1
Exhibit 26.1
FIFTH AMENDMENT TO AND WAIVER OF
REVOLVING CREDIT AGREEMENT
This Fifth Amendment to and Waiver of Revolving Credit Agreement ("this
Amendment") is made as of the 15th day of February, 2000 by and among
Bridgestreet Accommodations, Inc. f/k/a Bridgestreet International, Inc.
("Borrower"), a Delaware corporation having its principal place of business at
0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, XX 00000; Bridgestreet Canada, Inc., a
wholly-owned subsidiary of Borrower and an Ontario corporation having its
principal place of business at 0000 Xxxxx Xxxxxx, #000, Xxxxxxx, Xxxxxx X0X 0X0
("Bridgestreet Canada"); Fleet National Bank, a national banking association
("Fleet"); Bank One, N.A., a national banking association ("Bank One"); Bank
One, Canada, a chartered bank incorporated under the laws of Canada ("Bank One
Canada"); and Fleet National Bank, as agent for itself, Bank One and Bank One
Canada (the "Agent").
RECITALS
--------
WHEREAS, the Borrower, Fleet, Bank One, Bank One Canada and Agent have
previously entered into that certain Revolving Credit Agreement, dated as of
March 31, 1997, as amended (the "Credit Agreement");
WHEREAS, the parties hereto now desire to amend the Credit Agreement in
certain respects as provided herein and desire to waive the effect of breaches
of certain provisions of the Credit Agreement.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable consideration, the receipt of which is hereby acknowledged, the parties
hereto hereby as follows:
Section 1. DEFINITIONS. All capitalized terms used herein without
definition shall have their respective meanings provided therefor in the Credit
Agreement.
Section 2. AMENDMENT AND WAIVER OF SPECIFIC PROVISIONS.
(i) The following provisions of the Credit Agreement are hereby amended
as follows:
(a) The definition of the term "Security Documents" appearing in
Section 1.1 of the Credit Agreement is hereby amended to read in its entirety as
follows:
-1-
2
"SECURITY DOCUMENTS The Stock Pledge Agreement, the Guaranty and all
Instruments of Adherence to the Guaranty delivered after the Closing Date
pursuant to Section 7.13 hereof, and a Security Agreement covering the accounts
receivable and other rights to payment of the Borrower, and related financing
statements prepared for filing under the Uniform Commercial Code and the
Personal Property Security Act of the Province of Ontario."
(b) Subsection (b) of Section 7.4 of the Credit Agreement is hereby
amended by adding the following proviso at the end thereof:
"provided, however, that the unaudited consolidated balance sheet of
the Borrower and its Subsidiaries and the unaudited consolidating
balance sheet of the Borrower and its Subsidiaries for the first
quarter of their 2000 fiscal years, each as at the end of such quarter,
and the related consolidated statement of income and statement of cash
flow and consolidating statement of income and statement of cash flow,
each for the portion of the Borrower's fiscal year then elapsed, shall
be provided to the Agent on or before April 20, 2000."
(c) The following subsection (f) is hereby added to Section 7.4 of the
Credit Agreement, and existing subsection (f) is hereby designated subsection
(g):
"(f) weekly, within three Business Days of the end of the prior week, a
statement of cash position as of the end of such week and a cash
flow forecast for the next succeeding eight-week period."
(c) The following subsection (j) is hereby added to Section 8.1 of the
Credit Agreement:
"(j) Indebtedness to Bank One, N.A. pursuant to a short-term line of
credit in a maximum principal amount outstanding at any one time not to
exceed $2,000,000."
(d) The following subsection (x) is hereby added to 8.2 of the Credit
Agreement:
"(x) a security interest in the accounts receivable of the Borrower to
secure indebtedness permitted by Section 8.1(j), and a security
interest in the accounts receivable of Bridgestreet Canada to secure
Revolving Credit Loans made pursuant to the Canadian Sublimit."
