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Exhibit 10.43
TENTH AMENDMENT TO CREDIT AGREEMENT AND MODIFICATION TO
PLEDGE AND SECURITY AGREEMENT
TENTH AMENDMENT TO CREDIT AGREEMENT AND MODIFICATION TO PLEDGE
AND SECURITY AGREEMENT (this "Amendment"), dated as of June 12, 2000, among
STARWOOD HOTELS & RESORTS, a Maryland real estate investment trust ("Starwood
REIT"), SLT REALTY LIMITED PARTNERSHIP, a Delaware limited partnership ("SLT
RLP"), STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a Maryland corporation (the
"Corporation"), ITT CORPORATION, a Nevada corporation ("ITT" and, together with
Starwood REIT, SLT RLP and the Corporation, the "Original Borrowers"), the other
Credit Parties (as defined in the Credit Agreement referred to below), the
lenders from time to time party to the Credit Agreement referred to below (the
"Lenders"), BANKERS TRUST COMPANY and THE CHASE MANHATTAN BANK, as
Administrative Agents (in such capacity, the "Administrative Agents") and XXXXXX
COMMERCIAL PAPER INC. and BANK OF MONTREAL, as Syndication Agents (in such
capacity, the "Syndication Agents") and BANKERS TRUST COMPANY, as Collateral
Agent (in such capacity, the "Collateral Agent"). Unless otherwise defined
herein, all capitalized terms used herein shall have the respective meanings
provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H:
- - - - - - - - - -
WHEREAS, the Original Borrowers, the Lenders, the
Administrative Agents and the Syndication Agents are parties to that certain
Credit Agreement, dated as of February 23, 1998 (as amended, modified or
supplemented to the date hereof, the "Credit Agreement");
WHEREAS, prior to the consummation of the CIGA Tender Offer
(as defined below), Sheraton International, Inc. ("Sheraton International"), a
Wholly-Owned Subsidiary of the Corporation, owned approximately seventy-three
percent (73%) of the ordinary shares (collectively, the "Ordinary Shares") of
CIGA Compagnia Italiana Grandi Alberghi S.p.A., an Italian company ("CIGA") and
forty-seven percent (47%) of the saving shares (collectively, the "Saving
Shares") of CIGA;
WHEREAS, Sheraton International has recently made and
completed a tender offer for all of the remaining Ordinary Shares and Saving
Shares of CIGA (the "CIGA Tender Offer") so that, after giving effect to the
consummation of the CIGA Tender Offer, Sheraton International owned over
ninety-nine percent (99%) of the Ordinary Shares of CIGA and over ninety-three
percent (93%) of the Saving Shares of CIGA;
WHEREAS, since the consummation of the CIGA Tender Offer,
Sheraton International has (i) converted the remaining issued and outstanding
Saving Shares of CIGA into Ordinary Shares of CIGA and (ii) exercised certain
"squeeze-out" rights by purchasing all of the then remaining issued and
outstanding Ordinary Shares, so that after giving effect to the consummation of
the matters described in this recital, Sheraton International now owns one
hundred percent (100%) of the Ordinary Shares of CIGA and there are no remaining
Saving
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Shares of CIGA (all of the foregoing, together with the CIGA Tender Offer,
referred to herein, collectively, as the "CIGA Stock Purchase Transaction");
WHEREAS, the Corporation and certain of its Subsidiaries also
desire to enter into a bridge loan facility with Credit Lyonnais, in its
individual capacity and as the arranging bank, and certain other lenders
(collectively, the "CIGA Lenders") which bridge loan shall be (i) in the
original principal amount of up to EUR 290,000,000 and (ii) incurred only to the
extent that such Indebtedness is permitted under Section 9.04(xii) of the Credit
Agreement and there is unused capacity in the Recourse Basket in said Section,
subject, however, to the limitations set forth in this Amendment and in said
Section 9.04(xii) (all of the foregoing, collectively, the "CIGA Bridge Loan");
WHEREAS, the CIGA Bridge Loan requires, among other things,
the following:
(i) that the Corporation create a new domestic special
purpose entity that is a direct Wholly-Owned Domestic Subsidiary of Sheraton
International (such special purpose entity being referred to as the "CIGA
Borrower"), which new entity will be the borrower under the CIGA Bridge Loan;
(ii) that prior to the consummation of the CIGA Bridge
Loan, Sheraton International shall contribute sixty-six percent (66%) of the
Ordinary Shares of CIGA to the CIGA Borrower, so that after giving effect to
such contribution (a) the CIGA Borrower shall own sixty-six percent (66%) of the
issued and outstanding Ordinary Shares of CIGA and (b) Sheraton International
shall continue to own no less than thirty-three percent (33%) of the issued and
outstanding Ordinary Shares of CIGA;
(iii) that the CIGA Borrower shall pledge to the CIGA
Lenders all of the CIGA Borrower's right, title and interest in and to the
Ordinary Shares of CIGA;
(iv) that Sheraton International shall not pledge all or
any portion of its right, title or interest in the remaining Ordinary Shares of
CIGA to the Collateral Agent for the benefit of the Secured Creditors or any
other Person;
(v) that the CIGA Borrower shall not be added as a
Guarantor under the Credit Agreement; and
(vi) that the Corporation and Starwood REIT shall jointly
and severally guaranty, on an unsecured basis, all of the obligations of the
CIGA Borrower under the CIGA Bridge Loan (all of the transactions described in
this and the following recital, together with the CIGA Stock Purchase
Transaction and the CIGA Bridge Loan, being collectively referred to herein as
the "CIGA Transactions");
WHEREAS, the Corporation and its Subsidiaries (i) incurred
certain Revolving Loans under the Credit Agreement in connection with the
consummation of the CIGA Tender Offer and the CIGA Stock Purchase Transaction,
and (ii) intend to cause the CIGA Borrower to advance, distribute, pay as a
Dividend, or loan to the Corporation and/or one or more of its Wholly-Owned
Domestic Subsidiaries the Net Proceeds of the CIGA Bridge Loan, so that the
Corporation may repay a portion of the then outstanding Revolving Loans;
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WHEREAS, in connection with the consummation of the CIGA
Transactions, the Corporation shall cause Sheraton International to pledge to
the Collateral Agent for the benefit of the Secured Creditors all of Sheraton
International's right, title and interest in the Capital Stock of the CIGA
Borrower;
WHEREAS, the Corporation and its Subsidiaries desire to modify
the phrase "senior notes" contained in the definition of "Permanent Senior
Notes" under the Credit Agreement in order to clarify that such phrase includes,
without limitation, other notes evidencing senior term loan facilities and other
similar types of senior Indebtedness incurred or issued by the Corporation but
only if any such Indebtedness otherwise satisfies the terms and provisions set
forth in the proviso of the definition of Permanent Senior Notes;
WHEREAS, the Corporation and its Subsidiaries desire to modify
certain requirements relating to the use of Net Proceeds of Permanent Senior
Notes incurred or issued by the Corporation or the Corporate Borrowers under
Section 9.04(viii) of the Credit Agreement, so that the Net Proceeds of such
Indebtedness shall not be required to repay the then outstanding Senior Secured
Bridge Notes;
WHEREAS, the Corporation and its Subsidiaries also desire (i)
to incur Indebtedness under Other Hedging Agreements which are non-speculative
in nature, entered into in the ordinary course of business and reasonably
necessary to hedge and protect against fluctuations in the Corporation's and its
Subsidiaries' cash flow and earnings from changes in financial markets and (ii)
to modify the definition of "Other Hedging Agreements" in order to clarify that
such definition includes, without limitation, instruments to hedge and protect
against fluctuations in the Corporation's and its Subsidiaries' cash flow and
earnings from changes in financial markets;
WHEREAS, the Corporation and its Subsidiaries desire (i) the
flexibility to create and incur Liens securing Indebtedness otherwise permitted
under Section 9.04(xii) of the Credit Agreement (but only to the extent of the
then unused capacity in the Recourse Basket) and (ii) to modify certain
restrictions contained in Section 9.04(iv) relating to the incurrence of
Capitalized Lease Obligations and Non-Recourse Indebtedness;
WHEREAS, the Corporation and its Subsidiaries desire the
ability from time to time (but prior to June 30, 2001) to increase the Tranche
II Term Loan Commitments by an aggregate amount up to $500 million, subject to
the terms and conditions set forth herein; and
WHEREAS, in connection with (i) the CIGA Transactions, (ii)
the Other Hedging Agreements, and (iii) the other matters described in the
preceding recitals, the Borrowers request certain modifications to provisions in
the Credit Agreement and the Credit Documents and certain waivers from
restrictions set forth in certain sections of the Credit Agreement and the
Credit Documents in order to permit the Corporation and its Subsidiaries to
enter into the CIGA Transactions, the Other Hedging Agreements and the other
matters described herein, and to consummate all of the other transactions
contemplated therein, in each case, subject to all of the terms and provisions
herein contained and only to the extent set forth below.
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NOW, THEREFORE, it is agreed:
I. Waivers, Amendments and Agreements with Respect to
the Credit Agreement.
SECTION 1. CIGA Transactions.
(a) Consent. Notwithstanding anything to the contrary
contained in the Credit Agreement or the other Credit Documents, the Lenders
hereby consent to the Corporation and its Subsidiaries creating the CIGA
Borrower as a new domestic special purpose entity that is a direct Wholly-Owned
Domestic Subsidiary of Sheraton International and entering into and consummating
the CIGA Bridge Loan, the CIGA Stock Purchase Transactions and the other
transactions specifically required in order to consummate any of the foregoing,
in each case, (i) subject to the terms and provisions of this Amendment and (ii)
so long as no Specified Default and no Event of Default then exists; provided
that, with respect to the CIGA Bridge Loan, the CIGA Bridge Loan shall be repaid
in full on or prior to June 30, 2002.
