GRANTOR" and collectively, the "GRANTORS"), and BANKERS TRUST COMPANY, as
agent for and representative of (in such capacity herein called "SECURED
PARTY") the financial institutions ("LENDERS") party to the Credit Agreement
referred to below. This Agreement amends and restates that certain Pledge and
Security Agreement dated as of May 29, 1996 and entered into by and between the
parties hereto.
R E C I T A L S
i. Each Grantor is the legal and beneficial owner of the shares of
stock (the "PLEDGED SHARES") described in Schedule I annexed hereto and
issued by the corporations named therein.
ii. The Secured Party and Lenders have entered into a Senior Secured
Revolving Credit Agreement dated as of May 29, 1996 (said Senior Secured Credit
Agreement, as amended by that certain First Amendment to Senior Secured
Revolving Credit Agreement dated as of ______________, 1997, and as it may
hereafter be amended, restated, supplemented or otherwise modified from time to
time, being the "CREDIT AGREEMENT", the terms defined therein and not
otherwise defined herein being used herein as therein defined and Section 1
thereof being incorporated herein) with the Company pursuant to which Lenders
have made certain commitments, subject to the terms and conditions set forth in
the Credit Agreement, to extend certain credit facilities to the Company.
iii. Each Grantor (other than the Company) has executed and delivered
that certain Subsidiary Guaranty dated as of May 29, 1996 (said Subsidiary
Guaranty, as amended by that certain Amendment to Subsidiary Guaranty dated
____________ _, 1997 and as it may hereafter be amended, restated, supplemented
or otherwise modified from time to time, being the "GUARANTY") in favor of
the Secured Party for the benefit of Lenders, pursuant to which such Grantor
has guarantied the prompt payment and performance when due of all obligations
of the Company under the Credit Agreement and the other Loan Documents.
iv. It is a condition precedent to the initial extensions of credit by
the Lenders under the Credit Agreement that the Grantors shall have granted the
security interests and undertaken the obligations contemplated by this
Agreement.
ANNEX E-1
43
NOW, THEREFORE, in consideration of the premises and in order to induce
the Lenders to make Loans and other extensions of credit under the Credit
Agreement and for other good and valuable consideration, the receipt and
adequacy of which are hereby acknowledged, each Grantor hereby agrees with the
Secured Party as follows:
SECTION 1. GRANT OF SECURITY.
Each Grantor hereby assigns to the Secured Party, and hereby grants to
the Secured Party a security interest in, all of such Grantor's right, title
and interest in and to each and every item set forth on Appendix B annexed
hereto, in each case whether now or hereafter existing or in which such Grantor
now has or hereafter acquires an interest and wherever the same may be located.
SECTION 2. SECURITY FOR OBLIGATIONS.
This Agreement secures, and the Collateral is collateral security for,
the prompt payment or performance in full when due in accordance with the terms
of the Credit Agreement and other Loan Documents, whether at stated maturity,
by required prepayment, declaration, acceleration, demand or otherwise
(including the payment of amounts that would become due but for the operation
of the automatic stay under Section 362(a) of the Bankruptcy Code, 11 U.S.C.
Section 362(a) or any successor provision), of all Obligations and Guarantied
Obligations (as defined in the Guaranty) of each Grantor and all extensions or
renewals thereof, whether for principal, interest (including without limitation
interest that, but for the filing of a petition in bankruptcy with respect to
any Grantor, would accrue on such obligations, whether or not a claim is
allowed or allowable against any Grantor for such interest in the related
bankruptcy proceeding), fees, expenses, indemnities or otherwise, whether
voluntary or involuntary, direct or indirect, absolute or contingent,
liquidated or unliquidated, whether or not jointly owed with others, and
whether or not from time to time decreased or extinguished and later increased,
created or incurred, and all or any portion of such obligations or liabilities
that are paid, to the extent all or any part of such payment is avoided or
recovered directly or indirectly from the Secured Party or any Lender as a
preference, fraudulent transfer or otherwise and all obligations of every
nature of each Grantor now or hereafter existing under this Agreement (all such
obligations of the Grantors being the "SECURED OBLIGATIONS").
SECTION 3. EACH GRANTOR REMAINS LIABLE.
(a) Anything contained herein to the contrary notwithstanding, except
with respect to obligations first incurred by Secured Party or any other Person
after Secured Party or such other Person has become the owner thereof by
foreclosure or other exercise of remedies, (a) each Grantor shall remain liable
under any contracts and agreements included in the Collateral, to the extent
set forth therein, to perform all of its duties and obligations thereunder to
the same extent as if this Agreement had not been executed, (b) the exercise by
the Secured
ANNEX E-2
44
Party of any of its rights hereunder shall not release any Grantor from any of
its duties or obligations under the contracts and agreements included in the
Collateral, and (c) the Secured Party shall not have any obligation or
liability under any contracts and agreements included in the Collateral by
reason of this Agreement, nor shall the Secured Party be obligated to perform
any of the obligations or duties of any Grantor thereunder or to take any
action to collect or enforce any claim for payment assigned hereunder.
(b) Notwithstanding any of the foregoing, this Agreement shall not in
any way be deemed to obligate the Secured Party, any Lender or any purchaser at
a foreclosure sale under this Agreement to assume any of Grantor's obligations,
duties, expenses or liabilities under any Limited Liability Company Agreement
(as hereinafter defined) or any Partnership Agreement (as hereinafter defined),
(including without limitation any Grantor's obligations as a general partner
for the debts and obligations of a Partnership (as hereinafter defined) and to
manage the business and affairs of any Partnership or any of Grantor's
obligations for the debts and obligations of a Limited Liability Company (as
hereinafter defined) or under any and all other agreements now existing or
hereafter drafted or executed (collectively, the "GRANTOR OBLIGATIONS") unless
the Secured Party, any Lender or any such purchaser otherwise expressly agrees
to assume any or all of said Grantor Obligations in writing. In the event of
foreclosure by the Secured Party, each Grantor shall remain bound and obligated
to perform its Grantor Obligations arising during or otherwise related to its
ownership of the subject Collateral, and neither the Secured Party nor any
Lender shall be deemed to have assumed any of such Grantor Obligations except
as provided in the preceding sentence. Without limiting the generality of the
foregoing, neither the grant of the security interest in the Collateral in
favor of the Secured Party as provided herein nor the exercise by the Secured
Party of any of its rights hereunder nor any action by the Secured Party in
connection with a foreclosure on the Collateral shall be deemed to constitute
the Secured Party or any Lender a partner of any Partnership or a member of any
Limited Liability Company; provided however, that in the event the Secured
Party or any purchaser of Collateral at a foreclosure sale elects to become a
substituted general partner of any Partnership or managing member of any
Limited Liability Company in place of any Grantor, the Secured Party or such
purchaser, as the case may be, shall adopt in writing the applicable
Partnership Agreement or Limited Liability Company Agreement, as the case may
be, and agree to be bound by the terms and provisions thereof.
SECTION 4. THE DEPOSIT ACCOUNTS; CASH MANAGEMENT SYSTEM.
(a) Each Grantor hereby agrees to instruct all obligors with respect to
all accounts, accounts receivable or other rights to payment of any nature
owned or hereafter acquired by such Grantor (``ACCOUNTS'') to make all payments
with respect to Accounts to a Deposit Account included in the Cash Management
System except as otherwise set forth on Schedule 5.23 of the Credit Agreement.
(b) Each Grantor hereby acknowledges, and hereby agrees and covenants
to comply with, the provisions of the Credit Agreement specifically applicable
to it and the Cash
ANNEX E-3
45
Management System and its respective obligations under the Cash Management
Letters, including, without limitation, subsections 5.23 and 6.15 of the Credit
Agreement.
(c) The Secured Party may exercise dominion and control over, and
refuse to permit further withdrawals (whether of money, securities, instruments
or other property) from any Deposit Accounts included in the Cash Management
System or maintained with the Secured Party constituting part of the Collateral
as provided in subsection 6.15 of the Credit Agreement and the Cash Management
Letters (subject, specifically, to Section 6.15E of the Credit Agreement).
SECTION 5. REPRESENTATIONS AND WARRANTIES.
Each Grantor represents and warrants, with respect to and for itself
only, as follows:
(a) Credit Agreement Representations. Each of the representations
and warranties set forth in Section 5 of the Credit Agreement and Section
6 of the Environmental Indemnity are true, correct and complete to the
extent specifically applicable to such Grantor and the Collateral of such
Grantor therein and each such representation and warranty is hereby
incorporated herein by this reference.
(b) Ownership of Collateral. Except for the security interest
created by this Agreement and the other Loan Documents, each Grantor owns
the portion of the Collateral owned by it free and clear of any Lien
other than Liens permitted pursuant to subsections 7.2A and 6.9 of the
Credit Agreement. Except as may have been filed in favor of the Secured
Party relating to this Agreement and the other Loan Documents, the Liens
permitted by subsections 7.2A and 6.9 of the Credit Agreement and
financing statement filings or other recordings permitted by the terms of
the Credit Agreement, no effective financing statement or other
instrument similar in effect covering all or any part of such Grantor's
Collateral is on file in any filing or recording office other than
financing statements for which executed termination statements have been
delivered to the Secured Party.
(c) Location of Equipment and Inventory. All of the Equipment and
Inventory is, as of the date hereof, located at the places specified in
Schedule II annexed hereto.
(d) Office Locations; Other Names. The chief place of business,
the chief executive office and the office where each Grantor keeps its
records regarding the Accounts and all originals of all chattel paper
that evidence Accounts is, and has been for the four month period
preceding the date hereof, located at the places specified opposite such
Grantor's name on Schedule III annexed hereto. Each Grantor has not in
the past done, and does not now do, business under any other name
(including any trade-name or fictitious business name) except as set
forth opposite such Grantor's name on Schedule IV annexed hereto.
ANNEX E-4
46
(e) Delivery of Certain Collateral. All notes and other
instruments (excluding checks) comprising any and all items of Collateral
have been delivered to the Secured Party duly endorsed and accompanied by
duly executed instruments of transfer or assignment in blank.
(f) Governmental Authorizations. Other than the filing of UCC-1
financing statements, all of which have been executed and delivered to
the Secured Party, and the filing with the United States Patent and
Trademark Office of the Trademark Assignment, and excluding federal
filings with respect to patents and copyrights, no authorization,
approval or other action by, and no notice to or filing with, any
governmental authority or regulatory body is required for either (i) the
grant by such Grantor of the security interest granted hereby or for the
execution, delivery or performance of this Agreement by such Grantor or
(ii) the perfection of or the exercise by the Secured Party of its rights
and remedies hereunder (except as may have been taken by or at the
direction of such Grantor).
(g) Perfection. The security interests in the Collateral granted
to the Secured Party for the benefit of the Lenders hereunder constitute
valid security interests in the Collateral. Upon (i) the filing of UCC-1
financing statements naming each Grantor as "debtor", naming the
Secured Party as "secured party" and describing the Collateral in which
a security interest can be perfected by filing in the filing offices set
forth on Schedule V annexed hereto, (ii) the filing of the Trademark
Assignment in the United States Patent and Trademark Office, (iii) the
Secured Party taking possession of any instruments included in the
Collateral and certificated securities evidencing the Pledged Shares or
the Pledged Collateral, and (iv) the taking of whatever steps are
necessary under applicable law of the jurisdiction where a Partnership or
Limited Liability Company is formed in order to perfect the pledge in
uncertificated partnership or membership interests in such Partnership or
Limited Liability Company under such applicable law, each security
interest in such Collateral granted to the Secured Party for the benefit
of the Secured Party and Lenders will constitute a perfected security
interest therein prior to all other Liens other than Liens granted
hereunder and under the other Loan Documents and Liens permitted by
subsections 6.9 and 7.2A of the Credit Agreement.
(h) Due Authorization, etc. of Pledged Shares. All of the Pledged
Shares have been duly authorized and validly issued and are fully paid
and non-assessable.
