EX-4.1
THE SUMITOMO BANK, LIMITED
NEW YORK BRANCH
000 XXXX XXXXXX
XXX XXXX, X.X. 00000
-------
(212) 224-4000
May 28, 1997
Xx. Xxxxxxxxx X. Xxxxx,
Director of Finance
Embassy Suites, Inc.
(Xxxxxx'x Entertainment, Inc.)
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000-0000
Telephone: 000-000-0000
Telefax: 000-000-0000
Re: Termination Agreement dated as of May 28, 1997 between The Sumitomo Bank,
Limited, acting through its New York Branch (`SBL-NY') and Xxxxxx'x Operating
Company, Inc., formerly known as Embassy Suites, Inc.("Xxxxxx'x") (SBL-NY Ref.
No 100513)
Dear Xx. Xxxxx:
This letter agreement confirms the termination of the Swap Transaction between
SBL-NY and Xxxxxx'x having a Trade Date of October 22, 1992 with a Notional
Amount of USD 50,000,000.00 and an original Termination Date of October 15, 1997
(the "Original Swap"). A copy of the Confirmation evidencing the Original Swap
is annexed hereto as Exhibit A. This letter agreement constitutes a Confirmation
under the Interest Rate and Currency Exchange Agreement dated as of October 22,
1992 between The Sumitomo Bank, Limited, New York Branch and Embassy Suites,
Inc. (the "Agreement"), and it supplements, forms a part of, and is subject to
such Agreement. Capitalized terms used herein and not otherwise defined herein
shall have their respective meanings as set forth in the Agreement.
1. Termination of Original Swap. The Original Swap and the rights and
obligations of SBL-NY and Xxxxxx'x in respect thereof arising after May
28, 1997 (the "Effective Termination Date") are terminated. The
Agreement and all other Swap Transactions between SBL-NY and Xxxxxx'x
shall remain in full force and effect, except as set forth therein.
-56-
2. Payments. In consideration of the parties agreement to terminate the
Original Swap, SBL-NY shall pay USD 7,060.56 to Xxxxxx'x on May 29,
1997 in immediately available funds as follows:
Payments to Xxxxxx'x of USD amounts:
Depository: First Tennessee Bank
Address: Memphis, TN ABA 000000000
In Favor Of: Embassy Suites, Inc.
Account No. 841900
3. Representations and Warranties. Each party, with respect to itself,
represents and warrants to the other party that: (i) it has the
authority to enter into and perform this Termination Agreement; (ii)
it has performed all actions and obtained all consents necessary to be
performed and obtained by it in respect hereof; (iii) the officer who
signed this Termination Agreement is a duly elected or appointed
officer of the party, authorized to act on behalf of such party in
respect hereof; (iv) it has not transferred or assigned (outright or
as collateral security) any or all of its interests or obligations in
respect of the Original Swap; and (v) no Event of Default or Potential
Event of Default with respect to it or any of its Specified Entities
has occurred and is continuing as of the date hereof or will have
occurred and be continuing as of the Effective Termination Date.
4. Governing Law. This Termination Agreement is governed by and shall be
construed in accordance with the laws of the State of New York without
reference to choice of law doctrine.
5. Counterparts. This Termination Agreement may be executed in
counterparts, each of which shall be deemed to be an original, and
signatures evidenced by facsimile transmission shall be deemed
effective as an original.
6. Complete Agreement. This Termination Agreement constitutes the entire
agreement and understanding of the parties in respect of the
termination of the Original Swap as of the Effective Date.
-57-
Please acknowledge receipt of this Termination Agreement and your acceptance of
the terms, stated herein by returning (i) a signed, facsimile copy hereof to
SBL-NY at facsimile number (000) 000-0000, and (ii) one originally executed copy
of the Termination Agreement which is being sent to you in duplicate via regular
mail.
Very truly yours,
The Sumitomo Bank, Limited,
New York Branch
By: /s/Xxxxxx X. Tata
---------------------
Name: Xxxxxx X. Tata
Title: Senior Vice President
ACCEPTED AND CONFIRMED:
Xxxxxx'x Operating Company, Inc.
By: /s/Xxxxxxx X. Xxxxxx
-----------------------
Name:
Title:
-58-
EXHIBIT A
CONFIRMATION
Date: October 22, 1992
To: Embassy Suites, Inc.