(b) CIGA Borrower Not Required as Guarantor; Pledge and
Security Agreement Collateral; Sections 8.13, 8.15, 9.16(b). Notwithstanding
anything to the contrary contained in the Credit Agreement or the other Credit
Documents (including without limitation, Sections 8.13, 8.15 and 9.16(b) of the
Credit Agreement), the Corporation and its Subsidiaries shall be permitted to do
the following, subject to the limitations set forth herein:
(i) the CIGA Borrower shall not be required to
pledge any of its right, title or interest in the Ordinary Shares of CIGA to the
Collateral Agent for the benefit of the Secured Creditors and may instead pledge
up to sixty-six percent (66%) of such Ordinary Shares to the CIGA Lenders;
(ii) Sheraton International shall not be required
to pledge all or any portion of its right, title or interest in the remaining
Ordinary Shares of CIGA to any Person; and
(iii) the CIGA Borrower shall not be required to
be a Guarantor under the Credit Agreement or to satisfy the requirements of
Sections 8.13, 8.15 or clause (y) of the proviso of Section 9.16(b) thereof;
provided that (x) promptly after the creation of the CIGA Borrower, Sheraton
International shall be required to pledge all of its right, title and interest
in, to and under the Capital Stock of the CIGA Borrower to the Collateral Agent
for the benefit of the Secured Creditors and (y) if at any time the CIGA Bridge
Loan does not prohibit the CIGA Borrower and/or Sheraton International from
pledging all or any portion of their respective interests in the Capital Stock
of CIGA to the Collateral Agent for the benefit of the Secured Creditors, the
CIGA Borrower and/or Sheraton International, as the case may be, shall promptly
pledge to the Collateral Agent for the benefit of the Secured Creditors that
portion of such Capital Stock that is not then pledged to the Collateral Agent
for the benefit of the Secured Creditors and that is no longer prohibited from
being pledged under the CIGA Bridge Loan; provided further that, promptly after
the earlier to occur of (1) June 30, 2002 and (2) the date upon which the CIGA
Bridge Loan is repaid in full (the
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"CIGA Loan Outside Date"), (x) the preceding clauses (b)(i), (b)(ii) and
(b)(iii) shall no longer apply, (y) the CIGA Borrower shall execute and deliver
counterparts of the supplements to the Guaranty and Pledge and Security
Agreement and take such other actions as may be required under said Guaranty,
Pledge and Security Agreement and the provisions of Section 9.16 of the Credit
Agreement, including, without limitation, pledging all of its interest in the
Capital Stock of CIGA and (z) all of the Capital Stock of CIGA owned by the
Corporation or any other Subsidiary that is not already pledged to the
Collateral Agent shall be pledged to the Collateral Agent for the benefit of the
Secured Creditors in accordance with the applicable provisions of Sections 8.13,
8.14 and 9.16 of the Credit Agreement; provided that, in the case of any
required pledge of Capital Stock of CIGA, such pledge shall be required only to
the extent that such pledge (1) is required under Section 2 of the Pledge and
Security Agreement without regard to the provisions of this Amendment, (2) is
not prohibited under the laws of Italy and (3) shall not cause any material
adverse Federal income tax consequences to the Credit Parties.
(c) Liens; Section 9.01. Section 9.01 of the Credit
Agreement shall be amended by (i) deleting the last reference to the word "and"
in clause (xvii), (ii) replacing the period at the end of clause (xviii) in said
Section with the following word "; and", and (iii) inserting, immediately after
clause (xviii) thereof, the following new clause (xix):
"(xix) so long as no Specified Default and no Event
of Default then exists or would exist immediately
after giving effect thereto, Liens on Assets of the
Corporation or any of its Subsidiaries (other than
Assets constituting Collateral) securing any
Indebtedness permitted under Section 9.04(xii),
provided that, prior to the incurrence of any such
Indebtedness, the Corporation shall deliver a
certificate to the Paying Agent establishing
compliance with the financial covenants contained in
Sections 9.08 through 9.11, inclusive, and Section
9.23, for the Reference Period, on a Pro Forma
Basis."
(d) Indebtedness; Section 9.04. Section 9.04(vii) of the
Credit Agreement is hereby amended by inserting, immediately after the phrase
"to the extent permitted by Section 9.05(viii)," the following: "or Section
9.05(xvii)."
(e) Advances, Investments and Loans; 9.05(xvii). Section
9.05 of the Credit Agreement is hereby amended by (i) deleting the last
reference to the word "and" in clause (xv) thereof, (ii) deleting the period at
the end of clause (xvi) in said Section and inserting the following word "; and"
in its place, and (iii) inserting, immediately after clause (xvi) of said
Section, the following new clause (xvii);
"(xvii) Subject to Section 9.03, so long as no
Specified Default and no Event of Default then exists
or would exist immediately after giving effect
thereto, in addition to any other investments
permitted hereunder, the Corporation and its
Subsidiaries shall be permitted to do any of the
following: (A) create and establish the CIGA Borrower
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and, in connection therewith, acquire all of the
Capital Stock of the CIGA Borrower, (B) so long as no
Specified Default and no Event of Default then exists
or would exist immediately after giving effect
thereto, make one or more contributions to the CIGA
Borrower of up to sixty-six percent (66%) of the
Ordinary Shares of CIGA, and (C)(i) so long as no
Specified Default and no Event of Default then exists
or would exist immediately after giving effect
thereto, the CIGA Borrower may make one or more
intercompany loans, distributions (in addition to,
and not in limitation of, the payment of any
Dividends to the extent permitted under Section 9.03
hereof) and advances of cash to Sheraton
International in an aggregate amount not to exceed
the principal amount borrowed by the CIGA Borrower
under the CIGA Bridge Loan, and, so long as no
Specified Default and no Event of Default then exists
or would exist immediately after giving effect
thereto, Sheraton International may repay any such
distributions, advances and loans (together with any
interest due thereon) so long as the proceeds of such
distributions, advances and loans are promptly used
to repay any amounts due under the CIGA Bridge Loan
and (ii) so long as no Specified Default and no Event
of Default then exists or would exist immediately
after giving effect thereto, Sheraton International
may make one or more distributions, advances,
intercompany loans and such other Investments in or
to CIGA Borrower as may be reasonably required (after
giving effect to any payments made (or to be made) to
the CIGA Borrower under preceding clause (C)(i)) for
the following: (x) to pay any amounts due under the
CIGA Bridge Loan so long as such amounts are promptly
used for such purpose and (y) for the ordinary
working capital of CIGA Borrower so long as (i) such
amounts are not further distributed, advanced or
loaned to CIGA or any other Subsidiary of the CIGA
Borrower and (ii) any such Investment otherwise
complies with Section 9.26; and provided that all
intercompany loans and advances made pursuant to this
clause (xvii) shall be subject to the provisions of
validly executed Subordination Agreements as required
by the last paragraph of Section 9.04."
(f) Certain Restrictions on Subsidiaries; Section 9.13.
Section 9.13 of the Credit Agreement is amended by (i) deleting the word "and"
immediately preceding clause (xiii) thereof and replacing said word with a comma
and (ii) inserting, immediately after the last word of clause (xiii), the
following:
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", and (xiv) restrictions (and, under certain
circumstances, prohibitions) contained in any of the
documents evidencing, securing or otherwise relating
to the CIGA Bridge Loan, with respect to (A) the
payment or distribution of any Dividends, (B) the
making of any intercompany loans or advances or (C)
the transfer of any property or Assets, in each case,
by the CIGA Borrower to Sheraton International if
such prohibition or restriction arises only (x) after
the occurrence (but only during the existence) of an
event of default under the CIGA Bridge Loan (which
event of default does not arise (i) solely as a
result of the breach of a covenant prohibiting the
taking of any of the actions described in preceding
clauses (A), (B) or (C) (unless such action would
cause a breach of a financial covenant described in
the following clause (y), in which case, said clause
(y) shall apply) or (ii) as a result of a breach of a
financial covenant (except a financial covenant
described in following clause (y))) or (y) if the
taking of any of the actions described in preceding
clauses (A), (B) or (C) would cause a default under
the CIGA Bridge Loan in respect of a financial
covenant described in Annex I attached hereto so long
as such financial covenant is not more restrictive
vis-a-vis the CIGA Borrower or Sheraton International
than the financial covenants described in Annex I
attached hereto with no changes or modifications
thereto, except for immaterial changes or
modifications approved by the Lead Agents."
(g) Section 9.26; CIGA Transactions Restrictions. Section
9 of the Credit Agreement is amended by inserting, immediately after the last
Section thereof, the following new Section 9.26:
"9.26 CIGA Transactions Restrictions. (a) The CIGA
Borrower shall own no Assets other than (i) its
ownership interest in CIGA in an amount up to
sixty-six percent (66%) of the Ordinary Shares of
CIGA and (ii) cash and Cash Equivalents held for
general corporate and administrative purposes or
otherwise in the ordinary course of the CIGA
Borrower's business (but in no event shall the CIGA
Borrower hold cash or Cash Equivalents in an amount
in excess of $5,000,000 (such amount, the "CIGA
Borrower Working Capital Amount") for a period longer
than five (5) consecutive Business Days); (b) the
CIGA Borrower shall not acquire any Assets (other
than as described in preceding clause (a)) without
the prior written consent of the Required Lenders;
(c) no Capital Stock of CIGA (other than the Ordinary
Shares of CIGA owned by
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the CIGA Borrower as described in preceding clause
(A) which, subject to certain terms and conditions
set forth in the Tenth Amendment, may be pledged to
the CIGA Lenders) shall be pledged or encumbered
(other than to the Collateral Agent for the benefit
of the Secured Creditors); and (d) all obligations
under the CIGA Bridge Loan shall be repaid in full on
or prior to the CIGA Loan Outside Date, except as
such outside date may be otherwise extended with the
prior written consent of the Required Lenders."
SECTION 2. Permanent Senior Notes and Other Permitted
Indebtedness.
(a) Indebtedness; Section 9.04(viii)(A). Clause (I) of
Section 9.04(viii)(A)(3) of the Credit Agreement shall be amended and restated
to read as follows:
"(I) first, to repay the then outstanding Senior
Secured Bridge Notes in such amounts, if any, as the
Corporation shall determine, in its sole and absolute
discretion,".