(i) Description of Pledged Shares. The Pledged Shares constitute
all of the issued and outstanding shares of stock of each issuer thereof,
and there are no outstanding warrants, options or other rights to
purchase, or other agreements outstanding with respect to, or property
that is now or hereafter convertible into, or that requires the issuance
or sale of, any Pledged Shares.
(j) Margin Regulations. The pledge of the Pledged Shares pursuant
to this Agreement does not violate Regulation G, T, U or X of the Board
of Governors of the Federal Reserve System.
ANNEX E-5
47
(k) Partnership Interests; Limited Liability Company Interests.
No interests of any Grantor as a limited partner or a general partner in
any Partnership or as a member of any Limited Liability Company is
evidenced by one or more "certificates of interest" or any other
certificates or instruments however designated or titled. Schedule VI
annexed hereto correctly sets forth all of the partnership interests of
each Grantor as of the Closing Date and Schedule VII annexed hereto
correctly sets forth all of the membership interests of such Grantor as
of the First Amendment Effective Date.
(l) Partnership Agreements; Limited Liability Company Agreements.
Each Partnership Agreement and each Limited Liability Company Agreement,
a true and complete copy of which has been furnished to the Secured
Party, is in full force and effect and has not been amended or modified
except as disclosed in writing to the Secured Party. No default by any
Grantor exists under any Partnership Agreement or under any Limited
Liability Company Agreement and no event has occurred or exists which,
with notice or lapse of time or both, would constitute a default by any
Grantor thereunder.
SECTION 6. SPECIAL PROVISIONS RELATING TO PLEDGED COLLATERAL.
All certificates or instruments representing or evidencing the Pledged
Collateral shall be delivered to and held by or on behalf of the Secured Party
pursuant hereto and shall be in suitable form for transfer by delivery or, as
applicable, shall be accompanied by the applicable Grantor's endorsement, where
necessary, or duly executed instruments of transfer or assignment in blank, all
in form and substance satisfactory to the Secured Party. During the
continuation of an Event of Default, the Secured Party shall have the right,
without notice to any Grantor, to transfer to or to register in the name of the
Secured Party or any of its nominees any or all of the Pledged Collateral,
subject only to the revocable rights specified in Section 9(a). In addition,
the Secured Party shall have the right at any time to exchange certificates or
instruments representing or evidencing Pledged Collateral for certificates or
instruments of smaller or larger denominations.
SECTION 7. FURTHER ASSURANCES; PLEDGE AMENDMENTS.
(a) Each Grantor agrees that from time to time, at the expense of such
Grantor, such Grantor will promptly execute and deliver all further instruments
and documents, and take all further action, that may be necessary, or that the
Secured Party may reasonably request, in order to perfect and protect any
security interest granted or purported to be granted hereby or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder with
respect to any Collateral. Without limiting the generality of the foregoing,
each Grantor will, with respect to the Collateral owned by it: (i) xxxx
conspicuously each item of chattel paper included in the Accounts, each Related
Contract and, at the request of the Secured Party, each of its records
pertaining to the Collateral, with a legend, in form and substance reasonably
satisfactory to the Secured Party, indicating that such Collateral is subject
to the security interest granted hereby, (ii) at the request of the Secured
Party, deliver and pledge to the
ANNEX E-6
48
Secured Party hereunder all promissory notes and other instruments (including
checks) and all original counterparts of chattel paper constituting Collateral,
duly endorsed and accompanied by duly executed instruments of transfer or
assignment, all in form and substance reasonably satisfactory to the Secured
Party, (iii) execute and file such financing or continuation statements, or
amendments thereto, and such other instruments or notices, as may be necessary,
or as the Secured Party may request, in order to perfect and preserve the
security interests granted or purported to be granted hereby, (iv) at the
request of the Secured Party, promptly after the acquisition by such Grantor of
any item of Equipment which is covered by a certificate of title under a
statute of any jurisdiction under the law of which indication of a security
interest on such certificate is required as a condition of perfection thereof,
execute and file with the registrar of motor vehicles or other appropriate
authority in such jurisdiction an application or other document requesting the
notation or other indication of the security interest created hereunder on such
certificate of title, (v) within 30 days after the end of each calendar
quarter, deliver to the Secured Party copies of all such applications or other
documents filed during such calendar quarter and copies of all such
certificates of title issued during such calendar quarter indicating the
security interest created hereunder in the items of Equipment covered thereby,
(vi) at any reasonable time, upon request by the Secured Party, exhibit the
Collateral to and allow inspection of the Collateral by the Secured Party, or
persons designated by the Secured Party, and (vii) at the Secured Party's
request, appear in and defend any action or proceeding which the Secured Party,
in its sole discretion, reasonably determines is reasonably likely to
materially adversely affect such Grantor's title to or the Secured Party's
security interest in all or any part of the Collateral.
(b) Each Grantor hereby authorizes the Secured Party to file one or
more financing or continuation statements, and amendments thereto, relative to
all or any part of the Collateral owned by it without the signature of such
Grantor. Each Grantor agrees that a carbon, photographic or other reproduction
of this Agreement or of a financing statement signed by such Grantor shall be
sufficient as a financing statement and may be filed as a financing statement
in any and all jurisdictions.
(c) Each Grantor will furnish to the Secured Party from time to time
upon request statements and schedules further identifying and describing the
Collateral owned by it and such other reports in connection with the Collateral
owned by it as the Secured Party may reasonably request, all in reasonable
detail.
(d) Each Grantor further agrees that it will, upon obtaining any
additional shares of stock or other securities required to be pledged hereunder
as provided in Section 8(f), promptly (and in any event within ten days)
deliver to the Secured Party a Pledge Amendment, duly executed by such Grantor,
in substantially the form of Schedule VIII annexed hereto (a "PLEDGE
AMENDMENT"), in respect of the additional Pledged Shares to be pledged
pursuant to this Agreement. Each Grantor hereby authorizes the Secured Party
to attach each Pledge Amendment to this Agreement and agrees that all Pledged
Shares listed on any Pledge Amendment delivered to the Secured Party shall for
all purposes hereunder be considered Pledged Collateral; provided, however,
that the failure of any Grantor to execute a Pledge Amendment with respect to
any additional Pledged Shares pledged pursuant to this Agreement shall not
ANNEX E-7
49
impair the security interest of the Secured Party therein or otherwise
adversely affect the rights and remedies of the Secured Party hereunder with
respect thereto.
(e) Upon request by Secured Party, each Grantor, at its own expense,
shall deliver to the applicable Partnership or Limited Liability Company, as
the case may be, an order, satisfactory in form and substance to Secured Party,
requesting that the pledge of such Grantor's interest as a partner in such
Partnership or as a member or such Limited Liability Company, as applicable, be
registered on the books of such Partnership or Limited Liability Company, as
applicable.
SECTION 8. CERTAIN COVENANTS OF THE GRANTORS.
Each Grantor shall, with respect to the Collateral owned by it:
(a) not use or permit any Collateral to be used unlawfully or in
violation of any provision of this Agreement or any applicable statute,
regulation or ordinance or any policy of insurance covering the
Collateral, except where such use or violation could not reasonably be
expected to have, individually or in the aggregate, a Material Adverse
Effect;
(b) notify the Secured Party of any change in such Grantor's name,
identity or corporate structure within 30 days of such change;
(c) give the Secured Party 30 days' prior written notice of any
change in such Grantor's chief place of business, chief executive office
or the office where such Grantor keeps its records regarding the Accounts
and all originals of all chattel paper that evidence Accounts;
(d) if the Secured Party gives value to enable such Grantor to
acquire rights in or the use of any Collateral, use such value for such
purposes;
(e) pay promptly prior to delinquency, all property and other
taxes, assessments and governmental charges or levies imposed upon, and
all claims (including claims for labor, materials and supplies) against,
the Collateral, except to the extent the validity, applicability or
amount thereof is being contested in good faith; provided, however, that
such Grantor shall in any event pay such taxes, assessments, charges,
levies or claims not later than five days prior to the date of any
proposed sale under any judgement, writ or warrant of attachment entered
or filed against such Grantor or any of the Collateral as a result of the
failure to make such payment;
(f) (i) cause each issuer of Pledged Shares not to issue any stock
or other securities in addition to or in substitution for the Pledged
Shares issued by such issuer, except to such Grantor, (ii) pledge
hereunder, immediately upon its acquisition (directly or indirectly)
thereof, any and all additional shares of stock or other securities of
each issuer
ANNEX E-8
50
of Pledged Shares and all partnership interests or member interests
evidenced by a certificate or other instrument, and (iii) pledge
hereunder, immediately upon its acquisition (directly or indirectly)
thereof, any and all shares of stock of, or any partnership interest or
member interest in, any Person that, after the date of this Agreement,
becomes, as a result of any occurrence, a direct Subsidiary of such
Grantor;
(g) promptly notify the Secured Party of any event of which such
Grantor becomes aware causing loss or depreciation in the value of the
Pledged Collateral (other than as a result of ordinary wear or tear or
customary depreciation resulting from the passage of time) that could
reasonably be expected to have, individually or in the aggregate, a
Material Adverse Effect;
(h) promptly deliver to the Secured Party any material written
notices received by it with respect to the Pledged Collateral; and
(i) promptly deliver to the Secured Party notice of the conversion
of any partnership interests in a Partnership Agreement or any membership
interests in a Limited Liability Company to certificated form.
SECTION 9. VOTING RIGHTS; DIVIDENDS; ETC.
(a) So long as no Event of Default shall have occurred and be continuing:
(i) Each Grantor shall be entitled to exercise any and all
voting and other consensual rights pertaining to the Pledged Collateral
or any part thereof for any purpose not inconsistent with the terms of
this Agreement or the Credit Agreement; provided, however, that such
Grantor shall not exercise or refrain from exercising any such right if
the Secured Party shall have notified such Grantor that, in the Secured
Party's judgment, such action would have a material adverse effect on the
value of the Pledged Collateral or any part thereof; and provided,
further, that such Grantor shall give the Secured Party at least five
Business Days' prior written notice of the manner in which it intends to
exercise, or the reasons for refraining from exercising, any such right.
It is understood, however, that neither (A) the voting by such Grantor of
any Pledged Shares for or such Grantor's consent to the election of
directors at a regularly scheduled annual or other meeting of
stockholders or with respect to incidental matters at any such meeting
nor (B) such Grantor's consent to or approval of any action otherwise
permitted under this Agreement and the Credit Agreement shall be deemed
inconsistent with the terms of this Agreement or the Credit Agreement
within the meaning of this Section 9(a)(i), and no notice of any such
voting or consent need be given to the Secured Party;
(ii) Each Grantor shall be entitled to receive and retain, and to
utilize free and clear of the Lien of this Agreement, any and all
dividends and interest paid in respect of the Pledged Collateral;
provided, however, that any and all
ANNEX E-9
51
(A) dividends and interest paid or payable other than in
cash in respect of, and instruments and other property received,
receivable or otherwise distributed in respect of, or in exchange
for, any Pledged Collateral,
(B) dividends and other distributions paid or payable in
cash in respect of any Pledged Collateral in connection with a
partial or total liquidation or dissolution or in connection with a
reduction of capital, capital surplus or paid-in-surplus, and
(C) cash paid, payable or otherwise distributed in respect
of principal or in redemption of or in exchange for any Pledged
Collateral,
shall be, and shall forthwith be delivered to the Secured Party to hold
as, Pledged Collateral and shall, if received by such Grantor, be
received in trust for the benefit of the Secured Party, be segregated
from the other property or funds of such Grantor and be forthwith
delivered to the Secured Party as Pledged Collateral in the same form as
so received (with all necessary endorsements); and
(iii) the Secured Party shall promptly execute and deliver (or
cause to be executed and delivered) to such Grantor all such proxies,
dividend payment orders and other instruments as such Grantor may from
time to time reasonably request for the purpose of enabling such Grantor
to exercise the voting and other consensual rights which it is entitled
to exercise pursuant to paragraph (i) above and to receive the dividends,
principal or interest payments which it is authorized to receive and
retain pursuant to paragraph (ii) above.
