1
EXHIBIT 4.5
$146,000,000
CREDIT AGREEMENT
Dated as of April 21, 1999
Among
FLORIDA PANTHERS HOTEL CORPORATION,
AS BORROWER,
THE INITIAL LENDERS NAMED HEREIN,
BEAR, XXXXXXX & CO. INC.,
as SYNDICATION AGENT
and
BANKERS TRUST COMPANY,
as ADMINISTRATIVE AGENT
2
T A B L E O F C O N T E N T S
SECTION PAGE
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.01. Certain Defined Terms.............................................................................1
1.02. Computation of Time Periods; Other Definitional Provisions.......................................22
1.03. Accounting Terms.................................................................................22
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
2.01. The Advances.....................................................................................22
2.02. Making the Advances..............................................................................22
2.03. Repayment of Advances............................................................................23
2.04. Termination or Reduction of the Commitments......................................................23
2.05. Prepayments......................................................................................24
2.06. Interest.........................................................................................24
2.07. Fees.............................................................................................25
2.08. Conversion of Advances...........................................................................25
2.09. Increased Costs, Etc.............................................................................26
2.10. Payments and Computations........................................................................27
2.11. Taxes............................................................................................28
2.12. Sharing of Payments, Etc.........................................................................30
2.13. Use of Proceeds..................................................................................31
2.14. Evidence of Debt.................................................................................31
2.15. Cash Management..................................................................................32
ARTICLE III
CONDITIONS OF LENDING
3.01. Conditions Precedent to Closing Date.............................................................33
3.02. Conditions Precedent to Each Borrowing...........................................................39
3.03. Determinations Under Section 3.01................................................................39
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
4.01. Representations and Warranties of the Borrower...................................................40
ARTICLE V
COVENANTS
5.01. Affirmative Covenants............................................................................48
5.02. Negative Covenants...............................................................................52
5.03. Borrower Reporting Requirements..................................................................59
5.04 Parent Guarantor Reporting Requirements..........................................................62
5.05. Parent Guarantor Covenants.......................................................................63
ARTICLE VI
EVENTS OF DEFAULT
6.01. Events of Default................................................................................63
3
ARTICLE VII
THE AGENTS
7.01. Authorization and Action.........................................................................66
7.02. Agent's Reliance, Etc............................................................................67
7.03. BT Co., Bear Xxxxxxx and Affiliates..............................................................67
7.04. Lender Party Credit Decision.....................................................................68
7.05. Indemnification..................................................................................68
7.06. Successor Administrative Agents..................................................................69
7.07. Syndication Agent................................................................................69
7.08. Collateral Documents: Secured Party Action.......................................................69
7.09. Certain Actions after an Event of Default........................................................70
ARTICLE VIII
MISCELLANEOUS
8.01. Amendments, Etc..................................................................................71
8.02. Notices, Etc.....................................................................................71
8.03. No Waiver; Remedies..............................................................................72
8.04. Costs and Expenses...............................................................................72
8.05. Right of Set-off.................................................................................75
8.06. Binding Effect...................................................................................75
8.07. Assignments and Participations...................................................................75
8.08. Execution in Counterparts........................................................................78
8.09. Jurisdiction, Etc................................................................................78
8.10. Governing Law....................................................................................78
8.11. Waiver of Jury Trial.............................................................................78
4
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of April 21, 1999 among Florida Panthers
Hotel Corporation, a Delaware corporation (the "BORROWER"), the banks,
financial institutions and other institutional lenders listed on the signature
pages hereof as the Initial Lenders (the "INITIAL LENDERS"), Bear, Xxxxxxx &
Co. Inc. ("BEAR XXXXXXX"), as syndication agent (the "SYNDICATION AGENT") and
Bankers Trust Company ("BT CO."), as administrative agent (together with any
successors appointed pursuant to Article VII, the "ADMINISTRATIVE AGENT" and,
together with the Syndication Agent, the "AGENTS") for the Lender Parties (as
hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower is a wholly-owned Subsidiary of Florida Panthers
Holdings, Inc., a Delaware corporation (the "PARENT GUARANTOR") and the
indirect owner of all of the Borrowing Base Properties (as hereinafter
defined).
(2) The Borrower has requested that the Lender Parties (as hereinafter
defined) lend to the Borrower up to $146,000,000 to finance capital
improvements, repayment of existing indebtedness, acquisitions of first class,
full service hotels, and to provide working capital for the Borrower, the
Subsidiary Guarantors or the Parent Guarantor.
(3) The Lender Parties have indicated their willingness to agree to
lend such amounts on the terms and conditions of this Agreement.
(4) The Borrower has requested that the Lender Parties purchase that
certain existing Term Note of the Parent Guarantor to the order of The Chase
Manhattan Bank, the obligations of the borrower under which have been assumed
by the Borrower and which reflects a current outstanding principal balance of
$146,000,000. The Lender Parties are willing to do so on the condition that,
immediately thereafter, the Notes herein contemplated are substituted for said
Term Note and the principal amount outstanding thereunder is immediately
reduced to $24,900,000.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. CERTAIN DEFINED TERMS. As used in this Agreement, the
following terms shall have the following meanings (such meanings to be equally
applicable to both the singular and plural forms of the terms defined):
"ADJUSTED EBITDA" means, with respect to any Person, for any
Rolling Period and as at any
5
date of determination, the sum of EBITDA for such Person for such
Rolling Period, PLUS the increase or MINUS the decrease in the amount
of deferred Premier Club membership fees reflected as a component of
deferred revenue on the balance sheet of such Person at the beginning
and end of such Rolling Period PLUS the decrease or MINUS the increase
in Premier Club notes receivable reflected on such balance sheet
(without taking into account any write-offs related to such amounts)
less all expenses during such Rolling Period in connection with such
Premier Club operations (which were not otherwise included in
computing net income for such Rolling Period).
"ADVANCE" has the meaning specified in Section 2.01.
"ADMINISTRATIVE AGENT" has the meaning specified in the
recital of parties to this Agreement.
"ADMINISTRATIVE AGENT'S ACCOUNT" means the account of the
Administrative Agent maintained by the Administrative Agent at the
Federal Reserve Bank of New York, 00 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, ABA No. 021 001 033, for further credit to Account No. 99
401268, Commercial Loan Division, or such other account maintained by
the Administrative Agent and designated by the Administrative Agent in
a written notice to the Lender Parties and the Borrower.
"AFFILIATE" means, as to any Person, any other Person that,
directly or indirectly, controls, is controlled by or is under common
control with such Person or is a director or officer of such Person.
For purposes of this definition, the term "control" (including the
terms "controlling", "controlled by" and "under common control with")
of a Person means the possession, direct or indirect, of the power to
vote 10% or more of the Voting Interests of such Person or to direct
or cause the direction of the management and policies of such Person,
whether through the ownership of Voting Interests, by contract or
otherwise.
"AGENTs" has the meaning specified in the recital of parties
to this Agreement.
"AGREEMENT VALUE" means, for each Hedge Agreement, on any
date of determination, an amount equal to: (a) in the case of a Hedge
Agreement documented pursuant to the Master Agreement
(Multicurrency-Cross Border) published by the International Swap and
Derivatives Association, Inc. (the "MASTER AGREEMENT"), the amount, if
any, that would be payable by any Loan Party or any of its
Subsidiaries to its counterparty to such Hedge Agreement, as if (i)
such Hedge Agreement was being terminated early on such date of
determination, (ii) such Loan Party or Subsidiary was the sole
"Affected Party", and (iii) respective counterparty to such hedge
agreement was the sole party determining such payment amount (with the
respective counterparty to such hedge agreement making such
determination pursuant to the provisions of the form of Master
Agreement); or (b) in the case of a Hedge Agreement traded on an
exchange, the xxxx-to-market value of such Hedge Agreement, which will
be the unrealized loss on such Hedge Agreement to the Loan Party or
Subsidiary of a Loan Party party to such Hedge Agreement determined by
the respective counterparty to such hedge agreement based on the
settlement price of such Hedge Agreement on such date of
determination, or (c) in all other cases, the xxxx-to-market value of
such Hedge Agreement, which will be the unrealized loss on such Hedge
Agreement to the Loan Party or Subsidiary of a Loan Party party to
such Hedge Agreement determined by the respective counterparty to such
hedge agreement as the amount, if any,
2
6
by which (i) the present value of the future cash flows to be paid by
such Loan Party or Subsidiary exceeds (ii) the present value of the
future cash flows to be received by such Loan Party or Subsidiary
pursuant to such Hedge Agreement; capitalized terms used and not
otherwise defined in this definition shall have the respective
meanings set forth in the above described Master Agreement.
"ANNUALIZATION FACTOR" means a fraction the numerator of
which is the number 365 and the denominator of which is the number of
days following the date of the initial Borrowing.
"APPLICABLE LENDING OFFICE" means, with respect to each
Lender Party, such Lender Party's Domestic Lending Office in the case
of a Base Rate Advance and such Lender Party's Eurodollar Lending
Office in the case of a Eurodollar Rate Advance.
"APPLICABLE MARGIN" means, for Base Rate Borrowings, 1% per
annum, and, for Eurodollar Rate Borrowings, 3% per annum.
"APPRAISED VALUE" means the fair market value of the
Borrowing Base Properties at the time of any determination by the
Administrative Agent of the Borrowing Base Amount, based on the most
recent appraisals obtained by the Administrative Agent and as provided
herein, for each of the Borrowing Base Properties.
"APPROVED FUND" means, with respect to any Lender Party that
is a fund that invests in bank loans, any other fund that invests in
bank loans and is advised or managed by the same investment advisor as
such Lender Party or by an Affiliate of such investment advisor.
"ASSIGNMENT AND ACCEPTANCE" means an assignment and
acceptance entered into by a Lender Party and an Eligible Assignee and
accepted by the Administrative Agent, in accordance with Section 8.07
and in substantially the form of Exhibit C hereto.
"BAHIA MAR" means the 293-room resort, hotel and related
improvements, facilities and assets, including, without limitation,
the Mortgaged Property (as defined in the Bahia Mar Mortgage),
situated on that certain real property located in Broward County,
Florida, as more fully described in the Bahia Mar Mortgage, and
commonly known as the Bahia Mar Hotel.
"BASE RATE" means a fluctuating interest rate per annum in
effect from time to time, which rate per annum shall at all times be
equal to the higher of:
(a) the rate of interest announced publicly by BT
Co. in New York, New York, from time to time, as its prime
lending rate (the "PRIME LENDING RATE") (the Prime Lending
Rate is a reference rate and does not necessarily represent
the lowest or best rate actually charged to any customer; BT
Co. may make commercial loans or other loans at rates of
interest at, above or below the Prime Lending Rate); and
(b) 1/2 of 1% per annum above the Federal Funds
Rate.
"BASE RATE ADVANCE" means an Advance that bears interest as
provided in Section 2.06(a)(i).
3
7
"BOOK NET WORTH" shall be calculated in accordance with GAAP.
"BORROWER" has the meaning specified in the recital of
parties to this Agreement.
"BORROWER'S ACCOUNT" means such account of the Borrower as
the Borrower and the Administrative Agent may from time to time
designate as the "Borrower's Account".
"BORROWING" means a borrowing consisting of simultaneous
Advances of the same Type made by the Lenders.
"BORROWING BASE AMOUNT" means, as of any date of
determination, an amount determined by the Administrative Agent as the
lesser of (a) an amount which is equal to the combined fair market
value of the Borrowing Base Properties, in each case based on the most
recent Appraised Value, multiplied by the "Aggregate Loan to Value
Ratio" set forth in the first row of the table below; (b) an amount
which is equal to the Reserve Adjusted EBITDA determined on a combined
basis for the Operating Subsidiaries for the Rolling Period ending on
or immediately prior to such date of determination, divided by the
Debt Service Rate divided by the "Debt Service Coverage Ratio" set
forth in the second row of the table below; and (c) an amount which is
equal to the Reserve Adjusted EBITDA for such Rolling Period,
multiplied by the "Reserve Adjusted EBITDA factor" set forth in the
third row of the table below.
After First After
Existing Transfer of Transfer of After Second
Borrowing Borrowing Base Registry if Transfer of
Base Property (Other First Borrowing
Properties than Registry) Transfer Base Property
---------- --------------- ------------ -------------
Aggregate Loan
to Value Ratio 50% 50% 45% 40%
Debt Service
Coverage Ratio 1.75 1.75 1.85 2.00
Reserve Adjusted 4.90 4.90 4.50 4.00
EBITDA factor
"BORROWING BASE CERTIFICATE" means a certificate in
substantially the form of Exhibit G hereto, duly certified by the
chief financial officer of the Borrower.
"BORROWING BASE PROPERTIES" means, subject to the provisions
of Section 5.02(e)(iii), the following four properties: Bahia Mar,
Pier 66, Registry and Edgewater; PROVIDED, HOWEVER, that to the extent
any of the Borrowing Base Properties are sold pursuant to Section
5.02(e)(iii), such property shall no longer be considered a Borrowing
Base Property.
"BT CO." has the meaning specified in the recital of parties
to this Agreement.
"BUSINESS DAY" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on
which dealings are carried on in the London interbank market.
"CAP AGREEMENTS" means interest rate cap agreements purchased
for the purpose of hedging interest rates in accordance with section
5.01(r).
4
8
"CAPITAL EXPENDITURES" means, for any Person as of any date
of determination, the sum of, without duplication, (a) all cash
expenditures made, directly or indirectly, by such Person or any of
its Subsidiaries during such period for equipment, fixed assets, real
property or improvements, or for replacements or substitutions
therefor or additions thereto, that have been or should be, in
accordance with GAAP, reflected as additions to property, plant or
equipment on a Consolidated balance sheet of such Person plus (b) the
aggregate principal amount of all Debt (including Obligations under
Capitalized Leases) assumed or incurred in connection with any such
expenditures.
"CAPITALIZED LEASES" means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized leases.
For purposes of this definition, the purchase price of equipment that
is purchased simultaneously with the trade-in of existing equipment or
with insurance proceeds shall be included in Capital Leases only to
the extent of the gross amount of such purchase price less the credit
granted by the seller of such equipment for the equipment being traded
in at such time or the amount of such proceeds, as the case may be.
"CASH EQUIVALENTS" means any of the following, to the extent
owned by the Operating Subsidiaries free and clear of all Liens other
than Liens created under the Collateral Documents and having a
maturity of not greater than 180 days (except, with respect to clause
(a) below, not greater than one year and, with respect to clauses (b)
and (c) below, not greater than 90 days) from the date of acquisition
thereof: (a) readily marketable direct obligations of the Government
of the United States or any agency or instrumentality thereof or
obligations unconditionally guaranteed by the full faith and credit of
the Government of the United States, (b) insured certificates of
deposit of or time deposits with any commercial bank that is a Lender
Party or a member of the Federal Reserve System, issues (or the parent
of which issues) commercial paper rated as described in clause (c), is
organized under the laws of the United States or any State thereof and
has combined capital and surplus of at least $1 billion, (c)
commercial paper in an aggregate amount of not more than $250,000 per
issuer outstanding at any time, issued by any corporation organized
under the laws of any State of the United States and rated at least
"Prime-1" (or the then equivalent grade) by Xxxxx'x Investors Service,
Inc. or "A-1" (or the then equivalent grade) by Standard & Poor's
Ratings Group, a division of the McGraw Hill Companies, Inc., (d)
repurchase obligations with a term of not more than seven days for
underlying securities of the types described in clauses (b) and (c)
above entered into with any financial institution meeting the
qualifications specified in clause (b) above; or (e) money market or
mutual funds that invest solely in Cash Equivalents of the types
described in clauses (a), (b) and (c) above.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
5
9
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"CHANGE OF CONTROL" means the occurrence of any of the
following: (a) the direct or indirect sale, transfer, conveyance or
other disposition (other than by way of merger or consolidation), in
one or a series of related transactions, of all or substantially all
of the properties or assets of the Parent Guarantor and its Restricted
Subsidiaries (as defined in the Indenture), taken as a whole, to any
"person" (as that term is used in Section 13(d)(3) of the Exchange
Act) other than to H. Xxxxx Xxxxxxxx (the "PRINCIPAL"), 80% (or more)
owned Subsidiary or any immediate family member of the Principal (the
"RELATED PARTIES"); (b) the adoption of a plan relating to the
liquidation or dissolution of the Parent Guarantor; (c) the
consummation of any transaction (including, without limitation, any
merger or consolidation) the result of which is that any "person" (as
defined above) other than the Principal and his Related Parties,
becomes the beneficial owner, directly or indirectly, of Voting Stock
(as defined in the Indenture) of the Parent Guarantor with the power
to vote 50% or more of the total votes entitled to be cast on any
matter submitted to a vote of shareholders; (d) during any consecutive
two year period, individuals who at the beginning of such period
constituted the Board of Directors of the Parent Guarantor (together
with any new directors whose election to such Board of Directors, or
whose nomination for election by the stockholders of the Parent
Guarantor, was approved by a vote of a majority of the directors then
still in office who were either directors at the beginning of such
period or whose election or nomination for election was previously so
approved) cease for any reason to constitute a majority of the Board
of Directors of the Parent Guarantor then in office; or (e) the Parent
Guarantor consolidates with, or merges with or into, any Person, or
any Person consolidates with, or merges with or into, the Parent
Guarantor, in any such event pursuant to a transaction in which any of
the outstanding Voting Stock (as defined in the Indenture) of the
Parent Guarantor or such other Person is converted into or exchanged
for cash, securities or other property, other than any such
transaction where the Voting Stock (as defined in the Indenture) of
the Parent Guarantor outstanding immediately prior to such transaction
is converted into or exchanged for Voting Stock, other than
Disqualified Stock (as such terms are defined in the Indenture), of
the surviving or transferee Person constituting a majority of the
outstanding shares of such Voting Stock (as defined in the Indenture
of such surviving or transferee Person (immediately after giving
effect to such issuance) and no Person other than the Principal and
his Related Parties, becomes the beneficial owner, directly or
indirectly, of Voting Stock (as defined in the Indenture) of such
Person with the power to vote 50% or more of the total votes entitled
to be cast on any matter submitted to a vote of shareholders.
"CLOSING DATE" means the date of the initial Borrowing
hereunder.
"COLLATERAL" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to
be subject to any Lien in favor of the Administrative Agent for the
benefit of the Lender Parties.
"COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT" has the meaning
specified in Section 3.01(a)(xiv).
6
10
"COLLATERAL DOCUMENTS" means the Security Agreements, the
Mortgages, the Environmental Indemnity Agreement and any other
agreement that creates or purports to create a Lien in favor of the
Administrative Agent for the benefit of the Lender Parties.
"COMMITMENT" means, with respect to any Lender at any time,
the amount set forth opposite such Lender's name on Schedule I hereto
under the caption "Commitment" or, if such Lender has entered into one
or more Assignment and Acceptances, set forth for such Lender in the
Register maintained by the Administrative Agent pursuant to Section
8.07(d) as such Lender's "Commitment", as such amount may be reduced
or terminated at or prior to such time pursuant to Section 2.04 or
6.01, respectively.
"CONSOLIDATED" refers, with respect to any Person, to the
consolidation of accounts of such Person and its Subsidiaries in
accordance with GAAP.
"CONTINGENT OBLIGATION" means, with respect to any Person,
any Obligation or arrangement of such Person to guarantee or intended
to guarantee any Debt, leases, dividends or other payment Obligations
("PRIMARY OBLIGATIONS") of any other Person (the "PRIMARY OBLIGOR") in
any manner, whether directly or indirectly, including, without
limitation, (a) the direct or indirect guarantee, endorsement (other
than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such
Person of the Obligation of a primary obligor, (b) the Obligation to
make take-or-pay or similar payments, if required, regardless of
nonperformance by any other party or parties to an agreement or (c)
any Obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting
direct or indirect security therefor, (ii) to advance or supply funds
(A) for the purchase or payment of any such primary obligation or (B)
to maintain working capital or equity capital of the primary obligor
or otherwise to maintain the net worth or solvency of the primary
obligor, (iii) to purchase property, assets, securities or services
primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of
such primary obligation or (iv) otherwise to assure or hold harmless
the holder of such primary obligation against loss in respect thereof.
The amount of any Contingent Obligation shall be deemed to be an
amount equal to the stated or determinable amount of the primary
obligation in respect of which such Contingent Obligation is made (or,
if less, the maximum amount of such primary obligation for which such
Person may be liable pursuant to the terms of the instrument
evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect
thereof (assuming such Person is required to perform thereunder), as
determined by such Person in good faith.
"CONVERSION", "CONVERT" and "CONVERTED" each refer to a
conversion of Advances of one Type into Advances of the other Type
pursuant to Section 2.08 or 2.09.
"DEBT" of any Person means, without duplication, (a) all
indebtedness of such Person for borrowed money, (b) all Obligations,
contingent or otherwise, of such Person for the deferred purchase
price of property or services (other than trade payables not overdue
by more than 60 days incurred in the ordinary course of such Person's
business), (c) all Obligations, contingent or otherwise, of such
Person evidenced by notes, bonds, debentures or other similar
instruments, (d) all Obligations, contingent or otherwise, of such
Person created or arising under any conditional sale or other title
7
11
retention agreement with respect to property acquired by such Person
(even though the rights and remedies of the seller or lender under
such agreement in the event of default are limited to repossession or
sale of such property), (e) all Obligations, contingent or otherwise,
of such Person as lessee under Capitalized Leases, (f) all
Obligations, contingent or otherwise, of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations of such
Person to purchase, redeem, retire, defease or otherwise make any
payment in respect of any Equity Interests in such Person or any other
Person or any warrants, rights or options to acquire such capital
stock, valued, in the case of Redeemable Preferred Interests, at the
greater of its voluntary or involuntary liquidation preference PLUS
accrued and unpaid dividends, (h) all Obligations of such Person in
respect of Hedge Agreements, valued at the Agreement Value thereof,
(i) all Contingent Obligations of such Person and (j) all indebtedness
and other payment Obligations referred to in clauses (a) through (i)
above of another Person secured by (or for which the holder of such
Debt has an existing right, contingent or otherwise, to be secured by)
any Lien on property (including, without limitation, accounts and
contract rights) owned by such Person, even though such Person has not
assumed or become liable for the payment of such indebtedness or other
payment Obligations.
"DEBT SERVICE RATE" means, as of any date of determination,
the greatest of (i) the average weighted interest rate applicable to
Advances at such date; (ii) 9% and (iii) debt service constant on a 25
year fully amortizing note secured by a mortgage bearing interest at
the 7 year U.S. Treasury obligation rate effective on such date based
on the rate quoted for the 7-year U.S. Treasury obligation
interpolated "ICUR 7" on the Bloomberg machine(or any successor
thereto) plus 3.25%, which rate as determined at the Administrative
Agent's reasonable discretion shall be conclusive and binding for all
purposes, absent manifest error.
"DEFAULT" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"DEFAULTED ADVANCE" means, with respect to any Lender Party
at any time, the portion of any Advance required to be made by such
Lender Party to the Borrower pursuant to Section 2.01 or 2.02 at or
prior to such time which has not been made by such Lender Party or by
the Administrative Agent for the account of such Lender Party pursuant
to Section 2.02(d) as of such time.
"DEFAULTED AMOUNT" means, with respect to any Lender Party at
any time, any amount required to be paid by such Lender Party to the
Administrative Agent or any other Lender Party hereunder or under any
other Loan Document at or prior to such time which has not been so
paid as of such time, including, without limitation, any amount
required to be paid by such Lender Party to (a) the Administrative
Agent pursuant to Section 2.02(d) or Section 7.05 or (b) any other
Lender Party pursuant to Section 2.12.
"DEFAULTING LENDER" means, at any time, any Lender Party
that, at such time (a) owes a Defaulted Advance or a Defaulted Amount
or (b) shall take any action or be the subject of any action or
proceeding of a type described in Section 6.01(f).
"DOMESTIC LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Domestic
Lending Office" opposite its name on Schedule I hereto or in the
8
12
Assignment and Acceptance pursuant to which it became a Lender Party,
as the case may be, or such other office of such Lender Party as such
Lender Party may from time to time specify to the Borrower and the
Administrative Agent.
"DOMESTIC SUBSIDIARY" of any Person means any Subsidiary
other than a Foreign Subsidiary.
"EBITDA" means, with respect to any Person, for any Rolling
Period and as of any date of determination, net income plus (a) an
amount equal to any extraordinary loss plus any net loss realized in
connection with an asset sale, to the extent such losses were deducted
in computing net income, plus (b) the provision for taxes based on
income or profits of such Person for such Rolling Period, to the
extent such provision for taxes was included in computing net income
plus (c) Interest Expense of such Person for such Rolling Period to
the extent such expense was deducted in computing net income, plus (d)
depreciation and amortization expense for such Rolling Period to the
extent such expense was deducted in computing net income less (e) an
amount equal to any extraordinary gain plus any net gain realized in
connection with an asset sale;
provided that if any asset has been (X) purchased subsequent to the
commencement of such Rolling Period, EBITDA for the period beginning
on the first day of such Rolling Period shall be increased by the
amount of EBITDA for such Rolling Period associated with such asset
purchased, and (Y) sold subsequent to the commencement of such Rolling
Period, EBITDA for the period beginning on the first day of such
Rolling Period shall be reduced by the amount of EBITDA associated
with such asset sold.