(b) Definitions; Section 11.01. The definition of
"Permanent Senior Notes" contained in Section 11 of the Credit Agreement is
hereby amended by (i) inserting, immediately after the words "senior notes of
the Corporation or the Corporate Borrowers", the following:
"and other notes evidencing senior term loan
facilities and other similar types of senior
Indebtedness incurred or issued by the Corporation or
the Corporate Borrowers",
(ii) deleting the words "those provided in the Senior Secured Bridge Notes" in
clause (I) of subsection (a) of the proviso of said definition and replacing
same with the words "February 23, 2003", (iii) inserting, immediately after the
parenthetical contained in clause (II) of the proviso of said definition, the
following words ", but excluding the terms and provisions relating to interest
rates, fees and other similar pricing provisions,", and (iv) deleting the words
"the Senior Secured Bridge Notes" in said clause (II) and replacing same with
the words "this Credit Agreement."
SECTION 3. Other Hedging Agreements.
(a) Indebtedness; Section 9.04. Section 9.04(iii) of the
Credit Agreement is amended by inserting, immediately after the last word
thereof, the following:
"or any Indebtedness under Other Hedging Agreements
which are non-speculative in nature, entered into in
the ordinary course of business and determined by the
Corporation to be reasonably necessary to hedge and
protect against fluctuations in the Corporation's
and/or its
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Subsidiaries' cash flow and earnings from changes in
financial markets."
(b) Investments; Section 9.05. Section 9.05(iv) of the
Credit Agreement is hereby amended by inserting, immediately after the phrase
"enter into Interest Rate Protection Agreements," the following: "or Other
Hedging Agreements".
(c) Definitions; Section 11.01. The definition of "Other
Hedging Agreement" contained in Section 11 of the Credit Agreement is hereby
amended by (i) inserting, immediately after the last word of such definition,
the following:
"or instruments to hedge and protect against
fluctuations in the Corporation's and/or its
Subsidiaries cash flow and earnings from changes in
financial markets".
SECTION 4. Non-Recourse Indebtedness; Section 9.04(iv).
Section 9.04(iv) of the Credit Agreement is amended by (x) deleting all of the
words contained in clauses (i) and (iv) of said Section 9.04(iv) and (y)
inserting in their place, in each case, the term "[Intentionally Deleted]".
SECTION 5. Advances, Investments and Loans; Section 9.05(xiv).
Section 9.05(xiv) of the Credit Agreement is hereby amended by deleting the
amount "$50,000,000" therefrom and inserting "$100,000,000" in its place.
SECTION 6. Technical Amendments; Section 9.04(xii). Section
9.04(xii) of the Credit Agreement is hereby further amended by (i) modifying and
deleting the reference to "Section 4.02(e)" in clause (b) of the proviso of said
Section 9.04(xii) and inserting in its place "Section 4.02(d)" and (ii)
inserting, immediately after the phrase "additional Indebtedness of the
Corporation and any of its Subsidiaries" in said Section 9.04(xii), the
following:
"(without duplication of any amounts guaranteed by or
with recourse to one or more obligors and/or
guarantors)".
SECTION 7. New Commitments.
(a) Without limiting the provisions of Section 7(b) below,
each of the Corporation and Starwood REIT confirms to the Lenders that it has
not heretofore obtained, and it has no further right to obtain, any New Tranche
II Term Loan Commitments, New Revolving Loan Commitments or New Commitments, in
each case, under, and as defined in, the Fourth Amendment.
(b) The Lenders agree that, at any time and from time to
time on or prior to June 30, 2001, the Borrowers shall have the right to
increase the Tranche II Term Loan Commitments (each such increase, a "New
Tranche II Term Loan Commitment" or a "New Commitment") as more fully described
below, by an aggregate amount of up to $500,000,000 by notice (a "New Commitment
Notice") to the Administrative Agents given at least 3 Business Days before the
respective New Commitment Effective Date (as defined below) and upon the
following terms and conditions:
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(i) on each date upon which any New Tranche II Term Loan
Commitment becomes effective in accordance with the terms of the respective
Assumption Agreement described in clause (ii) below (each such date, a "New
Commitment Effective Date"), no Specified Default and no Event of Default shall
be in existence (and no Specified Default and no Event Default shall result
therefrom);
(ii) on or prior to each New Commitment Effective Date,
each Lender (which may be an existing Lender or a new Lender) furnishing a New
Commitment shall have executed and delivered to the Paying Agent an Assumption
Agreement in the form of Annex II attached to this Amendment with respect to the
New Commitments of such Lender (each an "Assumption Agreement"), appropriately
completed to the reasonable satisfaction of the Paying Agent (and with such
modifications as may be approved by the Paying Agent);
(iii) the consent of the Paying Agent (which consent shall
not to be unreasonably withheld or delayed) shall be required to each Lender
which furnishes one or more New Commitments and the assumption of such New
Commitments shall otherwise be made in compliance with the relevant requirements
expressed in Section 13.04(b) of the Credit Agreement with respect to
assignments (including, without limitation that the respective entity assuming
any New Commitments shall be an Eligible Transferee, compliance with the minimum
amounts provided in Section 13.04(b) and the requirement that the Paying Agent
receive the fees provided in said Section 13.04(b));
(iv) on each New Commitment Effective Date, additional
Tranche II Term Loans shall be extended pursuant to the New Commitments;
(v) based on the information contained in the respective
Assumption Agreement, and consistent with the requirements set forth above, on
each New Commitment Effective Date Schedule I-A and Schedule II to the Credit
Agreement shall be deemed amended accordingly;
(vi) each Lender furnishing a New Tranche II Term Loan
Commitment shall, on the respective New Commitment Effective Date, make Tranche
II Term Loans to the Corporate Borrowers, consistent with the manner provided in
Section 1.01 of the Credit Agreement, in an aggregate principal amount equal to
the New Tranche II Term Loan Commitment of such Lender (which New Tranche II
Term Loan Commitment shall terminate immediately after giving effect to such
funding);
(vii) notwithstanding anything to the contrary contained
in the Credit Agreement, each Borrowing of Tranche II Term Loans outstanding
pursuant to the Credit Agreement at any time after the first date upon which any
New Tranche II Term Loans are extended shall consist exclusively of either (x)
Existing Tranche II Term Loans (with each Lender which holds any outstanding
Existing Tranche II Term Loans to participate proportionately in each
outstanding Borrowing of Existing Tranche II Term Loans) or (y) New Tranche II
Term Loans (with each Lender which holds any outstanding New Tranche II Term
Loans to participate proportionately in each outstanding Borrowing of New
Tranche II Term Loans); provided that the New Tranche II Term Loans made by each
Lender at any time after the first New Commitment Effective Date pursuant to
which New Tranche II Term Loans are
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extended shall (1) be allocated proportionately to each Borrowing of New Tranche
II Term Loans then outstanding (based upon the relative aggregate principal
amounts of each such Borrowing), (2) bear interest at the same rates as are
applicable thereto and (3) to the extent the amount so added to any such
Borrowing is in respect of a Borrowing of Eurodollar Loans with an Interest
Period which began prior to, and ends after, the respective New Commitment
Effective Date, the Borrowers and such Lender may agree, as between themselves,
for the payment of any amounts to the respective Lender to compensate it for
extending the respective Tranche II Term Loans during an existing Interest
Period;
(viii) on or prior to each New Commitment Effective Date,
but subject to the provisions of Section 1.06(j) of the Credit Agreement, the
Corporate Borrowers shall execute and deliver to each Lender furnishing a New
Tranche II Term Loan Commitment a Tranche II Term Note payable to the order of
such Lender in the stated amount equal to such New Tranche II Term Loan
Commitment (in each case appropriately completed);
(ix) notwithstanding anything to the contrary contained in
the Credit Agreement, the following provisions shall govern:
(A) each Interim Tranche II Scheduled Repayment
shall be applied only to the repayment of Existing Tranche II Term Loans on a
pro rata basis (based upon the then outstanding amount of Existing Tranche II
Term Loans);
(B) on each New Commitment Effective Date, the
Final Tranche II Scheduled Repayment shall be increased by the aggregate amount
of the New Tranche II Term Loan Commitments furnished on such New Commitment
Effective Date;
(C) on the Tranche II Maturity Date, all then
outstanding Tranche II Term Loans (including all then outstanding Existing
Tranche II Term Loans and all New Tranche II Term Loans) shall be repaid in
full;
(D) in connection with any voluntary prepayment of
Tranche II Term Loans by any Borrower under Section 4.01(v) of the Credit
Agreement, such Borrower shall designate in the notice described in Section
4.01(i) of the Credit Agreement whether Existing Tranche II Term Loans and/or
New Tranche II Term Loans shall be prepaid and, if applicable, the amount of
Existing Tranche II Term Loans and/or New Tranche II Term Loans being so repaid,
and the respective voluntary prepayment shall be applied to the Existing Tranche
II Term Loans and/or New Tranche II Term Loans in accordance with such
designation (with each Lender holding Existing Tranche II Term Loans or New
Tranche II Term Loans, as the case may be, to receive its share of such
prepayment on a pro rata basis, based upon the relative amounts of Existing
Tranche II Term Loans or New Tranche II Term Loans, as the case may be, held by
the various Lenders);
(E)(1) each voluntary prepayment of New Tranche II
Term Loans shall apply to reduce the then remaining Final Tranche II Scheduled
Repayment, with the entire amount of such prepayment to be so applied only to
the repayment of New Tranche II Term Loans on a pro rata basis (based on the
then outstanding amount of New Tranche II Term Loans) and (2) each voluntary
prepayment of Existing Tranche II Term Loans shall apply to reduce the
12
then remaining Tranche II Scheduled Repayments on a pro rata basis (based upon
the then remaining amounts of such Tranche II Scheduled Repayments, after giving
effect to all prior reductions thereto, but for purposes of such calculation
reducing the Final Tranche II Scheduled Repayment by the aggregate principal
amount of New Tranche II Term Loans then outstanding), with the entire amount of
such prepayment to be applied only to the repayment of Existing Tranche II Term
Loans on a pro rata basis (based upon the then outstanding amount of Existing
Tranche II Term Loans);
(F) if on any date any amount to be applied
pursuant to the provisions of Section 4.02(h) of the Credit Agreement is to be
applied (x) to reduce any Interim Tranche II Scheduled Repayments, the amount to
be so applied shall be applied only to the repayment of Existing Tranche II Term
Loans on a pro rata basis (based upon the then outstanding amount of Existing
Tranche II Term Loans) or (y) to reduce the Final Tranche II Scheduled
Repayment, the amount to be so applied shall be applied as follows: (1) an
amount equal to (x) the amount to be applied to reduce the Final Tranche II
Scheduled Repayment at such time multiplied by (y) the Existing Tranche II Term
Loan Percentage shall be applied to the repayment of the Existing Tranche II
Term Loans on a pro rata basis (based on the then outstanding amount of Existing
Tranche II Term Loans) and (2) the balance shall be applied to the payment of
the New Tranche II Term Loans on a pro rata basis (based on the then outstanding
amount of New Tranche II Term Loans); and
(G) on the date of each repayment of outstanding
Tranche II Term Loans (excluding any repayment in full of all then outstanding
Tranche II Term Loans) the respective repayments of principal shall be allocated
amongst the then outstanding Borrowings in a manner consistent with the
foregoing requirements of this clause (ix).