(e) The following subsection (t) is hereby added to Section 12.1 of the
Credit Agreement following subsection (s):
-2-
3
"(a) the Borrower shall fail to pay any principal owed to Bank One,
N.A. when the same shall become due and payable, whether at the stated
date of maturity or any accelerated date of maturity or at any other
date fixed for payment, or shall fail to pay any interest or fee due to
Bank One, N.A. when the same shall become due and payable, and such
failure shall continue for a period of three (3) Business Days."
(ii) The following provisions of the Credit Agreement are hereby waived
for the periods and subject to the limitations indicated below:
(a). The Consolidated EBITDA of the Borrower and its subsidiaries for
the fiscal quarter ending September 30, 1999 was, and the Borrower's estimate of
Consolidated EBITDA for the fiscal quarter ending December 31, 1999 will be,
$6,396,146 and $4,281,125, respectively, or $70,248 and $849,542 less than that
required by Section 9.4 of the Credit Agreement. The Banks hereby agree to waive
the effect of such breaches of Section 9.4 of the Credit Agreement for such
fiscal quarters.
(b) The Borrower has incurred indebtedness to Bank One, N.A. arising
out of overdrafts on its demand deposit account with such Bank in violation of
Section 8.1 of the Credit Agreement. The Banks hereby agree to waive the effect
of such breach of Section 8.1 of the Credit Agreement for all such overdrafts
outstanding as of the date hereof.
(C) The provisions of Sections 9.2, 9.3, 9.4 and 9.5 of the Credit
Agreement are hereby waived for the fiscal quarter ending December 31, 1999, and
the provisions of Section 9.5 of the Credit Agreement are hereby waived for the
months of January and February, 2000.
(d) The Borrower will, simultaneously herewith, incur indebtedness to
Bank One, N.A. pursuant to a Line of Credit Loan Agreement providing for a
$2,000,000 short-term line of credit, such line of credit to be secured by a
security interest in Borrower's accounts receivable. The Banks hereby agree to
waive the effect of any breach of any provision of the Loan Documents arising
out of the execution and delivery by Bridgestreet of such documents and all
other documents and instruments relating to such short-term line of credit, and
the performance by the Borrower and Bridgestreet Canada in accordance with the
terms and provisions thereof.
(e) The requirements of Section 12.1(p) and (q) are hereby waived with
respect to a sale of capital stock of the Borrower, or a change of beneficial
ownership of the Borrower, in either case pursuant to an agreement providing for
the payment in full
-3-
4
of all Revolving Credit Loans by the acquiror of capital stock of the Borrower,
subject to the payment in full of all Revolving Credit Loans, all interest
thereon and fees incurred in connection therewith, and all costs of collection
relating thereto at the time of the completion pursuant to the terms of such
agreement of any such acquisition or change of beneficial ownership.
SECTION 3. The Borrower hereby agrees that any Revolving Credit Loans
in excess of amounts currently outstanding may be borrowed only with the prior
written consent of the Majority Banks.
SECTION 4. DELIVERY OF ADDITIONAL COLLATERAL. The Borrower and
Bridgestreet Canada have delivered to the Agent herewith a Security Agreement
covering the accounts and other rights to payment of the Borrower and
Bridgestreet Canada, as well as financing statements and notice filings prepared
for filing in the state of Ohio and the recorder of Summit County, Ohio and the
personal property security register of the Province of Ontario. The Borrower and
Bridgestreet Canada hereby confirm that such Security Agreement, financing
statements and notice filings constitute "Security Documents" as defined in the
Credit Agreement, and represent and warrant to the Agent that the filing of such
financing statements in such offices constitutes all acts necessary in order to
perfect the security interests granted by such Security Agreement.
SECTION 5. LOAN DOCUMENTS RATIFIED AND CONFIRMED. The Credit Agreement,
the Notes and each of the other Loan Documents, as specifically supplemented or
amended by this Amendment and the other documents executed in connection
herewith, are and shall continue to be in full force and effect and are hereby
in all respects ratified and confirmed. Without limiting the generality of the
foregoing, the Security Documents and all of the collateral described therein
do, and shall continue to, secure the payment of all obligations of the Borrower
and Bridgestreet Canada under the Loan Documents, in each case as amended or
supplemented pursuant to this Amendment.