"EDGEWATER" means the 125-room resort and hotel and related
improvements, facilities and assets, including, without limitation,
the Mortgaged Property (as defined in the Edgewater Mortgage),
situated on that certain real property located in Xxxxxxx County,
Florida, as more fully described in the Edgewater Mortgage, and
commonly known as the Edgewater Hotel.
"ELIGIBLE ASSIGNEE" means: (i) any "qualified institutional
buyer" (as defined in Rule 144A under the Securities Act) or any
"accredited investor" (as defined in Section 2(15) of the Securities
Act); (ii) a Lender Party; (iii) an Affiliate of a Lender Party; (iv)
a commercial bank organized under the laws of the United States, or
any State thereof, and having a combined capital and surplus of at
least $400,000,000; (v) a savings and loan association or savings bank
organized under the laws of the United States, or any State thereof,
and having a combined capital and surplus of at least $400,000,000;
(vi) a commercial bank organized under the laws of any other country
that is a member of the OECD or has concluded special lending
arrangements with the International Monetary Fund associated with its
General Arrangements to Borrow or a political subdivision of any such
country, and having a combined capital and surplus of at least
$500,000,000, so long as such bank is acting through a branch or
agency located in the United States and (vii) a finance company,
insurance company or other financial institution or fund (whether a
corporation, partnership, trust or other entity) that is engaged in
making, purchasing or otherwise investing in commercial loans in the
ordinary course of its business and having a combined capital and
surplus of at least $250,000,000; PROVIDED, HOWEVER, that neither any
Loan Party nor any Affiliate of a Loan Party shall qualify as an
Eligible Assignee under this definition.
9
13
"ENVIRONMENTAL ACTION" means any action, suit, demand, demand
letter, written claim, notice of non-compliance or violation, notice
of liability or potential liability, investigation, proceeding,
consent order or consent agreement relating in any way to any
Environmental Law, any Environmental Permit or Hazardous Material or
arising from alleged injury or threat to health, safety or the
environment, including, without limitation, (a) by any governmental or
regulatory authority for enforcement, cleanup, removal, response,
remedial or other actions or damages and (b) by any governmental or
regulatory authority or third party for damages, contribution,
indemnification, cost recovery, compensation or injunctive relief.
"ENVIRONMENTAL INDEMNITY AGREEMENT" has the meaning specified
in Section 3.01(a)(viii).
"ENVIRONMENTAL LAW" means any federal, state, local or
foreign statute, law, ordinance, rule, regulation, code, order, writ,
judgment, injunction, decree or judicial or agency interpretation,
policy or guidance relating to pollution or protection of the
environment, health, safety or natural resources, including, without
limitation, those relating to the use, handling, transportation,
treatment, storage, disposal, release or discharge of Hazardous
Materials.
"ENVIRONMENTAL PERMIT" means any permit, approval,
identification number, license or other authorization required under
any Environmental Law.
"EQUITY INTERESTS" means, with respect to any Person, shares
of capital stock of (or other ownership or profit interests in) such
Person, warrants, options or other rights for the purchase or other
acquisition from such Person of shares of capital stock of (or other
ownership or profit interests in) such Person, securities convertible
into or exchangeable for shares of capital stock of (or other
ownership or profit interests in) such Person or warrants, rights or
options for the purchase or other acquisition from such Person of such
shares (or such other interests), and other ownership or profit
interests in such Person (including, without limitation, partnership,
member or trust interests therein), whether voting or nonvoting, and
whether or not such shares, warrants, options, rights or other
interests are authorized or otherwise existing on any date of
determination.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"ERISA AFFILIATE" means any Person that for purposes of Title
IV of ERISA is a member of the controlled group of any Loan Party, or
under common control with any Loan Party, within the meaning of
Section 414 of the Internal Revenue Code.
"ERISA EVENT" means (a) (i) the occurrence of a reportable
event, within the meaning of Section 4043 of ERISA, with respect to
any Plan unless the 30-day notice requirement with respect to such
event has been waived by the PBGC; or (ii) the requirements of
subsection (1) of Section 4043(b) of ERISA (without regard to
subsection (2) of such Section) are met with respect to a contributing
sponsor, as defined in Section 4001(a)(13) of ERISA, of a Plan, and an
event described in paragraph (9), (10), (11), (12) or (13) of Section
4043(c) of ERISA is reasonably expected to occur with respect to such
Plan within the following 30 days; (b) the application for a minimum
funding waiver with respect to a Plan; (c) the provision by the
administrator of any Plan of a notice of intent to
10
14
terminate such Plan, pursuant to Section 4041(a)(2) of ERISA
(including any such notice with respect to a plan amendment referred
to in Section 4041(e) of ERISA); (d) the cessation of operations at a
facility of any Loan Party or any ERISA Affiliate in the circumstances
described in Section 4062(e) of ERISA; (e) the withdrawal by any Loan
Party or any ERISA Affiliate from a Multiple Employer Plan during a
plan year for which it was a substantial employer, as defined in
Section 4001(a)(2) of ERISA; (f) the conditions for imposition of a
lien under Section 302(f) of ERISA shall have been met with respect to
any Plan; (g) the adoption of an amendment to a Plan requiring the
provision of security to such Plan, pursuant to Section 307 of ERISA;
or (h) the institution by the PBGC of proceedings to terminate a Plan
pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds
for the termination of, or the appointment of a trustee to administer,
such Plan.
"EUROCURRENCY LIABILITIES" has the meaning specified in
Regulation D of the Board of Governors of the Federal Reserve System,
as in effect from time to time.
"EURODOLLAR LENDING OFFICE" means, with respect to any Lender
Party, the office of such Lender Party specified as its "Eurodollar
Lending Office" opposite its name on Schedule I hereto or in the
Assignment and Acceptance pursuant to which it became a Lender Party
(or, if no such office is specified, its Domestic Lending Office), or
such other office of such Lender Party as such Lender Party may from
time to time specify to the Borrower and the Administrative Agent.
"EURODOLLAR RATE" means, for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing, an
interest rate per annum equal to the rate per annum obtained by
dividing (a) the average of the respective rates per annum (rounded
upward to the next whole multiple of 1/16th of 1%) posted by each of
the principal London offices of banks posting rates as displayed on
the Dow Xxxxx Markets screen, page 3750 or such other page as may
replace such page on such service for the purpose of displaying the
London interbank offered rate of major banks for deposits in U.S.
Dollars, at approximately 11:00 A.M. (London time) two Business Days
before the first day of such Interest Period for deposits in an amount
substantially equal to BT Co.'s Eurodollar Rate Advance comprising
part of such Borrowing to be outstanding during such Interest Period
and for a period equal to such Interest Period by (b) a percentage
equal to 100% minus the Eurodollar Rate Reserve Percentage for such
Interest Period.
"EURODOLLAR RATE ADVANCE" means an Advance that bears
interest as provided in Section 2.06(a)(ii).
"EURODOLLAR RATE RESERVE PERCENTAGE" for any Interest Period
for all Eurodollar Rate Advances comprising part of the same Borrowing
means the reserve percentage applicable two Business Days before the
first day of such Interest Period under regulations issued from time
to time by the Board of Governors of the Federal Reserve System (or
any successor) for determining the maximum reserve requirement
(including, without limitation, any emergency, supplemental or other
marginal reserve requirement) for a member bank of the Federal Reserve
System in New York City with respect to liabilities or assets
consisting of or including Eurocurrency Liabilities (or with respect
to any other category of liabilities that includes deposits by
reference to which the interest rate on Eurodollar Rate Advances is
determined) having a term equal to such Interest Period.
11
15
"EVENTS OF DEFAULT" has the meaning specified in Section 6.01.
"EXISTING DEBT" means Debt of the Parent Guarantor, the
Borrower and its Subsidiaries outstanding immediately before the
Transaction.
"EXISTING LOAN DOCUMENTS" has the meaning specified in
Section 3.01(a)(v).
"FACILITY" means, at any time, the aggregate amount of the
Commitments at such time.
"FEDERAL FUNDS RATE" means, for any period, a fluctuating
interest rate equal for each day during such period to the weighted
average of the rates on overnight Federal Funds transactions with
members of the Federal Reserve System arranged by Federal Funds
brokers, as published for such day (or, if such day is not a Business
Day, for the next preceding Business Day) by the Federal Reserve Bank
of New York, or, if such rate is not so published for any day that is
a Business Day, the average of the quotations for such day for such
transactions received by the Administrative Agent from three Federal
Funds brokers of recognized standing selected by the Administrative
Agent.
"FEE LETTERS" means each agreement entered into between the
Parent Guarantor and each of the Agents and BT Alex. Xxxxx
Incorporated with respect to the payment of fees or other amounts
relating to the Facility.
"FF&E" means fixtures, furnishings and equipment at the
Borrowing Base Properties.
"FF&E RESERVE" means, for any Rolling Period, on a
Consolidated basis for the Borrowing Base Properties, a reserve
maintained in accordance with Section 5.01(h) by each Operating
Subsidiary while any Commitment hereunder shall exist to fund
replacements of fixtures, furnishings and equipment at the applicable
Borrowing Base Property.
"FF&E RESERVE ACCOUNT" has the meaning specified in
Section 2.15.
"FISCAL YEAR" means a fiscal year of the Parent Guarantor and
its Consolidated Subsidiaries ending on June 30 in any calendar year,
as it may be changed to the extent permitted by Section 5.02(i)(B).
"FIXED CHARGE COVERAGE RATIO" means, with respect to the
Parent Guarantor, for any Rolling Period and as of any date of
determination, the ratio of (a) Adjusted EBITDA for such Rolling
Period to (b) the sum of (i) Interest Expense for such Rolling Period,
(ii) regularly scheduled principal payments of Total Funded Debt made
during such Rolling Period, and (iii) any cash dividends, whether
common or preferred, paid during such Rolling Period.
"FOREIGN SUBSIDIARY" means a Subsidiary that is organized
under the laws of a jurisdiction other than the United States or any
State thereof or the District of Columbia.
"FRANCHISE AGREEMENTS" means the License Agreement dated as
of June 28, 1994 between Radisson Hotels International, Inc., as
Licensor, and such Manager, as Licensee, and the Hyatt Hotel
12
16
Franchise Agreement dated November 14, 1994 between Hyatt Franchise
Corporation, as Franchisor, and such Manager, as Franchisee, as
applicable.
"GAAP" has the meaning specified in Section 1.03.
"GUARANTIES" means the Parent Guaranty and the Subsidiary
Guaranty.
"GUARANTORS" means the Parent Guarantor and the Subsidiary
Guarantors.
"HAZARDOUS MATERIALS" means (a) petroleum or petroleum
products, by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas
and (b) any other chemicals, materials or substances designated,
classified or regulated as hazardous or toxic or as a pollutant or
contaminant under any Environmental Law.
"HEDGE AGREEMENTS" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"HOTEL ACCOUNT" has the meaning specified in Section 2.15.
"HOTEL ACCOUNT BANK" has the meaning specified in Section
2.15.
"INDEMNIFICATION AGREEMENT" means the agreement in
substantially the form annexed hereto as Exhibit J.
"INDEMNIFIED COSTS" has the meaning specified in Section
7.05(a).
"INDEMNIFIED PARTY" has the meaning specified in Section
8.04(b).
"INDENTURE" means the Indenture dated as of April 21, 1999
among the Parent Guarantor, the guarantors thereunder and The Bank of
New York, as Trustee.
"INITIAL LENDERS" has the meaning specified in the recital of
parties to this Agreement.
"INSUFFICIENCY" means, with respect to any Plan, the amount,
if any, of its unfunded benefit liabilities, as defined in Section
4001(a)(18) of ERISA.
"INTANGIBLE TAX RESERVE" has the meaning set forth in Section
4.01(o).
"INTEREST EXPENSE" means, with respect to any Person, for any
Rolling Period and as of any date of determination, without
duplication, the sum of (a) interest expense, whether paid or accrued,
to the extent such expense was deducted in computing net income
(including amortization or original issue discount, non-cash interest
payments, the interest component of Capital Leases, but excluding
amortization of deferred financing fees), and (b) interest for which
such Person is liable pursuant to any Debt, including any Subsidiary
of such Person, in each case calculated for such Person, PROVIDED,
HOWEVER, that with respect to the calculation of Interest Expense made
on or prior to April 30, 2000,
13
17
such amounts shall be calculated by multiplying such amount from and
after the Closing Date by the Annualization Factor.
"INTEREST PERIOD" means, for each Eurodollar Rate Advance
comprising part of the same Borrowing, the period commencing on the
date of such Eurodollar Rate Advance or the date of the Conversion of
any Base Rate Advance into such Eurodollar Rate Advance, and ending on
the last day of the period selected by the Borrower pursuant to the
provisions below and, thereafter, each subsequent period commencing on
the last day of the immediately preceding Interest Period and ending
on the last day of the period selected by the Borrower pursuant to the
provisions below. Subject to Sections 2.08 and 2.09 hereof, the
duration of each such Interest Period shall be one, two, three or six
months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on
the third Business Day prior to the first day of such Interest Period,
select; PROVIDED, HOWEVER, that:
(a) the Borrower may not select any Interest Period
with respect to any Eurodollar Rate Advance under the
Facility that ends after the Termination Date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same
Borrowing shall be of the same duration;
(c) whenever the last day of any Interest Period
would otherwise occur on a day other than a Business Day, the
last day of such Interest Period shall be extended to occur
on the next succeeding Business Day, PROVIDED, HOWEVER, that,
if such extension would cause the last day of such Interest
Period to occur in the next following calendar month, the
last day of such Interest Period shall occur on the
immediately preceding Business Day; and
(d) whenever the first day of any Interest Period
occurs on a day of an initial calendar month for which there
is no numerically corresponding day in the calendar month
that succeeds such initial calendar month by the number of
months equal to the number of months in such Interest Period,
such Interest Period shall end on the last Business Day of
such succeeding calendar month.
"INTERNAL REVENUE CODE" means the Internal Revenue Code of
1986, as amended from time to time, and the regulations promulgated
and rulings issued thereunder.
"INVESTMENT" in any Person means any loan or advance to such
Person, any purchase or other acquisition of any Equity Interests or
Debt or the assets comprising a division or business unit or a
substantial part or all of the business of such Person, any capital
contribution to such Person or any other direct or indirect investment
in such Person, including, without limitation, any acquisition by way
of a merger or consolidation and any arrangement pursuant to which the
investor incurs Debt of the types referred to in clause (i) or (j) of
the definition of "DEBT" in respect of such Person.
"LENDER PARTY" means any Lender.
"LENDERS" means the Initial Lenders and each Person that
shall become a Lender hereunder pursuant to Section 8.07 for so long
as such Initial Lender or Person shall be a party to this Agreement.
14
18
"LEVERAGE RATIO" means, with respect to the Parent Guarantor,
as of any date of determination, the ratio of (a) Total Funded Debt as
at such date to (b) Adjusted EBITDA for the Rolling Period ending on
or immediately prior to such date.
"LICENSOR CONSENT AND SUBORDINATION AGREEMENTS" has the
meaning specified in Section 3.01(a)(xiv).
"LIEN" means any lien, security interest or other charge or
encumbrance of any kind, or any other type of preferential
arrangement, including, without limitation, the lien or retained
security title of a conditional vendor and any easement, right of way
or other encumbrance on, or defect in, title to real property.
"LOAN DOCUMENTS" means (i) this Agreement, (ii) the Notes,
(iii) the Collateral Documents, (iv) the Guaranties and (v) the Fee
Letters, and (vii) any other agreement, document or instrument issued
by the Borrower or any Guarantor evidencing, securing or guarantying
the foregoing or the Facility (or any portion thereof), and in each
case as amended, amended and restated, supplemented or otherwise
modified from time to time.
"LOAN PARTIES" means the Borrower and the Guarantors.
"LOCKBOX" shall have the meaning specified in Section 2.15.
"LOCKBOX ACCOUNT" shall have the meaning specified in Section
2.15.
"MANAGEMENT CONTRACTS" means the Hotel Management Agreement
dated March 4, 1997 between Xxxx Bahia Mar, Ltd., as Owner, and Xxxx
Bahia Mar Mgmt, Inc., as Manager, the Hotel Management Agreement dated
as of March 4, 1997 between 0000 XX 00xx Xx., Ltd., as Owner, and Rahn
Pier Mgt., Inc., as Manager, as applicable and each of the Hotel
Management Agreements with respect to the Edgewater and Registry in
form and substance acceptable to the Administrative Agent.
"MANAGEMENT SUBORDINATION AGREEMENTS" has the meaning
specified in Section 3.01(a)(xiv).
"MANAGERS" means Xxxx Bahia Mar Mgmt., Inc. and Rahn Pier
Mgt., Inc, as applicable.
"MARGIN STOCK" has the meaning specified in Regulation U.
"MATERIAL ADVERSE CHANGE" means any material adverse change
in the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Parent Guarantor and its
Subsidiaries taken as a whole or any of the Operating Subsidiaries.
"MATERIAL ADVERSE EFFECT" means a material adverse effect on
(a) the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Parent Guarantor and its
Subsidiaries taken as a whole or of any of the Operating Subsidiaries,
(b) the rights and remedies of the Agents or any Lender Party under
any Transaction Document or (c) the ability of the Parent Guarantor
and its Subsidiaries taken as a whole or of any of the Operating
Subsidiaries to perform their Obligations under any Transaction
Document to which they are or are to become parties.
15
19
"MORTGAGEE TITLE INSURANCE POLICIES" has the meaning
specified in Section 3.01(a)(vii).
"MORTGAGES" has the meaning specified in Section
3.01(a)(vii).
"MORTGAGORS" has the meaning specified in the Security
Agreements.
"MULTIEMPLOYER PLAN" means a multiemployer plan, as defined
in Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions,
or has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"MULTIPLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and at least one
Person other than the Loan Parties and the ERISA Affiliates or (b) was
so maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in
the event such plan has been or were to be terminated.
"NOTE" means a promissory note of the Borrower required to be
issued pursuant to Section 2.14, which Note shall be payable to the
order of any Lender, in face principal amount of each requesting
Lender's Commitment, and otherwise substantially the form of Exhibit A
hereto.
"NOTE PURCHASE AGREEMENT" means the Note Agreement dated as
of April 21, 1999 among the Parent Guarantor and the guarantors and
initial purchasers thereunder, pursuant to which the Subordinated
Notes are issued, as amended, amended and restated, supplemented or
otherwise modified from time in accordance with its terms, to the
extent permitted under the Loan Documents.
"NOTICE OF BORROWING" has the meaning specified in Section
2.02(a).
"NPL" means the National Priorities List under CERCLA.
"OBLIGATION" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether
or not the right of any creditor to payment in respect of such claim
is reduced to judgment, liquidated, unliquidated, fixed, contingent,
matured, disputed, undisputed, legal, equitable, secured or unsecured,
and whether or not such claim is discharged, stayed or otherwise
affected by any proceeding referred to in Section 6.01(f). Without
limiting the generality of the foregoing, the Obligations of any Loan
Party under the Loan Documents include (a) the obligation to pay
principal, interest, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan
Party under any Loan Document and (b) the obligation of such Loan
Party to reimburse any amount in respect of any of the foregoing that
any Lender Party, in its sole discretion, may elect to pay or advance
on behalf of such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"OPEN YEAR" has the meaning specified in Section 4.01(o)(ii).
16
20
"OPERATING SUBSIDIARIES" means each of the Subsidiaries of
the Borrower that directly owns one or more of the Borrowing Base
Properties, as listed on Schedule 4.01(b) hereto.
"OTHER TAXES" has the meaning specified in Section 2.11(b).
"PARENT GUARANTOR" has the meaning specified in the recital
of parties to this Agreement.
"PARENT GUARANTOR SECURITY AGREEMENT" has the meaning
specified in Section 3.01(a)(iii).
"PARENT GUARANTY" means a guaranty in substantially the form
of Exhibit F-1, as amended, amended and restated, supplemented or
otherwise modified from time to time in accordance with its terms.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor thereto.
"PERMITTED ENCUMBRANCES" means the specific title exceptions
described in the Mortgagee Title Policies (but not including any form
exclusions, conditions or stipulations set forth in the policies).
"PERMITTED LIENS" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding
shall have been commenced: (a) Liens for taxes, assessments and
governmental charges or levies to the extent not required to be paid
under Section 5.01(b) hereof (as to which adequate reserves have been
established in accordance with GAAP), (b) The Permitted Encumbrances
and (c) statutory mechanic's and materialman's claims pertaining to
the construction on or improvements to the Borrowing Base Properties
to the extent that (i) such improvements are permitted under the Loan
Documents and (ii) the existence of such mechanic's and materialman's
liens is permitted pursuant to the Mortgages.
"PERSON" means an individual, partnership, corporation
(including a business trust), limited liability company, joint stock
company, trust, unincorporated association, joint venture or other
entity, or a government or any political subdivision or agency
thereof.
"PIER 66" means the resort, hotel and marina and related
improvements, facilities and assets, including, without limitation,
the Mortgaged Property (as defined in the Pier 66 Mortgage), situated
on that certain real property located in Broward County, Florida, and
commonly known as the Hyatt Regency Pier 66 Resort & Marina.
"PLAN" means a Single Employer Plan or a Multiple Employer
Plan.
"PLEDGED DEBT" has the meaning specified in the Security
Agreements.
"PLEDGED SHARES" means all Pledged Shares and all other
Equity Interests pledged to the Administrative Agent for the benefit
of the Lenders pursuant to the Security Agreements.
"PREFERRED INTERESTS" means, with respect to any Person,
Equity Interests issued by such Person that are entitled to a
preference or priority over any other Equity Interests issued by such
Person upon any distribution of such Person's property and assets,
whether by dividend or upon liquidation.
17
21
"PRO RATA SHARE" of any amount means, with respect to any
Lender at any time, the product of such amount TIMES a fraction the
numerator of which is the amount of such Lender's Commitment at such
time (or if the Commitments shall have been terminated, such Lender's
Commitment as in effect immediately prior to such termination) and the
denominator of which is the Facility at such time (or if the
Commitments shall have been terminated, the Facility as in effect
immediately prior to such termination); provided, however, that with
respect to any payments to be allocated among the Lenders, during any
period that a Lender is a Defaulting Lender, the Pro Rata Shares of
the Lenders shall be reallocated by deducting from Defaulting Lender's
Commitment (and the Facility) an amount equal to the Default Amount.
"REDEEMABLE" means, with respect to any Equity Interest, any
Debt or any other right or Obligation, any such Equity Interest, Debt,
right or Obligation that (a) the issuer has undertaken to redeem at a
fixed or determinable date or dates, whether by operation of a sinking
fund or otherwise, or upon the occurrence of a condition not solely
within the control of the issuer or (b) is redeemable at the option of
the holder.
"REGISTER" has the meaning specified in Section 8.07(d).
"REGISTRATION RIGHTS AGREEMENT" means the Registration Rights
Agreement dated as of April 21, 1999 by and among the Parent
Guarantor, the guarantors thereunder and the initial purchasers party
thereunder.
"REGISTRY" means the resort, hotel and private club and
related improvements, facilities and assets, including, without
limitation, the Mortgaged Property (as defined in the Registry
Mortgage), situated on that certain real property located in Xxxxxxx
County, Florida, as more fully described in the Registry Mortgage, and
commonly known as the Registry Hotel.
"REGISTRY LICENSE AGREEMENT" has the meaning specified in
Section 3.01(a)(xv).
"REGULATION U" means Regulation U of the Board of Governors
of the Federal Reserve System, as in effect from time to time.
"RELATED DOCUMENTS" means the Management Contracts and the
Franchise Agreements.
"REQUIRED LENDERS" means, at any time, Lenders holding at
least 51% of the aggregate Commitments at such time PROVIDED, HOWEVER,
that if any Lender shall be a Defaulting Lender at such time, there
shall be excluded from the determination of Required Lenders at such
time (A) the aggregate principal amount of the Advances owing to such
Lender (in its capacity as a Lender) and outstanding at such time and
(B) the Unused Commitment of such Lender at such time.
"RESERVE ADJUSTED EBITDA" means, with respect to any Person
for any Rolling Period and as at any date of determination, an amount
equal to Adjusted EBITDA less (a) a minimum FF&E reserve of 4%
(however, not to exceed 4% in the event actual reserves for FF&E are
greater) of Total Revenues and (b) management fees of 3% of Total
Revenues including any management fees actually paid that are deducted
from Adjusted EBITDA.