(b) During the continuation of an Event of Default:
(i) upon written notice from the Secured Party to such Grantor,
all rights of such Grantor to exercise the voting and other consensual
rights which it would otherwise be entitled to exercise pursuant to
Section 9(a)(i) shall cease, and all such rights shall thereupon become
vested in the Secured Party who shall thereupon have the sole right to
exercise such voting and other consensual rights;
(ii) all rights of such Grantor to receive the dividends and
interest payments which it would otherwise be authorized to receive and
retain pursuant to Section 9(a)(ii) shall cease, and all such rights
shall thereupon become vested in the Secured Party who shall thereupon
have the sole right to receive and hold as Pledged Collateral such
dividends and interest payments;
(iii) all dividends, principal and interest payments which are
received by such Grantor contrary to the provisions of paragraph (ii) of
this Section 9(b) shall be received in trust for the benefit of the
Secured Party, shall be segregated from other funds of such Grantor and
shall forthwith be paid over to the Secured Party as Pledged Collateral
in the same form as so received (with any necessary endorsements); and
ANNEX E-10
52
(iv) all rights of such Grantor to receive any and all payments
under or in connection with the Partnership Agreements and/or the Limited
Liability Company Agreements, including but not limited to the profits,
dividends, and other distributions which it would otherwise be authorized
to receive and retain pursuant hereto, shall cease, and all such rights
shall thereupon become vested in the Secured Party who shall thereupon
have the sole right to receive and hold such payments as Collateral.
(c) In order to permit the Secured Party to exercise the voting and
other consensual rights which it may be entitled to exercise pursuant to
Section 9(b)(i) and to receive all dividends and other distributions which it
may be entitled to receive under Section 9(a)(ii) or Section 9(b)(ii), (i) such
Grantor shall promptly execute and deliver (or cause to be executed and
delivered) to the Secured Party all such proxies, dividend payment orders and
other instruments as the Secured Party may from time to time reasonably request
in order to give effect to the rights granted hereunder (and subject to the
limitations hereunder) and (ii) without limiting the effect of the immediately
preceding clause (i), such Grantor hereby grants to the Secured Party an
IRREVOCABLE proxy to vote the Pledged Shares and to exercise all other rights,
powers, privileges and remedies to which a holder of the Pledged Shares would
be entitled (including, without limitation, giving or withholding written
consents of shareholders, calling special meetings of shareholders and voting
at such meetings), which proxy shall be effective, automatically and without
the necessity of any action (including any transfer of any Pledged Shares on
the record books of the issuer thereof) by any other Person (including the
issuer of the Pledged Shares or any officer or agent thereof), during the
continuance of an Event of Default and upon written notice to such Grantor
pursuant to Section 9.2(b)(i), and which proxy shall only terminate upon the
payment in full of the Secured Obligations, the expiration or cancellation of
each Letter of Credit and the termination of the Commitments.
SECTION 10. SPECIAL COVENANTS WITH RESPECT TO EQUIPMENT AND INVENTORY.
Each Grantor shall with respect to Collateral owned by it:
(a) keep the Equipment and Inventory at the places therefor
specified on Schedule II annexed hereto or, upon 30 days' prior written
notice to the Secured Party, at such other places in jurisdictions where
all action that may be necessary or desirable, or that the Secured Party
may reasonably request, in order to perfect and protect any security
interest granted or purported to be granted hereby, or to enable the
Secured Party to exercise and enforce its rights and remedies hereunder,
with respect to such Equipment and Inventory shall have been taken;
(b) cause the Equipment to be maintained and preserved in the
same condition, repair and working order as when new, ordinary wear and
tear excepted and subject to replacement as Grantor may reasonably
determine to be advisable, and in accordance with such Grantor's past
practices, and shall forthwith make or cause to be made all repairs,
replacements and other improvements in connection therewith that are
necessary to such
ANNEX E-11
53
end, and shall promptly furnish to the Secured Party a statement
respecting any material loss or damage to any material item of the
Equipment;
(c) keep correct and accurate records of the Inventory; and
(d) if any Inventory is in possession or control of any of such
Grantor's agents or processors and upon the occurrence and during the
continuance of an Event of Default, instruct such agent or processor to
hold all such Inventory for the account of the Secured Party and subject
to the instructions of the Secured Party during the continuance of an
Event of Default.
SECTION 11. INSURANCE.
Each Grantor shall, at its own expense, maintain insurance with respect
to the Equipment and Inventory owned by it in accordance with the terms of the
Credit Agreement.
SECTION 12. SPECIAL COVENANTS WITH RESPECT TO ACCOUNTS AND RELATED CONTRACTS.
(a) Grantor shall keep its chief place of business and chief executive
office and the office where it keeps its records concerning the Accounts and
Related Contracts owned by it, and all originals of all chattel paper that
evidence such Accounts, at the location therefor specified in Section 5 or,
upon 30 days' prior written notice to the Secured Party, at such other location
in a jurisdiction where all action that may be necessary, or that the Secured
Party may reasonably request, in order to perfect and protect any security
interest granted or purported to be granted hereby, or to enable the Secured
Party to exercise and enforce its rights and remedies hereunder, with respect
to such Accounts and Related Contracts shall have been taken. Each Grantor
will hold and preserve such records and chattel paper and will permit
representatives of the Secured Party upon reasonable notice and at reasonable
times during normal business hours to inspect and make abstracts from such
records and chattel paper, and such Grantor agrees to render to the Secured
Party, at such Grantor's cost and expense, such clerical and other assistance
as may be reasonably requested with regard thereto. Promptly upon the request
of the Secured Party, each Grantor shall deliver to the Secured Party complete
and correct copies of each such Related Contract.
(b) Each Grantor shall, for not less than 5 years from the date on
which such Account arose, maintain (i) complete records of each Account,
including records of all payments received, credits granted and merchandise
returned, and (ii) all material documentation relating thereto.
(c) Except as otherwise provided in this subsection (c), each Grantor
shall continue to collect, at its own expense, all amounts due or to become due
to such Grantor under its Accounts and Related Contracts and deposit such
amounts into the Cash Management System as provided in Section 4 above. In
connection with such collections, each Grantor may take
ANNEX E-12
54
(and upon the occurrence and during the continuation of an Event of Default at
the Secured Party's direction, shall take) such action as such Grantor or,
during the continuation of an Event of Default, the Secured Party may deem
necessary or advisable to enforce collection of amounts due or to become due
under the Accounts; provided, however, that the Secured Party shall have the
right at any time, during the continuation of an Event of Default and upon
written notice to such Grantor of its intention to do so, to notify the account
debtors or obligors under any Accounts of the assignment of such Accounts to
the Secured Party and to direct such account debtors or obligors to make
payment of all amounts due or to become due to such Grantor thereunder directly
to the Secured Party, to notify each Person maintaining a lockbox or similar
arrangement to which account debtors or obligors under any Accounts have been
directed to make payment to remit all amounts representing collections on
checks and other payment items from time to time sent to or deposited in such
lockbox or other arrangement directly to the Secured Party and, upon such
notification and at the expense of such Grantor, to enforce collection of any
such Accounts and to adjust, settle or compromise the amount or payment
thereof, in the same manner and to the same extent as such Grantor might have
done. After receipt by Grantor of the notice from the Secured Party referred
to in the proviso to the preceding sentence, (i) all amounts and proceeds
(including checks and other instruments) received by such Grantor in respect of
the Accounts and the Related Contracts owned by it shall be received in trust
for the benefit of the Secured Party hereunder and shall be forthwith paid over
or delivered to the Secured Party in the same form as so received (with any
necessary endorsement) to be held in the Cash Management System and applied as
provided by Section 21, and (ii) such Grantor shall not adjust, settle or
compromise the amount or payment of any such Account, or release wholly or
partly any account debtor or obligor thereof, or allow any credit or discount
thereon.
SECTION 13. SPECIAL PROVISIONS WITH RESPECT TO THE ASSIGNED AGREEMENTS,
PARTNERSHIP AGREEMENTS AND LIMITED LIABILITY COMPANY AGREEMENTS.
(a) Each Grantor shall at its expense with respect to the Collateral
owned by it:
(i) in accordance with Grantor's reasonable business judgment,
perform and observe all terms and provisions of the Assigned Agreements
to be performed or observed by it, maintain the Assigned Agreements in
full force and effect (subject to any termination by Grantor for cause),
enforce the Assigned Agreements in accordance with their terms;
(ii) furnish to the Secured Party, promptly upon receipt
thereof, copies of all material notices, requests and other documents
received by such Grantor under or pursuant to the Assigned Agreements,
and from time to time (A) furnish to the Secured Party such information
and reports regarding the Assigned Agreements as the Secured Party may
reasonably request and (B) during the continuation of an Event of
Default, at the request of the Secured Party, make to any other Person
party to any Assigned Agreement such demands and requests for information
and reports or for action as such Grantor is entitled to make under such
Assigned Agreement;
ANNEX E-13
55
(iii) perform and comply in all material respects with all terms
and provisions of each Partnership Agreement and Limited Liability
Company Agreement required to be performed or complied with by it;
(iv) maintain each Partnership Agreement and Limited Liability
Company Agreement in full force and effect;
(v) enforce each Partnership Agreement and Limited Liability
Company Agreement in accordance with its terms; and
(vi) take all such action in connection with the foregoing as from
time to time may be reasonably requested by the Secured Party.
(b) Each Grantor shall not with respect to the Collateral owned by it:
(i) except for cause thereunder in the exercise of Grantor's
reasonable business judgment, cancel or terminate any of the Assigned
Agreements or consent to or accept any cancellation or termination
thereof, unless such Grantor reasonably determines to replace such
Assigned Agreement with a comparable agreement or contract and such
replacement contract or agreement is included as an Assigned Agreement
hereunder;
(ii) amend or otherwise modify the Assigned Agreements in any
material respect or give any consent, waiver or approval thereunder other
than as permitted pursuant to the Credit Agreement;
(iii) waive any material default under or material breach of the
Assigned Agreements other than as permitted pursuant to the Credit
Agreement;
(iv) take any other action in connection with the Assigned
Agreements that would impair in any material respect the value of the
interest or rights of such Grantor thereunder or that would impair in any
material respect the interest or rights of the Secured Party;
(v) cancel or terminate any Partnership Agreement or Limited
Liability Company Agreement or consent to or accept any cancellation or
termination thereof;
(vi) except as expressly permitted by the Credit Agreement sell,
assign (by operation of law or otherwise) or otherwise dispose of any
part of its partnership interest in a Partnership or its membership
interest in a Limited Liability Company;
(vii) amend, supplement or otherwise modify any Partnership
Agreement or Limited Liability Company Agreement (as in effect on the
date hereof) in any material respect except as otherwise permitted
pursuant to the Credit Agreement;
ANNEX E-14
56
(viii) waive any material default under or material breach of any
Partnership Agreement or Limited Liability Company Agreement or waive,
fail to enforce, forgive or release any material right, interest or
entitlement of any kind, howsoever arising, under or in respect of any
Partnership Agreement or Limited Liability Company Agreement or vary or
agree to the variation in any respect of any of the material provisions
of any Partnership Agreement or Limited Liability Company Agreement or of
the performance of any other Person under any Partnership Agreement or
Limited Liability Company Agreement; or
(ix) petition, request or take any other legal or administrative
action which seeks, or may reasonably be expected, to rescind, terminate
or suspend any Partnership Agreement or Limited Liability Company
Agreement or to amend or modify any Partnership Agreement or Limited
Liability Company Agreement in any material respect; provided, however,
that a Partnership Agreement or Limited Liability Company Agreement may
be terminated and the applicable Partnership or Limited Liability Company
dissolved if all of the assets of such Partnership or Limited Liability
Company are transferred to the Persons holding the partnership interests
in such Partnership or membership interests in such Limited Liability
Company, as applicable.
SECTION 14. SPECIAL PROVISIONS RELATING TO THE CASH MANAGEMENT SYSTEM.