SECTION 6. REPRESENTATIONS AND WARRANTIES. (i) The Borrower hereby
makes the following representations and warranties to the Banks and the Agent in
connection herewith.
(a) REPRESENTATIONS IN LOAN DOCUMENTS. Each of the representations and
warranties made by or on behalf of the Borrower in any of the Loan Documents, as
amended by and through this Amendment, was true and correct when made and is
true and correct on and as of the date hereof (except for representations and
warranties limited as to time or with respect to a specific event, which
representations and warranties shall continue to be limited as to such time or
event), with the same full force
-4-
5
and effect as if each of such representations and warranties had been made by
such Borrower on the date hereof and in this Amendment.
(b) EVENTS OF DEFAULT. Except as previously disclosed to the Agent, no
Event of Default exists on the date hereof (after giving effect to all of the
arrangements and transactions contemplated by this Amendment), and no condition
exists on the date hereof which would, with notice or the lapse of time, or
both, constitute an Event of Default.
(c) BINDING EFFECT OF DOCUMENTS. This Amendment has been duly executed
and delivered by the Borrower and Bridgestreet Canada and is in full force and
effect as of the date hereof, and the agreements and obligations of the Borrower
and Bridgestreet Canada contained herein constitute legal, valid and binding
obligations of the Borrower and Bridgestreet Canada, enforceable against the
Borrower and Bridgestreet Canada in accordance with their respective terms.
SECTION 7. CONDITIONS AND EFFECTIVE DATE. The agreement of the Banks
and the Agent to amend the Credit Agreement and to waive the effect of Events of
Default referred to herein is subject to the satisfaction of the following terms
and conditions:
(a) Upon execution of this Amendment the Borrower shall pay to Fleet a
waiver fee in the amount of US $50,000.
(b) The Security Agreement and financing statements referred to in
Section 4 shall have been executed and delivered to the Agent, and such
financing statements shall have been recorded in the filing offices referred to
in such Section 4, with no financing statements filed prior thereto appearing in
the records of such filing offices.
(c) The Borrower shall have delivered to the Agent copies of
resolutions adopted by the Board of Directors of the Borrower authorizing the
execution and delivery of the aforementioned Security Agreement and financing
statements to the Agent.
(d) In addition to the waiver fee referred to above, Borrower agrees to
pay on demand all reasonable costs and expenses of the Agent, Fleet, Bank One
and Bank One Canada, including without limitation all reasonable fees and
expenses of counsel, in connection with the preparation, execution and delivery
of this Amendment and the other documents and instruments to be delivered
herewith.
-5-
6
SECTION 8. MISCELLANEOUS.
(a) NO OTHER CHANGES. Except as otherwise expressly provided by this
Amendment, all of the terms, conditions and provisions of the Credit Agreement,
the Revolving Credit Notes and each of the other Loan Documents and Security
Documents remain unaltered, valid, binding and in full force and effect in the
form existing immediately prior to the execution and delivery of this
Amendment. Except as otherwise expressly provided by this Amendment, nothing
herein is intended or shall be construed so as to: (i) limit, discharge,
release, diminish or otherwise modify any indebtedness, obligations, liabilities
or duties of Borrower, or (ii) terminate, release, waive, or otherwise modify
any mortgage, security interest, right, power or remedy of the Agent, Fleet,
Bank One or Bank One Canada. This Amendment constitutes an instrument
supplemental to the Credit Agreement and the other Loan Documents, which is to
be construed together with and as part of the Loan Documents.
(b) GOVERNING LAW. This Amendment is intended to take effect as a
sealed instrument and shall be deemed to be a contract under the laws of the
Commonwealth of Massachusetts. This Amendment and the rights and obligations of
each of the parties hereto shall be governed by and interpreted and determined
in accordance with the laws of the Commonwealth of Massachusetts.
(c) BINDING EFFECT; ASSIGNMENT. This Amendment shall be binding upon
and inure to the benefit of each of the parties hereto and their respective
successors and assigns.
(d) COUNTERPARTS. This Amendment may be executed in any number of
counterparts, but all such counterparts shall together constitute one agreement.