Notwithstanding anything to the contrary contained above or
elsewhere in this Tenth Amendment, it is acknowledged and agreed that no Lender
shall be required to provide any New Commitment, except to the extent agreed in
writing by such Lender with the Borrowers (with each Lender being entitled in
its sole discretion not to furnish any New Commitment).
Without limiting the representations and warranties contained
in the Credit Agreement (which are made on the date of the occurrence of each
Credit Event), the Borrowers represent and warrant that all extensions of credit
pursuant to the New Commitments (or which would be in excess of the amount
permitted pursuant to the Credit Agreement in the absence of the New
Commitments), shall in each case be permitted to be incurred pursuant to clause
(a) or clause (i) of the second paragraph, or pursuant to the first paragraph,
of Section 5.9 of the Senior Secured Bridge Note Agreement (so long as same is
in effect) and that the Liens securing such extensions of credit are permitted
in accordance with Section 5.12 of the Senior Secured Bridge Note Agreement (so
long as same remains in effect).
(c) The Credit Agreement is hereby amended by adding,
immediately after the end of Section 1.18 thereof, the following new provision:
"1.19. Special Provisions Applicable to
Tranche II Term Loans. At any time after the first
New Commitment Effective Date as
13
contemplated by the Tenth Amendment, it is
acknowledged and agreed that, with respect to Tranche
II Term Loans, the provisions of this Section 1 shall
be subject to the overriding rules provided in
Section 7 of the Tenth Amendment (including, without
limitation, as to the fact that Borrowings of Tranche
II Term Loans will consist exclusively of either
Existing Tranche II Term Loans or New Tranche II Term
Loans)."
(d) The Credit Agreement is hereby amended by inserting,
immediately after the end of Section 4.04 thereof, the following new provision:
"4.05. Special Provisions with respect to
Tranche II Term Loans. At any time after the first
New Commitment Effective Date as contemplated by the
Tenth Amendment, it is acknowledged and agreed that,
with respect to Tranche II Term Loans, the provisions
of preceding Sections 4.01 through 4.03, inclusive,
shall be subject to the overriding rules provided in
Section 7 of the Tenth Amendment (including, without
limitation, as to the fact that repayments of Tranche
II Term Loans shall be allocated amongst the Existing
Tranche II Term Loans and New Tranche II Term Loans
on the basis provided in said Section 7 of the Tenth
Amendment, with all Interim Tranche II Scheduled
Repayments to be allocated exclusively to the
Existing Tranche II Term Loans)."
(e) Section 8.01(e) of the Credit Agreement is hereby
amended by inserting, immediately after the words "Fourth Amendment," the words
"or Tenth Amendment."
(f) Section 9.04 of the Credit Agreement is hereby amended
by deleting the second sentence of the first paragraph immediately following
Section 9.04(xvi) of the Credit Agreement.
(g) The second proviso in clause (iii) of Section 9.12 of
the Credit Agreement is hereby amended by (i) deleting the words "the Fourth
Amendment" and replacing the same with the words "the Tenth Amendment," and (ii)
deleting the words "exceeds the New Commitment Amount" and replacing same with
following the words "exceeds the aggregate proceeds of New Tranche II Term Loans
actually made pursuant to New Tranche II Term Loan Commitments furnished under
the Tenth Amendment."
(h) The definition of "New Commitment Amount" set forth in
Section 11.01 of the Credit Agreement is hereby amended by (i) deleting the
first reference to the words "the Fourth Amendment" therein and replacing same
with the words "the Tenth Amendment" and (ii) amending and restating clause (ii)
of the proviso of said definition to read as follows:
"(ii) the funding thereof required pursuant to clause
(vi) of Section 7(b) of the Tenth Amendment, has
actually occurred."
14
(i) Section 9.04(viii)(B) of the Credit Agreement is
amended by inserting, immediately after the words "pursuant to Section
9.04(xiv)" in clause (z) thereof, the following:
", the aggregate proceeds of Tranche II Term Loans
actually made pursuant to New Tranche II Term Loan
Commitments furnished under, or as contemplated by,
the Tenth Amendment,".
(j) Section 9.04(xiv) of the Credit Agreement is amended
by inserting, immediately after the words "pursuant to Section 9.04(viii)(B)" in
clause (z) thereof, the following:
", the aggregate proceeds of Tranche II Term Loans
actually made pursuant to New Tranche II Term Loan
Commitments furnished under, or as contemplated by,
the Tenth Amendment,".
(k) Section 9.14(c) of the Credit Agreement is amended by
inserting, immediately after the words "pursuant to Sections 9.04(viii)(B) and
9.04(xiv)" in clause (y) thereof, the following:
"and the aggregate proceeds of Tranche II Term Loans
actually made pursuant to New Tranche II Term Loan
Commitments furnished under, or as contemplated by,
the Tenth Amendment."
(l) Exhibit M to the Credit Agreement is hereby amended by
(i) inserting the following new paragraph numbered 8 immediately at the end of
paragraph numbered 7 thereof:
"8. If the assignment effected hereby
involves any Tranche II Term Loans, as more fully
provided in Section 7 of the Tenth Amendment, the
Assignee hereby acknowledges and agrees that, to the
extent provided in said Section 7, various repayments
of outstanding Tranche II Term Loans shall be
allocated to the Existing Tranche II Term Loans and
not to the New Tranche II Term Loans. The Assignee is
aware that Section 7 of the Tenth Amendment provides
certain overriding provisions with respect to the
Existing Tranche II Term Loans and the New Tranche II
Term Loans and, if the assignment effected hereby
involves any Tranche II Term Loans, the Assignee is
familiar with the terms thereof. Furthermore, the
Assignee agrees to keep records of its outstanding
New Tranche II Term Loans as opposed to the
outstanding principal of its Existing Tranche II Term
Loans, if any, and agrees that if it makes any
assignment or participation of any Tranche II Term
Loans it shall clearly provide in the relevant
documentation whether (and to what extent) the
assignment is of Existing Tranche II Term Loans
and/or New
15
Tranche II Term Loans and shall inform the assignee or
participant, as the case may be, of the provisions of
Section 7 of the Tenth Amendment."
and (ii) modifying Section 4 of Annex I thereto by (x) deleting the heading
"Outstanding Principal of Tranche II Term Loans" appearing therein and by
inserting in lieu thereof the heading "Outstanding Principal of Existing Tranche
II Term Loans" and adding a new column, immediately to the right of the two
existing columns appearing therein, as set forth below:
"Outstanding Principal of New Tranche II Term Loans
$ -----------
-----------%
$ ------------".
(m) As used herein, the following terms shall have the
following meanings:
(i) "Existing Tranche II Term Loans" means, collectively
all Tranche II Term Loans (other than any New Tranche II Term Loans).
(ii) "Existing Tranche II Term Loan Percentage" means, as
of any determination date, the fraction (expressed as a percentage) where the
numerator is the aggregate amount of Existing Tranche II Term Loans outstanding
as of such date less the aggregate principal amount thereof which are then
scheduled to be repaid prior to the Tranche II Maturity Date pursuant to one or
more Interim Tranche II Scheduled Repayments, and the denominator is the sum of
the numerator and the aggregate amount of New Tranche II Term Loans outstanding
as of such date.
(iii) "Final Tranche II Scheduled Repayment" means the
Tranche II Scheduled Repayment of $550 million as set forth in Section
4.02(b)(ii) of the Credit Agreement due on the Tranche II Maturity Date, as the
same may have been reduced pursuant to Sections 4.01 and 4.02(c) through (j),
inclusive, of the Credit Agreement and increased pursuant to Section 7(b)(ix) of
this Amendment.
(iv) "Interim Tranche II Scheduled Repayments" means,
collectively, the Tranche II Scheduled Repayments (other than the Final Tranche
II Scheduled Repayment).
(v) "New Tranche II Term Loans" means, collectively, any
Tranche II Term Loans actually made pursuant to the New Tranche II Term Loan
Commitments furnished under this Amendment.
SECTION 8. Certificates by Other Officers; Sections 8.01 and
8.07. Each of Sections 8.01(a), (b) , and (e) and Section 8.07 of the Credit
Agreement shall be amended by (i) deleting the first parenthetical immediately
after each occurrence of the phrase "the chief financial officer of the
Corporation" in such Sections, and (ii) inserting in lieu thereof the following
parenthetical in each such Section:
16
"(or by the Vice President, Finance & Treasurer or Senior
Vice President and Corporate Controller of the
Corporation)".
SECTION 9. Certain Definitions. The following new definitions
shall be inserted in proper alphabetical order in Section 11.01:
"Assumption Agreement" has the meaning specified in the Tenth
Amendment.
"CIGA Borrower" shall have the meaning specified in the Tenth
Amendment.
"CIGA Borrower Working Capital Amount" shall have the meaning
specified in Section 9.26.
"CIGA Bridge Loan" shall have the meaning specified in the
Tenth Amendment.
"CIGA Lender" shall have the meaning specified in the Tenth
Amendment.
"CIGA Loan Outside Date" shall have the meaning specified in
the Tenth Amendment.
"CIGA Tender Offer" shall have the meaning specified in the
Tenth Amendment.
"CIGA Transactions" shall have the meaning specified in the
Tenth Amendment.
"Existing Tranche II Term Loans" has the meaning specified in
the Tenth Amendment.