"RESPONSIBLE OFFICER" means any executive officer of the
Parent Guarantor.
18
22
"ROLLING PERIOD" means, at any date of determination, the
most recently completed consecutive 12 calendar month period ending on
or immediately prior to such date; PROVIDED, HOWEVER, that for
purposes of calculating Interest Expense (i) with respect to any month
ending on or prior to April 30, 2000, the period commencing on the
Closing Date and ending on such date of determination and (ii) with
respect to any date of determination thereafter, the consecutive 12
calendar month period ending on the last day of such date of
determination.
"SECURED OBLIGATIONS" has the meaning specified in the
Security Agreements.
"SECURED PARTIES" means, collectively, the Administrative
Agent, the Syndication Agent and each Lender.
"SECURITIES ACT" means the Securities Act of 1933, as
amended.
"SECURITY AGREEMENTS" shall mean the Parent Guarantor
Security Agreement and the Subsidiary Guarantor Security Agreement.
"SINGLE EMPLOYER PLAN" means a single employer plan, as
defined in Section 4001(a)(15) of ERISA, that (a) is maintained for
employees of any Loan Party or any ERISA Affiliate and no Person other
than the Loan Parties and the ERISA Affiliates or (b) was so
maintained and in respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4069 of ERISA in the
event such plan has been or were to be terminated.
"SINGLE PURPOSE ENTITY" means, a Person, other than an
individual, which (i) is formed or organized solely for the purpose of
holding, directly or indirectly, an ownership interest in the
Borrowing Base Properties and the Managers thereof or Equity Interests
in Persons holding directly or indirectly, an ownership interest in
the Borrowing Base Properties and the Managers thereof, (ii) does not
engage in any business unrelated to the Borrowing Base Properties or
such Equity Interests, the operation and management of the Borrowing
Base Properties, and the financing thereof pursuant to the Loan
Documents, (iii) has not and will not have any assets other than those
related to its interest in the Borrowing Base Properties and the
Managers thereof or such Equity Interests or such financing thereof,
and has not or will not have any Debt other than, as applicable, the
Debt permitted pursuant to Section 5.02(b), (iv) maintains its own
separate books and records and its own accounts, in each case which
are separate and apart from the books and records and accounts of any
other Person, (v) holds itself out as being a Person, separate and
apart from any other Person, (vi) does not and will not commingle its
funds or assets with those of any other Person, (vii) conducts its own
business in its own name; (viii) maintains financial statements in
accordance with the terms of this Agreement, (ix) pays its own debts
and liabilities when they become due out of its own funds, (x)
observes all partnership formalities or corporate formalities or
limited liability company formalities, as applicable, and does all
things necessary to preserve its existence, (xi) maintains an
arm's-length relationship with its Affiliates and shall not enter into
any contractual obligations with any Affiliates except upon terms and
conditions that are intrinsically fair and substantially similar to
those that would be available on an arms-length basis with third
parties other than an Affiliate, (xii) does not guarantee or otherwise
obligate itself with respect to the debts of any other Person, hold
out its credit as being available to satisfy the obligations of any
other Person (except in connection with the Debt permitted pursuant to
Section 5.02(b) hereof), (xiii) does not acquire obligations or
securities of its partners, members or shareholders, (xiv) allocates
fairly and reasonably shared expenses, including, without limitation,
any
19
23
overhead for shared office space, (xv) does not and will not pledge
its assets for the benefit of any other Person, (xvi) does and will
correct any known misunderstanding regarding its separate identity and
(xvii) maintains adequate capital in light of its contemplated
business operations.
"SOLVENT" and "SOLVENCY" mean, with respect to any Person on
a particular date, has the meaning ascribed to such term (or any
similar term, including "Insolvency") in the Federal Bankruptcy Code
and any applicable state fraudulent conveyance laws, to include,
without limitation, the following, that on such date (a) the fair
value of the property of such Person is greater than the total amount
of liabilities, including, without limitation, contingent liabilities,
of such Person, (b) the present fair salable value of the assets of
such Person is not less than the amount that will be required to pay
the probable liability of such Person on its debts as they become
absolute and matured, (c) such Person does not intend to, and does not
believe that it will, incur debts or liabilities beyond such Person's
ability to pay such debts and liabilities as they mature and (d) such
Person is not engaged in business or a transaction, and is not about
to engage in business or a transaction, for which such Person's
property would constitute an unreasonably small capital. The amount of
contingent liabilities at any time shall be computed as the amount
that, in the light of all the facts and circumstances existing at such
time, represents the amount that can reasonably be expected to become
an actual or matured liability.
"SUBORDINATED GUARANTY" means the guaranties by the Borrower
and its Subsidiaries of the Obligations of the Parent Guarantor under
the Subordinated Notes pursuant to the Indenture.
"SUBORDINATED NOTES" means the Senior Subordinated Notes of
the Parent Guarantor due 2009 in an aggregate principal amount of
$340,000,000 issued pursuant to an Indenture dated as of April 21,
1999.
"SUBSIDIARY" of any Person means any corporation,
partnership, joint venture, limited liability company, trust or estate
of which (or in which) more than 50% of (a) the issued and outstanding
capital stock having ordinary voting power to elect a majority of the
Board of Directors of such corporation (irrespective of whether at the
time capital stock of any other class or classes of such corporation
shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
limited liability company, partnership or joint venture or (c) the
beneficial interest in such trust or estate, is at the time directly
or indirectly owned or controlled by such Person, by such Person and
one or more of its other Subsidiaries or by one or more of such
Person's other Subsidiaries.
"SUBSIDIARY GUARANTORS" means all Subsidiaries of the
Borrower, including the Operating Subsidiaries, listed on Schedule
4.01(b) hereto and each other Subsidiary that shall be required to
execute and deliver a guaranty pursuant to Section 5.01(j).
"SUBSIDIARY GUARANTOR SECURITY AGREEMENT" has the meaning
specified in Section 3.01(a)(iii).
"SUBSIDIARY GUARANTY" means an amended and restated guaranty
in substantially the form of Exhibit F-2.
"SURVIVING DEBT" means Debt of the Parent Guarantor, the
Borrower and its Subsidiaries outstanding immediately before and after
the Transaction.
20
24
"SYNDICATION AGENT" has the meaning specified in the recital
of parties to this Agreement.
"TAX CERTIFICATE" has the meaning specified in Section
5.03(j)
"TAXES" has the meaning specified in Section 2.11(a).
"TERMINATION DATE" means the earlier of (x) May 1, 2002 and
(y) the date of termination in whole of the Commitments pursuant to
Section 2.04 or 6.01 (the "COMMITMENT TERMINATION DATE").
"TOTAL FUNDED DEBT" shall include all Debt of the Parent
Guarantor and its Subsidiaries, on a Consolidated basis, excluding (i)
all liabilities associated with the Premier Club memberships at the
Boca Raton Resort and Club and at other resort properties owned,
whether directly or indirectly, by the Parent Guarantor, in each case
determined pursuant to the membership program in effect on March 31,
1999 or any future membership program which only permits a membership
refund from fees paid for new memberships sold subsequent to the date
of the refund request.
"TOTAL REVENUES" means, for any Rolling Period, on a
Consolidated basis for the Borrowing Base Properties, the total
revenues of such Properties determined in accordance with GAAP.
"TRANSACTION" means the transactions contemplated by the
Transaction Documents.
"TRANSACTION DOCUMENTS" means, collectively, the Loan
Documents and the Related Documents.
"TYPE" refers to the distinction between Advances bearing
interest at the Base Rate and Advances bearing interest at the
Eurodollar Rate.
"UNUSED COMMITMENT" means the aggregate Commitments at any
time MINUS the aggregate principal amount of all Advances made by the
Lenders (in their capacity as Lenders) and outstanding at such time.
"VOTING INTERESTS" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies,
entitled to vote for the election of directors (or persons performing
similar functions) of such Person, even if the right so to vote has
been suspended by the happening of such a contingency.
"WELFARE PLAN" means a welfare plan, as defined in Section
3(1) of ERISA, that is maintained for employees of any Loan Party or
in respect of which any Loan Party could have a liability.
"WITHDRAWAL LIABILITY" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
SECTION 1.02. COMPUTATION OF TIME PERIODS; OTHER DEFINITIONAL
PROVISIONS. In this Agreement and the other Loan Documents, in the computation
of periods of time from a specified date to a later specified date, the word
"from" means "from and including" and the words "to" and "until" each mean "to
but excluding". References in the Loan Documents to any agreement or contract
"as amended" shall mean and be a reference to such agreement or contract as
amended, amended and
21
25
restated, supplemented or otherwise modified from time to time in accordance
with its terms. The term "including" is not limiting and means "including
without limitation."
SECTION 1.03. ACCOUNTING TERMS. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(f) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
SECTION 2.01. THE ADVANCES. Each Lender severally agrees, on
the terms and conditions hereinafter set forth, including the satisfaction of
the conditions precedent set forth in Section 3.02, to make advances (each, an
"ADVANCE") to the Borrower from time to time on any Business Day during the
period from the date hereof until 90 days prior to the Termination Date in an
amount for each such Advance not to exceed such Lender's Pro Rate Share of the
Unused Commitment at such time and shall not exceed for all Lenders at any time
outstanding the lesser of the Facility and the Borrowing Base Amount at such
time. Each Borrowing shall be in an aggregate amount of $5,000,000 or an
integral multiple of $250,000 in excess thereof and shall consist of Advances
made simultaneously by the Lenders in proportion to their respective Pro Rata
Shares. Within the limits of the Unused Commitments in effect from time to
time, and subject to the restrictions set forth elsewhere in this Agreement,
the Borrower may borrow under this Section 2.01, prepay pursuant to Section
2.05(a) and reborrow under this Section 2.01.
SECTION 2.02. MAKING THE ADVANCES. (a) Each Borrowing shall
be made on notice, given not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the date of the proposed Borrowing by the Borrower
to the Administrative Agent, which shall give to each Lender prompt notice
thereof by telex or telecopier. Each such notice of a Borrowing (a "NOTICE OF
BORROWING") shall be in writing, or telex or telecopier, in substantially the
form of Exhibit B hereto, specifying therein the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing and (iv) in the case of a Borrowing consisting of
Eurodollar Rate Advances, initial Interest Period for each such Advance. Each
Lender shall, before 11:00 A.M. (New York time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's Pro Rata Share of such Borrowing. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account.
(b) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances or
for any Borrowing if the aggregate amount of such Borrowing is less than
$5,000,000 or if the obligation of the Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.08 or 2.09 and (ii) no more than
five (5) Eurodollar Rate Advances shall be outstanding at any time.
22
26
(c) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. The Borrower shall indemnify the Administrative Agent and each
Lender against any loss, cost or expense incurred by such Person as a result of
any failure to fulfill on or before the date specified in such Notice of
Borrowing for such Borrowing the applicable conditions set forth in Article
III, including, without limitation, any loss (including loss of anticipated
profits), cost or expense incurred by reason of the liquidation or reemployment
of deposits or other funds acquired by such Lender to fund the Advance to be
made by such Lender as part of such Borrowing when such Advance, as a result of
such failure, is not made on such date.
(d) Unless the Administrative Agent shall have received
notice from a Lender prior to the date of any Borrowing under the Facility
under which such Lender has a Commitment that such Lender will not make
available to the Administrative Agent such Lender's Pro Rata Share of such
Borrowing, the Administrative Agent may assume that such Lender has made such
portion available to the Administrative Agent on the date of such Borrowing in
accordance with subsection (a) of this Section 2.02 and the Administrative
Agent may, in reliance upon such assumption, make available to the Borrower on
such date a corresponding amount. If and to the extent that such Lender shall
not have so made such Pro Rata Share available to the Administrative Agent,
such Lender and the Borrower severally agree to repay or pay to the
Administrative Agent forthwith on demand such corresponding amount and to pay
interest thereon, for each day from the date such amount is made available to
the Borrower until the date such amount is repaid or paid to the Administrative
Agent, at (i) in the case of the Borrower, the interest rate applicable at such
time under Section 2.06 to Advances comprising such Borrowing and (ii) in the
case of such Lender, the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid in respect
of principal shall constitute such Lender's Advance as part of such Borrowing
for all purposes.
(e) The failure of any Lender to make the Advance to be made
by it as part of any Borrowing shall not relieve any other Lender of its
obligation, if any, hereunder to make its Advance on the date of such
Borrowing, but no Lender shall be responsible for the failure of any other
Lender to make the Advance to be made by such other Lender on the date of any
Borrowing.
SECTION 2.03. REPAYMENT OF ADVANCES. The Borrower shall repay
to the Administrative Agent for the account of the Lenders' Pro Rata Shares on
the Termination Date the aggregate outstanding principal amount of the Advances
then outstanding, together with all accrued interest and any other sums
outstanding under the Loan Documents.
SECTION 2.04. TERMINATION OR REDUCTION OF THE COMMITMENTS.
(a) OPTIONAL. The Borrower may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the Unused
Commitments; PROVIDED, HOWEVER, that each partial reduction of the Facility (i)
shall be in an aggregate amount of $5,000,000 or an integral multiple of
$1,000,000 in excess thereof and (ii) shall be made to the Administrative Agent
and allocated to the Lenders in accordance with their respective Pro Rata
Shares.
(b) MANDATORY. The Facility shall, on the 30th day following
the date any Event of Default shall have occurred and be continuing,
automatically and permanently be reduced by the amount of any prepayment
required by Section 2.05(b)(ii).
23
27
SECTION 2.05. PREPAYMENTS. (a) OPTIONAL. The Borrower may, upon at
least three Business Day's prior written notice to the Administrative Agent
(received not later than 12:00 P.M. (New York City time)) stating the proposed
date, aggregate principal amount of the prepayment and the outstanding
Borrowings to which the Borrower proposes to apply such prepayment, and if such
notice is given the Borrower shall, prepay all or any portion of the
outstanding aggregate principal amount of the Advances to the Administrative
Agent and allocated to the Lenders in accordance with their respective Pro Rata
Shares; PROVIDED, HOWEVER, that each partial prepayment shall be in an
aggregate principal amount of $2,000,000 or an integral multiple of $250,000 in
excess thereof.
(b) MANDATORY. (i) If at any time the aggregate amount of the
Advances then outstanding shall exceed the lesser of the Facility and the
Borrowing Base Amount (as limited by the Intangible Tax Reserve), and the
Administrative Agent shall have so notified the Borrower, the Borrower shall
prepay an aggregate principal amount of the Advances equal to the amount by
which (A) the sum of the aggregate principal amount of the Advances then
outstanding exceeds (B) the lesser of the Facility and the Borrowing Base
Amount (as limited by the Intangible Tax Reserve).
(ii) So long as any Event of Default shall have occurred and
be continuing, all payments in respect of the Borrowing Base Properties and all
other income related thereto shall be swept daily into the Lockbox Account in
accordance with Section 2.15 hereof and applied in accordance with Section
2.15.
(c) ACCRUED INTEREST, ETC. All prepayments under this Section
2.05 shall be made together with (i) accrued interest to the date of such
prepayment on the principal amount prepaid and, (ii) if any prepayment of a
Eurodollar Rate Advance shall be made other than on the last day of an Interest
Period therefor, any amounts owing pursuant to Section 8.04(c).
SECTION 2.06. INTEREST. (a) SCHEDULED INTEREST. The Borrower shall pay
interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in
full, at the following rates per annum:
(i) BASE RATE ADVANCES. During such periods as such Advance
is a Base Rate Advance, a rate per annum equal at all times to the sum
of the Base Rate PLUS the Applicable Margin, payable in arrears
monthly on the first day of each month.
(ii) EURODOLLAR RATE ADVANCES. During such periods as such
Advance is a Eurodollar Rate Advance, a rate per annum equal at all
times during each Interest Period for such Advance to the sum of the
Eurodollar Rate for such Interest Period for such Advance PLUS the
Applicable Margin, payable in arrears on the last day of such Interest
Period and, if such Interest Period has a duration of more than three
months, on each day that occurs during such Interest Period every
three months from the first day of such Interest Period and on the
date such Eurodollar Rate Advance shall be Converted or paid in full.
(b) DEFAULT INTEREST. Upon the occurrence and during the
continuance of any Default the Administrative Agent may, and upon the request
of the Required Lenders shall, require that the Borrower pay interest on (i)
the unpaid principal amount of each Advance owing to each Lender, payable in
arrears on the dates referred to in clause (a)(i) or (a)(ii) above and, in
addition, on demand, at a rate per annum equal at all times to 2% per annum
above the rate per annum required to be paid
24
28
on such Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the
fullest extent permitted by law, the amount of any interest, fee or other
amount payable under the Loan Documents that is not paid when due, from the
date such amount shall be due until such amount shall be paid in full, payable
in arrears on the date such amount shall be paid in full and on demand, at a
rate per annum equal at all times to 2% per annum above the rate per annum
required to be paid, in the case of interest, on the Type of Advance on which
such interest has accrued pursuant to clause (a)(i) or (a)(ii) above and, in
all other cases, on Base Rate Advances pursuant to clause (a)(i) above;
provided, however, that following acceleration of the Advances pursuant to
Section 6.01, interest shall accrue and be payable at the rate required by this
Section 2.06(b), whether or not requested by the Administrative Agent or the
Required Lenders.
SECTION 2.07. FEES. (a) UNUSED COMMITMENT FEE. The Borrower shall pay
to the Administrative Agent for the account of the Lenders an unused commitment
fee, from the date of this Agreement in the case of each Initial Lender and
from the effective date specified in the Assignment and Acceptance pursuant to
which it became a Lender in the case of each other Lender, in each case until
the Termination Date, payable in arrears monthly on the first day of each
month, commencing May 1, 1999, and on the Termination Date, at the rate of .50%
per annum on the average daily Unused Commitment of such Lender or, if
aggregate Advances exceed 50% of the Commitments, .40% per annum PROVIDED,
HOWEVER, that any commitment fee accrued with respect to any of the Commitments
of a Defaulting Lender during the period prior to the time such Lender became a
Defaulting Lender and unpaid at such time shall not be payable by the Borrower
so long as such Lender shall be a Defaulting Lender except to the extent that
such commitment fee shall otherwise have been due and payable by the Borrower
prior to such time; and PROVIDED FURTHER, HOWEVER, that no commitment fee shall
accrue on any of the Commitments of a Defaulting Lender so long as such Lender
shall be a Defaulting Lender.
(b) FEES TO AGENTS. The Borrower shall pay to the Agents and
BT Alex. Xxxxx Incorporated for their own account such fees as may from time to
time be agreed between the Borrower and each of them.
SECTION 2.08. CONVERSION OF ADVANCES. (a) OPTIONAL. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the
date of the proposed Conversion and subject to the provisions of Section 2.09,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; PROVIDED, HOWEVER, that if any
Conversion of Eurodollar Rate Advances into Base Rate Advances is made other
than on the last day of an Interest Period for such Eurodollar Rate Advances
the Borrower shall also pay any amounts owing pursuant to Section 8.04(c), (x)
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), (y) no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and (z) each Conversion of Advances comprising
part of the same Borrowing under the Facility shall be made ratably among the
Lenders in accordance with their Pro Rata Share under the Facility. Each such
notice of Conversion shall, within the restrictions specified above, specify
(i) the date of such Conversion, (ii) the Advances to be Converted and (iii) if
such Conversion is into Eurodollar Rate Advances, the duration of the initial
Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
25
29
(b) MANDATORY. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $5,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01,
the Administrative Agent will forthwith so notify the Borrower and the Lenders,
whereupon each such Eurodollar Rate Advance will automatically, on the last day
of the then existing Interest Period therefor, Convert into a new Eurodollar
Rate Advance with an Interest Period of one month unless the Administrative
Agent has received notice from the Borrower not less that three days prior to
the last day of the then existing Interest Period.
(iii) Upon the occurrence and during the continuance of any
Event of Default and upon notice from the Administrative Agent to the Borrower,
(x) each Eurodollar Rate Advance will automatically, on the last day of the
then existing Interest Period therefor (or immediately at the option of the
Administrative Agent and subject to Section 8.04(c)), Convert into a Base Rate
Advance and (y) the obligation of the Lenders to make, or to Convert Advances
into, Eurodollar Rate Advances shall be suspended.
SECTION 2.09. INCREASED COSTS, ETC. (a) If, due to either (i) the
introduction of or any change in or in the interpretation of any law or
regulation or (ii) the compliance with any guideline or request from any
central bank or other governmental authority (whether or not having the force
of law), there shall be any increase in the cost to any Lender Party of
agreeing to make or of making, funding or maintaining Eurodollar Rate Advances
(excluding, for purposes of this Section 2.09, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.11 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; provided, however, that a Lender Party claiming additional
amounts under this Section 2.09(a) agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender
Party, be otherwise disadvantageous to such Lender Party. A certificate as to
the amount of such increased cost, submitted to the Borrower by such Lender
Party, shall be conclusive and binding for all purposes, absent manifest error.
(b) If any Lender Party determines that compliance with any
law or regulation or any guideline or request from any central bank or other
governmental authority (whether or not having the force of law) affects or
would affect the amount of capital required or expected to be maintained by
such Lender Party or any corporation controlling such Lender Party and that the
amount of such capital is increased by or based upon the existence of such
Lender Party's commitment to lend, then, upon demand by such Lender Party (with
a copy of such demand to the Administrative Agent), the Borrower shall pay to
the Administrative Agent for the account of such Lender Party, from time to
26
30
time as specified by such Lender Party, additional amounts sufficient to
compensate such Lender Party in the light of such circumstances, to the extent
that such Lender Party reasonably determines such increase in capital to be
allocable to the existence of such Lender Party's commitment to lend. A
certificate as to such amounts submitted to the Borrower by such Lender Party
shall be conclusive and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under
the Facility, Lenders owed at least 50% of the then aggregate unpaid principal
amount thereof notify the Administrative Agent that the Eurodollar Rate for any
Interest Period for such Advances will not adequately reflect the cost to such
Lenders of making, funding or maintaining their Eurodollar Rate Advances for
such Interest Period, the Administrative Agent shall forthwith so notify the
Borrower and the Lenders, whereupon (i) each such Eurodollar Rate Advance will
automatically, on the last day of the then existing Interest Period therefor,
Convert into a Base Rate Advance and (ii) the obligation of the Lenders to
make, or to Convert Advances into, Eurodollar Rate Advances shall be suspended
until the Administrative Agent shall notify the Borrower that such Lenders have
determined that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if
the introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance will
automatically, upon such demand, Convert into a Base Rate Advance and (ii) the
obligation of the Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
SECTION 2.10. PAYMENTS AND COMPUTATIONS. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off, not later than 12:00 P.M. (New York City time) on the
day when due in U.S. dollars to the Administrative Agent at the Administrative
Agent's Account in same day funds, with payments being received by the
Administrative Agent after such time being deemed to have been received on the
next succeeding Business Day. The Administrative Agent will promptly thereafter
cause like funds to be distributed (i) if such payment by the Borrower is in
respect of principal, interest, commitment fees or any other Obligation then
payable hereunder or under the Notes, ratably in accordance with the Pro Rata
Share of such Obligations then payable and (ii) if such payment by the Borrower
is in respect of any fees or expenses payable to the Agents or BT Alex. Xxxxx
Incorporated for their own account and not to any Lender Party (in its capacity
as a Lender hereunder), to such Persons as they may instruct, in each case to
be applied in accordance with the terms of this Agreement or the Fee Letters,
as applicable. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in
27
31
the Register pursuant to Section 8.07(d), from and after the effective date of
such Assignment and Acceptance, the Administrative Agent shall make all
payments hereunder and under the Notes in respect of the interest assigned
thereby to the Lender Party assignee thereunder, and the parties to such
Assignment and Acceptance shall make all appropriate adjustments in such
payments for periods prior to such effective date directly between themselves.
(b) If the Administrative Agent receives funds for
application to the Obligations under the Loan Documents under circumstances for
which the Loan Documents do not specify the Advances or the manner in which,
such funds are to be applied, the Administrative Agent may, but shall not be
obligated to, elect to distribute such funds to each Lender Party ratably in
accordance with such Lender Party's Pro Rata Share of the principal amount of
all outstanding Advances, in repayment or prepayment of such of the outstanding
Advances or other Obligations owed to such Lender Party, and for application to
such principal installments, as the Administrative Agent shall direct.
(c) All computations of interest, fees and commissions shall
be made by the Administrative Agent on the basis of a year of 360 days, in each
case for the actual number of days (including the first day but excluding the
last day) occurring in the period for which such interest, fees or commissions
are payable. Each determination by the Administrative Agent of an interest
rate, fee or commission hereunder shall be conclusive and binding for all
purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Notes shall
be stated to be due on a day other than a Business Day, such payment shall be
made on the next succeeding Business Day, and such extension of time shall in
such case be included in the computation of payment of interest or commitment
fee, as the case may be; PROVIDED, HOWEVER, that, if such extension would cause
any payment to be made in the next following calendar month, such payment shall
be made on the next preceding Business Day and such adjustment of time shall in
such case be reflected in the computation of payment of interest or commitment
fee, as the case may be.