It shall not be necessary to produce or account for more than one counterpart
thereof signed by each of the parties hereto in making proof of this Amendment.
Executed facsimile signature pages of this Amendment shall be acceptable to each
of the parties.
(e) CONFLICT WITH OTHER AGREEMENTS. If any of the terms of this
Amendment shall conflict in any respect with any of the terms of any of the Loan
Documents, the terms of this Amendment shall be controlling.
IN WITNESS WHEREOF, the parties hereto have caused this Amendment to be
duly executed as an instrument under seal as of the date first above written.
BRIDGESTREET CANADA, INC. BRIDGESTREET ACCOMMODATIONS, INC.
-6-
7
By /s/ Xxxx Xxxxxxxxx By /s/ Xxxx Xxxxxxxxx
--------------------------------- ---------------------------------
Title: Pres. Title: Pres.
----------------------------- -----------------------------
BANK ONE CANADA BANK ONE, N.A.
By /s/ By /s/ Xxxxxxx X. France
--------------------------------- ---------------------------------
Title: Title: First Vice President
----------------------------- -----------------------------
FLEET NATIONAL BANK FLEET NATIONAL BANK, as AGENT
By /s/ Xxxxx Xxxxxxx By /s/ Xxxxx Xxxxxxx
--------------------------------- ---------------------------------
Title: Vice President Title: Vice President
----------------------------- -----------------------------
-7-
8
SECURITY AGREEMENT
(Accounts Receivable and Other Rights to Payment)
February 15, 2000
Bridgestreet Accommodations, Inc., a Delaware corporation with a
principal place of business at 0000 Xxxxxxxx Xxxxxxx, Xxxxxxxxx, Xxxx 00000
("Bridgestreet") and Bridgestreet Canada, Inc., an Ontario corporation having
its principal place of business at 0000 Xxxxx Xxxxxx, #000, Xxxxxxx, Xxxxxx X0X
0X0 ("Bridgestreet Canada" and together with Bridgestreet, the "Borrowers"),
hereby pledge, assign and transfer to Fleet National Bank, as agent
(hereinafter called the "Agent"), and hereby grant to Agent a security interest
in and to the following property whether now owned or existing or hereafter
acquired or arising:
i. all of Borrowers' Accounts Receivable;
ii. all of Borrowers' chattel paper, including all additions and
substitutions thereto or therefor;
iii. all of Borrowers' general intangibles;
iv. all other rights of Borrowers to the payment of money, including
without limitation amounts due from affiliates, tax refunds,
insurance proceeds, amounts due under factoring agreements, and all
rights to receive deposits and advance payments;
v. all of Borrowers' documents and instruments, whether negotiable or
non--negotiable;
vi. all lists, files, records (including, without limitation, computer
programs, tapes and related electronic data processing software)
and writings of Borrowers or in which Borrowers have an interest in
any way relating to the foregoing property and all rights of
Borrowers of retrieval from third parties of electronically
processed and recorded information pertaining to any of such
property; and
vii. all guaranties and security for, and all proceeds of, any of the
foregoing.
The property described above shall hereafter be collectively referred
to as the "Collateral."
A security interest in the Collateral of Bridgestreet is granted to
Agent as security
9
for the payment and performance of any and all liabilities and obligations
(direct and indirect, absolute or contingent, sole, joint or several, secured or
unsecured, now existing or hereafter arising) of Bridgestreet to Fleet National
Bank or Bank One, N.A., a national banking association ("Bank One"), including
without limitation the obligations of Bridgestreet to Fleet and Bank One
pursuant to a Revolving Credit Agreement dated as of March 31, 1997, as amended
(the "Credit Agreement") and the obligations of the Bridgestreet to Bank One
pursuant to a $2,000,000 short-term line of credit. A security interest in the
Collateral of Bridgestreet Canada is granted to Agent as security for the
payment and performance of any and all liabilities and obligations (direct and
indirect, absolute or contingent, sole, joint or several, secured or unsecured,
now existing or hereafter arising) of Bridgestreet Canada to Bank One, Canada, a
chartered bank incorporated under the laws of Canada (collectively, with Fleet
National Bank and Bank One, the "Banks"), including without limitation the
obligations of Bridgestreet Canada to Bank One, Canada pursuant to the Canadian
Sublimit referred to in the Credit Agreement, and the Promissory Note Agreement
dated April 29, 1999 evidencing the same. The liabilities and obligations so
secured are hereafter referred to as the "Obligations."