(a) Pursuant to the Credit Agreement, the Secured Party has established
with the Cash Manager, at its office at 0000 Xxxx Xxxxxx, Xxxxxx, Xxxxx 00000,
in the name of the Secured Party and under the sole dominion and control of the
Secured Party, the Concentration Account. Funds on deposit from time to time
in the Concentration Account shall be applied by Secured Party as set forth in
subsection 6.15 and Schedule 5.23 of the Credit Agreement. Cash held by
Secured Party in the Concentration Account shall not be invested and reinvested
except as provided in subsection 6.15 of the Credit Agreement.
(b) As long as no Event of Default (or event subject to subsection 8.1A
that would be an Event of Default with the lapse of time) exists, any funds on
deposit in the Concentration Account may, at the Company's option, be deposited
and held in Cash Equivalents as provided in subsection 6.15 of the Credit
Agreement.
(c) The Secured Party is hereby authorized to sell, and shall sell, all
or any designated part of securities constituting part of the Collateral held
in the Concentration Account (i) so long as no Event of Default (or event
subject to subsection 8.1A that would be an Event of Default with the lapse of
time) shall then exist, upon receipt of appropriate written instructions from
the applicable Grantor or (ii) in any event if such sale is necessary to permit
the Secured Party to perform its duties hereunder. The Secured Party shall
have no responsibility for any loss resulting from a fluctuation in interest
rates or the sale or disposition by it in accordance with the provisions of
this subsection (c) or by the Cash Manager or any other Person of any Cash
Equivalent prior to the maturity date or otherwise. Any interest received in
respect of
ANNEX E-15
57
securities constituting part of the Collateral held in the Concentration
Account and the net proceeds of the sale or payment of any such securities
shall be held in the Concentration Account by the Secured Party pending
investment thereof pursuant to Section 14(b).
(d) The Concentration Account shall be subject to such applicable laws
and such applicable regulations of the Board of Governors of the Federal
Reserve System and of any other appropriate banking or governmental authority
as may now or hereafter be in effect.
SECTION 15. LICENSE OF PATENTS, TRADEMARKS, COPYRIGHTS, ETC.
Each Grantor hereby assigns, transfers and conveys to the Secured Party,
effective during the continuation of any Event of Default, the nonexclusive
right and license to use all trademarks, tradenames, copyrights, patents or
technical processes owned or used by such Grantor that relate to the Collateral
owned by such Grantor and any other collateral granted by such Grantor as
security for the Secured Obligations, together with any goodwill associated
therewith, all to the extent necessary to enable the Secured Party to use,
possess and realize on the Collateral and to enable any successor or assign to
enjoy the benefits of the Collateral. This right and license shall inure to
the benefit of all successors, assigns and transferees of the Secured Party and
its successors, assigns and transferees, whether by voluntary conveyance,
operation of law, assignment, transfer, foreclosure, deed in lieu of
foreclosure or otherwise. Such right and license is granted free of charge,
without requirement that any monetary payment whatsoever be made to such
Grantor.
SECTION 16. TRANSFERS AND OTHER LIENS.
Each Grantor shall not, with respect to the Collateral owned by it:
(a) sell, assign (by operation of law or otherwise) or otherwise
dispose of any of the Collateral, except as permitted by the Credit
Agreement or by any other Loan Document;
(b) except for the security interest created by this Agreement and
any other Loan Document, create or suffer to exist any Lien upon or with
respect to any of the Collateral to secure the indebtedness or other
obligations of any Person other than Liens permitted under subsections
6.9 and 7.2A of the Credit Agreement or by any other Loan Document; or
(c) permit any issuer of Pledged Shares to merge or consolidate
unless all the outstanding capital stock of the surviving or resulting
corporation is, upon such merger or consolidation, pledged hereunder and
no cash, securities or other property is distributed in respect of the
outstanding shares of any other constituent corporation.
In the event a Grantor desires to obtain a Release of any
Collateral as permitted under subsection 2.9 of the Credit Agreement,
then the Secured Party shall release the
ANNEX E-16
58
Collateral that is the subject of the Release to the applicable Grantor
free and clear of the Lien and security interest under this Agreement
upon the satisfaction of the conditions set forth in subsection 2.9 of
the Credit Agreement with respect to such Collateral; provided, however,
that, as a condition precedent to such Release, the Secured Party shall
have received the Release Price specified in such subsection 2.9.
In the event any Collateral is sold in a sale which is permitted
pursuant to the Credit Agreement but is not subject to the provisions of
subsection 2.9 of the Credit Agreement, the Secured Party shall release
the Collateral that is the subject of such sale free and clear of the
Lien and security interest under this Agreement concurrently with the
consummation of such sale; provided, however, that as a condition
precedent to such release, the Secured Party shall have received evidence
satisfactory to it that arrangements have been made for the delivery to
the Secured Party of all proceeds from such sale required to be delivered
to the Secured Party or to be applied to prepay the Secured Obligations
under the Credit Agreement.
SECTION 17. SECURED PARTY APPOINTED ATTORNEY-IN-FACT.
Each Grantor hereby irrevocably appoints the Secured Party as such
Grantor's attorney-in-fact, with full authority in the place and stead of such
Grantor and in the name of such Grantor, the Secured Party or otherwise, from
time to time in the Secured Party's discretion to take any action and to
execute any instrument that the Secured Party may deem necessary to accomplish
the purposes of this Agreement, including without limitation:
(a) after Grantor's failure to do so within 10 days of a request
from Secured Party (provided that, if an Event of Default then exists,
Secured Party shall not be required to make any such request), to obtain
and adjust insurance required to be maintained by such Grantor or paid to
the Secured Party as required by Section 11;
(b) during the continuance of an Event of Default, to ask for,
demand, collect, xxx for, recover, compound, receive and give acquittance
and receipts for moneys due and to become due under or in respect of any
of the Collateral owned by such Grantor;
(c) during the continuance of an Event of Default, to receive,
endorse and collect any drafts or other instruments, documents and
chattel paper in connection with clauses (a) and (b) above;
(d) during the continuance of an Event of Default, to file any
claims or take any action or institute any proceedings that the Secured
Party may reasonably deem necessary or desirable for the collection of
any of the Collateral or otherwise to enforce the rights of the Secured
Party with respect to any of the Collateral;
(e) after Grantor's failure to do so as required by the Loan
Documents (and, provided no Event of Default then exists, after 10 days
notice from Secured Party), but
ANNEX E-17
59
subject to Grantor's rights to contest the applicability, amount or
validity of same as provided in the Credit Agreement, to pay or discharge
taxes or Liens (other than Liens permitted under this Agreement or the
Credit Agreement) levied or placed upon or, if such amount is not
disputed and is currently due and payable, threatened against the
Collateral owned by such Grantor, any such payments so made by the
Secured Party to become obligations of such Grantor to the Secured Party,
due and payable immediately without demand;
(f) during the continuance of any Event of Default, to sign and
endorse any invoices, freight or express bills, bills of lading, storage
or warehouse receipts, drafts against debtors, assignments, verifications
and notices in connection with Accounts and other documents relating to
the Collateral;
(g) during the continuance of an Event of Default, to receive,
endorse and collect any instruments made payable to such Grantor
representing any dividend, principal or interest payment or other
distribution in respect of the Pledged Collateral owned by such Grantor
or any part thereof and to give full discharge for the same; and
(h) upon the occurrence and during the continuation of an Event of
Default, generally to sell, transfer, pledge, make any agreement with
respect to or otherwise deal with any of the Collateral owned by such
Grantor as fully and completely as though the Secured Party were the
absolute owner thereof for all purposes, and to do, at the Secured
Party's option and such Grantor's expense, at any time or from time to
time, all acts and things that the Secured Party deems necessary to
protect, preserve or realize upon the Collateral and the Secured Party's
security interest therein in order to effect the intent of this
Agreement, all as fully and effectively as such Grantor might do.
SECTION 18. SECURED PARTY MAY PERFORM.
If any Grantor fails to perform any agreement contained herein as herein
provided, the Secured Party may during the continuance of an Event of Default
or if no Event of Default then exists and such failure is reasonably related to
maintaining the value of the Collateral, upon Grantor's failure to do so after
10 days notice from Secured Party requiring such action, itself perform, or
cause performance of, such agreement, and the reasonable expenses of the
Secured Party incurred in connection therewith shall be payable by such Grantor
under Section 22.
SECTION 19. STANDARD OF CARE.
The powers conferred on the Secured Party hereunder are solely to protect
its interest in the Collateral and shall not impose any duty upon it to
exercise any such powers. Except for the exercise of reasonable care in the
custody of any Collateral in its possession and the accounting for moneys
actually received by it hereunder, the Secured Party shall have no duty
ANNEX E-18
60
as to any Collateral or as to the taking of any necessary steps to preserve
rights against prior parties or any other rights pertaining to any Collateral.
The Secured Party shall be deemed to have exercised reasonable care in the
custody and preservation of Collateral in its possession if such Collateral is
accorded treatment substantially equal to that which the Secured Party accords
its own property and Secured Party's actions do not constitute gross negligence
or willful misconduct.
SECTION 20. REMEDIES.
(a) If any Event of Default shall have occurred and be continuing, the
Secured Party may exercise in respect of the Collateral, in addition to all
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party upon default under the Uniform
Commercial Code as in effect in any relevant jurisdiction (the ``CODE'')
(whether or not the Code applies to the affected Collateral), and also may (a)
require any Grantor to, and each Grantor hereby agrees that it will at its
expense and upon request of the Secured Party forthwith, assemble all or part
of the Collateral owned by it as directed by the Secured Party and make it
available to the Secured Party at a place to be designated by the Secured Party
that is reasonably convenient to both parties, (b) enter onto the property
where any Collateral is located and take possession thereof with or without
judicial process, (c) prior to the disposition of the Collateral, store,
process, repair or recondition the Collateral or otherwise prepare the
Collateral for disposition in any manner to the extent the Secured Party
reasonably deems appropriate, (d) take possession of any Grantor's premises or
place custodians in exclusive control thereof, remain on such premises and use
the same and any of such Grantor's equipment for the purpose of completing any
work in process, taking any actions described in the preceding clause (c) and
collecting any Secured Obligation, and (e) without notice except as specified
below, sell the Collateral or any part thereof in one or more parcels at public
or private sale, at any of the Secured Party's offices or elsewhere, for cash,
on credit or for future delivery, at such time or times and at such price or
prices and upon such other terms as the Secured Party may deem commercially
reasonable. The Secured Party or any Lender may be the purchaser of any or all
of the Collateral at any such sale and the Secured Party, as agent for and
representative of Lenders (but not any Lender or Lenders in its or their
respective individual capacities) shall be entitled, for the purpose of bidding
and making settlement or payment of the purchase price for all or any portion
of the Collateral sold at any such public sale, to use and apply any of the
Secured Obligations as a credit on account of the purchase price for any
Collateral payable by the Secured Party at such sale. Each purchaser at any
such sale shall hold the property sold absolutely free from any claim or right
on the part of any Grantor, and each Grantor hereby waives (to the extent
permitted by applicable law) all rights of redemption, stay and/or appraisal
which it now has or may at any time in the future have under any rule of law or
statute now existing or hereafter enacted. Each Grantor agrees that, to the
extent notice of sale shall be required by law, at least ten days' notice to
such Grantor of the time and place of any public sale or the time after which
any private sale is to be made shall constitute reasonable notification. The
Secured Party shall not be obligated to make any sale of Collateral regardless
of notice of sale having been given. The Secured Party may adjourn any public
or private sale from time to time by announcement at
ANNEX E-19
61
the time and place fixed therefor, and such sale may, without further notice,
be made at the time and place to which it was so adjourned. Each Grantor
hereby waives any claims against the Secured Party arising by reason of the
fact that the price at which any Collateral may have been sold at such a
private sale was less than the price which might have been obtained at a public
sale, even if the Secured Party accepts the first offer received and does not
offer such Collateral to more than one offeree. If the proceeds of any sale or
other disposition of the Collateral are insufficient to pay all the Secured
Obligations, such Grantor shall be liable for the deficiency and the reasonable
fees of any attorneys employed by the Secured Party to collect such deficiency.