"Existing Tranche II Term Loan Percentage" has the meaning
specified in the Tenth Amendment.
"Final Tranche II Scheduled Repayment" has the meaning
specified in the Tenth Amendment.
"Interim Tranche II Scheduled Repayments" has the meaning
specified in the Tenth Amendment.
"New Commitment" has the meaning specified in the Tenth
Amendment.
"New Commitment Effective Date" has the meaning specified in
the Tenth Amendment.
"New Commitment Notice" has the meaning specified in the Tenth
Amendment.
"New Tranche II Term Loan Commitment" has the meaning
specified in the Tenth
17
Amendment.
"New Tranche II Term Loans" has the meaning specified in the
Tenth Amendment.
"Ordinary Shares" shall have the meaning specified in the
Tenth Amendment.
"Saving Shares" shall have the meaning specified in the Tenth
Amendment.
"Sheraton International" shall mean Sheraton International,
Inc., a Delaware corporation and a Wholly-Owned Domestic
Subsidiary of the Corporation.
"Tenth Amendment' shall mean that certain Tenth Amendment to
Credit Agreement, dated as of June 12, 2000.
"Tenth Amendment Effective Date" shall mean the date upon
which the Tenth Amendment becomes effective in accordance with
its terms.
"Tranche II Term Loan Percentage" has the meaning specified in
the Tenth Amendment.
II. Modification of Pledge and Security Agreement.
The parties hereto acknowledge and agree that, so long as (and
only for so long as) (i) the Capital Stock of CIGA is not required to be pledged
to the Secured Creditors in accordance with this Amendment and (ii) the Capital
Stock of the Restricted Vistana Subsidiaries is not required to be pledged to
the Secured Creditors in accordance with the Ninth Amendment, such Capital Stock
of CIGA and the Capital Stock of the Restricted Vistana Subsidiaries, as the
case may be, shall not be required to be pledged under the Pledge and Security
Agreement.
III. Miscellaneous Provisions
A. Each Guarantor and each Borrower, by their signatures
below, hereby confirms that (x) the Guaranty shall remain in full force and
effect and the Guaranty covers the obligations of each of the Borrowers under
the Credit Agreement, as modified and amended by this Amendment (including,
without limitation, all extensions of credit pursuant to the New Commitments
furnished from time to time as contemplated by this Amendment) and (y) the
Pledge and Security Agreement (as modified by this Amendment) shall remain in
full force and effect as security for the obligations under the Credit
Agreement, as modified and amended by this Amendment (including without
limitation all extensions of credit pursuant to the New Commitments furnished
from time to time as contemplated by this Amendment) and the Guaranty.
B. The Corporation represents to the Lenders that, on the
Tenth Amendment Effective Date, after giving effect to the execution, delivery
and performance by the Corporation of this Amendment and the transactions
contemplated hereby, (i) there shall exist no Default or Event of Default and
(ii) all representations and warranties contained in the Credit Agreement and in
the other Credit Documents, as modified hereby, shall be true and correct in all
material respects with the same effect as though such representations and
warranties had been made on
18
the Tenth Amendment Effective Date (it being understood and agreed that any
representation or warranty which by its terms is made as of a specified date
shall be true and correct in all material respects only as of such specified
date).
C. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
D. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrowers and the Paying Agent.
E. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
F. This Amendment shall become effective on the date (the
"Tenth Amendment Effective Date") when each of the Borrowers, each Guarantor and
the Required Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Paying Agent (or its designee).
G. From and after the Tenth Amendment Effective Date, all
references in the Credit Agreement and each of the other Credit Documents to the
Credit Agreement shall be deemed to be references to the Credit Agreement as
modified hereby.
H. The Borrowers hereby covenant and agree that, so long as
the Tenth Amendment Effective Date occurs, they shall pay (and shall be jointly
and severally obligated to pay) each Lender which executes and delivers to the
Paying Agent (or its designee) a counterpart hereof by the later to occur of (x)
the close of business on the Tenth Amendment Effective Date or (y) 12:00 p.m.
(New York time) on Thursday, June 29, 2000 (the "Outside Date"), or which is an
immediate or successive assignee of any Lender described above (with respect to
amounts obtained, directly or indirectly, by assignment from such Lender), a
non-refundable cash fee in an amount equal to 5.0 basis points (0.05%) of an
amount equal to the sum of the outstanding principal amount of Term Loans of
such Lender and the Revolving Loan Commitment of such Lender, in each case as
same is in effect on the Tenth Amendment Effective Date, which fees shall be
paid by the Borrowers to the Paying Agent for distribution to the Lenders not
later than the fifth Business Day following the Outside Date.
[ANNEX I, ANNEX II AND SIGNATURE PAGES FOLLOW]
19
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC., a Maryland corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial
Officer and Chief Accounting
Officer
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts, a Maryland real estate investment
trust, its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial
Officer and Chief Accounting
Officer
ITT CORPORATION, a Nevada corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
STARWOOD HOTELS & RESORTS HOLDINGS, INC.,
an Arizona corporation
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
[Signature Page to Tenth Amendment]
20
CHARLESTON HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
CRYSTAL CITY HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
LONG BEACH HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
SANTA XXXX HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
SLT ALLENTOWN LLC,
a Delaware limited liability company,
SLT ARLINGTON LLC,
a Delaware limited liability company,
SLT ASPEN XXXX STREET, LLC,
a Delaware limited liability company,
SLT BLOOMINGTON LLC,
a Delaware limited liability company,
SLT DANIA LLC,
a Delaware limited liability company,
SLT DC MASSACHUSETTS AVENUE, LLC,
a Delaware limited liability company,
SLT INDIANAPOLIS LLC,
a Delaware limited liability company,
SLT KANSAS CITY LLC,
a Delaware limited liability company,
SLT LOS ANGELES LLC,
a Delaware limited liability company,
SLT MINNEAPOLIS LLC,
a Delaware limited liability company,
SLT PALM DESERT LLC,
a Delaware limited liability company,
21
SLT PHILADELPHIA LLC,
a Delaware limited liability company,
SLT REALTY COMPANY, LLC,
a Delaware limited liability company,
SLT SAN DIEGO LLC,
a Delaware limited liability company,
SLT SOUTHFIELD LLC,
a Delaware limited liability company,
SLT ST. LOUIS LLC,
a Delaware limited liability company,
SLT TUCSON LLC,
a Delaware limited liability company,
STARLEX LLC,
a New York limited liability company,
STARWOOD ATLANTA II LLC,
a Delaware limited liability company,
STARWOOD ATLANTA LLC,
a Delaware limited liability company,
STARWOOD MISSION HILLS, L.L.C.,
a Delaware limited liability company,
STARWOOD XXXXXXX LLC,
a Delaware limited liability company,
STARWOOD WALTHAM LLC,
a Delaware limited liability company,
By: SLT Realty Limited Partnership,
a Delaware limited partnership, the managing member of each of
the above listed entities
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
---------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial
Officer and Chief Accounting
Officer
22
BW HOTEL REALTY, LP,
a Maryland limited partnership,
CP HOTEL REALTY, LP,
a Maryland limited partnership,
EDISON HOTEL ASSOCIATES, LP,
a New Jersey limited partnership,
NOVI HOTEL ASSOCIATES, LP,
a Delaware limited partnership,
PARK RIDGE HOTEL ASSOCIATES LP,
a Delaware limited partnership,
SLT FINANCING PARTNERSHIP,
a Delaware general partnership,
SLT HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership,
VIRGINIA HOTEL ASSOCIATES, LP,
a Delaware limited partnership,
PRUDENTIAL HEI JOINT VENTURE,
a Georgia general partnership,
By: SLT Realty Limited Partnership,
a Delaware limited partnership, the general partner of each of
the above listed entities
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
______________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer
and Chief Accounting Officer
HEI HOTELS, L.L.C.,
a Delaware limited liability company,
SLC CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company,
SLC INDIANAPOLIS LLC,
a Delaware limited liability company,
23
STARWOOD MANAGEMENT COMPANY, LLC,
a Delaware limited liability company,
By: SLC Operating Limited Partnership,
a Delaware limited partnership, the managing member of each of
the above listed entities
By: Starwood Hotels & Resorts
Worldwide, Inc., a Maryland corporation, its
general partner
By: /s/ Xxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and CFO
SLC OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership,
By: Starwood Hotels & Resorts Worldwide, Inc., a Maryland
corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President and CFO
MILWAUKEE BROOKFIELD LP,
a Wisconsin limited partnership,
By: SLC Operating Limited Partnership,
a Delaware limited partnership, the general partner of each of