Borrowers further agree with Agent as follows:
1. DEFINITIONS. As used in this Agreement the following terms shall
have the following respective meanings:
(a) ACCOUNTS RECEIVABLE. The terms "Account" and "Account Receivable"
shall mean any right to payment for goods sold or lodging or other services
rendered whether or not earned by performance and whether defined in the
applicable Uniform Commercial Code as an "account" or a "contract right" and
also shall include all notes, drafts, acceptances and other instruments
evidencing any such rights.
(b) DEFAULT. Shall mean an event specified in Section 7.
2. ACCOUNTS RECEIVABLE.
(a) Each Account Receivable in which Agent is granted a security
interest hereunder will at all times be a valid Account Receivable representing
an existing, undisputed indebtedness incurred by the named account debtor for
goods theretofore delivered or shipped to, or for services theretofore performed
for such account debtor. Except as specifically brought to the attention of
Agent in writing, there will be no off-sets or counterclaims of any nature
against, nor any agreement under which any allowance, adjustment or discount may
be claimed in respect of, any such Account Receivable. Borrowers shall at all
times be the lawful owners of each such Account Receivable free and clear of all
liens, encumbrances and security interests other than the security interest
-2-
10
hereby granted to Agent.
(b) The offices where Borrowers keeps their records concerning the
Accounts Receivable and their chief executive offices are located at the
addresses shown at the beginning of this Agreement. Borrowers will give Agent
prior written notice the chief executive office of either of them will be
located at another address. Borrowers will not remove such records to another
location without the prior written consent of Agent. The locations at which the
Borrowers do business other than their chief executive offices are listed in
Exhibit A.
(c) Borrowers agree to give separate assignments with respect to each
Account Receivable when requested by Agent.
3. AUTHORITY OF BORROWERS. So long as no Default as defined in Section
7 shall have occurred and be continuing, the Borrowers shall be authorized to
collect all of their Accounts Receivable. At any time after a Default hereunder,
Agent at its option may require the Borrowers to comply with the following
requirements:
i. COLLECTIONS FORWARDED TO AGENT. Upon receipt of Agent's
notification of its election as provided above, Borrowers will hold all
collections of Accounts Receivable and other proceeds of Collateral in trust for
Agent without commingling the same with other funds of Borrowers and will
promptly, on the day of receipt thereof, transmit such collections to Agent in
the identical form in which they were received by Borrowers, with such
endorsements as may be appropriate, accompanied by a report, in form approved by
Agent, showing the amount of such collections and the cash discounts applicable
thereto. At such intervals as Agent may request, such reports shall also set
forth the amount of all merchandise returns, allowances, adjustments, discounts
and other credits not previously reported to Agent and the amount owing on
Accounts Receivable which Borrowers deem should be charged-off.
ii. COLLECTIONS CREDITED TO OBLIGATIONS. All collections in
the form of cash, checks or other demand remittances so transmitted to Agent
shall, upon receipt by Agent, be credited to the Obligations of the Borrower for
whose account the payment giving rise thereto was made. Each such credit shall
be conditional upon final payment to Agent at its office of all items giving
rise to such credit, and if any item is not so paid, the credit for such item
shall be reversed whether or not the item has been returned. All collections in
the form of notes, drafts, acceptances or other instruments not payable on
demand shall be delivered by Borrowers to the collection department of Agent.
When such items are collected, the amount thereof shall be credited by Agent to
the Obligations, with appropriate advice to Borrowers. Until such items are
collected, Borrowers will not, without the consent of Agent, make any entry on
their books or records indicating that the same were received in payment of the
Account Receivable
-3-
11
giving rise thereto.