(b) Each Grantor recognizes that, by reason of certain prohibitions
contained in the Securities Act and applicable state securities laws, the
Secured Party may be compelled, with respect to any sale of all or any part of
the Pledged Collateral conducted without prior registration or qualification of
such Pledged Collateral under the Securities Act and/or such state securities
laws, to limit purchasers to those who will agree, among other things, to
acquire the Pledged Collateral for their own account, for investment and not
with a view to the distribution or resale thereof. Such Grantor acknowledges
that any such private sales may be at prices and on terms less favorable than
those obtainable through a public sale without such restrictions (including,
without limitation, a public offering made pursuant to a registration statement
under the Securities Act) and, notwithstanding such circumstances, such Grantor
agrees that any such private sale shall be deemed to have been made in a
commercially reasonable manner and that the Secured Party shall have no
obligation to engage in public sales and no obligation to delay the sale of any
Pledged Collateral for the period of time necessary to permit the issuer
thereof to register it for a form of public sale requiring registration under
the Securities Act or under applicable state securities laws, even if such
issuer would, or should, agree to so register it.
(c) If the Secured Party determines to exercise its right to sell any
or all of the Pledged Collateral, upon written request, each Grantor shall and
shall cause each issuer of any Pledged Shares to be sold hereunder from time to
time to furnish to the Secured Party all such information as the Secured Party
may request in order to determine the number of shares and other instruments
included in the Pledged Collateral which may be sold by the Secured Party in
exempt transactions under the Securities Act and the rules and regulations of
the Securities and Exchange Commission thereunder, as the same are from time to
time in effect.
SECTION 21. APPLICATION OF PROCEEDS.
Except as expressly provided elsewhere in this Agreement, all proceeds
received by the Secured Party in respect of any sale of, collection from, or
other realization upon all or any part of the Collateral shall be applied as
provided in subsection 2.4D of the Credit Agreement.
ANNEX E-20
62
SECTION 22. INDEMNITY AND EXPENSES.
(a) The Grantors jointly and severally agree to indemnify the Secured
Party and each Lender from and against any and all claims, losses and
liabilities in any way relating to, growing out of or resulting from this
Agreement and the transactions contemplated hereby (including, without
limitation, enforcement of this Agreement), except to the extent such claims,
losses or liabilities result primarily from the Secured Party's or such
Lender's gross negligence, or willful misconduct as finally determined by a
court of competent jurisdiction.
(b) The Grantors jointly and severally agree to pay to the Secured
Party upon demand the amount of any and all reasonable costs and expenses,
including the reasonable fees and expenses of its counsel and of any experts
and agents, that the Secured Party may incur in connection with (i) the
amendment or modification of, or any waiver or consent under, this Agreement,
(ii) the custody, preservation, inspection, use or operation of, release of or
addition to, the perfection of any security interest in, or the sale of,
collection from, or other realization upon, any of the Collateral, (iii) the
exercise or enforcement of any of the rights of the Secured Party hereunder, or
(iv) the failure by any Grantor to perform or observe any of the provisions
hereof.
(c) The obligations of the Grantors under this Section 22 shall survive
the termination of this Agreement and the discharge of the Grantors' other
obligations under the Loan Documents.
SECTION 23. CONTINUING SECURITY INTEREST; TRANSFER OF LOANS.
This Agreement shall create a continuing security interest in the
Collateral and shall (a) remain in full force and effect until the payment in
full of the Secured Obligations, the expiration or cancellation of each Letter
of Credit and the cancellation or termination of the Commitments, (b) be
binding upon each Grantor, its successors and assigns, and (c) inure, together
with the rights and remedies of the Secured Party hereunder, to the benefit of
the Secured Party and its successors, transferees and assigns. Without
limiting the generality of the foregoing clause (c), but subject to the
provisions of subsection 9.1 of the Credit Agreement, any Lender may assign or
otherwise transfer any Loans held by it to any other Person, and such other
Person shall thereupon become vested with all the benefits in respect thereof
granted to Lenders herein or otherwise. Upon the payment in full of all
Secured Obligations, the expiration or cancellation of each Letter of Credit
and the cancellation or termination of the Commitments, the security interest
granted hereby shall terminate and all rights to the Collateral shall revert to
Grantor without the necessity of further action or documentation. Upon any
such termination the Secured Party will, at such Grantor's expense, execute and
deliver to such Grantor such documents as such Grantor shall reasonably request
to evidence such termination.
ANNEX E-21
63
SECTION 24. SECURED PARTY AS AGENT.
(a) The Secured Party has been appointed to act as Secured Party
hereunder by Lenders. The Secured Party shall be obligated, and shall have the
right hereunder, to make demands, to give notices, consents or approvals, to
exercise or refrain from exercising any rights, and to take or refrain from
taking any action (including, without limitation, the release or substitution
of Collateral), solely in accordance with this Agreement and the Credit
Agreement, and Grantors shall have no obligation to independently confirm the
authority of Secured Party to act hereunder on behalf of all of the Lenders.
(b) The Secured Party shall at all times be the same Person that is the
Agent under the Credit Agreement. Upon the acceptance of any appointment as
Agent by a successor Agent, that successor Agent shall thereupon succeed to and
become vested with all the rights, powers, privileges and duties of the
retiring or removed Secured Party under this Agreement, and the retiring or
removed Secured Party under this Agreement shall promptly (i) transfer to such
successor Secured Party all sums, securities and other items of Collateral held
hereunder, together with all records and other documents necessary or
appropriate in connection with the performance of the duties of the successor
Secured Party under this Agreement, and (ii) execute and deliver to such
successor Secured Party such amendments to financing statements, and take such
other actions, as may be necessary or appropriate in connection with the
assignment to such successor Secured Party of the security interests created
hereunder, whereupon such retiring or removed Secured Party shall be discharged
from its duties and obligations under this Agreement. After any retiring or
removed Agent's resignation or removal hereunder as Secured Party, the
provisions of this Agreement shall inure to its benefit as to any actions taken
or omitted to be taken by it under this Agreement while it was the Secured
Party hereunder.
SECTION 25. AMENDMENTS; ETC.
No amendment, modification, termination or waiver of any provision of
this Agreement, and no consent to any departure by any Grantor therefrom, shall
in any event be effective unless the same shall be in writing and signed by the
Secured Party and, in the case of any such amendment or modification, by each
Grantor. Any such waiver or consent shall be effective only in the specific
instance and for the specific purpose for which it was given.
SECTION 26. NOTICES.
Any notice or other communication herein required or permitted to be
given shall be in writing and may be personally served, telexed or sent by
telefacsimile or courier service and shall be deemed to have been given when
delivered in person or by courier service upon receipt of telefacsimile or
telex. For the purposes hereof, the address of each party hereto shall be as
set forth under such party's name on the signature pages hereof or, as to
either party,
ANNEX E-22
64
such other address as shall be designated by such party in a written notice
delivered to the other party hereto.
SECTION 27. FAILURE OR INDULGENCE NOT WAIVER; REMEDIES CUMULATIVE.
No failure or delay on the part of the Secured Party in the exercise of
any power, right or privilege hereunder shall impair such power, right or
privilege or be construed to be a waiver of any default or acquiescence
therein, nor shall any single or partial exercise of any such power, right or
privilege preclude any other or further exercise thereof or of any other power,
right or privilege. All rights and remedies existing under this Agreement are
cumulative to, and not exclusive of, any rights or remedies otherwise
available.
SECTION 28. SEVERABILITY.
In case any provision in or obligation under this Agreement shall be
invalid, illegal or unenforceable in any jurisdiction, the validity, legality
and enforceability of the remaining provisions or obligations, or of such
provision or obligation in any other jurisdiction, shall not in any way be
affected or impaired thereby.
SECTION 29. HEADINGS.
Section and subsection headings in this Agreement are included herein for
convenience of reference only and shall not constitute a part of this Agreement
for any other purpose or be given any substantive effect.
SECTION 30. GOVERNING LAW; TERMS.
THIS AGREEMENT AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION
SECTION 5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK),
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES, EXCEPT TO THE EXTENT THAT THE
CODE PROVIDES THAT THE PERFECTION OF THE SECURITY INTEREST HEREUNDER, OR
REMEDIES HEREUNDER, IN RESPECT OF ANY PARTICULAR COLLATERAL ARE GOVERNED BY THE
LAWS OF A JURISDICTION OTHER THAN THE STATE OF NEW YORK. Unless otherwise
defined herein or in the Credit Agreement, terms used in Articles 8 and 9 of
the Uniform Commercial Code in the State of New York are used herein as therein
defined.
ANNEX E-23
65
SECTION 31. CONSENT TO JURISDICTION AND SERVICE OF PROCESS.
ALL JUDICIAL PROCEEDINGS BROUGHT AGAINST ANY GRANTOR ARISING OUT OF OR
RELATING TO THIS AGREEMENT, OR ANY OBLIGATIONS HEREUNDER, MAY BE BROUGHT IN ANY
STATE OR FEDERAL COURT OF COMPETENT JURISDICTION IN XXX XXXXX, XXXXXX XXX XXXX
XX XXX XXXX. BY EXECUTING AND DELIVERING THIS AGREEMENT, EACH GRANTOR, FOR
ITSELF AND IN CONNECTION WITH ITS PROPERTIES, IRREVOCABLY
(I) ACCEPTS GENERALLY AND UNCONDITIONALLY THE NONEXCLUSIVE
JURISDICTION AND VENUE OF SUCH COURTS;
(II) WAIVES ANY DEFENSE OF FORUM NON CONVENIENS;
(III) AGREES THAT SERVICE OF ALL PROCESS IN ANY SUCH PROCEEDING IN
ANY SUCH COURT MAY BE MADE BY REGISTERED OR CERTIFIED MAIL, RETURN
RECEIPT REQUESTED, TO SUCH GRANTOR AT ITS ADDRESS PROVIDED IN ACCORDANCE
WITH SECTION 26;
(IV) AGREES THAT SERVICE AS PROVIDED IN CLAUSE (III) ABOVE IS
SUFFICIENT TO CONFER PERSONAL JURISDICTION OVER SUCH GRANTOR IN ANY SUCH
PROCEEDING IN ANY SUCH COURT, AND OTHERWISE CONSTITUTES EFFECTIVE AND
BINDING SERVICE IN EVERY RESPECT;
(V) AGREES THAT THE SECURED PARTY RETAINS THE RIGHT TO SERVE
PROCESS IN ANY OTHER MANNER PERMITTED BY LAW OR TO BRING PROCEEDINGS
AGAINST SUCH GRANTOR IN THE COURTS OF ANY OTHER JURISDICTION; AND
(VI) AGREES THAT THE PROVISIONS OF THIS SECTION 31 RELATING TO
JURISDICTION AND VENUE SHALL BE BINDING AND ENFORCEABLE TO THE FULLEST
EXTENT PERMISSIBLE UNDER NEW YORK GENERAL OBLIGATIONS LAW SECTION 5-1402
OR OTHERWISE.
SECTION 32. WAIVER OF JURY TRIAL.
EACH GRANTOR AND THE SECURED PARTY HEREBY AGREE TO WAIVE THEIR RESPECTIVE
RIGHTS TO A JURY TRIAL OF ANY CLAIM OR CAUSE OF ACTION BASED UPON OR ARISING
OUT OF THIS AGREEMENT. The scope of this waiver is intended to be all-
encompassing of any and all disputes that may be filed in any court and that
relate to the subject matter of this transaction, including without limitation
contract claims, tort claims, breach of duty claims, and all other common law
and statutory claims.