the above listed entities
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation, its general partner
By: /s/ Xxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
ITT BROADCASTING CORP.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
24
ITT SHERATON CORPORATION,
a Delaware corporation,
DESTINATION SERVICES OF SCOTTSDALE, INC.,
a Delaware corporation,
GENERAL FIDUCIARY CORPORATION,
a Massachusetts corporation,
GLOBAL CONNEXIONS INC.,
a Delaware corporation,
ITT SHERATON RESERVATIONS CORPORATION,
a Delaware corporation,
MANHATTAN SHERATON CORPORATION,
a New York corporation,
SAN DIEGO SHERATON CORPORATION,
a Delaware corporation,
SAN XXXXXXXX SHERATON CORPORATION,
a Delaware corporation,
SHERATON 45 PARK CORPORATION,
a Delaware corporation,
SHERATON ASIA-PACIFIC CORPORATION,
a Delaware corporation,
SHERATON BOSTON CORPORATION
a Massachusetts corporation,
SHERATON CALIFORNIA CORPORATION,
a Delaware corporation,
SHERATON FLORIDA CORPORATION,
a Delaware corporation,
SHERATON HARBOR ISLAND CORPORATION,
a Delaware corporation,
SHERATON HARTFORD CORPORATION,
a Connecticut corporation,
SHERATON HAWAII HOTELS CORPORATION,
a Hawaii corporation,
25
SHERATON INTERNATIONAL, INC.,
a Delaware corporation,
SHERATON INTERNATIONAL DE MEXICO, INC.,
a Delaware corporation,
SHERATON MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON OVERSEAS MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON WARSAW CORPORATION,
a Delaware corporation,
SHERATON MIAMI CORPORATION,
a Delaware corporation,
SHERATON MIDDLE EAST MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON NEW YORK CORPORATION,
a New York corporation,
SHERATON OVERSEAS TECHNICAL SERVICES CORPORATION,
a Delaware corporation,
SHERATON PEACHTREE CORPORATION,
a Delaware corporation,
SHERATON PHOENICIAN CORPORATION,
a Delaware corporation,
SHERATON SAVANNAH CORPORATION,
a Delaware corporation,
26
ST. REGIS SHERATON CORPORATION,
a New York corporation,
WORLDWIDE FRANCHISE SYSTEMS, INC.,
a Delaware corporation,
SHERATON VERMONT CORPORATION,
a Vermont corporation
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
XXXXXX SHERATON CORPORATION LLC,
a Delaware limited liability company
By: ITT SHERATON CORPORATION
a Delaware corporation, its managing member
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
ITT MSG, INC.,
a Delaware corporation
By: /s/ Xxxxxx X. Xxxxx
_______________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & CFO
W&S DENVER CORP.,
a Delaware corporation,
W&S REALTY CORPORATION OF DELAWARE,
a Delaware corporation,
XXXXXXXX XXXXXXXX HOTEL, INC.,
a Washington corporation,
LAUDERDALE HOTEL COMPANY,
a Delaware corporation,
WESTIN BAY HOTEL COMPANY,
a Delaware corporation,
CINCINNATI PLAZA COMPANY,
a Delaware corporation,
00
XXXXX XXXXX XXXXXX HOTEL COMPANY,
a Delaware corporation,
TOWNHOUSE MANAGEMENT INC.,
a Delaware corporation,
WVC RANCHO MIRAGE, INC.,
a Delaware corporation,
WESTIN ASSET MANAGEMENT COMPANY,
a Delaware corporation,
WESTIN HOTEL COMPANY,
a Delaware corporation,
W&S ATLANTA CORP.,
a Delaware corporation,
By: /s/ Xxxxxx X. Xxxxx
_____________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer and Chief
Accounting Officer
WESTIN SEATTLE HOTEL COMPANY,
a Washington general partnership,
By: Xxxxxxxx Xxxxxxxx Hotel, Inc.,
its general partner
By: /s/ Xxxxxx X. Xxxxx
___________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer and
Chief Accounting Officer
By: W&S Realty Corporation of Delaware,
its general partner
By: /s/ Xxxxxx X. Xxxxx
___________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer and
Chief Accounting Officer
WESTIN PREMIER, INC.,
a Delaware corporation,
WESTIN VACATION MANAGEMENT CORPORATION,
a Delaware corporation,
28
WESTIN VACATION EXCHANGE COMPANY,
a Delaware corporation
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation, the sole stockholder of each of the
above listed entities
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Executive Vice President & Chief Financial Officer
W&S LAUDERDALE CORP.,
a Delaware corporation,
W&S SEATTLE CORP.,
a Delaware corporation,
By: SLT Realty Limited Partnership,
a Delaware limited partnership, the sole stockholder of each
of the above listed entities
By: Starwood Hotels & Resorts
a Maryland real estate investment trust,
its general partner
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President, Chief Financial Officer,
Chief Accounting Officer
DATA MARKETING ASSOCIATES, INC.,
a Nevada corporation,
DATA MARKETING ASSOCIATES EAST, INC.,
a Florida corporation,
29
P.O.C. REALTY, INC.,
a Colorado corporation,
THE SUCCESS COMPANIES, INC.,
a Nevada corporation,
SUCCESS WEST COMMUNICATIONS, INC.,
a Nevada corporation,
VACATION MARKETING SERVICES, INC.,
a Florida corporation,
VACATION TITLE SERVICES, INC.,
a Florida corporation,
VACATIONWORKS, INC.,
a Florida corporation,
VCH COMMUNICATIONS, INC.,
a Florida corporation,
VCH CONSULTING, INC.,
a Florida corporation,
VCH CONTRACTING, INC.,
a Florida corporation,
VCH PORTFOLIO SERVICES, INC.,
a Florida corporation,
VCH SALES, INC.,
a Florida corporation,
VCH SYSTEMS, INC.,
a Florida corporation,
VCH TRADEMARK, INC.,
a Florida corporation,
VCM OAKS, INC.,
a Florida corporation,
VDI2, INC.,
a Florida corporation,
30
VISTANA ACCEPTANCE CORP.,
a Florida corporation,
VISTANA ADMINISTRATION, INC.,
a Florida corporation,
VISTANA CAVE CREEK, INC.
an Arizona corporation,
VISTANA DEVELOPMENT, INC.,
a Florida corporation d/b/a
Vistana Development, Ltd.,
VISTANA EAST, INC.,
a Florida corporation,
VISTANA INTERNATIONAL, INC.,
a Florida corporation,
VISTANA MANAGEMENT, INC.,
a Florida corporation d/b/a
Vistana Management, Ltd.,
VISTANA MB MANAGEMENT, INC.,
a South Carolina corporation,
VISTANA NJ, INC.,
a New Jersey corporation,
VISTANA OP INVESTMENT, INC.,
a Florida corporation,
VISTANA PSL, INC.,
a Florida corporation,
VISTANA SCOTTSDALE MANAGEMENT, INC.,
an Arizona corporation,
VISTANA WEST, INC.,
a Florida corporation,
POINTS OF COLORADO, INC.,
a Colorado corporation,
31
VISTANA, INC.,
a Florida corporation
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President & Assistant Secretary
SUCCESS OF ARIZONA, L.L.C., an Arizona
limited liability company,
SUCCESS OF COLORADO, L.L.C.,
a Nevada limited liability company,
FIESTA VACATIONS, L.L.C.,
an Arizona limited liability company
By: Vistana West, Inc., a Florida
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President & Assistant Secretary
SUCCESS DEVELOPMENTS, L.L.C.,
an Arizona limited liability company
By: Points of Colorado, Inc., a Colorado
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President & Assistant Secretary
SUCCESS OF COLORADO REALTY,
L.L.C., a Nevada limited liability company
By: Success of Colorado, L.L.C., a
Nevada limited liability company, a member
By: Vistana West, Inc., a Florida
corporation, its Manager
By: /s/ Xxxxxx X. Xxxxx
___________________________________________
Name: Xxxxxx X. Xxxxx
Title: Vice President & Assistant Secretary
32
BANKERS TRUST COMPANY,
Individually and as Administrative Agent and as Paying Agent
By: /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Principal
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By: /s/ Xxxx Xxxxxxxx
_____________________________________
Name: Xxxx Xxxxxxxx
Title: Managing Director
XXXXXX COMMERCIAL PAPER, INC.,
Individually and as Syndication Agent
By: /s/ G. Xxxxxx Xxxxx
_____________________________________
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
BANK OF MONTREAL, CHICAGO BRANCH,
Individually and as Syndication Agent
By: /s/ Xxxxxx X. Xxxxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxxxx
Title: Director
33
ARAB BANKING CORPORATION (B.S.C.)
/s/ X. Xxxxxx
By: _____________________________________
Name: X. Xxxxxx
Title: General Manager
BANCA POPOLARE DI MILANO
/s/ Xxxxxx Xxxxxxxxx
By: _____________________________________
Name: Xxxxxx Xxxxxxxxx
Title: First Vice President
/s/ Xxxxxxx X. Xxxxxxx
By: _____________________________________
Name: Xxxxxxx X. Xxxxxxx
Title: Vice President, Chief Credit Officer
BANKBOSTON, N.A.
/s/ Xxxxxxxx X. Xxxxx
By: _____________________________________
Name: Xxxxxxxx X. Xxxxx
Title: Director
By: _____________________________________
Name:
Title:
BANK OF AMERICA, N.A.
/s/ Xxxxx XxXxxxxx
By: _____________________________________
Name: Xxxxx XxXxxxxx
Title: Vice President
34
BANK LEUMI USA
/s/ Xxxxx Xxx Hong
By: _____________________________________
Name: Xxxxx Xxx Hong
Title: Vice President
BANK OF HAWAII
/s/ Xxxxx X. Xxxxxx
By: _____________________________________
Name: Xxxxx X. Xxxxxx
Title: Vice President
BANK POLSKA KASA OPIEKI S.A. PEKAO S.A.
GROUP, NEW YORK BRANCH
/s/ Xxxxx X. Xxxxx
By: _____________________________________
Name: Xxxxx X. Xxxxx
Title: Vice President
THE BANK OF TOKYO-MITSUBISHI, LIMITED,
NEW YORK BRANCH
/s/ Xxx Xxxxxxx
By: _____________________________________
Name: Xxx Xxxxxxx
Title: EVP
BANQUE WORMS CAPITAL CORP.
/s/ Xxxxxxx X. Xxxxxx
By: _____________________________________
Name: Xxxxxxx X. Xxxxxx
Title: VP & General Counsel
/s/ X.X. Xxxxx
By: _____________________________________
Name: X.X. Xxxxx
Title: AVP
35
BARCLAYS BANK PLC
By: /s/ Xxxx Xxxxxxxx
_____________________________________
Name: Xxxx Xxxxxxxx
Title: Director
BEAR XXXXXXX INVESTMENT PRODUCTS INC.
By: /s/ Xxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxx
Title: Senior Managing Director
XXXXX XXX COMMERCIAL BANK, LTD.,
NEWYORK BRANCH
By: _____________________________________
Name:
Title:
XXXXX XXXX BANK CO., LTD.
NEW YORK AGENCY
By: _____________________________________
Name:
Title:
CIBC INC.