4. ADDITIONAL REPORTS. Borrowers shall from time to time deliver to
Agent such reports as to Collateral as Agent shall reasonably request and in
form reasonably required by Agent, including without limitation a monthly
Accounts Receivable Aging Report within 10 days of the end of each month or more
frequently if requested by the Agent. A copy of each such report shall also be
provided to Bank One at 00 Xxxxx Xxxx Xxxxxx, Xxxxx, Xxxx 00000 Attn: Xxxxxxx
Xxxxxx.
5. MISCELLANEOUS AGREEMENTS.
(a) Borrowers will at all reasonable times and from time to time and,
so long as no Default has occurred and is continuing, upon reasonable advance
notice, allow Agent, by or through any of its officers, agents, employees,
attorneys or accountants, to examine and inspect and make extracts from
Borrowers' books and other records, and to arrange for verification of accounts,
under reasonable procedures, directly with account debtors or by other methods.
(b) Borrowers will join with Agent in appropriate financing statements
under the Uniform Commercial Code and the Personal Property Security Act and
will at all times and from time to time, at the request of Agent, do, make,
execute and deliver all such additional and further acts, things, deeds,
assurances and instruments as Agent may require, more completely to vest in and
assure to Agent its rights hereunder in or to the Collateral. Agent may file, as
a financing statement or other notice filing, a photocopy or other reproduction
of a financing statement or of this Agreement.
(c) Borrowers will not create, grant or suffer to exist any security
interest, lien or encumbrance upon or in respect of any of the Collateral except
in favor of Agent.
(d) Agent shall be under no obligation to take steps necessary to
preserve rights in any Collateral against prior parties but may do so at its
option. At any time after the occurrence and during the continuance of a
Default, Agent may notify the account debtors on any Accounts Receivable or the
obligor on any other Collateral of Agent's security interest therein and
instruct such account debtors and obligors to make all future payments thereon
to Agent. At its option Agent may discharge any taxes, liens, security interests
or other encumbrances to which any Collateral is at any time subject, and may,
upon the failure of Borrowers so to do, purchase insurance on any Collateral and
pay for the repair, maintenance or preservation thereof, and Borrowers agree to
reimburse Agent promptly after receipt of a statement in reasonable detail as to
the amount and purpose thereof for any payments made or expenses reasonably
incurred by Agent pursuant to the foregoing authorization. At any time after and
during the continuance of a Default, Agent may take control of any proceeds of
Collateral to which
-4-
12
Agent is entitled hereunder or under applicable law.
(e) Borrowers will not change their names, identity or form of business
organization without giving Agent prior written notice thereof and in connection
with any such change, execute and deliver, or cause to be executed and
delivered, to Agent all such additional security agreements, financing
statements and other documents as Agent shall reasonably require.
(f) Borrowers will pay all costs and expenses (including reasonable
fees and expenses of Agent's special counsel) in connection with the
preparation, execution and delivery' of this Agreement and related documents.
6. AGENT AS BORROWERS' ATTORNEY. With respect to any Account Receivable
included in the Collateral, Borrowers hereby irrevocably appoint Agent the true
and lawful attorney for Borrowers with full power of substitution, in the name
of Agent or in the name of Borrowers or otherwise, for the sole benefit of Agent
but at the sole expense of Borrowers, at any time after the occurrence and
during the continuance of a Default hereunder: (a) to demand, collect, receive
payment of, receipt for, settle, compromise or adjust, and give discharges and
releases in respect of the Accounts Receivable or any of them; (b) to commence
and prosecute any suits, actions or proceedings at law or in equity in any court
of competent jurisdiction to collect the Accounts Receivable or any of them and
to enforce any other rights in respect thereof or in respect of the goods which
have given rise thereto; (c) to defend any suit, action, or proceeding brought
against Borrowers in respect of any Account Receivable or the goods or services
which have given rise thereto; (d) to settle, compromise or adjust any suit,
action or proceeding described in clause (b) or (c) above and, in connection
therewith, to give such discharges or releases as to Agent may seem appropriate;
(e) to endorse checks, notes, drafts, acceptances, money orders, bills of
lading, warehouse receipts or other instruments or documents evidencing or
securing the Accounts Receivable or any of them; (f) to receive, open and
dispose of all mail addressed to Borrowers and to notify the post office
authorities to change the address of delivery of mail addressed to Borrowers to
such address, care of Agent, as Agent may designate; and (g) generally to sell,
assign, transfer, pledge, make any agreement in respect of or otherwise deal
with any Account Receivable or the goods or services which have given rise
thereto as fully and completely as though Agent were the absolute owner thereof
for all purposes. The powers conferred on Agent by this Agreement are solely to
protect the interest of Agent and the Banks and shall not impose any duty upon
Agent to exercise any such power, and if Agent shall exercise any such power, it
shall be accountable only for amounts that it actually receives as a result
thereof and shall not be responsible to Borrowers except for willful misconduct.