ANNEX E-24
66
Each Grantor and the Secured Party each acknowledge that this waiver is a
material inducement for such Grantor and the Secured Party to enter into a
business relationship, that such Grantor and the Secured Party have already
relied on this waiver in entering into this Agreement and that each will
continue to rely on this waiver in their related future dealings. Each Grantor
and the Secured Party further warrant and represent that each has reviewed this
waiver with its legal counsel, and that each knowingly and voluntarily waives
its jury trial rights following consultation with legal counsel. THIS WAIVER
IS IRREVOCABLE, MEANING THAT IT MAY NOT BE MODIFIED EITHER ORALLY OR IN WRITING
(OTHER THAN BY A MUTUAL WRITTEN WAIVER SPECIFICALLY REFERRING TO THIS SECTION
32 AND EXECUTED BY EACH OF THE PARTIES HERETO), AND THIS WAIVER SHALL APPLY TO
ANY SUBSEQUENT AMENDMENTS, RENEWALS, SUPPLEMENTS OR MODIFICATIONS TO THIS
AGREEMENT. In the event of litigation, this Agreement may be filed as a
written consent to a trial by the court.
SECTION 33. ADDITIONAL GRANTORS.
The initial Grantors hereunder shall be the Company and such of the
Subsidiaries of the Company as are signatories hereto on the date hereof. From
time to time subsequent to the date hereof, additional Subsidiaries of the
Company may become parties hereto, as additional Grantors, by executing a
counterpart of this Agreement substantially in the form of Appendix C attached
hereto. Upon delivery of any such counterpart to the Secured Party, notice of
which is hereby waived by Grantors, each such additional Grantor shall be as
fully a party hereto as if such Grantor were an original signatory hereof.
Each Grantor expressly agrees that its joint and several obligations arising
hereunder shall not be affected or diminished by the addition or release of any
other Grantor hereunder, nor by any election of the Agent not to cause any
Subsidiary of the Company to become an additional Grantor hereunder. This
Agreement shall be fully effective as to any Grantor that is or becomes a party
hereto regardless of whether any other Person becomes or fails to become or
ceases to be a Grantor hereunder.
SECTION 34. COUNTERPARTS.
This Agreement may be executed in one or more counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document.
SECTION 35. RELEASES.
(a) In the event that any Collateral is Released in any transaction
permitted under the Credit Agreement, Secured Party shall release such
Collateral to the applicable Grantor free and clear of the Lien and security
interest under this Agreement concurrently upon Secured Party's receipt of (i)
all amounts required to be paid to
ANNEX E-25
67
Secured Party in accordance with the provisions of the Loan Documents as a
result of such transaction and (ii) an Officers' Certificate from the
applicable Grantor certifying the aggregate amount required to be paid to
Secured Party in accordance with the provisions of the Loan Documents as a
result of such transaction and setting forth a calculation of the Net Sales
Price. Upon any such release of Collateral, Secured Party shall, at the
expense of the applicable Grantor, execute and deliver all releases and
terminations, and take such other actions as are, in each case, reasonably
requested by the applicable Grantor in writing to give effect to such release;
provided that each such release or termination shall be reasonably satisfactory
in form and substance to Secured Party and the applicable Grantor.
(b) Notwithstanding anything in this Section 35 or elsewhere in this
Agreement to the contrary, to the extent that any of the Collateral pertains
solely to a Premises (as defined in any Mortgage), which Premises is released
from the Lien by a Release pertaining to such Premises, executed by Secured
Party, such portion of the Collateral shall be deemed to be also released from
the Lien and security interests and other provisions of this Agreement
automatically, without further action or documentation by or from any party
(other than the Release of such Premises executed by Secured Party as
referenced above) being necessary; provided, however, that upon the written
request of the applicable Grantor, Secured Party shall take the actions and
execute the documents required pursuant to paragraph (a) above.
[Remainder of page intentionally left blank]
ANNEX E-26
68
IN WITNESS WHEREOF, each Grantor and the Secured Party have caused this
Agreement to be duly executed and delivered by their respective officers
thereunto duly authorized as of the date first written above.
SECURED PARTY: BANKERS TRUST COMPANY,
as Secured Party
By:
------------------------------------
Name:
Title:
Notice Address:
Bankers Trust Company
000 Xxxx Xxxxxx, 00 Xxxx
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxxxx Xxxxxxxxx
GRANTORS:
WYNDHAM HOTEL CORPORATION
By:
------------------------------------
Name:
Title:
Notice Address:
Wyndham Hotel Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
ANNEX E-S-1
69
EACH OF THE ENTITIES LISTED ON
APPENDIX A HERETO
By:
------------------------------------
Name:
Title:
Notice Address:
Wyndham Hotel Corporation
0000 Xxxxx Xxxxxx, Xxxxx 0000
Xxxxxx, Xxxxx 00000
Attention: Chief Financial Officer
ANNEX E-S-2
70
APPENDIX A
SUBSIDIARIES
1. Wyndham Management Corporation
2. Wyndham IP Corporation
3. GHALP Corporation
4. Xerxes Limited
5. WHC Caribbean Limited
6. Xxxx Xxxx Associates, L.P.
7. WH Interest, Inc.
8. WHC Vinings Corporation
9. Waterfront Management Corporation
10. WHCMB, Inc.
11. Wyndham Hotels & Resorts (Management), Ltd.
12. Xxxxxxx Xxxxxx & Xxxxxxx (Xxxxx) X.X.
00. HEPC Commerce, Inc.
14. HEPC Schaumburg, Inc.
15. HEPC Brookfield, Inc.
16. HEPC Indianapolis, Inc.
17. HEPC Charlotte, Inc.
18. HEPC Xxxx Xxxx, Inc.
19. HEPC GHALP, Inc.
20. HEPC Harbour Island, Inc.
X-X-0
00
00. HEPC Xxxxxx, Inc.
22. HEPC Xxxxxx Bay, Inc.
23. HEPC Lexington, Inc.
24. HEPC Emerald Plaza, Inc.
25. HEPC Kingston, Inc.
26. HEPC Buckhead, Inc.
27. HEPC Valley Forge, Inc.
28. HEPC Warwick, Inc.
29. HEPC Semi-Ah-Moo, Inc.
30. WH Garden - Albuquerque, Inc.
31. HEPC Pruneyard, Inc.
32. HEPC Aruba Beach, Inc.
33. HEPC Vinings, Inc.
34. HEPC Metrocenter, Inc.
35. HEPC Marin County, Inc.
36. HEPC X'Xxxx, Inc.
37. HEPC Oakbrook Terrace, Inc.
38. HEPC Denver, Inc.
39. HEPC Checkers, Inc.
40. HEPC Waltham, Inc.
41. HEPC Annapolis, Inc.
42. HEPC Piscataway, Inc.
43. HEPC Xxxxxx City, Inc.
X-X-0
00
00. HEPC Monrovia, Inc.
45. HEPC Detroit, Inc.
46. HEPC Pittsburgh, Inc.
47. HEPC Burlington, Inc.
48. HEPC Orlando, Inc.
49. HEPC Anatole, Inc.
50. HEPC Northwest Chicago, Inc.
51. HEPC Franklin Plaza, Inc.
52. HEPC Greenspoint, Inc.
53. HEPC Bel Age, Inc.
54. HEPC Bristol, Inc.
55. HEPC Milwaukee, Inc.
56. HEPC Midtown Atlanta, Inc.
57. HEPC Las Colinas, Inc.
58. HEPC Palm Springs, Inc.
59. HEPC Wood Xxxx, Inc.
60. HEPC Orange County, Inc.
61. WH Playhouse Square, Inc.
62. HEPC Pleasanton, Inc.
63. HEPC Novi, Inc.
64. HEPC New Orleans, Inc.
65. HEPC Cedar Rapids, Inc.
66. HEPC Elbow Beach, Inc.
X-X-0
00
00. WH Sugar Bay, Inc.
68. XX XXX, Inc.
69. XX XXX-U, Inc.
70. HEPC Kansas City, Inc.
71. WHC Carribean, Ltd.
72. HEPC Long Term Stay, Inc.
73. HEPC Overland Park, Inc.
74. HEPC Dallas Market Center, Inc.
75. WHCMB Overland Park, Inc.
76. WHCMB Toronto, Inc.
77. HEPC Toronto, Inc.
78. Hotel Del Coronado Management Corporation
79. HEPC Columbus, Inc.
80. WHC Columbus Corporation
81. WHC Franchise Corporation
82. HEPC Sugar Bay Club, Inc.
83. HEPC Atlanta Gwinnett, Inc.
84. HEPC Atlanta Northlake, Inc.
85. HEPC Dedham, Inc.
86. HEPC Salt Lake City, Inc.
87. HEPC Palmas, Inc.
88. WHCMB Utah Private Club Corporation
89. HEPC LaGuardia, Inc.
X-X-0
00
00. WHC Salt Lake City Corporation
91. HEPC Marietta, Inc.
92. HEPC Newark, Inc.
93. HEPC Mt. Olive, Inc.
94. HEPC Park Central, Inc.
95. HEPC Clubhouse, Inc.
96. WHC Airport Corporation
97. Albuquerque C.I. Associates, L.P.
98. C.I. Holding, LLC
99. C.I. Properties, Inc.
100. ClubHouse Inns of America, Inc.
101. ClubHouse Properties, Inc.
102. ClubHouse Hotels, Inc.
103. Xxxxxxxxxx X.X. Associates, L.P.
104. St. Louis C.I. Associates, L.P.
105. Tenth Street C.I., Inc.
106. Topeka, C.I. Associates, L.P.
X-X-0
00
XXXXXXXX X
COLLATERAL
All of such Grantor's right, title and interest in and to the following,
in each case whether now or hereafter existing or in which such Grantor now has
or hereafter acquires an interest and wherever the same may be located (the
"COLLATERAL"):
(a) all machinery, apparatus, equipment, fittings, fixtures,
furniture, furnishings and articles of personal property of every kind
and nature whatsoever owned or leased now or in the future by such
Grantor, and either located upon any Property (defined below), or any
part thereof, or used in connection with the present use, maintenance,
operation or occupancy of the Improvements (as hereinafter defined) as a
hotel or motel or any other future occupancy or use of the Improvements,
including all heating, lighting, laundry, incinerating, loading,
unloading, swimming pool, landscaping, garage and power equipment and
supplies, engines, pipes, pumps, tanks, motors, conduits, switchboards,
plumbing, lifting, cleaning, fire prevention, fire extinguishing,
refrigerating, ventilating, and communications apparatus, luggage or food
carts, dollies, air cooling and air conditioning apparatus, elevators,
escalators, shades, awnings, screens, storm doors and windows, stoves,
freezers, refrigerators, cabinets, dressers, cooking utensils, dishes,
silverware, kitchen appliances and restaurant equipment and supplies,
computers, reservation systems, software, cash registers, card keys,
telephone switchboards, partitions, ducts and compressors, carpets, rugs,
bed frames, springs, mattresses, sheets, pillow cases, pillows, blankets,
bed spreads, stationery, tables, desks, chairs, sofas, bureaus, dressers,
benches, window curtains, telephones, televisions, radios, lamps,
mirrors, paintings, wall hangings, decorations, clothes hangers, bathroom
fixtures, shower curtains, towels, medicine cabinets, and hotel cleaning
equipment and supplies, and all additions, substitutions and replacements
thereof, wherever located, together with all attachments, components,
parts, equipment and accessories installed thereon or affixed thereto and
all of such Grantor's present and future "goods", "equipment" and
"fixtures" (as such terms are defined in the Uniform Commercial Code)
and other personal property, including without limitation any such
personal property and fixtures which are leased, and all repairs,
attachments, betterments, renewals, replacements, substitutions and
accessions thereof and thereto (all of the foregoing being referred to
herein, collectively, as the "EQUIPMENT");
(b) all supplies and materials in which such Grantor has an
interest arising in conjunction with such Grantor's ownership or
operation of any Property, including any supplies or materials intended
for incorporation or installation in the Improvements, prior to the time
the same are so incorporated or installed, including building materials
and components (all of the foregoing being referred to herein,
collectively, as the "MATERIALS");
E-B-1
76
(c) all right, title and interest of such Grantor in and to all
buildings, structures, fixtures, tenant improvements and other
improvements of every kind and description now or hereafter located in or
on any Property, including all Materials, water, sanitary and storm
sewers, drainage, electricity, steam, gas, telephone and other utility
facilities, parking areas, roads, driveways, walks and other site
improvements; and all additions and betterments thereto and all renewals,
substitutions and replacements thereof, owned or to be owned by such
Grantor or in which such Grantor has or shall acquire an interest, to the
extent of such Grantor's interest therein (all of the foregoing being
referred to herein, collectively, as the "IMPROVEMENTS");
(d) at such times and to the extent the granting of a security
interest therein is permitted by Applicable Law, all liquor licenses,
alcoholic beverage licenses, privilege licenses, other licenses relating
to the sale or consumption of alcoholic beverages, alcoholic beverage
permits, mixed beverage permits, beer permits, Sunday sales permits,
private club late hours permits, mixed beverage late hours permits, other
late hours permits, private club registration permits, other registration
permits, beverage cartage permits, other permits relating to the sale or
consumption of alcoholic beverages, consumption on premises resolutions
and other resolutions relating to the sale or consumption of alcoholic
beverages, all of the foregoing as heretofore or hereafter issued to or
for the benefit of Grantor or its agents or representatives for use in
connection with any Property, and all renewals thereof and substitutions
for all of the foregoing, and all similar future liquor or alcoholic
beverage licenses, permits and resolutions (all of the foregoing being
referred to, collectively, as the "LIQUOR LICENSES");
(e) all franchise agreements, management agreements, agreements
for the acquisition of any Property and license agreements, including the
Management Agreements and the agreements listed in Schedule B-1 annexed
hereto and all similar future agreements, as each such agreement may be
amended, restated, supplemented, replaced or otherwise modified from time
to time (said agreements, as so amended, restated, supplemented, replaced
or otherwise modified, being referred to herein individually as an
"ASSIGNED AGREEMENT" and collectively as the "ASSIGNED AGREEMENTS"),
including without limitation (i) all rights of such Grantor to receive
moneys due or to become due under or pursuant to the Assigned Agreements,
(ii) all rights of such Grantor to receive proceeds of any insurance,
indemnity, warranty or guaranty with respect to the Assigned Agreements,
(iii) all claims of such Grantor for damages arising out of any breach of
or default under the Assigned Agreements, and (iv) all rights of such
Grantor to terminate, amend, supplement, modify or exercise rights or
options under the Assigned Agreements, to perform thereunder and to
compel performance and otherwise exercise all remedies thereunder;
(f) at such times and to the extent the granting of a security interest
therein is permitted by Applicable Law, all approvals, authorizations,
building permits, certifications, entitlements, exemptions, franchises,
licenses, orders, variances, plat plan approvals, environmental approvals
(including, without limitation, an environmental impact statement or
report if required under Applicable Laws), air pollution authorities to
construct and
E-B-2
77
permits to operate, sewer and waste discharge permits, national pollutant
discharge elimination system permits, water permits, zoning and land use
entitlements and all other permits, whether now existing or hereafter
issued to or obtained by or on behalf of such Grantor, that relate to or
concern in any way any Property and are given or issued by any
governmental or quasi-governmental authority, whether now existing or
hereafter created (as the same may be amended, modified, renewed or
extended from time to time, and including all substitutions and
replacements therefor) (collectively, the "PERMITS");
(g) all abstracts of title, plans, specifications, operating
manuals, computer programs, computer data, maps, surveys, studies,
reports, appraisals, architectural, engineering and construction drawings
and contracts, or whatever kind or character, whether now or hereafter
existing, relating to any Property (all of the foregoing being referred
to herein as the "SPECIFICATIONS");
(h) all right, title and interest now owned or hereafter acquired
by such Grantor in and to all options and rights of first refusal to
purchase or lease any Mortgaged Property or any portion thereof or
interest therein, and in and to any greater estate in any Property or any
other part of any Mortgaged Property (all of the foregoing being referred
to herein as the "OPTIONS");
(i) all the right, in the name and on behalf of such Grantor, to
appear in and defend any action or proceeding brought with respect to any
Mortgaged Property, and to commence any action or proceeding to protect
the interest of such Grantor in any Mortgaged Property (collectively, the
"PROCEEDING RIGHTS");
(j) all of such Grantor's right and power to encumber further any
Mortgaged Property or any part thereof (the "ENCUMBRANCE RIGHTS");
(k) all rights, titles, interests, estates or other claims, both
in law and in equity, which such Grantor now has or may hereafter acquire
in any Property or in and to any greater estate in any Property or in and
to any greater estate in any Mortgaged Property (the "GREATER ESTATE
RIGHTS");
(l) all prepaid rent and security deposits and all other security
which the lessor under any ground lease may hold now or later for the
performance of such Grantor's obligations as the lessee under the such
ground lease ("SECURITY DEPOSITS");
(m) all insurance policies and the proceeds thereof, now or
hereafter in effect with respect to any Property or any other Mortgaged
Property, including, without limitation, any and all title insurance
proceeds, and all unearned premiums and premium refunds, accrued,
accruing or to accrue under such insurance policies, and all awards made
for any taking of or damage to all or any part of any Property or any
other Mortgaged Property by eminent domain, or by any purchase in lieu
thereof, and all awards resulting from a change of grade of streets or
for severance damages, and all other proceeds of the conversion,
voluntary or involuntary, of any Mortgaged Property into cash or other
E-B-3
78
liquidated claims, and all judgments, damages, awards, settlements and
compensation (including interest thereon) heretofore or hereafter made to
the present and all subsequent owners of any Mortgaged Property or any
part thereof for any injury to or decrease in the value thereof for any
reason (collectively, the "INSURANCE/CONDEMNATION PROCEEDS");
(n) all right, title and interest of such Grantor as landlord in
and to all leaseholds and all leases, subleases, licenses, concessions,
franchises or other agreements relating to the use or occupancy of any
Property (or any other part of any Mortgaged Property) or any part
thereof whether now or hereafter existing or entered into, (including any
use or occupancy arrangements created pursuant to Section 365(d) of the
Bankruptcy Code or otherwise in connection with the commencement or
continuance of any bankruptcy, reorganization, arrangement, insolvency,
dissolution, receivership or similar proceedings, or any assignment for
the benefit of creditors, in respect of any tenant or occupant of any
portion of any Property (or any other part of any Mortgaged Property))
and all amendments, modifications, supplements, extensions or renewals
thereof, and all guaranties thereof or of leasing commissions, whether
now or hereafter existing and all amendments, modifications, supplements,
extensions or renewals thereof, (all of the foregoing being collectively
referred to as the "LEASES"), and all rents, issues, profits, royalties
(including all oil and gas or other hydrocarbon substances, earnings,
receipts, revenues, accounts, accounts receivable, security deposits and
other deposits (subject to the prior right of the tenants making such
deposits) and income, including, without limitation, fixed, additional
and percentage rents, occupancy and room charges, operating expense
reimbursements, reimbursements for increases in taxes, sums paid by
tenants to such Grantor to reimburse such Grantor for amounts originally
paid or to be paid by such Grantor or such Grantor's agents or affiliates
for which such tenants were liable, as, for example, tenant improvements
costs in excess of any work letter, lease takeover costs, moving expenses
and tax and operating expense pass-throughs for which a tenant is solely
liable, parking, maintenance, common area, tax, insurance, utility and
service charges and contributions, proceeds of sale of electricity, gas,
heating, air-conditioning and other utilities and services, deficiency
rents and liquidated damages, and other benefits now or hereafter derived
from any portion of any Property or the use or occupancy thereof
(including any payments received pursuant to Section 502(b) of the
Bankruptcy Code or otherwise in connection with the commencement or
continuance of any bankruptcy, reorganization, arrangement, insolvency,
dissolution, receivership or similar proceedings, or any assignment for
the benefit of creditors, in respect of any tenant or other occupants of
any portion of any Property and all claims as a creditor in connection
with any of the foregoing) and all cash or security deposits, advance
rentals, and all deposits or payments of a similar nature relating
thereto, now or hereafter, including during any period of redemption,
derived from any Property or any other portion of any Mortgaged Property
and all proceeds from the cancellation, surrender, sale or other
disposition of the Leases (all of the foregoing being referred to
collectively, as the "RENTS") and the right to receive and apply the
Rents to the payment of the Obligations, subject to the right hereinafter
given to such Grantor to collect the Rents and subject to the terms and
provisions of that certain Assignment of Rents and Leases dated as of the
date hereof, by
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79
such Grantor, as assignor for the benefit of Mortgagee, as assignee, (the
"ASSIGNMENT OF RENTS");
(o) the right to enforce, whether at law or in equity or by any
other means, all terms, covenants and provisions of the Leases
(collectively, the "LEASE PROVISIONS");
(p) all impounds paid by such Grantor pursuant to the provisions
of the Mortgage and all refunds or rebates of real and personal property
taxes or charges in lieu of taxes, heretofore or now or hereafter
assessed or levied against any Property or any other part of any
Mortgaged Property, including interest thereon, and the right to receive
the same, whether such refunds or rebates relate to fiscal periods before
or during the term hereof (collectively, the "REFUNDS");
(q) any loan commitment for permanent financing of the
Improvements, including refinancing of any existing construction loans,
and all amounts to be advanced to or on behalf of such Grantor thereunder
(collectively, the "FINANCING COMMITMENTS");
(r) all inventory in all of its forms (including, but not limited
to, (i) all goods held by such Grantor for sale or lease (including
without limitation all alcoholic beverage inventory) or to be furnished
under contracts of service or so leased or furnished, (ii) all raw
materials, work in process, finished goods, and materials used or
consumed in the manufacture, packing, shipping, advertising, selling,
leasing, furnishing or production of such inventory or otherwise used or