(e) Unless the Administrative Agent shall have received
notice from the Borrower prior to the date on which any payment is due to any
Lender Party hereunder that the Borrower will not make such payment in full,
the Administrative Agent may assume that the Borrower has made such payment in
full to the Administrative Agent on such date and the Administrative Agent may,
in reliance upon such assumption, cause to be distributed to each such Lender
Party on such due date an amount equal to the amount then due such Lender
Party. If and to the extent the Borrower shall not have so made such payment in
full to the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
SECTION 2.11. TAXES. (a) Any and all payments by the Borrower
hereunder or under the Notes shall be made, in accordance with Section 2.10,
free and clear of and without deduction for any and all present or future
taxes, levies, imposts, deductions, charges or withholdings, and all
liabilities with respect thereto, EXCLUDING, in the case of each Lender Party
and the Administrative Agent, taxes that are imposed on its overall net income
by the United States and taxes that are imposed on its overall net income (and
franchise taxes imposed in lieu thereof) by the state or foreign jurisdiction
under the laws of which such Lender Party or the Administrative Agent (as the
case may be) is organized or any political subdivision thereof and, in the case
of each Lender Party, taxes that are
28
32
imposed on its overall net income (and franchise taxes in lieu thereof) by the
state or foreign jurisdiction of such Lender Party's Applicable Lending Office
or any political subdivision thereof (all such non-excluded taxes, levies,
imposts, deductions, charges, withholdings and liabilities in respect of
payments hereunder or under the Notes being hereinafter referred to as
"TAXES"). If the Borrower shall be required by law to deduct any Taxes from or
in respect of any sum payable hereunder or under the Notes to any Lender Party
or the Administrative Agent, (i) the sum payable by the Borrower shall be
increased as may be necessary so that after the Borrower and the Administrative
Agent have made all required deductions (including deductions applicable to
additional sums payable under this Section 2.11) such Lender Party or the
Administrative Agent, as the case may be, receives an amount equal to the sum
it would have received had no such deductions been made, (ii) the Borrower
shall make all such deductions and (iii) the Borrower shall pay the full amount
deducted to the relevant taxation authority or other governmental authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future
stamp, documentary, excise, property or similar taxes, charges or levies that
arise from any payment made hereunder or under the Notes or from the execution,
delivery or registration of, performance under, or otherwise with respect to
this Agreement or the Notes (hereinafter referred to as "OTHER TAXES").
(c) The Borrower shall indemnify each Lender Party and the
Administrative Agent for and hold it harmless against the full amount of Taxes
and Other Taxes, and for the full amount of taxes of any kind imposed by any
jurisdiction on amounts payable under this Section 2.11, imposed on or paid by
such Lender Party or the Administrative Agent (as the case may be) and any
liability (including penalties, additions to tax, interest and expenses)
arising therefrom or with respect thereto. This indemnification shall be made
within 10 days from the date such Lender Party or the Administrative Agent (as
the case may be) makes written demand therefor.
(d) Within 10 days after the date of any payment of Taxes,
the Borrower shall furnish to the Administrative Agent, at its address referred
to in Section 8.02, the original or a certified copy of a receipt evidencing
such payment. In the case of any payment hereunder or under the Notes by or on
behalf of the Borrower through an account or branch outside the United States
or on behalf of the Borrower by a payor that is not a United States person, if
the Borrower determines that no Taxes are payable in respect thereof, the
Borrower shall furnish, or shall cause such payor to furnish, to the
Administrative Agent, at such address, an opinion of counsel acceptable to the
Administrative Agent stating that such payment is exempt from Taxes. For
purposes of subsections (d) and (e) of this Section 2.11, the terms "UNITED
STATES" and "UNITED STATES PERSON" shall have the meanings specified in Section
7701 of the Internal Revenue Code.
(e) Each Lender Party organized under the laws of a
jurisdiction outside the United States shall, on or prior to the date of its
execution and delivery of this Agreement in the case of each Initial Lender,
and on the date of the Assignment and Acceptance pursuant to which it becomes a
Lender Party in the case of each other Lender Party, and from time to time
thereafter if requested in writing by the Borrower or the Administrative Agent
(but only so long thereafter as such Lender Party remains lawfully able to do
so), provide the Administrative Agent and the Borrower with two original
Internal Revenue Service forms 1001 or 4224 or (in the case of a Lender Party
that has certified in writing to the Administrative Agent that it is not a
"bank" as defined in Section 881(c)(3)(A) of the Internal Revenue Code) form
W-8 (and, if such Lender Party delivers a form W-8, a certificate representing
that such Lender Party is not a "bank" for purposes of Section 881(c) of the
Internal
29
33
Revenue Code, is not a 10-percent shareholder (within the meaning of Section
871(h)(3)(B) of the Internal Revenue Code) of the Borrower and is not a
controlled foreign corporation related to the Borrower (within the meaning of
Section 864(d)(4) of the Internal Revenue Code)), as appropriate, or any
successor or other form prescribed by the Internal Revenue Service, certifying
that such Lender Party is exempt from or entitled to a reduced rate of United
States withholding tax on payments pursuant to this Agreement or the Notes or,
in the case of a Lender Party providing a form W-8, certifying that such Lender
Party is a foreign corporation, partnership, estate or trust. If the forms
provided by a Lender Party at the time such Lender Party first becomes a party
to this Agreement indicate a United States interest withholding tax rate in
excess of zero, withholding tax at such rate shall be considered excluded from
Taxes unless and until such Lender Party provides the appropriate forms
certifying that a lesser rate applies, whereupon withholding tax at such lesser
rate only shall be considered excluded from Taxes for periods governed by such
forms; PROVIDED, HOWEVER, that if, at the effective date of the Assignment and
Acceptance pursuant to which a Lender Party becomes a party to this Agreement,
the Lender Party assignor was entitled to payments under subsection (a) of this
Section 2.11 in respect of United States withholding tax with respect to
interest paid at such date, then, to such extent, the term Taxes shall include
(in addition to withholding taxes that may be imposed in the future or other
amounts otherwise includable in Taxes) United States withholding tax, if any,
applicable with respect to the Lender Party assignee on such date. If any form
or document referred to in this subsection (e) requires the disclosure of
information, other than information necessary to compute the tax payable and
information required on the date hereof by Internal Revenue Service form 1001,
4224 or W-8 (or the related certificate described above), that the Lender Party
reasonably considers to be confidential, the Lender Party shall give notice
thereof to the Borrower and shall not be obligated to include in such form or
document such confidential information.
(f) For any period with respect to which a Lender Party has
failed to provide the Borrower with the appropriate form described in
subsection (e) above (OTHER THAN if such failure is due to a change in law
occurring after the date on which a form originally was required to be provided
or if such form otherwise is not required under subsection (e) above), such
Lender Party shall not be entitled to indemnification under subsection (a) or
(c) of this Section 2.11 with respect to Taxes imposed by the United States by
reason of such failure; PROVIDED, HOWEVER, that should a Lender Party become
subject to Taxes because of its failure to deliver a form required hereunder,
the Borrower shall take such steps as such Lender Party shall reasonably
request to assist such Lender Party to recover such Taxes.
SECTION 2.12. SHARING OF PAYMENTS, ETC. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise (including pursuant to Section
8.05, but other than as a result of an assignment pursuant to Section 8.07) (a)
on account of Obligations due and payable to such Lender Party hereunder and
under the Notes at such time in excess of Pro Rata Share (according to the
proportion of (i) the amount of such Obligations due and payable to such Lender
Party at such time to (ii) the aggregate amount of the Obligations due and
payable to all Lender Parties hereunder and under the Notes at such time) of
payments on account of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time obtained by all the Lender Parties
at such time or (b) on account of Obligations owing (but not due and payable)
to such Lender Party hereunder and under the Notes at such time in excess of
its Pro Rata Share (according to the proportion of (i) the amount of such
Obligations owing (but not due and payable) to such Lender Party at such time
to (ii) the aggregate amount of the Obligations owing (but not due and payable)
to all Lender Parties hereunder and under the Notes at
30
34
such time), such Lender Party shall forthwith purchase from the other Lender
Parties such interests or participating interests in the Obligations due and
payable or owing to them, as the case may be, as shall be necessary to cause
such purchasing Lender Party to share the excess payment ratably with each of
them; PROVIDED, HOWEVER, that if all or any portion of such excess payment is
thereafter recovered from such purchasing Lender Party, such purchase from each
other Lender Party shall be rescinded and such other Lender Party shall repay
to the purchasing Lender Party the purchase price to the extent of such Lender
Party's Pro Rata Share (according to the proportion of (i) the purchase price
paid to such Lender Party to (ii) the aggregate purchase price paid to all
Lender Parties) of such recovery together with an amount equal to such Lender
Party's Pro Rata Share (according to the proportion of (i) the amount of such
other Lender Party's required repayment to (ii) the total amount so recovered
from the purchasing Lender Party) of any interest or other amount paid or
payable by the purchasing Lender Party in respect of the total amount so
recovered. The Borrower agrees that any Lender Party so purchasing an interest
or participating interest from another Lender Party pursuant to this Section
2.12 may, to the fullest extent permitted by law, exercise all its rights of
payment (including the right of set-off) with respect to such interest or
participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.13. USE OF PROCEEDS. The proceeds of the Advances shall be
available solely to finance capital improvements, repay existing indebtedness,
acquire first class, full service hotels, provide working capital and for
general corporate purposes of the Borrower, the Subsidiary Guarantors and the
Parent Guarantor, but shall not be used for the payment of dividends by the
Parent Guarantor.
SECTION 2.14. EVIDENCE OF DEBT. (a) The Borrower agrees that upon
notice by any Lender Party to the Borrower (with a copy of such notice to the
Administrative Agent) to the effect that a promissory note or other evidence of
indebtedness is required or appropriate in order for such Lender Party to
evidence (whether for purposes of pledge, enforcement or otherwise) the
Advances owing to, or to be made by, such Lender Party, the Borrower shall
promptly execute and deliver to such Lender Party, with a copy to the
Administrative Agent, a Note, in substantially the form of Exhibit A hereto,
payable to the order of such Lender Party in the face principal amount equal to
the Commitment of such Lender Party. Each Lender shall be permitted only one
Note for the full amount of its Commitment. All references to Notes in the Loan
Documents shall mean Notes, if any, to the extent issued hereunder.
(b) The Register maintained by the Administrative Agent
pursuant to Section 8.07(d) shall include a control account, and a subsidiary
account for each Lender, in which accounts (taken together) shall be recorded
(i) the date and amount of each Borrowing made hereunder, the Type of Advances
comprising such Borrowing and, if appropriate, the Interest Period applicable
thereto, (ii) the terms of each Assignment and Acceptance delivered to and
accepted by it, (iii) the amount of any principal or interest due and payable
or to become due and payable from the Borrower to each Lender Party hereunder,
and (iv) the amount of any sum received by the Administrative Agent from the
Borrower hereunder and each Lender Party's share thereof.
(c) Entries made in good faith by the Administrative Agent in
the Register pursuant to subsection (b) above, and by each Lender Party in its
account or accounts pursuant to subsection (a) above, shall be PRIMA FACIE
evidence of the amount of principal and interest due and payable or to become
due and payable from the Borrower to, in the case of the Register, each Lender
Party and, in
31
35
the case of such account or accounts, such Lender Party, under this Agreement,
absent manifest error; PROVIDED, HOWEVER, that the failure of the
Administrative Agent or such Lender Party to make an entry, or any finding that
an entry is incorrect, in the Register or such account or accounts shall not
limit or otherwise affect the obligations of the Borrower under this Agreement.
SECTION 2.15. CASH MANAGEMENT. (a) The Borrower and the Operating
Subsidiaries have established and shall maintain (i) an operating account with
respect to each of the Borrowing Base Properties, (ii) to the extent there is
insufficient Unused Commitments to fully fund the FF&E Reserve, an FF&E Reserve
account (the "FF&E RESERVE ACCOUNT") (collectively, "HOTEL ACCOUNTS") and (iii)
in the Event of Default, a lockbox (the "LOCKBOX") and a Lockbox Account at the
offices of the Administrative Agent (the "LOCKBOX ACCOUNT"). The Hotel Accounts
shall be established with a bank reasonably acceptable to the Administrative
Agent ("HOTEL ACCOUNT BANK"). The Borrower and the Operating Subsidiaries shall
cause all revenues of the Borrowing Base Properties and all other income of the
Borrower and the Operating Subsidiaries to be deposited daily into the
applicable operating account and, to the extent required hereunder, the
applicable FF&E Reserve account. The Borrower and the Operating Subsidiaries
shall have delivered to the Hotel Account Bank and to credit card companies
instructions, pursuant to which the recipients thereof have been instructed to
transfer the funds then on deposit in the Hotel Accounts and to make all
payments, respectively, directly into the Lockbox Account upon notice from the
Administrative Agent that an Event of Default has occurred hereunder.
(b) Unless and until an Event of Default has occurred
hereunder, the Borrower and the Operating Subsidiaries have the right to direct
withdrawals from the Hotel Accounts. In the Event of Default, the Borrower and
the Operating Subsidiaries shall direct all account debtors of the Borrower and
its Subsidiaries to remit all payments in respect of the Borrowing Base
Properties and all other income directly to the Lockbox or the Lockbox Account
and shall cause the Hotel Account Bank to sweep daily into the Lockbox Account
all amounts in the Hotel Accounts. The contents of each Lockbox shall
automatically be deposited into the Lockbox Account or shall be emptied and
deposited into the Lockbox Account by a representative of the Administrative
Agent. Only the Administrative Agent shall have power of withdrawal from the
Lockbox and the Lockbox Account and the Borrower and its Subsidiaries
acknowledge that the Borrower and its Subsidiaries shall not have any control
over such Lockbox or Lockbox Account or any items deposited therein. Funds on
deposit in the Lockbox Account shall be disbursed by the Administrative Agent
from time to time into the applicable Hotel Account, or directly to the payee,
in either case to the extent required to pay any real property taxes or
assessments and insurance premiums then owing in respect of any of the
Borrowing Base Properties. The Administrative Agent shall have the right to
apply any other funds so on deposit against any then outstanding Obligation
hereunder, and otherwise as the Administrative Agent may determine in its
discretion.
32
36
ARTICLE III
CONDITIONS OF LENDING
SECTION 3.01. CONDITIONS PRECEDENT TO CLOSING DATE. The obligation of
each Lender to make an Advance on the occasion of the Closing Date hereunder is
subject to the satisfaction of the following conditions precedent before or
concurrently with the Closing Date:
(a) The Agents shall have received on or before the day of
the Closing Date the following, each dated such day (unless otherwise
specified), in form and substance satisfactory to the Agents (unless
otherwise specified) and (except for the Notes) in sufficient copies
for each Lender Party:
(i) Notes payable to the order of the Lenders.
(ii) A Notice of Borrowing and a Borrowing Base
Certificate relating to the Closing Date.
(iii) A security agreement in substantially the form
of Exhibit D-1 hereto (as amended, amended and restated,
supplemented or otherwise modified from time to time in
accordance with its terms, the "SUBSIDIARY GUARANTOR SECURITY
AGREEMENT"), duly executed by the Borrower and each
Subsidiary Guarantor, and a security agreement in
substantially the form of Exhibit D-2 hereto (as amended,
amended and restated, supplemented or otherwise modified from
time to time in accordance with its terms) duly executed by
the Parent Guarantor (the "PARENT GUARANTOR SECURITY
AGREEMENT"), together with:
(A) certificates representing the Pledged
Shares accompanied by undated stock powers executed
in blank and instruments evidencing the Pledged
Debt, if any, indorsed in blank,
(B) executed copies of proper financing
statements under the Uniform Commercial Code of the
States of all jurisdictions that the Administrative
Agent may deem necessary or desirable in order to
perfect and protect the Liens created under the
Collateral Documents, covering the Collateral
described in the Security Agreements,
(C) completed requests for information,
dated on or before the date of the Closing Date,
listing the financing statements referred to in
clause (B) above and all other effective financing
statements filed in the jurisdictions referred to in
clause (B) above that name any Loan Party or any of
its Subsidiaries as debtor, together with copies of
such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the
Security Agreements that the Agents may deem
necessary or desirable in order to perfect and
protect the Liens created thereby,
(E) copies of the Assigned Agreements, if
any, referred to in the Security Agreements,
together with a consent to such assignment, in
substantially the form of Exhibit C to the Security
Agreements, duly executed by each party to such
Assigned Agreements other than the Loan Parties,
(F) executed termination statements (Form
UCC-3 or a comparable form), in proper form to be
duly filed on the date of the Closing Date under the
Uniform
33
37
Commercial Code of all jurisdictions that the Agents
may deem desirable in order to terminate or amend
existing Liens on the Collateral described in the
Security Agreements,
(G) the Blocked Account Letters referred to
in the Security Agreements, duly executed by each
Blocked Account Bank listed on Schedule
3.01(a)(iii)(G) in form and substance satisfactory
to the Agents, and
(H) evidence that all other action that the
Agents may deem necessary or desirable in order to
perfect and protect the liens and security interests
created under the Security Agreements has been
taken.
(iv) Cancellations, in form and substance
satisfactory to the Agents, of Mortgages from The Chase
Manhattan Bank relating to the two unrecorded mortgages held
in escrow by said bank in respect of Pier 66 and the Boca
Raton Resort and Club, and terminations of those other loan
instruments in favor of The Chase Manhattan Bank that are not
assigned pursuant to Section 3.01(a)(v) below.
(v) Other than as contemplated by subsection (iv) of
this Section 3.01(a), assignments from The Chase Manhattan
Bank to the Administrative Agent of the documents evidencing,
securing or relating (other than the Credit Agreement) to the
existing $220,000,000 term loan facility from The Chase
Manhattan Bank to the Parent Guarantor and the assumption
thereof by the Borrower, in form and substance satisfactory
to the Agents.
(vi) The Subsidiary Guaranty duly executed by each
Subsidiary Guarantor listed on Schedule 3.01(a)(vi).
(vii) Amended and Restated Mortgages in
substantially the form of Exhibit E hereto and covering the
Borrowing Base Properties (as amended, amended and restated,
supplemented or otherwise modified from time to time in
accordance with their terms, the "MORTGAGES"), duly executed
by the appropriate Loan Party, together with:
(A) fully paid American Land Title
Association Lender's title insurance policies (the
"MORTGAGEE TITLE INSURANCE POLICIES") in form and
substance, with endorsements and in amount
acceptable to the Agents, issued by Chicago Title
Insurance Company, insuring the Mortgages as of the
time of the Closing Date to be valid first and
subsisting Liens on the property described therein,
free and clear of all defects (including, but not
limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only those exceptions to
title approved by the Agents, and providing for
omission of standard exceptions (including the
survey exception) and for such affirmative insurance
(including endorsements for future advances under
the Loan Documents, Form 9 and for mechanics' and
materialmen's Liens) and such coinsurance and direct
access reinsurance as the Agents may deem necessary
or desirable,
(B) Surveys, in form and substance
acceptable to the Agents, dated not more than 150
days before the Closing Date and the Borrower will
obtain surveys redated to a date within 10 days of
the Closing Date pursuant to a visual inspection,
34
38
and recertified by a duly licensed Florida land
surveyor to the Administrative Agent in the form of
Exhibit K hereto (other than in respect of building
height and actual location of non-visible
underground utility installations), for each of the
Bahia Mar, Edgewater and Pier 66 properties, and an
"affidavit of no change" from the as-built survey
filed of record with the condominium declaration
documents for the Registry,
(C) an appraisal of each of the Borrowing
Base Properties which appraisals shall be from a
Person acceptable to the Agents and otherwise in
form and substance satisfactory to the Agents,
(D) environmental, engineering, soils and
other reports as to the Borrowing Base Properties,
in form and substance and from professional firms
acceptable to the Agents,
(E) such consents and agreements of
lessors, ground lessors and other third parties,
including an estoppel certificate executed by the
Bahia Mar ground lessor and other confirmations, as
the Agents may deem necessary or desirable,
(F) A copy of the rent roll for each
Borrowing Base Property certified by the applicable
Operating Subsidiary in the form attached hereto as
Exhibit L, and.
(G) Notice to tenants under each lease
affecting the Borrowing Base Properties, in the form
attached hereto as Exhibit M.
(H) Letters, in form and substance
satisfactory to the Agents from the Applicable
municipal authorities, evidencing compliance by each
Borrowing Base Property with the underlying zoning
for such property.
(I) Subordination, Non-disturbance and
Attornment Agreements with respect to the Registry
leases to Xxxxxx Xxxxx and XxXxxxx & Xxxxxxx.
(viii) An Environmental Indemnity Agreement in
substantially the form of Exhibit N hereto (as amended,
amended and restated, supplemented or otherwise modified from
time to time in accordance with its terms, the "ENVIRONMENTAL
INDEMNITY AGREEMENT"), duly executed by each Indemnitor (as
defined in the Environmental Indemnity Agreement).
(ix) Certified copies of the resolutions of the
board of directors (or persons performing similar functions)
of each Loan Party approving the Transaction and each
Transaction Document to which it is or is to be a party, and
of all documents evidencing other necessary corporate,
limited partnership or limited liability company action and
governmental approvals, if any, with respect to the
Transaction and each Transaction Document to which it is or
is to be a party and of the transactions contemplated hereby.
(x) A copy of a certificate of the Secretary of
State (or equivalent governmental authority) of the
jurisdiction of organization of each Loan Party, dated
reasonably near the date of the Closing Date, in each case
listing the charter of each Loan Party and each amendment
thereto on file in such office and certifying that (A) such
charter is a true and correct copy
35
39
thereof, (B) such amendments are the only amendments to such
charter (or similar organizational documents) on file in his
office, (C) such Person has paid all franchise taxes (or the
equivalent thereof) to the date of such certificate and (D)
such Person is duly organized and in good standing under the
laws of the State of the jurisdiction of its organization.
(xi) A copy of a certificate of the Secretary of
State (or the equivalent governmental authority) of the
States listed on Schedule 3.01(a)(xi), dated reasonably near
the date of the Closing Date, with respect to each Loan Party
as listed on Schedule 3.01(a)(xi), stating that such Person
is duly qualified and in good standing as a foreign
corporation, limited partnership or limited liability company
in such States and has filed all annual reports required to
be filed to the date of such certificate.
(xii) A certificate of each Loan Party, signed on
behalf of each such Person by its Vice-President/chief
financial officer and its Secretary, dated the date of the
Closing Date (the statements made in such certificate shall
be true on and as of the date of the Closing Date),
certifying as to (A) the absence of any amendments to the
charter (or similar organizational document) of such Person
since the date of the Secretary of State's (or equivalent
governmental authority's) certificate referred to in Section
3.01(a)(x), (B) a true and correct copy of the bylaws (or
similar organizational document) of such Person as in effect
on the date on which the resolutions referred to in Section
3.01(a)(ix) were adopted and on the date of the Closing Date,
(C) the due incorporation and good standing or valid
existence of such Person as a corporation, limited
partnership or limited liability company organized under the
laws of the jurisdiction of its organization and the absence
of any proceeding for the dissolution or liquidation of such
Person, (D) the completeness and accuracy of the
representations and warranties contained in the Loan
Documents as though made on and as of the date of the Closing
Date and (E) the absence of any event occurring and
continuing, or resulting from the Closing Date, that
constitutes a Default.
(xiii) A certificate of the Secretary of each Loan
Party certifying the names and true signatures of the
officers of such Persons authorized to sign each Transaction
Document to which it is or is to be a party and the other
documents to be delivered hereunder and thereunder.
(xiv) (A) A collateral assignment of license
agreement from the Manager of Bahia Mar assigning to the
Administrative Agent all of such Manager's right, title and
interest in and to that certain License Agreement dated as of
June 28, 1994 between Radisson Hotels International, Inc., as
Licensor, and such Manager, as Licensee; (B) a collateral
assignment of franchise agreement from the Manager of Pier 66
assigning to the Administrative Agent all of such Manager's
right, title and interest in and to that certain Hyatt Hotel
Franchise Agreement dated November 14, 1994 between Hyatt
Franchise Corporation, as Franchisor, and such Manager, as
Franchisee (together with the instrument described in clause
(A) above, the "COLLATERAL ASSIGNMENT OF LICENSE AGREEMENT");
(C) a consent and subordination agreements with Radisson
Hotels International, Inc. with respect to the collateral
assignment referred to in clause (A) above; (D) a consent and
subordination agreements with Hyatt Franchise Corporation
with respect to the collateral assignment referred to in
clause (B) above (together with the instrument described in
clause (C), the "LICENSOR CONSENT AND SUBORDINATION
36
40
AGREEMENTS"); and (E) the consent and subordination agreement
with the Manager of each of the Bahia Mar and Pier 66
(collectively, the "MANAGEMENT SUBORDINATION AGREEMENTS").