By: /s/ Xxxx X. Xxxxxxx
_____________________________________
Name: Xxxx X. Xxxxxxx
Title: Managing Director
CIBC World Markets Corp., AS AGENT
36
CREDIT INDUSTRIEL et COMMERCIAL
By: /s/Xxxx Xxxxxxx
-------------------------------------
Name: Xxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxx X'Xxxxx
-------------------------------------
Name: Xxxxx X'Xxxxx
Title: Vice President
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ Xxxx X. Xxxx
-------------------------------------
Name: Xxxx X. Xxxx
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By:
--------------------------------------
Name:
Title:
THE DAI-ICHI KANGYO BANK, LIMITED,
NEW YORK BRANCH
By: /s/ Chimie T. Pemba
-------------------------------------
Name: Chimie T. Pemba
Title: Account Officer
37
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By:
_____________________________________
Name:
Title:
By:
_____________________________________
Name:
Title:
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ Xxxx Xxxxxxx
_____________________________________
Name: Xxxx Xxxxxxx
Title: Vice President
Erste Bank New York Branch
By: /s/ Xxxx X. Xxxxxxx
_____________________________________
Name: Xxxx X. Xxxxxxx
Title: First Vice President
FIRST COMMERCIAL BANK
By: /s/ Xxxxxxx X.X. Xxxx
_____________________________________
Name: Xxxxxxx X.X. Xxxx
Title: Senior Vice President &
General Manager
FIRST HAWAIIAN BANK
By: /s/ Xxxxxxx X. Migashi
_____________________________________
Name: Xxxxxxx X. Migashi
Title: Assistant Vice President
38
FIRST SECURITY BANK, N.A.
By: /s/ Xxxxx X. Xxxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Vice President
FLEET BANK, N.A.
By: /s/ Xxxx X. Xxxxxxxx
_____________________________________
Name: Xxxx X. Xxxxxxxx
Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ Xxxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Duly Authorized Signatory
XXXXXXX SACHS CREDIT PARTNERS L.P.
By: /s/ Xxxxxx X. Xxxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxxx
Title: Authorized Signatory
GULF INTERNATIONAL BANK B.S.C.
By:
_____________________________________
Name:
Title:
XXX XXX COMMERCIAL BANK, LTD.
NEW YORK AGENCY
By: /s/ Xxxxx Y.P. Xxxxx
_____________________________________
Name: Xxxxx Y.P. Xxxxx
Title: SVP & General Manager
39
INDOSUEZ CAPITAL FUNDING IIA LIMITED
By: INDOSUEZ CAPITAL, as Portfolio Manager
By: /s/ Xxxxxxx Xxxxxx
_____________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
INDOSUEZ CAPITAL FUNDING III LIMITED
By: INDOSUEZ CAPITAL, as Portfolio Manager
By: /s/ Xxxxxxx Xxxxxx
_____________________________________
Name: Xxxxxxx Xxxxxx
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN, LIMITED
NEW YORK BRANCH
By: /s/ Xxxxxxx Xxxxxxx
_____________________________________
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
KZH CNC LLC
By: /s/ Xxxxx Xxxx
_____________________________________
Name: Xxxxx Xxxx
Title: Authorized Agent
LAND BANK OF TAIWAN,
LOS ANGELES BRANCH
By: /s/ Xxxxx Xxxx
_____________________________________
Name: Xxxxx Xxxx
Title: SVP & General Manager
40
MELLON BANK, N.A., solely in its capacity as Trustee for the GENERAL
MOTORS CASH MANAGEMENT MASTER TRUST, (as directed by Xxxxxxxx Capital
Management, Inc.), and not in its individual capacity
By: _____________________________________
Name:
Title:
THE MITSUBISHI TRUST & BANKING CORPORATION
By: /s/ Xxxxxxxxx Xxxxxxx
_____________________________________
Name: Xxxxxxxxx Xxxxxxx
Title: Senior Vice President
PARIBAS
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Name: Xxxx X. Xxxxxx
Title: Director
By: /s/ Xxxx X. Xxxxxx
_____________________________________
Name: Xxxx X. Xxxxxx
Title: Managing Director
THE ROYAL BANK OF SCOTLAND, PLC
By: _____________________________________
Name:
Title:
SAN PAOLO IMI S.P.A.
By: /s/ Xxxxx Xxxxxxx /s/ Xxxxxx Xxxxxxx
_____________________________________
Name: Xxxxx Xxxxxxx Xxxxxx Xxxxxxx
Title: DGM 1st V.P.
41
SEQUILS I, LTD.
By: TCW Advisors, Inc. as its Collateral Manager
By: /s/ Xxxx X. Gold
_____________________________________
Name: Xxxx X. Gold
Title: Managing Director
By: /s/ Xxxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxxx X. Xxxxx
Title: Vice President
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ Huvishka Ali
_____________________________________
Name: Huvishka Ali
Title: Vice President
SOUTHERN PACIFIC BANK
By: /s/ Mun Xxxxx Xxx
_____________________________________
Name: Mun Xxxxx Xxx
Title: Vice President
THE SUMITOMO BANK, LIMITED,
NEW YORK BRANCH
By: /s/ Xxxxxx X. Tata
_____________________________________
Name: Xxxxxx X. Tata
Title: Senior Vice President
42
SYNDICATED LOAN FUNDING TRUST
By: Xxxxxx Commercial Paper Inc., not in its
individual capacity, but solely as Asset Manager
By: /s/ G. Xxxxxx Xxxxx
-------------------------------------
Name: G. Xxxxxx Xxxxx
Title: Authorized Signatory
UNICREDITO ITALIANO
By: /s/ Xxxxxxxxxx Xxxxxxx
-------------------------------------
Name: Xxxxxxxxxx Xxxxxxx
Title: First Vice President
By: /s/ Xxxxxx X. Xxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxx
Title: Vice President
XXX XXXXXX SENIOR FLOATING RATE FUND
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXX XXXXXX PRIME RATE INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
-------------------------------------
Name: Xxxxxx X. Xxxxxx
Title: Vice President
43
XXX XXXXXX CLO I, LIMITED
By: XXX XXXXXX MANAGEMENT INC.,
as Collateral Manager
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
XXX XXXXXX SENIOR INCOME TRUST
By: Xxx Xxxxxx Investment Advisory Corp.
By: /s/ Xxxxxx X. Xxxxxx
_____________________________________
Name: Xxxxxx X. Xxxxxx
Title: Vice President
WACHOVIA BANK, N.A.
By: /s/ C. Xxxx Xxxxxx
_____________________________________
Name: C. Xxxx Xxxxxx
Title: Vice President
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ Xxxxx X. Xxxxxxxx
_____________________________________
Name: Xxxxx X. Xxxxxxxx
Title: Director
By: /s/ Xxxxxx X. Xxxxx
_____________________________________
Name: Xxxxxx X. Xxxxx
Title: Managing Director
44
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By: _____________________________________
Name:
Title:
OXFORD STRATEGIC INCOME FUND
By: XXXXX XXXXX MANAGEMENT,
as Investment Advisor
By: _____________________________________
Name:
Title:
XXXXX XXXXX SENIOR INCOME TRUST
By: XXXXX XXXXX MANAGEMENT,
as Investment Advisor
By: _____________________________________
Name:
Title:
XXXXX XXXXX INSTITUTIONAL SENIOR LOAN FUND
By: XXXXX XXXXX MANAGEMENT,
as Investment Advisor
By: _____________________________________
Name:
Title:
45
ANNEX I
Excerpts of Financial Covenants under the CIGA Bridge Loan
(1) So long as any CIGA Commitment is in force or any moneys or obligations
of the CIGA Borrower are outstanding under the CIGA Bridge Loan, the
CIGA Borrower undertakes that its Financial Indebtedness, plus the
Financial Indebtedness of the CIGA Group, will not exceed 4.50 (four
and a half) times the consolidated EBITDA of the CIGA Group for each
prior 12 calendar month period occurring after July 1, 2000;
(2) The CIGA Borrower also undertakes that, during the term of the CIGA
Bridge Loan, CIGA will maintain a Tangible Net Worth of at least EUR
465,000,000 (four hundred and sixty five Million Euros);
(3) The CIGA Borrower also undertakes that, during the term of the CIGA
Bridge Loan, the amount of Indebtedness of the CIGA Group secured by an
Encumbrance on assets will represent no more than 35% of the total
combined Financial Indebtedness (including the CIGA Bridge Loan) of the
CIGA Borrower and the CIGA Group, it being understood that no such
Encumbrance shall be created to secure financing that would not be
directly applied to the purchase or the improvement of the owned
property of the CIGA Group; and
(4) So long as any CIGA Commitment is in force or any moneys or obligations
are outstanding under the CIGA Bridge Loan, the Guarantors undertake to
comply with the financial covenants set forth in Section 9.08 (Combined
Interest Coverage Ratio), Section 9.09 (Maximum Combined Leverage
Ratio), Section 9.10 (Combined Adjusted Interest Coverage Ratio), and
Section 9.23 (Unencumbered EBITDA Ratio) of the Credit Agreement, in
each case, as the same may be amended or modified from time to time.
As used in this ANNEX I only, the following terms shall have the following
meanings:
"CIGA COMMITMENT" means the commitment of each CIGA Lender to make available,
through the Facility Agent, the Facility Amount on the terms and conditions of
the CIGA Bridge Loan.
"CIGA GROUP" means CIGA and its Subsidiaries.
"CIGA GUARANTORS" means, collectively, Starwood Hotels & Resorts Worldwide, Inc.
and Starwood Hotels & Resorts.
"EBITDA" means Earnings Before Interest, Income Taxes, Depreciation and
Amortization, excluding any extraordinary item and calculated in accordance with
U.S. GAAP; provided that EBITDA shall be computed on a pro-forma basis to
exclude the EBITDA actually derived during the computation period from assets of
the CIGA Group sold or otherwise disposed of.
"ENCUMBRANCE" means any mortgage, charge (whether fixed or floating), pledge,
lien, hypothecation, assignment by way of security, title, retention or other
security interest of any kind other than liens arising by operation of law.
46
"FACILITY AGENT" means Credit Lyonnais SA, a societe anonyme, duly organized
under the laws of France.
"FACILITY AMOUNT" means the total amount of Euros that the CIGA Lenders, through
the Facility Agent, will make available to the CIGA Borrower for drawdown
according to the terms and conditions of the CIGA Bridge Loan.