7. DEFAULTS. Any or all Obligations shall, at the option of Agent and
notwithstanding any time allowed by any instrument evidencing a liability,
become
-5-
13
immediately due and payable, without notice or demand, upon the occurence of
any of the following events (each, a "Default"):
(a) default in the payment of any of the Obligations continuing beyond
any applicable grace period, or the occurrence of an Event of Default under the
Credit Agreement; or
(b) default in the performance of any covenant or agreement contained
in this Agreement or any agreement between Bank One and Bridgestreet or any
agreement between Bank One, Canada and Bridgestreet Canada; or
(c) the assertion of any claim to priority over the security interest
of the Agent with respect to any material portion of the Collateral.
8. RIGHTS AND REMEDIES ON DEFAULT. Upon the occurrence of any such
Default, and at any time thereafter, Agent shall have the rights and remedies of
a secured party under the Uniform Commercial Code and the Personal Property
Security Act in addition to the rights and remedies provided herein or in any
other instrument or paper executed by Borrowers. Whenever notification with
respect to the sale or other disposition of Collateral is required by law, such
notification of the time and place of public sale, or of the date after which a
private sale or other intended disposition is to be made, shall be deemed
reasonable if given at least seven days before the time of such public sale, or
the date after which any such private sale or other intended disposition is to
be made, as the case may be. Borrowers agree to pay on demand all costs and
expenses (including reasonable attorneys' fees) reasonably incurred or paid by
Agent in enforcing the Obligations on default. After deducting all costs and
expenses of collection, storage, custody, sale or other disposition and delivery
(including legal costs and reasonable attorneys' fees) and all other charges
against the Collateral, the residue of the proceeds of any such sale or other
disposition shall be applied to the payment of the Obligations, in such order of
preference as Agent may determine, and, unless otherwise provided by law, any
surplus shall be returned to Borrower whose Collateral resulted in such surplus.
9. GENERAL. Any condition or restriction imposed herein with respect to
Borrowers may be waived, modified or suspended by Agent but only on Agent's
prior action in writing and only as so expressed in such writing and not
otherwise. Agent shall not be deemed to have waived any of its other rights
hereunder or under any other agreement, instrument or paper signed by Borrowers
unless such waiver be in writing and signed by Agent. No delay or omission on
the part of Agent in exercising any right shall operate as a waiver of such
right or any other right. A waiver on any one occasion shall not be construed as
a bar to, or waiver of, any right or remedy on any future occasion. All Agent's
rights and remedies, whether evidenced hereby or by any other agreement,
instrument or paper, shall be cumulative and may be exercised separately or
-6-
14
concurrently. Any demand upon, or notice to, Borrowers that Agent may elect to
give shall be effective if given in the manner provided for in Section 19 of the
Credit Agreement. Demands or notices addressed to any other address at which
Agent customarily communicates with Borrowers shall also be effective. This
Agreement and all rights and obligations hereunder, including matters of
construction, validity and performance, shall be governed by the law of
Massachusetts.
This Agreement is executed as an instrument under seal.
BRIDGESTREET CANADA, INC. BRIDGESTREET ACCOMMODATIONS, INC.