(xv) A license agreement (the "REGISTRY LICENSE
AGREEMENT") from the Parent Guarantor to the Operating
Subsidiary which owns the Registry, on terms and conditions
reasonably acceptable to the Agents, which license agreement
will provide, INTER ALIA, for (i) the right of the Operating
Subsidiary and any successor-in-interest which acquires title
to, or the right to operate, the Registry, without payment of
any license fees, to use the name "The Registry", (ii) will
permit the Operating Subsidiary to pledge its interest in the
license agreement to the Administrative Agent as additional
security for the Facility and (iii) will be terminable by the
licensee. The license agreement will also acknowledge that
the Parent Guarantor shall retain other rights with respect
to the trade name "The Registry" subject to following
provisions: (i) if any of the Operating Subsidiaries changes
its name or includes as part of its name "The Registry", such
Operating Subsidiary shall become a licensee under the
Registry License Agreement, which shall provide, INTER ALIA,
for (x) the right of such Operating Subsidiary and any
successor-in-interest to acquires title to, or the right to
operate, under the name "The Registry" without payment of any
license fees and (y) permission by such Operating Subsidiary
to pledge its interest in the license agreement to the
Administrative Agent as additional security for the Facility;
(ii) within a five mile radius of The Registry only, the
Parent Guarantor may own and operate one or more other first
class, full service hotels under the name "The Registry"
provided such hotels have less than 275 hotel rooms and that
such hotels operating in such radius under the Registry name
and will not impair the economic performance of the Registry
and such other hotels and (iii) notwithstanding the
foregoing, any golf course located in such five mile radius
shall be permitted to use the name "The Registry".
(xvi) Certified copies of each of the Related
Documents, duly executed by the parties thereto and in form
and substance satisfactory to the Agents, together with all
agreements, instruments and other documents delivered in
connection therewith as the Agents shall request.
(xvii) Such financial, business and other
information regarding each Loan Party and its Subsidiaries as
the Agents shall have requested, including, without
limitation, information as to possible contingent
liabilities, tax matters, environmental matters, obligations
under Plans, Multiemployer Plans and Welfare Plans,
collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated June 30,
1996, June 30, 1997 and June 30, 1998, annual and quarterly
financial statements as to the Borrower and its Subsidiaries
and each Operating Subsidiary as at December 31, 1998.
(xviii) Certificates, in substantially the form of
Exhibits H-1 and H-2 hereto, respectively, attesting to the
Solvency of the Parent Guarantor and its Subsidiaries on a
Consolidated basis and the Borrower and each Operating
Subsidiary after giving effect to the Transaction and the
other transactions contemplated hereby, from its chief
financial officer.
(xix) Evidence of insurance naming the
Administrative Agent as additional insured and loss payee
with such responsible and reputable insurance companies or
associations, and in such amounts and covering such risks, as
is satisfactory to the Agents, including, without limitation,
that required by Schedule 3.01(a)(xix) hereto, the Security
Agreements and the
37
41
Mortgages, business interruption insurance, product liability
insurance, windstorm insurance and directors and officers
insurance.
(xx) Favorable opinions of Akerman, Senterfitt &
Xxxxxx, P.A. and Paul, Hastings, Xxxxxxxx & Xxxxxx LLP,
special counsel for the Loan Parties, in substantially the
form of Exhibits I-1 and I-2.
(b) The Agents shall be satisfied with (i) the corporate and
legal structure and capitalization of the Loan Parties, both before
and after giving effect to the Transaction, including the terms and
conditions of the charter, bylaws and each class of capital stock of
the Loan Parties and of each agreement or instrument relating to such
structure or capitalization and (ii) the management of the Loan
Parties.
(c) Before giving effect to the Transaction and the other
transactions contemplated by this Agreement, there shall have occurred
no (i) material adverse change in the business, condition (financial
or otherwise), operations, performance, properties or prospects of the
Parent Guarantor and its Subsidiaries taken as a whole or any of the
Operating Subsidiaries, since December 31, 1998 and (ii) Material
Adverse Change since December 31, 1998.
(d) The Parent Guarantor shall have received at least
$300,000,000 in gross cash proceeds from the sale of the Subordinated
Notes, and such sale was lead managed by Bear Xxxxxxx, substantially
on the terms set forth in the Indenture.
(e) There shall exist no action, suit, investigation,
litigation or proceeding affecting any Loan Party or any of their
Subsidiaries pending or threatened before any court, governmental
agency or arbitrator that (i) could have a material adverse effect on
the business, condition (financial or otherwise), operations,
performance, properties or prospects of the Parent Guarantor and its
Subsidiaries taken as a whole, (ii) could have a Material Adverse
Effect or (iii) purports to affect the legality, validity or
enforceability of the Transaction or any Transaction Document or the
consummation of the transactions contemplated by the Transaction
Documents.
(f) All governmental and third party consents and approvals
necessary in connection with the Transaction and the other
transactions contemplated by the Transaction Documents shall have been
obtained (without the imposition of any conditions that are not
acceptable to the Agents) and shall remain in effect; all applicable
waiting periods in connection with the Transaction and the other
transactions contemplated by the Transaction Documents shall have
expired without any action having been taken by any competent
authority, and no law or regulation shall be applicable in the
judgment of the Agents, in each case that restrains, prevents or
imposes materially adverse conditions upon the Transaction and the
other transactions contemplated by the Transaction Documents or the
rights of the Loan Parties or their Subsidiaries freely to transfer or
otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.
(g) The Agents shall have completed a due diligence
investigation with respect to the business, properties and operations
of the Parent Guarantor, the Borrower, the Subsidiary Guarantors and
their respective Subsidiaries including, without limitation, a review
of tax, ERISA, environmental, engineering, market study, franchise and
management agreements and all material contracts and agreements
relating to the Borrowing Base Properties (including, without
limitation, a field
38
42
examination of the quality of their current assets and of their
management information systems) in scope, and with results,
satisfactory to the Agents, and nothing shall have come to the
attention of the Agents during the course of such due diligence
investigation to lead them to believe (i) that the Indenture was or
has become misleading, incorrect or incomplete in any material respect
and (ii) that, following the consummation of the Transaction, the
Parent Guarantor, the Borrower, the Subsidiary Guarantors and their
respective Subsidiaries would not have good and marketable title to
all material assets of the respective entities as reflected in the
Indenture and (iii) without limiting the generality of the foregoing,
the Agents shall have been given such access to the management,
records, books of account, contracts and properties of the Parent
Guarantor, the Borrower, the Subsidiary Guarantors and their
respective Subsidiaries as they shall have requested.
(h) The Agents shall be satisfied that all Existing Debt,
other than the Debt of the Loan Parties and their Subsidiaries
identified on Schedule 3.01(h) (the "SURVIVING DEBT"), has been
prepaid, redeemed or defeased in full or otherwise satisfied and
extinguished and that all such Surviving Debt shall be on terms and
conditions satisfactory to the Agents.
(i) All accrued fees and expenses of the Agents, BT Alex.
Xxxxx Incorporated and the Lender Parties (including the accrued fees
and expenses of counsel to the Agents and of local counsel to the
Lender Parties) shall have been paid.
SECTION 3.02. CONDITIONS PRECEDENT TO EACH BORROWING. The obligation
of each Lender to make an Advance on the occasion of each Borrowing (including
the Closing Date) shall be subject to the further conditions precedent that on
the date of such Borrowing (a) the Administrative Agent shall have determined
that the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing shall constitute a representation and warranty by
the Borrower that both on the date of such notice and on the date of such
Borrowing such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct on and as of such date, before and after giving
effect to such Borrowing and to the application of the proceeds
therefrom, as though made on and as of such date other than any such
representations or warranties that, by their terms, refer to a
specific date other than the date of such Borrowing, in which case as
of such specific date;
(ii) no event has occurred and is continuing, or would result
from such Borrowing or from the application of the proceeds therefrom,
that constitutes a Default; and
(iii) for each Advance, the Borrowing Base Amount (less the
Intangible Tax Reserve) exceeds the aggregate principal amount of
Advances then outstanding after giving effect to such Advance;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents as any Lender Party through the Administrative Agent may
reasonably request.
SECTION 3.03. DETERMINATIONS UNDER SECTION 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to
be satisfied with each document or other matter required
39
43
thereunder to be consented to or approved by or acceptable or satisfactory to
the Lender Parties unless an officer of the Administrative Agent responsible
for the transactions contemplated by the Loan Documents shall have received
notice from such Lender Party prior to the Closing Date specifying its
objection thereto and such Lender Party shall not have made available to the
Administrative Agent such Lender Party's Pro Rata Share of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. REPRESENTATIONS AND WARRANTIES OF THE BORROWER. The
Borrower represents and warrants as follows:
(a) Each Loan Party (i) is a corporation, limited partnership
or limited liability company duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization,
(ii) is duly qualified and in good standing as a foreign corporation,
limited partnership or limited liability company in each other
jurisdiction in which it owns or leases property or in which the
conduct of its business requires it to so qualify or be licensed
except where the failure to so qualify or be licensed could not be
reasonably likely to have a Material Adverse Effect and (iii) has all
requisite power and authority (including, without limitation, all
governmental licenses, permits and other approvals) to own or lease
and operate its properties and to carry on its business as now
conducted and as proposed to be conducted. All of the outstanding
Equity Interests in the Subsidiary Guarantors and the Borrower have
been validly issued, are fully paid and non-assessable and, are owned
by the Persons in the amounts specified on Schedule 4.01(a) hereto
free and clear of all Liens, except those created under the Collateral
Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and
accurate list of Subsidiaries of the Parent Guarantor (including the
Borrower) that own any direct or indirect interest in the Borrowing
Base Properties, showing as of the date hereof (as to each such
Subsidiary) the jurisdiction of its organization, the number of shares
of each class of its Equity Interests authorized, and the number
outstanding, on the date hereof and the percentage of the outstanding
shares of each such class of its Equity Interests owned (directly or
indirectly) by the Loan Party indicated on such Schedule and the
number of shares covered by all outstanding options, warrants, rights
of conversion or purchase and similar rights at the date hereof. All
of the outstanding Equity Interests in each such Subsidiary have been
validly issued, are fully paid and non-assessable and are owned by
such designated Loan Party free and clear of all Liens, except those
created under the Collateral Documents. Each such Subsidiary (i) is a
corporation, limited partnership or limited liability company duly
organized, validly existing and in good standing under the laws of the
jurisdiction of its organization, (ii) is duly qualified and in good
standing as a foreign corporation, limited partnership or limited
liability company, as the case may be, in each other jurisdiction in
which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the
failure to so qualify or be licensed could not be reasonably likely to
have a Material Adverse Effect and (iii) has all requisite power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its
properties and to carry on its business as now conducted and as
proposed to be conducted. All Equity Interests in the Subsidiary
Guarantors and the Borrower have been pledged to
40
44
the Administrative Agent for the benefit of the Lender Parties, and
the Operating Subsidiaries own, collectively, the Borrowing Base
Properties.
(c) The execution, delivery and performance by each Loan
Party of each Transaction Document to which it is or is to be a party
and the other transactions contemplated by the Transaction Documents,
are within such Loan Party's powers, have been duly authorized by all
necessary action, and do not (i) contravene such Loan Party's charter,
bylaws, partnership agreement, limited liability company operating or
members agreement or similar organizational documents or agreements,
(ii) violate any law, rule, regulation (including, without limitation,
Regulation X of the Board of Governors of the Federal Reserve System),
order, writ, judgment, injunction, decree, determination or award,
(iii) conflict with or result in the breach of, or constitute a
default under, any contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument binding on or affecting any Loan
Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under the Loan Documents, result in or
require the creation or imposition of any Lien upon or with respect to
any of the properties of any Loan Party or any of its Subsidiaries. No
Loan Party is in violation of any such law, rule, regulation, order,
writ, judgment, injunction, decree, determination or award or in
breach of any such contract, loan agreement, indenture, mortgage, deed
of trust, lease or other instrument, the violation or breach of which
could be reasonably likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no
notice to or filing with, any governmental authority or regulatory
body or any other third party is required for (i) the due execution,
delivery, recordation, filing or performance by any Loan Party of any
Transaction Document to which it is or is to be a party, or for the
consummation of the Transaction or the other transactions contemplated
by the Transaction Documents, (ii) the grant by any Loan Party of the
Liens granted by it pursuant to the Collateral Documents, (iii) the
perfection or maintenance of the Liens created under the Collateral
Documents (including the first priority nature thereof) or (iv) the
exercise by any Agent or any Lender Party of its rights under the Loan
Documents or the remedies in respect of the Collateral pursuant to the
Collateral Documents, except for the authorizations, approvals,
actions, notices and filings listed on Schedule 4.01(d) hereto, all of
which have been duly obtained, taken, given or made and are in full
force and effect. All applicable waiting periods in connection with
the Transaction or the transactions contemplated by the Transaction
Documents have expired without any action having been taken by any
competent authority restraining, preventing or imposing materially
adverse conditions upon the Transaction and the other transactions
contemplated by the Transaction Documents or the rights of the Loan
Parties freely to transfer or otherwise dispose of, or to create any
Lien on, any properties now owned or hereafter acquired by any of
them.
(e) This Agreement has been, and each other Transaction
Document when delivered hereunder will have been, duly executed and
delivered by each Loan Party party thereto. This Agreement is, and
each other Transaction Document when delivered hereunder will be, the
legal, valid and binding obligation of each Loan Party party thereto,
enforceable against such Loan Party in accordance with its terms.
(f) (i) (x) The Consolidated balance sheet of the Parent
Guarantor and its Subsidiaries as at June 30, 1998, and the related
Consolidated statements of income and cash flow of the Parent
Guarantor and its Subsidiaries for the fiscal year then ended,
accompanied, by an unqualified opinion of Xxxxxx Xxxxxxxx LLP,
independent public accountants, (y) the Consolidated balance
41
45
sheet of the Parent Guarantor and its Subsidiaries as at December 31,
1998, and the related Consolidated statements of income and cash flow
of the Parent Guarantor and its Subsidiaries for the six months then
ended, and (z) the balance sheets of each of the Operating
Subsidiaries as at June 30, 1998 and December 31, 1998, and the
related statements of income and cash flow for the twelve months and
six months, respectively, then ended, in each case duly certified by
the chief financial officer of the Parent Guarantor, copies of which
have been furnished to each Lender Party, fairly present, subject, in
the case of the unaudited statements referred to in clauses (i)(y) and
(i)(z), to year-end audit adjustments, the Consolidated financial
condition of the Parent Guarantor and its Subsidiaries and of each of
the Operating Subsidiaries as at such dates and the Consolidated
results of the operations of the Parent Guarantor and its Subsidiaries
and of each of the Operating Subsidiaries for the periods ended on
such dates, respectively, all in accordance with generally accepted
accounting principles applied on a consistent basis, and
(ii) since June 30, 1998 there has occurred no Material
Adverse Change.
(g) Neither the Indenture nor any other information, exhibit
or report (excluding any financial projections) furnished by or on
behalf of any Loan Party to the Agents or any Lender Party, taken as a
whole, in connection with the negotiation of the Loan Documents or
pursuant to the terms of the Loan Documents contained any untrue
statement of a material fact or omitted to state a material fact
necessary to make the statements made therein not misleading in light
of the circumstances under which such information was provided and on
the date of the Closing Date.
(h) Except as set forth on Schedule 4.01(h), there is no
action, suit, investigation, litigation or proceeding affecting any
Loan Party, including any Environmental Action, pending or, to the
best knowledge of the Borrower, threatened before any court,
governmental agency or arbitrator against any Loan Party or the
Borrowing Base Properties.
(i) No Loan Party is engaged in the business of extending
credit for the purpose of purchasing or carrying Margin Stock, and no
proceeds of any Advance will be used to purchase or carry any Margin
Stock or to extend credit to others for the purpose of purchasing or
carrying any Margin Stock.
(j) The Collateral Documents create a valid and perfected
first priority security interest in the Collateral securing the
payment of the Secured Obligations, and all filings and other actions
necessary or desirable to perfect and protect such security interest
have been duly taken. The Loan Parties are the legal and beneficial
owners of the Collateral free and clear of any Lien, except for the
liens and security interests created or permitted under the Loan
Documents.
(k) Each Loan Party is not an "investment company," or an
"affiliated person" of, or "promoter" or "principal underwriter" for,
an "investment company," as such terms are defined in the Investment
Company Act of 1940, as amended. Neither the making of any Advances,
nor the application of the proceeds or repayment thereof by the
Borrower, nor the consummation of the other transactions contemplated
hereby, will violate any provision of such Act or any rule, regulation
or order of the Securities and Exchange Commission thereunder.
42
46
(l) The Loan Parties, individually, and the Borrower and its
Subsidiaries, taken as a whole, are Solvent.
(m) (i) No ERISA Event has occurred or is reasonably expected
to occur with respect to any Plan.
(ii) As of the last annual actuarial valuation date,
the funded current liability percentage, as defined in
Section 302(d)(8) of ERISA, of each Plan exceeds 90% and
there has been no material adverse change in the funding
status of any such Plan since such date.
(iii) Neither any Loan Party nor any ERISA Affiliate
has incurred or is reasonably expected to incur any
Withdrawal Liability to any Multiemployer Plan.
(iv) Neither any Loan Party nor any ERISA Affiliate
has been notified by the sponsor of a Multiemployer Plan that
such Multiemployer Plan is in reorganization or has been
terminated, within the meaning of Title IV of ERISA, and no
such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of
Title IV of ERISA.
(v) Except as set forth in the financial statements
referred to in this Section 4.01 and in Section 5.03, the
Loan Parties and their respective Subsidiaries have no
material liability with respect to "expected post retirement
benefit obligations" within the meaning of Statement of
Financial Accounting Standards No. 106.
(vi) Set forth on Schedule 4.01(m)(vi) hereto is a
complete and accurate list of all Plans, Multiemployer Plans
and Welfare Plans.
(vii) Schedule B (Actuarial Information) to the most
recent annual report (Form 5500 Series), if any, for each
Plan, copies of which have been filed with the Internal
Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents the funding status
of such Plan, and since the date of such Schedule B there has
been no material adverse change in such funding status.
(n) (i) The operations and properties of the Borrower and its
Subsidiaries comply with all applicable Environmental Laws and
Environmental Permits except (A) with respect to any non-compliance
existing as of the Closing Date, is disclosed in the environmental
reports delivered to Administrative Agent prior to the Closing Date;
and (B) such non-compliance which would not (if enforced in accordance
with applicable law) result in liability in excess of $50,000 in the
aggregate. All past claims of non-compliance with such Environmental
Laws and Environmental Permits have been resolved without ongoing
obligations or costs, and no circumstances exists that could be
reasonably likely to (x) form the basis of an Environmental Action
against any the Borrower and its Subsidiaries or any of their
properties that could have a Material Adverse Effect or (y) cause any
such property to be subject to any material restrictions on ownership,
occupancy, use or transferability under any Environmental Law.
(ii) None of the properties currently or formerly
owned or operated by any Loan Party is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous
43
47
foreign, state or local list or is adjacent to any such
property; there are no and never have been any underground or
aboveground storage tanks or any surface impoundments, septic
tanks, pits, sumps or lagoons in which Hazardous Materials
are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or, to
the best of its knowledge, on any property formerly owned or
operated by any Loan Party; there is no asbestos or
asbestos-containing material on any property currently owned
or operated by any Loan Party; and Hazardous Materials have
not been released, discharged or disposed of on any property
currently or formerly owned or operated by any Loan Party,
except, in each case, where the non-compliance with the
foregoing could not have a Material Adverse Effect.
(iii) Each of the Loan Parties is not undertaking,
and has not completed, either individually or together with
other potentially responsible parties, any investigation or
assessment or remedial or response action relating to any
actual or threatened release, discharge or disposal of
Hazardous Materials at any site, location or operation,
either voluntarily or pursuant to the order of any
governmental or regulatory authority or the requirements of
any Environmental Law; and all Hazardous Materials generated,
used, treated, handled or stored at, or transported to or
from, any property currently or formerly owned or operated by
any Loan Party have been disposed of in a manner not
reasonably expected to result in material liability to any
Loan Party.
(o) (i) Each Loan Party has filed, has caused to be filed or
has been included in all tax returns (Federal, state, local and
foreign) required to be filed and has paid all taxes shown thereon to
be due, together with applicable interest and penalties.
(ii) Set forth on Schedule 4.01(o) hereto is a
complete and accurate list, as of the date hereof, of each
taxable year of each Loan Party for which Federal income tax
returns have been filed and for which the expiration of the
applicable statute of limitations for assessment or
collection has not occurred by reason of extension or
otherwise (an "OPEN YEAR").
(iii) There is no unpaid amount, as of the date
hereof, of adjustments to the Federal income tax liability of
each Loan Party proposed by the Internal Revenue Service with
respect to Open Years. No issues have been raised by the
Internal Revenue Service in respect of Open Years that, in
the aggregate, could have a Material Adverse Effect.
(iv) There is no unpaid amount, as of the date
hereof, of adjustments to the state, local and foreign tax
liability of each Loan Party and its Subsidiaries and
Affiliates proposed by all state, local and foreign taxing
authorities (other than amounts arising from adjustments to
Federal income tax returns, if any). No issues have been
raised by such taxing authorities that, in the aggregate,
could have a Material Adverse Effect.
(v) The Transaction will not be taxable to the
Parent Guarantor, the Borrower or any of its Subsidiaries,
except for the payment of state documentary stamp tax, all of
which have been paid.
(vi) The Parent Guarantor, the Borrower and its
Subsidiaries have, as of the date hereof, no net operating
loss carryforwards for U.S. Federal income tax purposes.
44
48
(vii) All documentary stamp and intangible and
similar taxes owing in respect of any of the Loan Documents
(including, without limitation, the Mortgages) or which may
come due under any contingency have been paid to the
applicable taxing authority; provided, however, that
notwithstanding anything to the contrary contained in this
Agreement, unless the Administrative Agent has received
evidence of payment of the Florida non recurring intangible
personal property tax under Chapter 199 Florida Statutes (the
"INTANGIBLE TAX") with respect to the Mortgages or the
Facility (not including any payment that may have been made
with respect to the Existing Loan Documents), then (A)
subject to subsections (B) and (C) below, $292,000 shall at
all times be maintained as Unused Commitment (the "INTANGIBLE
TAX RESERVE") which sum shall be allocated among the Lender
Parties in accordance with their Pro Rata Share; (B) in the
event demand is made under the Subsidiary Guaranty, the
Lenders shall have the right, without further consent of the
Borrower, to fund Advances from the Intangible Tax Reserve in
such amounts as may be necessary to pay any Intangible Tax;
(C) the Borrower may only request Borrowings from the
Intangible Tax Reserve to pay Intangible Taxes.
(p) Neither the business nor the properties of any Loan Party
are affected by any fire, explosion, accident, strike, lockout or
other labor dispute, drought, storm, hail, earthquake, embargo, act of
God or of the public enemy or other casualty (whether or not covered
by insurance) that could be reasonably likely to have a Material
Adverse Effect.
(q) Set forth on Schedule 4.01(q) hereto is a complete and
accurate list of all Existing Debt (other than Surviving Debt),
showing as of the date hereof the principal amount outstanding
thereunder, the maturity date thereof and the amortization schedule
therefor.
(r) All real property owned by the Borrower and its
Subsidiaries is subject to the Lien of the Mortgages. The Borrower or
such Subsidiary has good, marketable and insurable fee simple title to
such real property, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents and, to the best of the
Borrower's knowledge, all of the improvements located on such
properties lie entirely within the boundaries of such properties and
none of such improvements violate any minimum set-back requirements,
other dimensional regulations or restrictions of record.
(s) Set forth on Schedule 4.01(s) hereto is a complete and
accurate list of all leases of real property under which the Borrower
or any of its Subsidiaries is the lessee, showing as of the date
hereof the street address, county or other relevant jurisdiction,
state, lessor, lessee, expiration date and annual rental cost thereof.
Each such lease is the legal, valid and binding obligation of the
lessor thereof, enforceable in accordance with its terms and no
default exists thereunder.
(t) Set forth on Schedule 4.01(t) hereto is a complete and
accurate list of all Investments held by the Borrower or any of its
Subsidiaries, showing as of the date hereof the amount, obligor or
issuer and maturity, if any, thereof.
(u) Set forth on Schedule 4.01(u) hereto is a complete and
accurate list of all patents, trademarks, trade names, service marks
and copyrights, and all applications therefor and licenses thereof, of
the Borrower or any of its Subsidiaries, showing as of the date hereof
the jurisdiction in which registered, the registration number, the
date of registration and the expiration date.