consumed in such Grantor's business, (iii) all goods in which such
Grantor has an interest in mass or a joint or other interest or right of
any kind, (iv) all goods which are returned to or repossessed by such
Grantor, and (v) all accessions thereto and products thereof (all such
inventory, accessions and products being the "INVENTORY") and all
negotiable documents of title (including without limitation warehouse
receipts, dock receipts and bills of lading) issued by any Person
covering any Inventory (any such negotiable document of title being a
"NEGOTIABLE DOCUMENT OF TITLE");
(s) all motor vehicle equipment in all of its forms, wherever
located, now or hereafter existing (including, but not limited to, all
trucks, tractors, trailers and automobiles), and all parts thereof
(whether or not at any time of determination incorporated or installed
therein or attached thereto, and including, without limitation, spare
parts and tires), and all additions and accessions to, and replacements
for, any of the foregoing Collateral (any and all such motor vehicle
equipment, parts, additions, accessions and replacements being the
"ROLLING STOCK");
(t) any and all accounts receivable and rights to payment for use
or occupancy of hotel rooms, motel rooms or other space or for goods sold
or leased or for services rendered, whether or not yet earned by
performance, arising from the operation of the Improvements (including
the use or occupancy thereof) or any other facility on any Property,
including (a) all accounts arising from the operation of any Improvements
(specifically including any accounts receivable), (b) all amounts paid or
payable under
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the Management Agreements, and (c) all rights to payment or accounts
receivable from any consumer credit, debit or other charge card
organization or entity, including payments arising from the use of the
American Express Card, the Visa Card, the Xxxxx Xxxxxxx Card, the
MasterCard, the Discover Card or any other credit or debit card,
including those now existing or hereafter created, substitutions
therefor, proceeds thereof (whether cash or non- cash, movable or
immovable, tangible or intangible) received upon the sale, exchange,
transfer, collection or other disposition or substitution thereof and any
and all of the foregoing and proceeds therefrom (all of the foregoing
being referred to herein, collectively, as the "PAYMENT RIGHTS");
(u) all accounts, contract rights, chattel paper, documents,
instruments, general intangibles and other rights and obligations of any
kind and all rights in, to and under all security agreements, leases and
other contracts securing or otherwise relating to any such accounts,
contract rights, chattel paper, documents, instruments, general
intangibles or other obligations (any and all such accounts, contract
rights, chattel paper, documents, instruments, general intangibles and
other obligations, together with the Payment Rights being the
"ACCOUNTS", and any and all such security agreements, leases and other
contracts being the "RELATED CONTRACTS");
(v) all cash, money, currency, and all demand, time, savings,
passbook or like accounts with a bank, savings and loan association,
credit union or like organization, including without limitation the
Concentration Account, the Renovation Loan Account and the Capital
Reserve Account (collectively, "DEPOSIT ACCOUNTS"), including, without
limitation, all of the following (the "DEPOSIT ACCOUNT COLLATERAL"):
(i) the Concentration Account the Capital Reserve Account,
all funds held therein, and all certificates of deposit and
instruments, if any, from time to time representing or evidencing
such funds or the Concentration Account Reserve Account;
(ii) all Deposit Accounts and post office boxes, mail stops
or like mechanisms for the receipt of Accounts (collectively, the
"LOCAL DEPOSIT ACCOUNTS"), all funds held therein, and all
certificates and instruments, if any, from time to time
representing or evidencing such funds or Local Deposit Accounts;
(iii) all notes, certificates of deposit and other
instruments from time to time hereafter delivered to or otherwise
possessed by the Secured Party for and on behalf of such Grantor in
substitution for or in addition to any of the then existing Deposit
Account Collateral;
(iv) all investments from time to time credited to any
Deposit Account and all certificates and instruments, if any, from
time to time representing or evidencing such investments; and
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(v) all interest, dividends, cash, instruments and other
property from time to time received, receivable or otherwise
distributed in respect of or in exchange for any and all of the
then existing Deposit Account Collateral;
(w) all trademarks, tradenames, trade secrets, business names,
patents, patent applications, licenses, copyrights, registrations and
franchise rights, all goodwill associated with any of the foregoing and
other rights relating to the name and style under which any Property is
operated (excluding names and logos of tenants of any Property)
(collectively, the "INTELLECTUAL PROPERTY");
(x) to the extent not otherwise included in any other paragraph
hereof, all other general intangibles (including without limitation tax
refunds, rights to payment or performance, choses in action and judgments
taken on any rights or claims included in the Collateral) (the "GENERAL
INTANGIBLES");
(y) all books, records, ledger cards, files, correspondence,
computer programs, tapes, disks and related data processing software that
at any time evidence or contain information relating to any of the
Collateral or are otherwise necessary or helpful in the collection
thereof or realization thereupon (collectively, the "RECORDS"); and
(z) all shares of stock of each Subsidiary of such Grantor and
each other Person (the "Pledged Shares") and the certificates
representing the Pledged Shares and any interest of such Grantor in the
entries on the books of any financial intermediary pertaining to the
Pledged Shares, and all dividends, cash, warrants, rights, instruments
and other property or proceeds from time to time received, receivable or
otherwise distributed in respect of or in exchange for any or all of the
Pledged Shares (the "RELATED PLEDGED SHARE COLLATERAL");
(aa) all additional shares of, and all securities convertible
into and warrants, options and other rights to purchase or otherwise
acquire, stock of any issuer of the Pledged Shares from time to time
acquired by such Grantor in any manner (which shares shall be deemed to
be part of the Pledged Shares), the certificates or other instruments
representing such additional shares, securities, warrants, options or
other rights and any interest of such Grantor in the entries on the books
of any financial intermediary pertaining to such additional shares, and
all dividends, cash, warrants, rights, instruments and other property or
proceeds from time to time received, receivable or otherwise distributed
in respect of or in exchange for any or all of such additional shares,
securities, warrants, options or other rights (the "ADDITIONAL RELATED
PLEDGED SHARE COLLATERAL");
(ab) all shares of, and all securities convertible into and
warrants, options and other rights to purchase or otherwise acquire,
stock of any Person that, after the date of this Agreement, becomes, as a
result of any occurrence, a direct Subsidiary of such Grantor (which
shares shall be deemed to be part of the Pledged Shares), the
certificates or other instruments representing such shares, securities,
warrants, options or other rights and any interest of such Grantor in the
entries on the books of any financial intermediary
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pertaining to such shares, and all dividends, cash, warrants, rights,
instruments and other property or proceeds from time to time received,
receivable or otherwise distributed in respect of or in exchange for any
or all of such shares, securities, warrants, options or other rights (the
"NEW SUBSIDIARY PLEDGED SHARE COLLATERAL" and together with the Related
Pledged Share Collateral and the Additional Related Pledged Share
Collateral, the "PLEDGED COLLATERAL"); and
(ac) all indebtedness from time to time owed to such Grantor by
any direct or indirect Subsidiary of such Grantor or any Person
(including, without limitation, the DAB Notes and the Affiliate Notes),
and all interest, cash, instruments and other property or proceeds from
time to time received, receivable or otherwise distributed in respect of
or in exchange for any or all of such indebtedness, and all collateral
pledged to secure such indebtedness and all security agreements and other
documents relating to, or evidencing, such collateral (the "PLEDGED
DEBT"); and
(ad) all right, title and interest as a partner (whether a
general partner or a limited partner) in the partnerships listed on
Schedule VI hereto and each partnership in which such Grantor acquires an
interest after the Closing Date (collectively, the "PARTNERSHIPS"),
whether now owned or hereafter acquired, including without limitation all
of such Grantor's right, title and interest in, to and under the
agreements pursuant to which the Partnerships are established
(collectively the "PARTNERSHIP AGREEMENTS") together with all other
rights, interests, claims and other property of such Grantor in any
manner arising out of or relating to a limited partnership interest or
general partnership interest in any Partnership, whatever their
respective kind or character, whether they are tangible or intangible
property, and wheresoever they may exist or be located, and further
including, without limitation, all of the rights of any Partnership
Grantor: (i) to (x) receive money due and to become due (including
without limitation dividends, distributions, interest, income from
partnership properties and operations, proceeds of sale of partnership
assets and returns of capital) under or pursuant to any Partnership
Agreement, (y) receive payments upon termination of any Partnership
Agreement, and (z) receive any other payments or distributions, whether
cash or noncash, in respect of any limited partnership interest or
general partnership interest of such Grantor evidenced by any Partnership
Agreement; (ii) in and with respect to claims and causes of action
arising out of or relating to the Partnerships; and (iii) to have access
to the Partnerships' books and records and to other information
concerning or affecting the Partnerships;
(ae) all right, title and interest as a member (whether or not a
manager) in the limited liability companies listed on Schedule VII hereto
and each limited liability company in which such Grantor acquires an
interest after the Closing Date (collectively, the "LIMITED LIABILITY
COMPANIES"), whether now owned or hereafter acquired, including without
limitation all of such Grantor's right, title and interest in, to and
under the agreements pursuant to which the Limited Liability Companies
are established (collectively the "LIMITED LIABILITY COMPANY
AGREEMENTS") together with all other rights, interests, claims and other
property of such Grantor in any manner arising out of or relating to a
membership interest in any Limited Liability Company, whatever their
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respective kind or character, whether they are tangible or intangible
property, and wheresoever they may exist or be located, and further
including, without limitation, all of the rights of any such Grantor:
(i) to (x) receive money due and to become due (including without
limitation dividends, distributions, interest, income from properties and
operations, proceeds of sale of assets and returns of capital) under or
pursuant to any Limited Liability Company Agreement, (y) receive payments
upon termination of any Limited Liability Company Agreement, and (z)
receive any other payments or distributions, whether cash or noncash, in
respect of any membership interest of such Grantor evidenced by any
Limited Liability Company Agreement; (ii) in and with respect to claims
and causes of action arising out of or relating to the Limited Liability
Companies; and (iii) to have access to the Limited Liability Companies'
books and records and to other information concerning or affecting the
Limited Liability Companies; and
(af) all proceeds, products, rents and profits of or from any and
all of the foregoing Collateral and, to the extent not otherwise
included, all payments under insurance (whether or not the Secured Party
is the loss payee thereof), or any indemnity, warranty or guaranty,
payable by reason of loss or damage to or otherwise with respect to any
of the foregoing Collateral. For purposes hereof, the term "PROCEEDS"
includes whatever is receivable or received when Collateral or proceeds
are sold, exchanged, collected or otherwise disposed of, whether such
disposition is voluntary or involuntary;
; provided, however, that in no event shall the Collateral include, and no
Grantor shall be deemed to have granted a security interest in, any of such
Grantor's rights or interests in any agreement to which such Grantor is a party
or any of its rights or interests thereunder to the extent but only to the
extent that such a grant would result in a breach of the terms of, or
constitute a default under, any such agreement, and the other party to such
agreement has not consented to the granting of such security interest in such
agreement (other than to the extent that any such term would be rendered
ineffective pursuant to Section 9-318(4) of the Uniform Commercial Code of any
relevant jurisdiction or any other applicable law (including the Bankruptcy
Code) or principles of equity); and provided further, that immediately upon the
ineffectiveness, lapse or termination of any such provision, the Collateral
shall include and such Grantor shall be deemed to have granted a security
interest in, all such rights or interests in the applicable Collateral as if
such provision had never been in effect.
"PROPERTY" means each of the hotel properties and the Land on which they are
located listed on Schedules 5.4A1, 5.4A2 and 5.4A3 to the Credit Agreement (and
all Improvements thereon).
X-X-0
00
XXXXXXXX X-0
ASSIGNED AGREEMENTS
[See Attached]
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APPENDIX C
[FORM OF COUNTERPART AND ACKNOWLEDGMENT
TO SECURITY AGREEMENT]
This COUNTERPART AND ACKNOWLEDGMENT TO SECURITY AGREEMENT (this
"COUNTERPART") is dated as of __________, _____ and is made with reference to
that certain Pledge and Security Agreement dated as of __________, 1996 (as
previously amended, restated, supplemented or modified and as it may hereafter
be amended, restated, supplemented or otherwise modified from time to time, the
"SECURITY AGREEMENT"; capitalized terms used herein without definition shall
have the same meanings herein as set forth in the Security Agreement) among
Wyndham Hotel Corporation (the "COMPANY") and the Subsidiaries of the Company
that have become parties thereto, (each an "EXISTING GRANTOR" and
collectively, the "EXISTING GRANTORS") as grantors in favor of Bankers Trust
Company, as Agent for the Lenders (in such capacity, the "SECURED PARTY").
By execution of this Counterpart, __________, a __________ ("NEW
SUBSIDIARY"), agrees to become a party to the Security Agreement as a Grantor
for all purposes thereunder and under the other Loan Documents and to be
jointly and severally liable for all obligations to the full extent set forth
therein. Without limiting the foregoing, as security for its respective
Secured Obligations, New Subsidiary hereby pledges to the Secured Party for the
benefit of the Lenders, and hereby grants to the Secured Party for the benefit
of the Lenders, a first priority security interest in all of such New
Subsidiary's right, title and interest in and to the Collateral whether now
owned or hereafter existing or in which New Subsidiary now has or hereafter
acquires an interest and wherever the same shall be located and all proceeds
thereof.
Annexed hereto are supplements to the Schedules for the Security
Agreement (which Schedules shall hereafter include such supplements), setting
forth in each instance the information necessary to make such Schedules true,
correct and complete and not misleading as a result of the addition of New
Subsidiary as a Grantor thereunder.
New Subsidiary hereby represents and warrants to the Secured Party
that the representations and warranties applicable to New Subsidiary under the
Security Agreement, as supplemented by the Schedule supplements annexed hereto,
are true and correct in all material respects to the same extent as though made
on and as of the date hereof, and as of the Counterpart Effective Date (as
defined below), except to the extent such representations and warranties
specifically relate to an earlier date, in which case they are true and correct
in all material respects as of such earlier date.
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THIS COUNTERPART SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND
ENFORCED IN ACCORDANCE WITH, THE INTERNAL LAWS OF THE STATE OF NEW YORK,
WITHOUT REGARD TO CONFLICTS OF LAWS PRINCIPLES.
This Counterpart shall become effective (such date being the
"COUNTERPART EFFECTIVE DATE") upon execution hereof by New Subsidiary and
receipt by the Secured Party of written or telephone notification of such
execution and authorization of delivery thereof.
IN WITNESS WHEREOF, New Subsidiary has caused this Counterpart to
be duly executed and delivered by its officer thereunto duly authorized as of
the date first written above.
[NEW SUBSIDIARY]
By: ----------------------
Name:
Title:
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