By /s/ Xxxx Xxxxxxxxx By /s/ Xxxx Xxxxxxxxx
------------------------------- --------------------------------
-7-
15
This FINANCING STATEMENT is presented to a filing officer for filing pursuant to the Uniform Commercial Code.
---------------------------------------------------------------------------------------------------------------------------------
1 Debtor(s) (Last Name First) and Address(es) 2 Secured Party(ies) and Address(es) 3 For Filing Officer
(Date, Time, Number, and Filing Office)
Bridgestreet Accommodations, Inc. Fleet National Bank, as agent
0000 Xxxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
4 This financing statement covers the following types (or items) of property: 5 Assignee(s) of Secured Party and
Address(es)
now owned or hereafter acquired: accounts receivable, chattel paper,
general intangibles, documents and instruments, and all other rights to
the payment of money; all records relating to the foregoing; all proceeds
of the foregoing
------------------------------------------
Check [X]if covered: [X]Products of Collateral are also covered No. of additional sheets presented:
----------------------------------------------------------------------------------------------------------------------------------
Filed with
----------------------------------------------------------------------------------------------------------------------------------
(USE WHICHEVER SIGNATURE LINE IS APPLICABLE)
BRIDGESTREET ACCOMMODATIONS, INC.
-------------------------------------------------------- -----------------------------------------------------------
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------------------------------ -----------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
DEBTOR COPY
This form of financing statement is
STANDARD FORM- approved by the Secretary of State REVISED, EFF. 1/1/79
UNIFORM COMMERCIAL CODE - UCC-1
16
This FINANCING STATEMENT is presented to a filing officer for filing pursuant to the Uniform Commercial Code.
---------------------------------------------------------------------------------------------------------------------------------
1 Debtor(s) (Last Name First) and Address(es) 2 Secured Party(ies) and Address(es) 3 For Filing Officer
(Date, Time, Number, and Filing Office)
Bridgestreet Accommodations, Inc. Fleet National Bank, as agent
0000 Xxxxxxxx Xxxxxxx 000 Xxxxxxx Xxxxxx
Xxxxxxxxx, XX 00000 Xxxxxx, XX 00000
---------------------------------------------------------------------------------------------------------------------------------
4 This financing statement covers the following types (or items) of property: 5 Assignee(s) of Secured Party and
Address(es)
now owned or hereafter acquired: accounts receivable, chattel paper,
general intangibles, documents and instruments, and all other rights to
the payment of money; all records relating to the foregoing; all proceeds
of the foregoing
------------------------------------------
Check [X]if covered: [X]Products of Collateral are also covered No. of additional sheets presented:
----------------------------------------------------------------------------------------------------------------------------------
Filed with
----------------------------------------------------------------------------------------------------------------------------------
(USE WHICHEVER SIGNATURE LINE IS APPLICABLE)
BRIDGESTREET ACCOMMODATIONS, INC.
-------------------------------------------------------- -----------------------------------------------------------
By: /s/ Xxxx Xxxxxxxxx By: /s/ Xxxxxxx Xxxxxx
------------------------------------------------------ -----------------------------------------------------------
Signature(s) of Debtor(s) Signature(s) of Secured Party(ies)
DEBTOR COPY
This form of financing statement is
STANDARD FORM- approved by the Secretary of State REVISED, EFF. 1/1/79
UNIFORM COMMERCIAL CODE - XXX-0
00
XXXXXXXXXXXX XXXXXX, INC. BRIDGESTREET ACCOMMODATIONS, INC.
By/s/ Xxxx Xxxxxxxxx By/s/ Xxxx Xxxxxxxxx
-------------------------- ---------------------------
Title:Pres. Title:Pres.
---------------------- -----------------------
BANK ONE CANADA BANK ONE, N.A.
By By/s/Xxxxxxx X. France
-------------------------- ---------------------------
Title: Title:First Vice President
---------------------- -----------------------
FLEET NATIONAL BANK FLEET NATIONAL BANK, as AGENT
By/s/ Xxxxx Xxxxxxx By/s/ Xxxxx Xxxxxxx
-------------------------- ---------------------------
Title:Vice President Title:Vice President
---------------------- -----------------------
-7-