45
49
(v) The Liens described on the Mortgagee Title Insurance
Policies and on the UCC-11 searches delivered by the Borrower
constitute a complete and accurate list of all Liens on the property
or assets of the Borrower or any of its Subsidiaries, showing as of
the date hereof the lienholder thereof, the principal amount of the
obligations secured thereby and the property or assets of the Borrower
or such Subsidiary subject thereto.
(w) Each Loan Party has reviewed the areas within its
business and operations which could be adversely affected by, and has
developed or is in the process of developing a program to address on a
timely basis, "Year 2000 Issues" (i.e., the risk that computer
applications used by such Loan Party may be unable to recognize or
perform properly date sensitive functions involving certain dates
prior to, and any date after, December 31, 1999) and, based on such
review, such Loan Party reasonably believes that the "Year 2000
Issues" (and the cost of remedying the same) will not have a Material
Adverse Effect.
(x) No Default or Event of Default exists or would result
from the incurring of any Obligations by the Borrower. None of the
Borrower or any of the other Loan Parties is in default under or with
respect to any Obligation in any respect which, individually or
together with all such defaults, could reasonably be expected to have
a Material Adverse Effect on such Person.
(y) The provisions of the Security Agreements are effective
to create, in favor of the Administrative Agent, a legal, valid and
enforceable security interest in all of the Collateral described
therein; and the Collateral was delivered to the Administrative Agent
or its nominee in accordance with the terms thereof. The Liens of each
Security Agreement constitutes a perfected, security interest of the
priority specified therein in all right, title and interest of the
Borrower and each other Grantor, as defined in the Security
Agreements, as the case may be, in the Collateral described therein.
(z) The provisions of the Mortgages are effective to create,
in favor of the Administrative Agent, a legal, valid and enforceable
security interest in all of the Collateral described therein. The
liens of the Mortgages each constitutes a perfected, security interest
of the priority specified therein in all right, title and interest of
the Operating Subsidiaries and each other mortgagor, as the case may
be, in the Borrowing Base Properties described therein.
(aa) All necessary and required franchises, licenses,
authorizations, registrations, permits and approvals for the use and occupancy
of each of the Borrowing Base Properties have been obtained from all
governmental authorities having jurisdiction over such Collateral so as to
permit the operation of each such Borrowing Base Property as herein
contemplated. The Borrower has provided the Administrative Agent with true and
correct copies of all of the certificates of occupancy and other licenses,
permits and approvals respecting each of the Borrowing Base Properties of a
discretionary nature (i.e., approvals which are not considered ministerial
under applicable legal requirements, for example, zoning or use variances, or
conditional use permits), and such licenses, permits and approvals remain in
full force and effect without modification or exception.
(bb) The Operating Subsidiaries hold good and marketable fee
simple title or, to the extent acceptable to the Administrative Agent in
accordance with this Agreement, a valid leasehold interest, to each of the
Borrowing Base Properties, free and clear of all liens, claims, assessments,
encumbrances and rights of others other than the Permitted Liens. The Operating
Subsidiaries shall preserve such title to each of the Borrowing Base Properties
and will forever warrant and defend the
46
50
same and the validity and priority of the Mortgages to the Administrative Agent
against all claims whatsoever.
(cc) Each Borrowing Base Property is zoned under a use
classification which allows such Borrowing Base Property to be used in
accordance with its present or anticipated usage, which zoning is final,
unconditional and in full force and effect. Each Borrowing Base Property is in
compliance in all material respects with all applicable zoning and land use
laws, regulations and ordinances. In the event that all or any part of the
improvements on any of the Borrowing Base Properties are destroyed or damaged,
zoning laws in effect at the time this representation is made do not prohibit
the improvements from being legally reconstructed to their condition prior to
such damage or destruction, and thereafter exist for the same use without
violating any zoning or other ordinances applicable thereto and without the
necessity of obtaining any variances or special permits. Each Borrowing Base
Property contains enough permanent parking spaces to satisfy all requirements
imposed by applicable laws with respect to parking. No legal proceedings are
pending or threatened with respect to the zoning of any of the Borrowing Base
Properties. Neither the zoning nor any other right to construct, use or operate
any of the Borrowing Base Properties is in any way dependent upon any real
estate other than the applicable Borrowing Base Property. No tract map, parcel
map, condominium plan, condominium declaration, or plat of subdivision will be
recorded with respect to any of the Borrowing Base Properties without the
Administrative Agent's prior written consent, which shall not be unreasonably
withheld or delayed.
(dd) The Borrower has provided the Administrative Agent with
true and complete copies of each contract and agreement affecting each of the
Borrowing Base Properties relating to the maintenance, development, operation
or management thereof and which (i) involves annual payments thereunder in
excess of $100,000 per year, and (ii) is not terminable without penalty or
premium upon 30 days' (or less) notice.
(ee) Neither the Borrower nor any other Loan Party has
received any notice from any governmental authority or from any Person with
respect to any actual or threatened taking of any of the Borrowing Base
Properties, or any portion thereof, for any public or quasi-public purpose by
the exercise of the right of condemnation or eminent domain or of any
moratorium which may affect the use, or operation of any such Borrowing Base
Properties.
(ff) The Transaction is an exempt transaction under the
Truth-in-Lending Act (15 U.S.C.A. Section 1601, et seq.).
(gg) Each Borrowing Base Property has access to and full
utilization of completed public roads necessary for access to and full
utilization of such Borrowing Base Property for its intended purposes.
(hh) A tax division has been effected with respect to each
Borrowing Base Property so that it is taxed for ad valorem taxation without
regard to or inclusion of any other property. No subdivision or other approval
is necessary with respect to any of the Borrowing Base Properties in order for
any Operating Subsidiary to mortgage, convey and otherwise deal with such
Borrowing Base Property as a separate lot or parcel.
47
51
(ii) No Insolvency Proceeding has ever been initiated or
threatened against the Borrower or any other Loan Party.
(jj) Except as set forth on Schedule 4.01(s), there are no
leases covering any portion of any of the Borrowing Base Properties, whether
for present or future rights of occupancy, which cannot be terminated upon 30
days' notice. Except for Permitted Liens, neither the Borrower nor any other
Loan Party has executed any prior assignment of the leases, nor has it
performed any act or executed any other instrument which might prevent the
Administrative Agent from operating under or enforcing any of the terms and
conditions of the mortgages applicable to the Administrative Agent's security
interest in such leases or which would limit the Administrative Agent in such
operation.
(kk) All of the improvements situated on each Borrowing Base
Properties are in good condition and repair. Neither the Borrower nor any other
Loan Party is aware of any latent or patent structural or other significant
defect or deficiency in the improvements. City water supply, storm and sanitary
sewers, and electrical and telephone facilities are available to each Borrowing
Base Property within the boundary lines of such Borrowing Base Property, and
are sufficient to meet the reasonable needs of each Borrowing Base Property as
now used or contemplated to be used; no other utility facilities are necessary
to meet the reasonable needs of such Borrowing Base Property as now used; and,
the as-built condition of such Borrowing Base Property is such that surface and
storm water does not accumulate in other than insubstantial quantities on the
Borrowing Base Property and does not drain from the Borrowing Base Property
across land of adjacent Borrowing Base Property owners. As shown on the "as
built" survey for each Borrowing Base Property, none of the improvements on any
of the Borrowing Base Properties create an encroachment over, across or upon
any of the Borrowing Base Properties' boundary lines, rights of way or
easements, and no building or other improvement on adjoining land create such
an encroachment.
(ll) Except for Permitted Liens, there are no mechanics' or
materialmen's liens, alienable bills or other claims constituting or that may
constitute a lien on any of the Borrowing Base Properties or any part thereof,
and no work for which any such lien could be asserted has been performed within
the last ninety (90) days, a claim for which has not been insured against under
the Mortgagee Title Insurance Policies relating to the Borrowing Base Property
upon which such work has been performed.
ARTICLE V
COVENANTS
SECTION 5.01. AFFIRMATIVE COVENANTS. So long as any Advance
or any other Obligation of any Loan Party under or in respect of any Loan
Document shall remain unpaid or any Lender Party shall have any Commitment
hereunder, the Borrower shall:
(a) COMPLIANCE WITH LAWS, ETC. Comply, and cause each of its
Subsidiaries to comply, with all applicable federal, state and local
laws, rules, regulations and orders, such compliance to include,
without limitation, compliance with ERISA and the Racketeer Influenced
and Corrupt Organizations Chapter of the Organized Crime Control Act
of 1970.
48
52
(b) PAYMENT OF TAXES, ETC. Pay and discharge, and cause each
of its Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or
levies imposed upon it or upon its property and (ii) all lawful claims
that, if unpaid, might by law become a Lien upon its property which is
not otherwise permitted hereunder; PROVIDED, HOWEVER, that neither the
Borrower nor any of its Subsidiaries shall be required to pay or
discharge any such tax, assessment, charge or claim that is being
contested in good faith and by proper proceedings (and, as to the
Borrowing Base Properties, in compliance with the Mortgages) and as to
which appropriate reserves are being maintained, unless and until any
Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) COMPLIANCE WITH ENVIRONMENTAL LAWS. (i) Comply, and cause
each of its Subsidiaries and all lessees and other Persons operating
or occupying its properties to comply with all applicable
Environmental Laws and Environmental Permits (other than any
non-compliance that would not (if enforced in accordance with
applicable law) result in liability to the Borrower or any of its
Subsidiaries in the amount in excess of $50,000 and is not, by
applicable law, required to be reported to any governmental
authority); PROVIDED, HOWEVER, that the foregoing qualification shall
in no way diminish the obligations of Borrower and its Subsidiaries
under the Environmental Indemnity Agreement; (ii) obtain and renew and
cause each of its Subsidiaries to obtain and renew all Environmental
Permits necessary for its operations and properties; and (iii)
conduct, and cause each of its Subsidiaries to conduct, any
investigation, study, sampling and testing, and undertake any cleanup,
removal, remedial or other action necessary to remove and clean up all
Hazardous Materials from any of its properties, in accordance with the
requirements of all Environmental Laws.
(d) MAINTENANCE OF INSURANCE. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as required by the Collateral Documents.
(e) PRESERVATION OF ORGANIZATIONAL EXISTENCE, ETC. Preserve
and maintain, and cause each of the Operating Subsidiaries to preserve
and maintain, (i) its existence (corporate or otherwise) and rights
(charter and statutory) and (ii) its permits, licenses, approvals,
privileges and franchises.
(f) VISITATION RIGHTS. At any reasonable time and from time
to time, upon reasonable prior notice, permit the Administrative Agent
or any of the Lender Parties or the Administrative Agent or
representatives thereof, to examine and make copies of and abstracts
from the records and books of account of, and visit the properties of,
the Borrower and any of its Subsidiaries, and to discuss the affairs,
finances and accounts of the Borrower and any of its Subsidiaries with
any of their officers or directors and with their independent
certified public accountants.
(g) KEEPING OF BOOKS. Keep, and cause each of its
Subsidiaries to keep, proper books of record and account, in which
full and correct entries shall be made of all financial transactions
and the assets and business of the Borrower and each such Subsidiary
in accordance with generally accepted accounting principles in effect
from time to time.
(h) MAINTENANCE OF PROPERTIES, ETC. Maintain and preserve,
and cause each of its Subsidiaries to maintain and preserve, all of
its properties (and, in the case of the Borrowing Base Properties, in
compliance with the Mortgages) that are reasonably required in the
conduct of its business in good working order and condition, ordinary
wear and tear excepted; PROVIDED, HOWEVER,
49
53
that the Borrower shall at all times maintain, in cash or Unused
Commitments (provided that any such Unused Commitments maintained with
respect to the FF&E Reserve, taken together with Advances then
outstanding, are in compliance with Section 2.05(b)(i)), an FF&E
Reserve for any month equal to 4% of Total Revenue for a consecutive
12 calendar month period ending the last day of such month; PROVIDED,
FURTHER, HOWEVER that, for such period, this required amount shall be
reduced by any monies actually spent on the Borrowing Base Properties
during the same period for FF&E. This shall be tested on a quarterly
basis.
(i) TRANSACTIONS WITH AFFILIATES. Conduct, and cause each of
its Subsidiaries to conduct, all transactions otherwise permitted
under the Loan Documents with any of their Affiliates on terms that
are fair and reasonable and not less favorable to the Borrower or such
Subsidiary than it would obtain in a comparable arm's-length
transaction with a Person not an Affiliate; PROVIDED, HOWEVER, that
this Section 5.01(i) shall not apply to the Management Contracts.
(j) FURTHER ASSURANCES. (i) Promptly upon request by the
Administrative Agent, or any Lender Party through the Administrative
Agent, correct any material defect or error that may be discovered in
any Loan Document or in the execution, acknowledgment, filing or
recordation thereof, and
(ii) Promptly upon request by the Administrative Agent, or
any Lender Party through the Administrative Agent, do, execute,
acknowledge, deliver, record, re-record, file, re-file, register and
re-register any and all such further acts, deeds, conveyances, pledge
agreements, mortgages, deeds of trust, trust deeds, assignments,
financing statements and continuations thereof, termination
statements, notices of assignment, transfers, certificates, assurances
and other instruments as the Administrative Agent, or any Lender Party
through the Administrative Agent, may reasonably require from time to
time in order to (A) carry out more effectively the purposes of the
Loan Documents, (B) to the fullest extent permitted by applicable law,
subject any Loan Party's or any of its Subsidiaries' properties,
assets, rights or interests to the Liens now or hereafter intended to
be covered by any of the Collateral Documents, (C) perfect and
maintain the validity, effectiveness and priority of any of the
Collateral Documents and any of the Liens intended to be created
thereunder and (D) assure, convey, grant, assign, transfer, preserve,
protect and confirm more effectively unto the Administrative Agent and
the Lender parties the rights granted or now or hereafter intended to
be granted to the Administrative Agent and the Lender Parties under
any Loan Document or under any other instrument executed in connection
with any Loan Document to which any Loan Party or any of its
Subsidiaries is or is to be a party, and cause each of its
Subsidiaries to do so.
(k) PERFORMANCE OF RELATED DOCUMENTS AND OTHER MATERIAL
AGREEMENTS. Perform and observe, and cause each of its Subsidiaries to
perform and observe, all of the terms and provisions of each Related
Document and other material agreements to be performed or observed by
it, maintain each such Related Document and other material agreements
in full force and effect, enforce such Related Document and other
material agreements in accordance with its terms, take all such action
to such end as may be from time to time reasonably requested by the
Administrative Agent and, upon the reasonable request of the
Administrative Agent, make to each other party to each such Related
Document and other material agreements such demands and requests for
information and reports or for action as such Loan Party or any of its
Subsidiaries is entitled to make under such Related Document and other
material agreements.
50
54
(l) PREPARATION OF ENVIRONMENTAL REPORTS. At the request of
the Administrative Agent, provide to the Lender Parties within 60 days
after such request, at the expense of the Borrower (PROVIDED, HOWEVER,
that Borrower shall only be required to pay for such report after the
occurrence and continuation of an Event of Default or if the
Administrative Agent's request results from its belief that there has
been a release or threatened release of Hazardous Materials at any of
Borrower's or any of its Subsidiaries' property), a Phase I
environmental site assessment report for any of its or its
Subsidiaries' properties described in such request, prepared by an
environmental consulting firm acceptable to the Administrative Agent
(and, if based upon the recommendation of such environmental
consulting firm, a Phase II environmental site assessment report)
indicating the presence or absence of Hazardous Materials and the
estimated cost of any compliance, removal or remedial action in
connection with any Hazardous Materials on such properties; without
limiting the generality of the foregoing, if the Administrative Agent
determines at any time that a material risk exists that any such
requested report will not be provided within the time referred to
above, the Administrative Agent may retain an environmental consulting
firm to prepare such report at the expense of the Borrower, and the
Borrower hereby grants and agrees to cause any Subsidiary that owns
any property described in such request to grant at the time of such
request, to the Administrative Agent, the Lender Parties, such firm
and any agents or representatives thereof an irrevocable non-exclusive
license, subject to the rights of tenants, to enter onto their
respective properties to undertake such an assessment.
(m) COMPLIANCE WITH TERMS OF LEASEHOLDS. Make all payments
and otherwise perform all obligations in respect of all leases of real
property to which the Borrower or any of its Subsidiaries is a party,
keep such leases in full force and effect and not allow such leases to
lapse or be terminated or any rights to renew such leases to be
forfeited or canceled, notify the Administrative Agent of any material
default by any party with respect to such leases and cooperate with
the Administrative Agent in all respects to cure any such default, and
cause each of its Subsidiaries to do so except, in any case, where the
failure to do so, either individually or in the aggregate, could not
be reasonably likely to have a Material Adverse Effect.
(n) APPRAISALS. Appraisals of any or all of the Borrowing
Base Properties may be requested either by the Borrower or any Lender
subject to the approval of the Required Lenders at any time; PROVIDED,
HOWEVER, that if the appraisal is requested by the Lenders the
Borrower shall be required to pay for only one such appraisal per
property per Fiscal Year. The selection of an appraiser for purposes
of determining the Appraised Value shall be subject to the approval of
the Administrative Agent.
(o) MANAGEMENT. The Borrower shall cause the Managers to
operate each of the Borrowing Base Properties at all times consistent
with the manner as currently operated as first-class luxury hotels,
cause the Borrowing Base Properties to be managed by the Managers in
accordance with the terms of the Management Contracts, perform and
observe all the terms and provisions of the Management Contracts to be
performed or observed by the Borrower or its Subsidiaries, maintain
the Management Contracts in full force and effect, enforce the
Management Contracts in accordance with their terms, take such action
to such end as may be from time to time reasonably requested by the
Administrative Agent and, upon the request of the Administrative
Agent, make to the Managers such demands and requests for information
and reports or for action as the Borrower is entitled to make under
the Management Contracts. The Management Contracts (or any of them)
may be terminated by the Administrative Agent upon thirty (30) days'
prior written notice to the Borrower after a Default has occurred or
is continuing.
51
55
(p) SINGLE PURPOSE ENTITY. Remain, and shall cause each of
its Subsidiaries to remain, at all times, a Single Purpose Entity.
(q) MAINTENANCE OF BANK ACCOUNTS. Maintain, and cause each of
its Subsidiaries to maintain, bank accounts and a cash management
system for blocked accounts acceptable to the Administrative Agent
and, upon an Event of Default, lockbox accounts.
(r) INTEREST RATE PROTECTION AGREEMENTS. To the extent
Advances exceed $50,000,000, the Borrower will purchase interest rate
caps for 50% of such excess amount on a basis acceptable to the
Administrative Agent.
(s) APPLICATION OF GROSS REVENUES. Promptly apply all gross
revenues from the Borrowing Base Properties to the payment of all
current and past due operating expenses of the Borrowing Base
Properties and to the repayment of all principal, interest expense,
fees and other sums currently due or past due under the Loan
Documents, including but not limited to all reserve payments and any
escrow or impound payments required pursuant thereto.
(t) FF&E RESERVE. Upon the occurrence or continuance of an
Event of Default, transfer, and cause the Operating Subsidiaries to
transfer, the FF&E Reserves applicable to the Borrowing Base
Properties owned by it to the FF&E Reserve Account.
(u) MAINTAIN SOLVENCY. Remain, and shall cause the Parent
Guarantor and each of the Subsidiaries of the Borrower to remain, at
all times, Solvent.
(v) BORROWING BASE AMOUNT. Maintain, and cause each of its
Subsidiaries to maintain, the Borrowing Base Amount (less the
Intangible Tax Reserve) as defined in Section 1.01 hereto in excess of
all outstanding Advances.
(w) CERTAIN ENGINEERING MATTERS. As soon as practicable, but
in any event within the time frame as set forth in Schedule 5.01(w)
(or such later date as authorized by an engineer and approved by the
Administrative Agent), the Borrower shall, or shall cause its
Subsidiaries to, remedy each of the engineering matters set forth in
Schedule 5.01(w) and shall promptly thereafter deliver a certificate
of an authorized officer of the Borrower certifying as to each such
remediation.
SECTION 5.02. NEGATIVE COVENANTS. So long as any as any
Advance or any other Obligation of any Loan Party under or in respect of any
Loan Document shall remain unpaid or any Lender Party shall have any Commitment
hereunder, the Borrower shall not, and shall not permit or suffer the
Subsidiary Guarantors to, at any time:
(a) LIENS, ETC. Create, incur, assume or suffer to exist, or
permit any of its Subsidiaries to create, incur, assume or suffer to
exist, any Lien on or with respect to any of its properties of any
character (including, without limitation, accounts) whether now owned
or hereafter acquired, or sign or file or suffer to exist, or permit
any of its Subsidiaries to sign or file or suffer to exist, under the
Uniform Commercial Code of any jurisdiction, a financing statement
that names the Subsidiary Guarantor, the Borrower or any of its
Subsidiaries as debtor, or sign or suffer to exist, or permit any of
its Subsidiaries to sign or suffer to exist, any security agreement
authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
52
56
accounts or other right to receive income, EXCLUDING, HOWEVER, from
the operation of the foregoing restrictions the following:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens or Permitted Encumbrances;
(iii) Liens on the FF&E (including, without
limitation, purchase money liens on FF&E) arising in the
ordinary course of business;
(iv) any leases of FF&E, subject to (x) the limit on
Capital Leases set forth in subsection (b) below, and (y) the
Administrative Agent's receipt of any such leases, together
with evidence of lessee's right to assign its interest under
the lease to the Administrative Agent as additional security
and lessor's (i) consent to such collateral assignment and
(ii) agreement to accept any cures by the Administrative
Agent in the event of a default under the lease; and
(v) Liens existing on the date hereof and described
on Schedule 4.01(v) hereto;
(vi) Liens arising in connection with Capitalized
Leases permitted under Section 5.02(b)(iv); PROVIDED that no
such Lien shall extend to or cover any Collateral or assets
other than the assets subject to such Capitalized Leases;
(vii) the filing of financing statements solely as a
precautionary measure in connection with operating leases
permitted under Section 5.02(b)(iii), and
(viii) the replacement, extension or renewal of any
Lien permitted by clause (iii) above upon or in the same
property theretofore subject thereto or the replacement,
extension or renewal (without increase in the amount or
change in any direct or contingent obligor) of the Debt
secured thereby.
(b) DEBT. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist,
any Debt other than:
(i) Debt under the Loan Documents,
(ii) Debt under the Subordinated Guaranty,
(iii) Capitalized Leases not to exceed, together
with Debt permitted under Section 5.02(b)(iv), $2,000,000
with respect to each Borrowing Base Property at any time
outstanding and $6,000,000 for the Borrowing Base Properties
in the aggregate at any time outstanding,
(iv) Debt secured by Liens permitted by Section
5.02(a)(iii) not to exceed, together with Debt permitted
under Section 5.02(b)(iii), $2,000,000 with respect to each
Borrowing Base Property at any time outstanding and
$6,000,000 for the Borrowing Base Properties in the aggregate
at any time outstanding,
53
57
(v) indorsement of negotiable instruments for
deposit or collection or similar transactions in the ordinary
course of business, and
(vi) Debt of any Subsidiary Guarantor to the
Borrower or to the Parent Guarantor or of the Borrower to the
Parent Guarantor so long as such Debt (a) is expressly
subordinated to the Obligations hereunder (such subordination
shall be satisfactory to the Administrative Agent in its sole
discretion); and (b) is evidenced by a written instrument
which is pledged and delivered by the holder thereof as
collateral for the Obligations hereunder.
(c) CHANGE IN NATURE OF BUSINESS. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its
business as carried on at the date hereof.
(d) MERGERS, ETC. Merge into or consolidate the Borrower or
the Operating Subsidiaries with any Person or permit any Person to
merge into the Borrower or the Operating Subsidiaries, or permit any
of the Operating Subsidiaries to do so.