Xxxxx Xxxxxxxx
0000 Xxxxxx Xxxx
Xxxxxxx, XX 00000
From: Mr. Tokuhiko Ieki
The Sumitomo Bank, Limited,
New York Branch
Xxx Xxxxx Xxxxx Xxxxxx
Xxxxx 0000
Xxx Xxxx, XX 00000
Telephone: 000-000-0000
Telefax: 000-000-0000
Re: USD 50,000,000.00 Swap Transaction, dated as of October 22, 1992
between The Sumitomo Bank, Limited, acting through its New York
Branch ("Party A") and Embassy Suites, Inc. ("Party B").
Sumitomo Bank, Limited, New York Branch Reference Number: 100513
The purpose of this letter agreement is to set forth the terms and conditions of
the Swap Transaction entered into between The Sumitomo Bank, Limited, New York
Branch and Embassy Suites, Inc. on the Trade Date specified below (the "Swap
Transaction"). This letter agreement constitutes a "Confirmation" as referred to
in the Interest Rate and Currency Exchange Agreement specified below. This
document supersedes all previous confirmations and amendments with respect to
the above referenced transaction.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swap Dealers Association, Inc.), without regard
to any revision or subsequent edition thereof, are incorporated into this
Confirmation. In the event of any inconsistency between those definitions and
provisions and this Confirmation, this Confirmation will govern.
1. ISDA AGREEMENT:
This Confirmation supplements, forms a part of, and is subject to, the Interest
Rate and Currency Exchange Agreement dated as of October 22, 1992 and the
accompanying schedule dated as of October 22, 1992 (the "Agreement"), between
The Sumitomo Bank, Limited, New York Branch and Embassy Suites, Inc.. All
provisions contained in the Agreement shall govern this Confirmation except as
expressly modified below.
-59-
2. TERMS OF SWAP TRANSACTION:
The terms of the particular Swap Transaction to which this Confirmation relates
are as follows:
Notional Amount: USD 50,000,000.00
Trade Date: October 22, 1992
Effective Date: October 26, 1992
Termination Date: October 15, 1997
FIXED AMOUNTS: (PARTY A)
Fixed Rate Payer: Sumitomo Bank, Limited,
New York Branch
Fixed Rate Payer Payment Dates: April 15, October 15, in
each year from and including
April 15, 1993 to and
including October 15, 1997;
subject to adjustment in
accordance with the
Modified Following Business
Day Convention with No
Adjustment for Period End
Dates
Fixed Rate: 6.13% (percent) per annum
Fixed Rate Day Count Fraction: 30/360
FLOATING AMOUNTS: (PARTY B)
Floating Rate Payer: Embassy Suites, Inc.
Floating Rate Payer Payment Dates: April 15, October 15, in each
year from and including April
15, 1993 to and including
October 15, 1997; subject to
adjustment in accordance with
the Modified Following
Business Day Convention
Floating Rate for Initial 3.5625% (percent) per annum
Calculation Period:
-60-
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 6 Months
Spread: Inapplicable
Floating Rate Day Count Fraction: Actual/360
Reset Dates: First day of each Calculation
Period
Compounding: Inapplicable
Business Days For Payments By New York and London
Both Parties:
3. CREDIT SUPPORT DOCUMENTS Inapplicable
4. PAYMENT INSTRUCTIONS:
Payments to Sumitomo Bank, Limited, New York Branch of USD amounts:
Depository: Xxxxxx Guaranty Trust Co.
of New York Branch
Address: New York, NY
In Favor Of: Sumitomo Bank, Limited
New York
Account No.: 000-00-000
Payments to Embassy Suites Inc. of USD amounts:
Depository: First Tennessee Bank
Address: Memphis, TN ABA 000000000
In Favor Of: Embassy Suites, Inc.
Account No.: 841900
Attention: Xxxx Xxxxxxxx
Please confirm that the foregoing correctly sets forth the terms of the
agreement between you and us by executing this Confirmation and returning it to
the documentation contact above.
Yours Sincerely,
Sumitomo Bank, Limited, New York Branch
By: /s/Xxxx Xxxxxx
------------------------
-61-
Confirmed as of the date first written above:
Embassy Suites, Inc.
By: /s/Xxxxxxx X. XxXxxxxxx
-------------------------
Xxxxxxx X. XxXxxxxxx
Vice President and Treasurer
-62-