"FINANCIAL INDEBTEDNESS" means indebtedness incurred in respect of:
(a) money borrowed or raised (excluding money raised by way of the issue of
equity share capital);
(b) any xxxx, xxxx of exchange, note, loan stock, debenture, commercial paper or
similar security or instrument;
(c) acceptance, documentary credit or guarantee facilities;
(d) deferred payments for assets or services acquired (excluding any such
liability in respect of normal trade credit), for a period not exceeding twelve
months;
(e) rental payments under finance leases;
(f) payments under hire purchase contracts;
(g) factored debts, to the extent that there is recourse;
(h) guarantees, bonds, standby letters of credit or other instruments issued in
connection with the performance of contracts;
(i) guarantees, indemnities or other assurances against financial loss in
respect of indebtedness of any person falling within any of paragraphs (a) to
(h) inclusive above, excluding any mortgages securing medium and long term loans
already included in this definition; and
(j) amounts raised or obligations incurred under any other transaction having
the commercial effect of any of the above.
"INDEBTEDNESS" means any obligation for the payment or repayment of money,
whether present or future, actual or contingent, sole or joint.
"STARWOOD GROUP" means Starwood Hotels & Resorts Worldwide, Inc. and Starwood
Hotels & Resorts and their Subsidiaries.
"TANGIBLE NET WORTH" means the shareholders' equity composed of: (i) share
capital; (ii) share premium reserves; (iii) retained earnings or deficit; (iv)
income of the year, decreased by (a) the intangible assets and (b) the amount of
intercompany loans made by the CIGA Borrower or any company of the CIGA Group to
any company of the Starwood Group that is not the CIGA Borrower or a company of
the CIGA Group; provided that for the purpose of clause (b) above, the
calculation of intercompany loans will be the amount of intercompany loans made
after the date of the CIGA Bridge Loan in excess of EUR 45,000,000 (forty-five
million Euros). In addition, any intercompany loans made by the CIGA Borrower to
any Subsidiary of the Starwood Group from the proceeds of the CIGA Bridge Loan
will not impact this calculation.
Annex I, page 2
47
ANNEX II
FORM OF ASSUMPTION AGREEMENT
Date: ___________
Reference is made to the Credit Agreement described in Item 2
of Annex II-A hereto (as such Credit Agreement may hereafter be amended,
supplemented or otherwise modified from time to time, the "Credit Agreement").
Unless defined in Annex II-A hereto, terms defined in the Credit Agreement are
used herein as therein defined. Each of Starwood Hotels & Resorts, a Maryland
real estate investment trust ("Starwood REIT"), SLT Realty Limited Partnership,
a Delaware limited partnership ("SLT RLP"), Starwood Hotels & Resorts Worldwide,
Inc., a Maryland corporation (the "Corporation") and ITT Corporation, a Nevada
corporation ("ITT" and, together with Starwood REIT, SLT RLP and the
Corporation, the "Starwood Entities") and _______________________ (the "New
Lender") hereby agree as follows:
1. In accordance with the terms of the Credit Agreement (and
the Tenth Amendment thereto) the New Lender hereby acknowledges and agrees that
it hereby makes a New Tranche II Term Loan Commitment (as defined in the Tenth
Amendment) in the amount specified in Item 4 of Annex II-A hereto. The New
Lender further agrees to make Tranche II Term Loans (which shall constitute New
Tranche II Term Loans) pursuant to its New Commitment (as defined in the Tenth
Amendment) in accordance with the requirements of the Credit Agreement and the
Tenth Amendment.
2. As more fully provided in Section 7 of the Tenth Amendment,
the New Lender hereby acknowledges and agrees that, to the extent provided in
said Section 7, various repayments of outstanding Tranche II Term Loans shall be
allocated to the Existing Tranche II Term Loans and not to the New Tranche II
Term Loans. The New Lender is aware that Section 7 of the Tenth Amendment
provides certain overriding provisions with respect to the Existing Tranche II
Term Loans and the New Tranche II Term Loans, and is familiar with the terms
thereof. Furthermore, the New Lender agrees to keep records of its outstanding
New Tranche II Term Loans as opposed to the outstanding principal of its
Existing Tranche II Term Loans, if any, and agrees that if it makes any
assignment or participation of any Tranche II Term Loans it shall clearly
provide in the relevant documentation whether (and to what extent) the
assignment is of Existing Tranche II Term Loans and/or New Tranche II Term Loans
and shall inform the assignee or participant, as the case may be, of the
provisions of Section 7 of the Tenth Amendment.
3. The New Lender acknowledges and agrees that no Agent and no
other Lender (i) makes any representation or warranty or assumes any
responsibility with respect to the financial condition of the Parent Companies
or any of their Subsidiaries or the performance or observance by the Parent
Companies or any of their Subsidiaries of any of their respective obligations
under the Credit Agreement or the other Credit Documents to which they are a
party or any other instrument or document furnished pursuant thereto or (ii)
makes any representation or warranty or assumes any responsibility with respect
to any statements, warranties or representations made in or in connection with
the Credit Agreement or the other Credit
48
Documents or the execution, legality, validity, enforceability, genuineness,
sufficiency or value of the Credit Agreement or the other Credit Documents or
any other instrument or document furnished pursuant thereto.
4. The New Lender (i) confirms that it has received a copy of
the Credit Agreement and the other Credit Documents, together with copies of the
financial statements referred to therein and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into this Assumption Agreement; (ii) agrees that it will,
independently and without reliance upon the Administrative Agents or any other
Lender and based on such documents and information as it shall deem appropriate
at the time, continue to make its own credit decisions in taking or not taking
action under the Credit Agreement; (iii) confirms that it is an Eligible
Transferee as defined in the Credit Agreement; (iv) appoints and authorizes the
Administrative Agents and the Collateral Agent to take such action as agent on
its behalf and to exercise such powers under the Credit Agreement and the other
Credit Documents as are delegated to the Administrative Agents and the
Collateral Agent, by the terms thereof, together with such powers as are
reasonably incidental thereto; [and] (v) agrees that it will perform in
accordance with their terms all of the obligations which by the terms of the
Credit Agreement and the other Credit Documents are required to be performed by
it as a Lender; [and (vi) to the extent legally entitled to do so, attaches the
forms described in Section 13.04(b) of the Credit Agreement.(1)
5. Following the execution of this Assumption Agreement by the
Starwood Entities and the New Lender, an executed original hereof (together with
all attachments) will be delivered to the Paying Agent. The effective date of
this Assumption Agreement shall be the date of execution hereof by the Starwood
Entities and the New Lender, the receipt of the consent of the Paying Agent. the
receipt by the Paying Agent of the administrative fee referred to in Section
13.04(b) of the Credit Agreement and the recordation of the assignment effected
hereby on the Register by the Paying Agent as provided in Section 13.15 of the
Credit Agreement, or such later date, if any, which may be specified in Item 5
of Annex II-A hereto (the "New Commitment Effective Date").
6. Upon the delivery of a fully executed original hereof to
the Paying Agent, as of the New Commitment Effective Date, the New Lender shall
be a party to the Credit Agreement and, to the extent provided in this
Assumption Agreement, have the rights and obligations of a Lender thereunder and
under the other Credit Documents.
7. It is agreed that the New Lender shall be entitled to (x)
interest on the Loans made by it and (y) Commitment Commission (if applicable)
on the New Lender's participation in all Letters of Credit, in each case at the
rates specified in the Credit Agreement, for periods after such extensions of
credit are made by such New Lender pursuant to this Assumption Agreement and the
terms of the Credit Agreement..
-----------------------
(1) Include if the New Lender is organized under the laws of a jurisdiction
outside of the United States.
Annex II, page 2
49
8. THIS ASSUMPTION AGREEMENT SHALL BE GOVERNED BY, AND
CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK.
Annex II, page 3
50
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Assumption Agreement, as of the
date first above written, such execution also being made on Annex II-A hereto.
Accepted this ____ day
of __________, 19__
STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust
By:_______________________________
Name:
Title:
STARWOOD HOTELS & RESORTS WORLDWIDE, INC.,
a Maryland corporation
By:_______________________________
Name:
Title:
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts, a Maryland
real estate investment trust, its
general partner
By:_______________________________
Name:
Title:
ITT CORPORATION, a Nevada corporation
By:_______________________________
Name:
Title:
Annex II, page 4
51
[NAME OF NEW LENDER],
as a New Lender
By_____________________________
Title:
Acknowledged and Agreed as of _________ ___, 19__:
BANKERS TRUST COMPANY,
as Paying Agent
By__________________________
Title:
Annex II, page 5
52
ANNEX II-A FOR ASSUMPTION AGREEMENT
1. Borrowers: Starwood Hotels & Resorts Worldwide, Inc.
ITT Corporation
2. Name and Date of Credit Agreement:
Credit Agreement, dated as of February 23, 1998, among Starwood Hotels
& Resorts, SLT Realty Limited Partnership, Starwood Hotels & Resorts
Worldwide, Inc., ITT Corporation (as successor in interest to Chess
Acquisition Corp.), each Alternate Currency Revolving Loan Borrower
from time to time party thereto, the Lenders from time to time party
thereto, Bankers Trust Company and The Chase Manhattan Bank, as
Administrative Agents, and Xxxxxx Commercial Paper Inc. and Bank of
Montreal, as Syndication Agents, as amended, modified or supplemented
to the date hereof.
3. Date of Assumption Agreement:
4. Amounts of Tranche II Term Loans as of date of item #3 above (other
extensions of credit, including pursuant to the Revolving Loan Commitments, may
also be outstanding under the Credit Agreement):
Tranche II Term Loans
i. Aggregate Outstanding $__________
Principal Amount for all
Lenders (before giving effect
to New Commitment Effective
Date)
ii. New Tranche II Term Loan $__________
Commitment of New Lender
Annex II, page 6
53
5. New Commitment Effective Date:
6. Notice:
NEW LENDER:
---------------------
---------------------
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Attention:
Telephone:
Telecopier:
Reference:
Payment Instructions:
NEW LENDER:
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Attention:
Reference:
Annex II, page 7
54
Accepted and Agreed:
[NAME OF NEW LENDER]
By STARWOOD HOTELS & RESORTS,
---------------------------------- a Maryland real estate investment
trust
By:_______________________________
Name:
Title:
STARWOOD HOTELS & RESORTS WORLDWIDE,
INC., a Maryland corporation
By:_______________________________
Name:
Title:
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts, a
Maryland real estate investment
trust, its general partner
By:_______________________________
Name:
Title:
ITT CORPORATION, a Nevada
corporation
By:_______________________________
Name:
Title:
Annex II, page 8