(e) SALES, ETC. OF ASSETS. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer
or otherwise dispose of, any assets, or grant any option or other
right to purchase, lease or otherwise acquire any assets, except:
(i) sales of Inventory, as defined in the Security
Agreements (including, without limitation, sales of obsolete
Inventory) in the ordinary course of its business,
(ii) sales or trade-ins of used equipment for fair
value in the ordinary course of business for like assets or
cash in an aggregate for all of the Borrowing Base Properties
amount not to exceed $250,000 in any Fiscal Year,
(iii) The Borrower shall have the right to sell the
whole of any Borrowing Base Property (but not less than the
whole), but not more than two Borrowing Base Properties, and
obtain from the Administrative Agent such reconveyances of
the Mortgages securing such Borrowing Base Properties and the
release or reconveyance of such other Collateral that shall
constitute such Borrowing Base Property, upon and subject to
satisfaction of each of the following conditions as
determined in good faith by the Administrative Agent: (A) at
the option of the Administrative Agent, the Administrative
Agent shall have received, for the benefit of the Lender
Parties and at the Borrower's cost and expense, an
irrevocable commitment from a title company acceptable to the
Administrative Agent that such company shall issue an
endorsement to the Mortgagee Title Insurance Policies that
the release will not affect the lien priority of the
Mortgages of those Borrowing Base Properties that are not
sold, which commitment and endorsement shall be in form and
substance satisfactory to the Administrative Agent; (B) each
Guarantor shall have executed and delivered to the
Administrative Agent such documents in form and substance
satisfactory to the Lenders as are necessary to reaffirm the
continued effectiveness and enforceability of the Guaranties
following such release; (C) no Default shall then exist as a
result of such sale or shall occur; (D) the Borrower shall
reimburse the Administrative Agent for all reasonable costs
and expenses (including, without limitation, attorneys' fees)
which the Administrative Agent incurs in connection with any
sale hereunder; (E) the Administrative Agent shall have
received a Borrowing Base Certificate and monthly financial
statements demonstrating that after giving effect to the
release (and any
54
58
intended pay down in connection with the release) the
principal amount of the then outstanding Advances does not
exceed the Borrowing Base Amount (less the Intangible Tax
Reserve); and (F) the Loan Parties shall deliver such
additional documents as Administrative Agent may reasonably
request to evidence such Loan Parties' acknowledgment of
their continuing obligations under the Loan Documents. No
sale of any of the Borrowing Base Properties shall affect the
Borrower's obligations under the Indemnity Agreement, and
(iv) the transfer of any Pledged Shares to any
Subsidiary Guarantors in accordance with the provisions of
Section 5.02(q).
(f) INVESTMENTS. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment other than Investments by
the Borrower and its Subsidiaries in:
(i) wholly-owned Subsidiaries of the Borrower or the
Subsidiary Guarantor outstanding on the date hereof;
(ii) the Parent Guarantor, subject to the
requirements set forth in Section 5.02(b)(vi);
(iii) loans and advances to employees in the
ordinary course of the business of the Borrower and its
Subsidiaries as presently conducted in an aggregate principal
amount not to exceed $2,000,000 at any time outstanding;
(iv) Investments by the Borrower and its
Subsidiaries in demand deposit accounts maintained in the
ordinary course of business with any Person of the type
referred to in clause (i), (ii), (iii), (iv) or (v) of the
definition of "ELIGIBLE ASSIGNEE" and in Cash Equivalents on
deposit in Blocked Accounts (as defined in the Security
Agreements); and
(v) Investments existing on the date hereof and
described on Schedule 4.01(t) hereto;
(g) RESTRICTED PAYMENTS. So long as any Default shall have
occurred and be continuing at the time of any action described in this
Section 5.02(g) or would result therefrom, declare or pay any
dividends, purchase, redeem, retire, defease or otherwise acquire for
value any of its Equity Interests now or hereafter outstanding, return
any capital to its stockholders, partners or members (or the
equivalent Persons thereof) as such or issue or sell any Equity
Interests or accept any capital contributions, or permit any of its
Subsidiaries to purchase, redeem, retire, defease or otherwise acquire
for value Equity Interests of the Borrower or its Subsidiaries or to
issue or sell any Equity Interests therein.
(h) AMENDMENT OF CONSTITUTIVE DOCUMENTS. Amend, or permit any
of its Subsidiaries to amend, its certificate of incorporation, bylaws
or other constitutive documents.
(i) ACCOUNTING CHANGES. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (A) accounting policies
or reporting practices, except as required by generally accepted
accounting principles or (B) the Fiscal Year; provided, however, that
the Borrower and its
55
59
Subsidiaries may each change its Fiscal Year to December 31 to conform
to a change by the Parent Guarantor.
(j) PREPAYMENTS, ETC. OF DEBT. (i) Prepay, redeem, purchase,
defease or otherwise satisfy prior to the scheduled maturity thereof
in any manner, or make any payment in violation of any subordination
terms of, any Debt, other than (x) the prepayment of the Advances in
accordance with the terms of this Agreement, and (y) if before and
after giving effect to any such prepayment, redemption, purchase,
defeasance or other satisfaction, no Default has occurred or would
result therefrom, regularly scheduled or required repayments or
redemptions of Surviving Debt, or (ii) amend, modify or change in any
manner any term or condition of any Surviving Debt or the Subordinated
Notes, or permit any of its Subsidiaries to do any of the foregoing
other than to prepay any Debt payable to the Borrower, Parent or any
Subsidiary Guarantor permitted under Section 5.02(b)(vi) hereunder.
(k) AMENDMENT, ETC. OF RELATED DOCUMENTS. Without the prior
written consent of the Administrative Agent, (i) cancel or terminate
any Related Document or consent to or accept any cancellation or
termination thereof, (ii) amend, modify or change in any manner any
term or condition of any Related Document or material agreements,
(iii) give any consent, waiver or approval thereunder, (iv) waive any
default under or any breach of any term or condition of any Related
Document or material agreements, (v) agree in any manner to any other
amendment, modification or change of any term or condition of any
Related Document or material agreements or (vi) take any other action
in connection with any Related Document or material agreements that
would impair the value of the interest or rights of any Loan Party
thereunder or that would impair the rights or interests of the
Administrative Agent or any Lender Party.
(l) NEGATIVE PLEDGE. Enter into or suffer to exist, or permit
any of its Subsidiaries to enter into or suffer to exist, any
agreement prohibiting or conditioning the creation or assumption of
any Lien upon any of its property or assets other than (i) in favor of
the Administrative Agent for the benefit of the Lender Parties or (ii)
in connection with (A) any Surviving Debt, (B) Capitalized Leases and
purchase money Debt to the extent permitted under Section 5.02(b)(iii)
and solely to the extent such agreement is limited to the property
covered by such Liens, and (B) any Debt outstanding on the date of
acquisition of a Subsidiary by any Loan Party, so long as such
agreement was not entered into solely in contemplation of such
Subsidiary being so acquired.
(m) PARTNERSHIPS. Become a general partner in any general or
limited partnership or joint venture, or permit any of its
Subsidiaries to do so other than any Subsidiary Guarantor the sole
assets of which consist of its interest in such partnership or joint
venture and to the extent permitted by Section 5.02(f)(ii).
(n) FORMATION OF SUBSIDIARIES. Organize or invest, or permit
any Subsidiary to organize or invest, in any new Subsidiary unless
such new Subsidiary: (i) is wholly owned by the Borrower and the
Borrower pledges its interest therein as collateral for all
Obligations hereunder; (ii) executes a guaranty of the Obligations
hereunder; (iii) pledges all interests in any Subsidiary Guarantor for
collateral for all Obligations hereunder; (iv) is a Single Purpose
Entity; and (v) otherwise comply with the requirements of subsection
(q) below
56
60
(o) PAYMENT RESTRICTIONS AFFECTING SUBSIDIARIES. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare
or pay dividends or other distributions in respect of its Equity
Interests or repay or prepay any Debt owed to, make loans or advances
to, or otherwise transfer assets to or invest in, the Borrower or any
Subsidiary of the Borrower (whether through a covenant restricting
dividends, loans, asset transfers or investments, a financial covenant
or otherwise), except (i) the Loan Documents, (ii) any agreement or
instrument evidencing Surviving Debt and (iii) any agreement in effect
at the time such Subsidiary becomes a Subsidiary of the Borrower, so
long as such agreement was not entered into solely in contemplation of
such Person becoming a Subsidiary of the Borrower.
(p) OTHER TRANSACTIONS. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options
or futures contracts or any similar speculative transactions
(including, without limitation, take-or-pay contracts).
(q) NO TRANSFER. The Borrower acknowledges that, in entering
into the Facility, the Lenders have relied to a material extent upon
the particular business reputation, expertise, creditworthiness, and
individual net worth of the Borrower, the Subsidiary Guarantors, and
all of the other persons, partnerships, trusts, corporations or other
entities who have a direct or indirect interest in the Borrower and
the Subsidiary Guarantors and upon the continuing interest which such
persons, partnerships, trusts, corporations or other entities, as
owners of direct or indirect interests in the Borrower and the
Subsidiary Guarantors, will have in the Borrowing Base Properties and
the Pledged Shares. Except as provided in Section 6.01 below, an Event
of Default shall occur hereunder, and the Administrative Agent shall
have the right, in its sole option, to declare the principal and
interest under the Note and all sums provided herein immediately due
and payable if, without the prior written consent of the
Administrative Agent, which may be given or withheld in its sole
discretion: (1) any of the Parent Guarantor, the Borrower or the
Subsidiary Guarantors (i) sells, conveys, transfers, disposes of, or
otherwise alienates their interests in the Borrowing Base Properties
or the Pledged Shares (as defined in the Security Agreements), or any
part thereof, or any interest therein, whether voluntarily, by the
operation of law, or otherwise, or (ii) executes a contract to do any
of the foregoing (unless the closing of such contract is expressly
contingent upon obtaining the Administrative Agent's consent to the
foregoing); (2) there occurs a change, whether directly or indirectly,
in the composition, control, ownership or structure of the Borrower or
the Subsidiary Guarantors (except as permitted by Section 5.02(e)
hereof), including, (i) any direct or indirect change in, or any
change in direct or indirect ownership interests held by, any entity
comprising such Person, of whatever tier (provided that the foregoing
shall not prohibit transfers of interests in the Parent Guarantor) or
(ii) any termination of the existence of any such Person or any entity
comprising such, or any of the members or partners therein or
beneficial owners thereof, of whatever tier; or (3) any change in the
Managers, or any direct or indirect change in the composition,
control, ownership or structure of Managers (each of the events
described in clauses (1) through (3) above are referred to hereinafter
as a "TRANSFER"). Consent to a Transfer or consent to any other event
requiring consent in accordance with the foregoing shall be granted or
withheld in the Administrative Agent's discretion and, if granted,
shall not constitute a waiver of the requirement of consent for
subsequent Transfers or other events. Notwithstanding anything to the
contrary contained herein, subject to satisfying each of the
conditions set forth in Section 3.01 and pursuant to Section 5.02(e),
the Administrative Agent shall not withhold its consent to the
following Transfers ("PERMITTED TRANSFERS"): (i) Transfers of
immaterial portions of the Borrowing Base Properties to governmental
authorities in accordance with the condemnation provisions
57
61
of the Mortgages; (ii) Liens permitted pursuant to Section 5.02(a);
(iii) sales of the whole of a Borrowing Base Property in accordance
with Section 5.02(e)(iii) and (iv) leases permitted pursuant to
Section 5.02(b). Notwithstanding anything in this Section 5.02(q) to
the contrary, a Transfer of Equity Interests in any Subsidiary
Guarantor other than an Operating Subsidiary shall be deemed a
Permitted Transfer upon satisfaction of the following conditions, as
determined by the Administrative Agent:
(1) At all times the Parent Guarantor shall own, directly or
indirectly, all of the Equity Interests in the Borrower and all such
Equity Interests remain subject to a first priority Lien pursuant to
the Parent Guarantor Security Agreement;
(2) At all times the Borrower or a Subsidiary Guarantor shall
own, directly or indirectly, all of the Equity Interests in the Person
to whom the Equity Interests are proposed to be transferred (the
"Proposed Transferee") and all such Equity Interests shall remain
subject to a first priority Lien in favor of the Administrative Agent.
In the event the Proposed Transferee is not an existing Subsidiary
Guarantor which has pledged all of its Equity Interests to the
Administrative Agent as security for the Obligations under the Loan
Documents, the Proposed Transferee shall execute a Subsidiary Guaranty
and either become a party to the Subsidiary Guaranty Security Agreement
(through the execution of such amendments, supplements, or addendum as
the Administrative Agent may require) or execute such other security
agreement as may be acceptable in form and substance to the
Administrative Agent. The Administrative Agent shall also have received
such UCC financing statements and other documents, certificates and
instruments as may be necessary or appropriate in the Administrative
Agent's judgment to perfect its Lien on the Equity Interests proposed
to be transferred.
(3) No Default or Event of Default shall then exist under the
Loan Documents; the Proposed Transferee must be, and the Borrower and
each Subsidiary Guarantors must remain, a Single Purpose Entity;
(4) The Transfer shall not constitute a default or an event of
default under any Related Documents or any other material agreements of
any Loan Party;
(5) Each of the Loan Documents, including, without limitation,
the Mortgages, shall be in full force and effect and, at the
Administrative Agent's request, the Administrative Agent shall have
received reaffirmations of the obligations thereunder, in a form
satisfactory to the Administrative Agent, from the Borrower and any
other Loan Parties as requested by the Administrative Agent;
(6) Not less than five (5) Business Days prior to the date of any
Transfer, the Administrative Agent shall have received copies of all
organization documents of the Proposed Transferee and such organization
documents shall be consistent with each of the requirements otherwise
set forth in this Agreement and the other Loan Documents;
(7) No Transfer permitted hereunder or otherwise permitted by the
Administrative Agent shall release the Borrower or any Loan Party from
any liability, if any, hereunder, under the Loan Documents or under any
other agreement executed in connection with the Loan Documents;
(8) Such Transfer shall not result in the tax termination of the
Borrower or any Operating Subsidiary;
58
62
(9) At the Administrative Agent's election, the Administrative
Agent shall have received an endorsement to its lender's policy of
title insurance issued in connection with the Loan Documents confirming
that such transfer shall not affect the continuing lien priority of the
Mortgages; and
(10) The Borrower shall have paid all of the Administrative
Agent's administrative expenses, including, without limitation,
reasonable fees and disbursements of the Administrative Agent's
counsel, incurred in connection with the Administrative Agent's review
of such transfer.
(r) SUBORDINATED NOTES AND GUARANTY. Amend, or permit, cause, or
suffer any of its Subsidiaries or the Parent Guarantor to amend the
Indenture, Note Purchase Agreement, or any other documents evidencing,
supporting, or otherwise relating to the Subordinated Notes or the
Subordinated Guaranty. Any such amendments without the consent of the
Administrative Agent shall be deemed void.
SECTION 5.03. BORROWER REPORTING REQUIREMENTS. So long as any
Obligation of any Loan Party under or in respect of any Loan Document shall
remain unpaid or any Lender Party shall have any Commitment hereunder, the
Borrower will furnish to the Administrative Agent and the Lender Parties:
(a) DEFAULT NOTICES. As soon as possible and in any event within
two Business Days after the occurrence of each Default or any event,
development or occurrence reasonably likely to have a Material Adverse
Effect continuing on the date of such statement, a statement of the
chief financial officer of the Borrower setting forth details of such
Default, event, development or occurrence and the action that the
Borrower has taken and proposes to take with respect thereto.
(b) MONTHLY FINANCIALS. As soon as available and in any event
within 45 days after the end of each month, commencing March 31, 1999,
a Consolidated balance sheet of the Borrower and its Subsidiaries, and
of each of the Operating Subsidiaries, in each case as of the end of
such month and Consolidated statements of income and cash flow of the
Borrower and its Subsidiaries, and of each of the Operating
Subsidiaries, in each case for the period commencing at the end of the
previous month and ending with the end of such month and Consolidated
statements of income and cash flow of the Borrower and its
Subsidiaries, and of the Operating Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such month, setting forth in each case in comparative form the
corresponding figures for the corresponding month and Fiscal
Year-to-date period of the preceding Fiscal Year, all in reasonable
detail and duly certified by the chief financial officer or chief
accounting officer of the Borrower, together with (i) a certificate of
said officer on behalf of the Borrower stating that no Default has
occurred and is continuing or, if a Default has occurred and is
continuing, a statement as to the nature thereof and the action that
the Borrower has taken and proposes to take with respect thereto and
(ii) in the event of any change from GAAP in the generally accepted
accounting principles used in the preparation of such financial
statements, a statement of reconciliation conforming such financial
statements to GAAP. The Borrower shall provide a compilation report
prepared by an outside accountant not more than 90 days after the
Fiscal Year end, monthly operating reports not more than 45 days after
each month end and other reviews or reports, each as acceptable to the
Administrative Agent.
59
63
(c) CAPITAL EXPENDITURE BUDGET. As soon as available and in any
event not less than 45 days prior to the end of each Fiscal Year, each
Operating Subsidiary shall provide a Capital Expenditure budget,
reasonably sufficient to properly maintain each of the Borrowing Base
Properties, for each Borrowing Base Property for the succeeding Fiscal
Year, together with a certificate of the chief financial officer of
the Borrower certifying the actual capital expenditures for each
Operating Subsidiary for the period commencing at the end of the
previous Fiscal Year and ending with the end of such month prior to
the month in which such budget is delivered.
(d) QUARTERLY FF&E RESERVE CERTIFICATES. As soon as available and
in any event within 45 days after the end of each quarter, commencing
March 31, 1999, a certificate of the chief financial officer of the
Borrower certifying the amount of FF&E Reserves with respect to the
Borrowing Base Properties for such period and for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such quarter in which such certificate is delivered.
(e) ERISA. (i) ERISA EVENTS AND ERISA REPORTS. (A) Promptly and
in any event within 10 days after any Loan Party or any ERISA
Affiliate knows or has reason to know that any ERISA Event has
occurred, a statement of the chief financial officer of the Borrower
describing such ERISA Event and the action, if any, that such Loan
Party or such ERISA Affiliate has taken and proposes to take with
respect thereto and (B) on the date any records, documents or other
information must be furnished to the PBGC with respect to any Plan
pursuant to Section 4010 of ERISA, a copy of such records, documents
and information.
(ii)PLAN TERMINATIONS. Promptly, and in any event within three
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention
to terminate any Plan or to have a trustee appointed to administer any
Plan.
(iii) PLAN ANNUAL REPORTS. Promptly and in any event within 30
days after the filing thereof with the Internal Revenue Service, copies
of each Schedule B (Actuarial Information) to the annual report (Form
5500 Series) with respect to each Plan.
(iv) MULTIEMPLOYER PLAN NOTICES. Promptly and in any event within
five Business Days after receipt thereof by any Loan Party or any
ERISA Affiliate from the sponsor of a Multiemployer Plan, copies of
each notice concerning (A) the imposition of Withdrawal Liability by
any such Multiemployer Plan, (B) the reorganization or termination,
within the meaning of Title IV of ERISA, of any such Multiemployer
Plan or (C) the amount of liability incurred, or that may be incurred,
by such Loan Party or any ERISA Affiliate in connection with any event
described in clause (A) or (B).
(f) LITIGATION. Promptly after the commencement thereof, notice
of all actions, suits, investigations, litigation and proceedings
before any court or governmental department, commission, board,
bureau, agency or instrumentality, domestic or foreign, affecting (i)
the Borrower or any of its Subsidiaries of the type described in
Section 4.01(h) or (ii) the Parent Guarantor if such action, claim or
proceeding, if adversely determined, could result in a judgment which
would constitute and Event of Default under Section 6.02(g).
60
64
(g) CREDITOR REPORTS. Promptly after the furnishing thereof,
copies of any statement or report furnished to any other holder of the
Debt of the Borrower or of any of its Subsidiaries (including, without
limitation, the holders of the Subordinated Notes) pursuant to the
terms of any indenture, loan or credit or similar agreement and not
otherwise required to be furnished to the Lender Parties pursuant to
any other clause of this Section 5.03.
(h) AGREEMENT NOTICES. Promptly upon receipt thereof, copies of
all notices, requests and other documents received by the Borrower or
any of its Subsidiaries under or pursuant to any Related Document or
indenture, loan or credit or similar agreement regarding or related to
any breach or default by any party thereto or any other event that
could materially impair the value of the interests or the rights of
the Borrower or any of its Subsidiaries or otherwise have a Material
Adverse Effect and copies of any amendment, modification or waiver of
any provision of any Related Agreement or indenture, loan or credit or
similar agreement and, from time to time upon request by the
Administrative Agent, such information and reports regarding the
Related Documents as the Administrative Agent may reasonably request.
(i) REVENUE AGENT REPORTS. Within 10 days after receipt, copies
of all Revenue Agent Reports (Internal Revenue Service Form 886), or
other written proposals of the Internal Revenue Service, that propose,
determine or otherwise set forth positive adjustments to the Federal
income tax liability of the affiliated group (within the meaning of
Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member aggregating $250,000 or more.
(j) TAX CERTIFICATES. Promptly, and in any event within five
Business Days after the due date (with extensions) for filing the
final Federal income tax return in respect of each taxable year, a
certificate (a "TAX CERTIFICATE"), signed by the President or the
chief financial officer of the Borrower, stating that the common
parent of the affiliated group (within the meaning of Section
1504(a)(1) of the Internal Revenue Code) of which the Borrower is a
member has paid to the Internal Revenue Service or other taxing
authority, or to the Parent Guarantor, the full amount that such
affiliated group is required to pay in respect of Federal income tax
for such year and that the Parent Guarantor and its Subsidiaries have
received any amounts payable to them, and have not paid amounts in
respect of taxes (Federal, state, local or foreign) in excess of the
amount they are required to pay, under the tax agreements, if any, in
effect in respect of such taxable year.
(k) ENVIRONMENTAL CONDITIONS. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of
any noncompliance by the Borrower or any of its Subsidiaries with any
Environmental Law or Environmental Permit that could (i) reasonably be
expected to have a Material Adverse Effect or (ii) cause any property
described in the Mortgages to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental
Law.
(l) REAL PROPERTY. As soon as available and in any event within
30 days after the end of each Fiscal Year, a report supplementing
Schedule 4.01(s) hereto, including an identification of all real and
leased property disposed of by the Borrower or any of its Subsidiaries
during such Fiscal Year, a list and description (including the street
address, county or other relevant jurisdiction, state, record owner,
book value thereof, and in the case of leases of property, lessor,
lessee, expiration date and annual rental cost thereof) of all real
property acquired or
61
65
leased during such Fiscal Year and a description of such other changes
in the information included in such Schedule as may be necessary for
such Schedule to be accurate and complete.
(m) INSURANCE. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report summarizing the
insurance coverage (specifying type, amount and carrier) in effect for
the Borrower and its Subsidiaries and containing such additional
information as any Lender Party (through the Administrative Agent) may
reasonably specify.
(n) BORROWING BASE CERTIFICATE. As soon as available and in any
event within 45 days after the end of each month, a Borrowing Base
Certificate, as at the end of such month, certified by the chief
financial officer of the Borrower.
(o) OTHER INFORMATION. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of the Borrower or any of its Subsidiaries as
any Lender Party (through the Administrative Agent) may from time to
time reasonably request, including, without limitation, all special
reports filed with the Securities and Exchange Commission or any
governmental authority that may be substituted therefor.
SECTION 5.04 PARENT GUARANTOR REPORTING REQUIREMENTS. So long as any
Obligation of any Loan Party under or in respect of any Loan Document shall
remain unpaid or any Lender Party shall have any Commitment hereunder, the
Parent Guarantor will furnish to the Administrative Agent and the Lender
Parties:
(a) DEFAULT AND PREPAYMENT NOTICES. As soon as possible and in
any event within two Business Days after the occurrence of each
Default or any event, development or occurrence reasonably likely to
have a Material Adverse Effect continuing on the date of such
statement, a statement of the chief financial officer of the Parent
Guarantor setting forth details of such Default, event, development or
occurrence and the action that the Parent Guarantor has taken and
proposes to take with respect thereto.
(b) QUARTERLY FINANCIALS. As soon as available and in any event
within 45 days after the end of each calender quarter, commencing June
30, 1999, a Consolidated balance sheet of the Parent Guarantor and its
Subsidiaries, in each case as of the end of such calender quarter and
a Consolidated statement of income and cash flow of the Parent
Guarantor and its Subsidiaries, in each case for the period commencing
at the end of the previous calender quarter and ending with the end of
such calender quarter, and a Consolidated statement of income and cash
flow of the Parent Guarantor and its Subsidiaries for the period
commencing at the end of the previous Fiscal Year and ending with the
end of such calender quarter, setting forth in each case in
comparative form the corresponding figures for the corresponding
calender quarter and Fiscal Year-to-date period of the preceding
Fiscal Year, all in reasonable detail and duly certified by the chief
financial officer of the Parent Guarantor, together with (i) a
certificate of said officer on behalf of the Parent Guarantor stating
that no Default has occurred and is continuing or, if a Default has
occurred and is continuing, a statement as to the nature thereof and
the action that the Parent Guarantor has taken and proposes to take
with respect thereto and (ii) a schedule in form satisfactory to the
Administrative Agent of the computations used by the Parent Guarantor
in determining compliance with the covenants contained in Section
5.05.
62
66
(c) ANNUAL FINANCIALS. As soon as available and in any event
within 93 days after the end of each Fiscal Year, a copy of the annual
audit report for such year for the Parent Guarantor and its
Subsidiaries, including therein Consolidated balance sheets of the
Parent Guarantor and its Subsidiaries, in each case as of the end of
such Fiscal Year, and Consolidated statements of income and cash flow
of the Parent Guarantor and its Subsidiaries, in each case for the
period commencing at the end of the previous Fiscal Year and ending
with the end of such Fiscal Year, accompanied as to such Consolidated
statements, by an unqualified opinion of Xxxxxx Xxxxxxxx, LLP or other
independent public accountants of recognized standing acceptable to
the Required Lenders, together with (i) a copy of any management
letter prepared by such accounting firm with respect to such Fiscal
Year and distributed to the Parent Guarantor, (ii) a certificate of
the chief financial officer of the Parent Guarantor stating that no
Default has occurred and is continuing or, if a default has occurred
and is continuing, a statement as to the nature thereof and the action
that the Parent Guarantor has taken and proposes to take with respect
thereto, (iii) in the event of any change from GAAP in the generally
accepted accounting principles used in the preparation of such
financial statements, a statement of reconciliation conforming such
financial statements to GAAP and (iv) a schedule in form satisfactory
to the Administrative Agent of the computations used by the Parent
Guarantor in determining compliance with the covenants contained in
Section 5.05.
SECTION 5.05. PARENT GUARANTOR COVENANTS. So long as any Advance or
any other Obligation of any Loan Party under or in respect of any Loan Document
shall remain unpaid or any Lender Party shall have any Commitment hereunder,
the Parent Guarantor:
(a) COMPLIANCE WITH COVENANTS. Shall and shall cause the Borrower
and each of its Subsidiaries to perform and observe, all of the terms,
covenants and agreements set forth in the Loan Documents on their part to be
performed or observed or that the Borrower has agreed to cause its Subsidiaries
to perform or observe.
(b) LEVERAGE RATIO. Shall maintain at all times, on a
Consolidated basis for itself and its Subsidiaries, a Leverage Ratio, as of the
date of determination, of not more than 6.5 to 1.
(c) FIXED CHARGE COVERAGE RATIO. Shall maintain at all times, on
a Consolidated basis for itself and its Subsidiaries, a Fixed Charge Coverage
Ratio, as of the date of determination, of not less than 1.3 to 1.
(d) BOOK NET WORTH. Shall maintain at all times, on a
Consolidated basis for itself and its Subsidiaries, a Book Net Worth of not
less than the sum of (i) $375,000,000, (ii) 75% of the value of all equity
offerings after the Closing Date, and (iii) 75% of net income since April 1,
1999, as of the date of determination.
63
67
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. EVENTS OF DEFAULT. If any of the following events
("EVENTS OF DEFAULT") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any
Advance when the same becomes due and payable, (ii) the Borrower shall
fail to prepay any principal of any Advance as required under Section
2.05(b) within five Business Days of when the same becomes due and
payable or (iii) the Borrower shall fail to pay any interest on any
Advance or any Loan Party shall fail or make any other payment under
any Loan Document within five Business Days of when the same becomes
due and payable; or
(b) any representation or warranty made by any Loan Party (or any
of its officers) under or in connection with any Loan Document shall
prove to have been incorrect in any material respect when made; or
(c) any Loan Party shall fail to perform or observe any term,
covenant or agreement contained in Section 2.15, 5.01(e)(i) and (i),
5.02 or 5.03 (other than subparagraph (c) thereof); or
(d) any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in any Loan Document on its part
to be performed or observed if such failure shall remain unremedied
for 30 days after the earlier of the date on which (A) a Responsible
Officer of the Borrower becomes aware of such failure or (B) written
notice thereof shall have been given to the Borrower by the
Administrative Agent or any Lender Party; or
(e) any Loan Party shall fail to pay any principal of, premium or
interest on or any other amount payable in respect of any Debt that is
outstanding in a principal amount (or, in the case of any Hedge
Agreement, an Agreement Value) of at least $7,500,000 either
individually or in the aggregate (but excluding Debt outstanding
hereunder) of the Loan Parties, when the same becomes due and payable
(whether by scheduled maturity, required prepayment, acceleration,
demand or otherwise), and such failure shall continue after the
applicable grace period, if any, specified in the agreement or
instrument relating to such Debt; or any other event shall occur or
condition shall exist under any agreement or instrument relating to
any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of,
the maturity of such Debt or otherwise to cause, or to permit the
holder thereof to cause, such Debt to mature; or any such Debt shall
be declared to be due and payable or required to be prepaid or
redeemed (other than by a regularly scheduled required prepayment or
redemption), purchased or defeased, or an offer to prepay, redeem,
purchase or defease such Debt shall be required to be made, in each
case prior to the stated maturity thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general
assignment for the benefit of creditors; or any proceeding shall be
instituted by or
64
68
against any Loan Party or any of its Subsidiaries seeking to
adjudicate it a bankrupt or insolvent, or seeking liquidation, winding
up, reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver,
trustee, or other similar official for it or for any substantial part
of its property and, in the case of any such proceeding instituted
against it (but not instituted by it) that is being diligently
contested by it in good faith, either such proceeding shall remain
undismissed or unstayed for a period of 60 days or any of the actions
sought in such proceeding (including, without limitation, the entry of
an order for relief against, or the appointment of a receiver,
trustee, custodian or other similar official for, it or any
substantial part of its property) shall occur; or any Loan Party or
any of its Subsidiaries shall take any corporate action to authorize
any of the actions set forth above in this subsection (f); or
(g) any judgment or order for the payment of money in excess of
$2,000,000 for each Operating Subsidiary and $5,000,000 for the Parent
Guarantor (to the extent not fully paid or discharged) shall be
rendered against any Loan Party or any of its Subsidiaries and either
(i) enforcement proceedings shall have been commenced by any creditor
upon such judgment or order or (ii) there shall be any period of 10
Business Days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in
effect; or
(h) any non-monetary judgment or order shall be rendered against
any Loan Party or any of its Subsidiaries that could reasonably be
likely to have a Material Adverse Effect, and there shall be any
period of 10 consecutive days during which a stay of enforcement of
such judgment or order, by reason of a pending appeal or otherwise,
shall not be in effect; or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 shall for any reason cease to be valid and
binding on or enforceable against any Loan Party to it, or any such
Loan Party shall so state in writing; or
(j) any Collateral Document after delivery thereof pursuant to
Section 3.01 shall for any reason (other than pursuant to the terms
thereof) cease to create a valid and perfected first priority lien on
and security interest in the Collateral purported to be covered
thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan
and the sum (determined as of the date of occurrence of such ERISA
Event) of the Insufficiency of such Plan and the Insufficiency of any
and all other Plans with respect to which an ERISA Event shall have
occurred and then exist (or the liability of the Loan Parties and the
ERISA Affiliates related to such ERISA Event) exceeds $5,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that it has incurred
Withdrawal Liability to such Multiemployer Plan in an amount that,
when aggregated with all other amounts required to be paid to
Multiemployer Plans by the Loan Parties and the ERISA Affiliates as
Withdrawal Liability (determined as of
65
69
the date of such notification), exceeds $5,000,000 or requires
payments exceeding 1,000,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been
notified by the sponsor of a Multiemployer Plan that such
Multiemployer Plan is in reorganization or is being terminated, within
the meaning of Title IV of ERISA, and as a result of such
reorganization or termination the aggregate annual contributions of
the Loan Parties and the ERISA Affiliates to all Multiemployer Plans
that are then in reorganization or being terminated have been or will
be increased over the amounts contributed to such Multiemployer Plans
for the plan years of such Multiemployer Plans immediately preceding
the plan year in which such reorganization or termination occurs by an
amount exceeding $1,000,000; or
(o) there shall occur any Material Adverse Change; or
(p) a default shall occur under the Subordinated Notes, the
Subordinated Guaranty, the Indenture, the Note Purchase Agreement, or
any other agreements executed by any Loan Party in connection with
such instruments;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
to make Advances to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Advances, all
interest thereon and all other amounts payable under this Agreement, the Notes,
and the other Loan Documents to be forthwith due and payable, whereupon the
Advances, all such interest and all such amounts shall become and be forthwith
due and payable, without presentment, demand, protest or further notice of any
kind, all of which are hereby expressly waived by the Borrower; PROVIDED,
HOWEVER, that in the event of an actual or deemed entry of an order for relief
with respect to any Loan Party or any of its Subsidiaries under the Federal
Bankruptcy Code, (x) the Commitments of each Lender Party and the obligation of
each Lender to make Advances shall automatically be terminated and (y) the
Advances, all such interest and all such amounts shall automatically become and
be due and payable, without presentment, demand, protest or any notice of any
kind, all of which are hereby expressly waived by the Borrower.
ARTICLE VII
THE AGENTS
SECTION 7.01. AUTHORIZATION AND ACTION. BT Co. Is hereby appointed the
Administrative Agent under this Agreement and the other Loan Documents and each
Lender Party hereby authorizes the Administrative Agent to act as its agent in
accordance with the terms of this Agreement and the other Loan Documents. The
Administrative Agent agrees to act upon the express conditions contained in
this Agreement and the other Loan Documents, as applicable. Subject to the
express terms of this Agreement, each Lender Party irrevocably authorizes the
Administrative Agent to take such action on such Person's behalf and to
exercise such powers hereunder and under the Loan Documents as are delegated to
the Administrative Agent by the terms hereof and thereof, together with such
powers and discretion as are reasonably incidental thereto. The Administrative
Agent have only those duties and
66
70
responsibilities that are expressly specified in this Agreement and the other
Loan Documents and it may perform such duties by or through its agents or
employees. Neither Agent shall have, by reason of this Agreement or any of the
other Loan Documents, a fiduciary relationship in respect of any Lender Party;
and nothing in this Agreement or any of the other Loan Documents, expressed or
implied, is intended to or shall be so construed as to impose upon either Agent
any obligations in respect of this Agreement or any of the other Loan Documents
except as expressly set forth herein or therein. To the extent that the consent
of the Lender Parties, or any of them, is not expressly required pursuant to
this Agreement, then the Administrative Agent shall be permitted to take such
actions as it deems necessary or appropriate to fulfill it duties under this
Agreement and the other Loan Documents. The Administrative Agent shall not be
required to take any action that exposes the Administrative Agent to personal
liability or that is contrary to this Agreement or applicable law. The
Administrative Agent agrees to give to each Lender Party prompt notice of each
notice given to it by the Borrower pursuant to the terms of this Agreement. The
provisions of this Article VII are solely for the benefit of the Agents and the
Lender Parties, and no Loan Party or any other Person shall have any rights as
a third party beneficiary of any of the provisions hereof. In performing its
functions and duties under this Agreement and the other Loan Documents, the
Administrative Agent shall act solely as an agent of the Lender Parties and the
Administrative Agent does not assume and shall not be deemed to have assumed
any obligation towards or relationship of agency or trust with or for the
Borrower or any other Loan Party.
SECTION 7.02. AGENT'S RELIANCE, ETC. Neither Agent nor any of its
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken by any of them under or in connection with
the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the Lender that made any Advance as the holder of the Debt
resulting therefrom until the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by such Lender, as assignor, and an
Eligible Assignee, as assignee, as provided in Section 8.07; (b) may consult
with legal counsel (including counsel for any Loan Party), independent public
accountants and other experts selected by it and shall not be liable for any
action taken or omitted to be taken in good faith by it in accordance with the
advice of such counsel, accountants or experts; (c) makes no warranty or
representation to any Lender Party and shall not be responsible to any Lender
Party for any statements, warranties or representations (whether written or
oral) made in or in connection with the Loan Documents; (d) shall not have any
duty to ascertain or to inquire as to the performance or observance of any of
the terms, covenants or conditions of any Loan Document on the part of any Loan
Party or to inspect the property (including the books and records) of any Loan
Party; (e) shall not be responsible to any Lender Party for the due execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or
the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, any Loan Document or any
other instrument or document furnished pursuant thereto; and (f) shall incur no
liability under or in respect of any Loan Document by acting upon any notice,
consent, certificate or other instrument or writing (which may be by telegram,
telecopy or telex) believed by it to be genuine and signed or sent by the
proper party or parties.
SECTION 7.03. BT CO., BEAR XXXXXXX AND AFFILIATES. With respect to its
Commitments, the Advances made by it and any Notes issued to it, BT Co. and
Bear Xxxxxxx shall each have the same rights and powers under the Loan
Documents as any other Lender Party and may exercise the same as though each of
them were not the Administrative Agent or Syndication Agent, as the case may
be; and the term "Lender Party" or "Lenders Parties" shall, unless otherwise
expressly indicated, include BT
67
71
Co. and Bear Xxxxxxx in its individual capacity. BT Co. and Bear Xxxxxxx and
their respective affiliates may accept deposits from, lend money to, act as
trustee under indentures of, accept investment banking engagements from and
generally engage in any kind of business with, any Loan Party, any of its
Subsidiaries and any Person who may do business with or own securities of any
Loan Party or any such Subsidiary, all as if BT Co. and Bear Xxxxxxx were not
the Administrative Agent and Syndication Agent, respectively, and without any
duty to account therefor to the Lender Parties.
SECTION 7.04. LENDER PARTY CREDIT DECISION. Each Lender Party
acknowledges that it has, independently and without reliance upon the
Administrative Agent, the Syndication Agent or any other Lender Party and based
on the financial statements referred to in Section 4.01 and such other
documents and information as it has deemed appropriate, made its own credit
analysis and decision to enter into this Agreement. Each Lender Party also
acknowledges that it will, independently and without reliance upon the
Administrative Agent, the Syndication Agent or any other Lender Party 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
this Agreement.
SECTION 7.05. INDEMNIFICATION. (a) Each Lender Party severally agrees
to indemnify each of the Administrative Agent and the Syndication Agent (to the
extent not promptly reimbursed by the Borrower) from and against such Lender
Party's Pro Rata Share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments,
suits, costs, expenses or disbursements of any kind or nature whatsoever
(including, without limitation, reasonable fees and expenses of counsel) that
may be imposed on, incurred by, or asserted against such Agent in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by such Agent under the Loan Documents (collectively, the "INDEMNIFIED COSTS");
PROVIDED, HOWEVER, that no Lender Party shall be liable for any portion of such
Indemnified Costs resulting from such Agent's gross negligence or willful
misconduct as found in a final, non-appealable judgment by a court of competent
jurisdiction. Without limitation of the foregoing, each Lender Party agrees to
reimburse the Administrative Agent and the Syndication Agent promptly upon
demand for its Pro Rata Share of any costs and expenses (including, without
limitation, fees and expenses of counsel) payable by the Borrower under Section
8.04, to the extent that the Agent is not promptly reimbursed for such costs
and expenses by the Borrower. For purposes of this Section 7.05, the Lender
Parties' respective Pro Rata Shares of any amount shall be determined, at any
time, according to the sum of (a) the aggregate principal amount of the
Advances outstanding at such time and owing to the respective Lender Parties
and (b) their respective Unused Commitments at such time.
(b) In the case of any investigation, litigation or
proceeding giving rise to any Indemnified Costs, this Section 7.05 applies
whether any such investigation, litigation or proceeding is brought by the
Administrative Agent, the Syndication Agent, any Lender, any other Lender Party
or a third party. The failure of any Lender Party to reimburse the
Administrative Agent or the Syndication Agent promptly upon demand for its Pro
Rata Share of any amount required to be paid by the Lender Parties to such
Agent as provided herein shall not relieve any other Lender Party of its
obligation hereunder to reimburse such Agent for its Pro Rata Share of such
amount, but no Lender Party shall be responsible for the failure of any other
Lender Party to reimburse such Agent for such other Lender Party's Pro Rata
Share of such amount.
(c) Without prejudice to the survival of any other agreement
of any Lender Party hereunder, the agreement and obligations of each Lender
Party contained in this Section 7.05 shall
68
72
survive the payment in full of principal, interest and all other amounts
payable hereunder and under the other Loan Documents. In the event that any
Defaulted Advance shall be owing by any Defaulting Lender at any time, such
Lender Party's Commitment shall be considered to be unused for the purposes of
this Section 7.05(a) to the extent of the amount of such Defaulted Advance.
SECTION 7.06. SUCCESSOR ADMINISTRATIVE AGENTS. The Administrative
Agent may resign at any time by giving written notice thereof to the Lender
Parties and the Borrower and may be removed at any time for gross negligence or
willful misconduct by an instrument or concurrent instruments in writing
delivered to the Administrative Agent and the Borrower and signed by the
Required Lenders. Upon any such resignation or removal, the Required Lenders
shall have the right to appoint a successor Administrative Agent. If no
successor Administrative Agent shall have been so appointed by the Required
Lenders, and shall have accepted such appointment, within 30 days after the
retiring Administrative Agent's giving of notice of resignation or the Required
Lenders' removal of the retiring Administrative Agent, then the retiring
Administrative Agent may, on behalf of the Lender Parties, appoint a successor
Administrative Agent, which shall be a commercial bank organized under the laws
of the United States or of any State thereof and having a combined capital and
surplus of at least $400,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor Administrative Agent and upon the
execution and filing or recording of such financing statements, or amendments
thereto, and such amendments or supplements to the Mortgages, if any, and such
other instruments or notices, as may be necessary or desirable, or as the
Required Lenders may request, in order to continue the perfection of the Liens
granted or purported to be granted by the Collateral Documents, such successor
Administrative Agent shall succeed to and become vested with all the rights,
powers, discretion, privileges and duties of the retiring Administrative Agent,
and the retiring Administrative Agent shall be discharged from its duties and
obligations under the Loan Documents. If within 45 days after written notice is
given of the retiring Administrative Agent's resignation or removal under this
Section 7.06 no successor Administrative Agent shall have been appointed and
shall have accepted such appointment, then on such 45th day (i) the retiring
Administrative Agent's resignation or removal shall become effective, (ii) the
retiring Administrative Agent shall thereupon be discharged from its duties and
obligations under the Loan Documents and (iii) the Required Lenders shall
thereafter perform all duties of the retiring Administrative Agent under the
Loan Documents until such time, if any, as the Required Lenders appoint a
successor Administrative Agent as provided above. After any retiring
Administrative Agent's resignation or removal hereunder as Administrative Agent
shall become effective, the provisions of this Article VII shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement.
SECTION 7.07. SYNDICATION AGENT. The Syndication Agent shall not have
any duties.
SECTION 7.08. COLLATERAL DOCUMENTS; SECURED PARTY ACTION. (a) Each
Secured Party hereby further authorizes the Administrative Agent to enter into
the Collateral Documents as secured party on behalf of and for the benefit of
the Secured Parties and agrees to be bound by the terms of the Collateral
Documents; provided that anything in this Agreement or the other Loan Documents
to the contrary notwithstanding:
(i) The Administrative Agent is authorized on behalf of all
Secured Parties, without the necessity of any notice to or further
consent from the Secured Parties, from time to time to take any action
with respect to any Collateral or the Collateral Documents which may
69
73
be necessary to perfect and maintain perfected the security interest
in and liens upon the Collateral granted pursuant to the Collateral
Documents.
(ii) Each Secured Party irrevocably authorize the
Administrative Agent, at its option and in its discretion, to release
any lien granted to or held by the Administrative Agent upon any
Collateral (A) upon payment in full of the Facility and all other
Obligations payable under this Agreement and under any other Loan
Document; (B) which is sold or to be sold or disposed of as part of or
in connection with any disposition permitted under this Agreement so
long as the Borrower is entitled to be granted such a release pursuant
to this Agreement; or (C) consisting of a guaranty or an instrument
evidencing Debt so long as the obligations under such guaranty or such
Debt evidenced by such instrument has been satisfied or paid in full.
Upon request by the Administrative Agent at any time, the Secured
Parties will confirm in writing the Administrative Agent's authority
to release particular types or items of Collateral pursuant to this
Section.
(b) Anything contained in any of the Loan Documents to the contrary
notwithstanding, each Secured Party agrees that no Secured Party shall have any
right individually to realize upon any of the Collateral under the Collateral
Documents or make demand under the Guaranties (including without limitation
through the exercise of a right of set-off against call deposits of such
Secured Party in which any funds on deposit in accordance with the Collateral
Documents may from time to time be invested), it being understood and agreed
that all rights and remedies under the Collateral Documents and the Guaranties
may be exercised solely by the Administrative Agent for the benefit of the
Secured Parties in accordance with the terms thereof.
SECTION 7.09. CERTAIN ACTIONS AFTER AN EVENT OF DEFAULT. (a) Upon
delivery to the Administrative Agent of notice of an Event of Default pursuant
to this Agreement or the Administrative Agent's otherwise obtaining actual
knowledge of the existence of an Event of Default, the Administrative Agent
shall deliver notice of such Event of Default to Lender Parties. The
Administrative Agent may thereafter, from time to time, propose various actions
(or forbearance from action) ("PROPOSED DEFAULT RESPONSE") in response to such
Event of Default, including, without limitation, foreclosure on all or portions
of the Collateral, appointment of a receiver, demand under one or more
Guaranties, or the exercise of other remedies provided in this Agreement and
the other Loan Documents, and may implement such Proposed Default Response upon
approval of the Required Lenders; PROVIDED HOWEVER that (i) in the absence of
any pending Proposed Default Response, beginning 30 days after the notice of
the Event of Default has been delivered to Lender Parties or was due thereto,
the Required Lenders may direct the Administrative Agent to exercise specific
remedies under the Loan Documents; and (ii) notwithstanding anything to the
contrary contained herein, at all times the Administrative Agent shall be
permitted to exercise such interim remedies (including (A) making protective
advances, and (B) appointing a receiver) as the Administrative Agent may
determine in good faith to be necessary or appropriate to protect the
Collateral.
(b) If the Required Lenders do not approve a pending Proposed Default
Response within 15 Business Days after submittal, the Proposed Default Response
shall be deemed rejected and the Required Lenders shall then be free to direct
the Administrative Agent regarding the actions to be taken or not taken in
response to the Event of Default, subject to the unanimous approval rights of
the Lenders pursuant to Section 8.01.
70
74
ARTICLE VIII
MISCELLANEOUS
SECTION 8.01. AMENDMENTS, ETC. No amendment or waiver of any provision
of this Agreement or the Notes or any other Loan Document, nor consent to any
departure by the Borrower or any other Loan Party therefrom, shall in any event
be effective unless the same shall be in writing and signed (or, in the case of
the Collateral Documents, consented to) by the Required Lenders (other than
Defaulting Lenders), and then such waiver or consent shall be effective only in
the specific instance and for the specific purpose for which given; PROVIDED,
HOWEVER, that (a) no amendment, waiver or consent shall, unless in writing and
signed by all of the Lenders (other than any Lender that is, at such time, a
Defaulting Lender), do any of the following at any time: (i) waive any of the
conditions specified in Section 3.01 or, in the case of Advances made on the
Closing Date, Section 3.02, (ii) change the designated percentage which
constitutes the Required Lenders,(iii) release all or substantially all of the
Collateral in any transaction or series of related transactions or permit the
creation, incurrence, assumption or existence of any Lien on all or
substantially all of the Collateral in any transaction or series of related
transactions to secure any Obligations other than Obligations owing to the
Administrative Agent and the Lender Parties under the Loan Documents, (iv)
amend this Section 8.01 or (v) release the Parent Guarantor from the Parent
Guaranty or any Operating Subsidiary from the Subsidiary Guaranty, (b) no
amendment, waiver or consent shall, unless in writing and signed by two-thirds
of the Lenders (other than any Lender that is, at such time, a Defaulting
Lender), do any of the following at any time: (i) change the definition of the
Borrowing Base Amount, (ii) changes to Section 5.05(b), (c) and (d), (iii)
changes to Section 2.05(b) and (iv) release any individual Borrowing Base
Property in any transaction or series of related transactions or permit the
creation, incurrence, assumption or existence of any Lien on any individual
Borrowing Base Property in any transaction or series of related transactions to
secure any Obligations other than Obligations owing to the Administrative Agent
and the Lender Parties under the Loan Documents and (c) no amendment, waiver or
consent shall, unless in writing and signed by the Required Lenders and each
Lender that has a Commitment under the Facility and that is directly affected
by such amendment, waiver or consent, (i) increase the Commitments of such
Lender or amend Section 2.12 so as to subject such Lender to additional
Obligations, (ii) reduce the principal of, or interest on, the Advances payable
to such Lender or any fees or other amounts payable to such Lender, (iii)
postpone any date scheduled for any payment of principal of, or interest on,
the Advances payable to such Lender pursuant to Section 2.03 or Section 2.06 or
any date fixed for payment of fees or other amounts payable to such Lender or
(iv) change the order of application of any prepayment set forth in Section
2.05 in any manner that materially adversely affects such Lender; PROVIDED
FURTHER that no amendment, waiver or consent shall, unless in writing and
signed by the Agents in addition to the Lenders required above to take such
action, affect the rights or duties of the Agents under this Agreement or the
other Loan Documents.
SECTION 8.02. NOTICES, ETC. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and mailed, telegraphed, telecopied, telexed or delivered
by an overnight courier of nationally recognized standing, if to the Borrower
or any other Loan Party, at the address of the Borrower at 000 Xxxx Xxx Xxxx
Xxxxxxxxx, Xxxxx 0000, Xx. Xxxxxxxxxx, Xxxxxxx 00000, Attention: Chief
Financial Officer, telecopier number (000) 000-0000; if to any Initial Lender,
at its Domestic Lending Office specified opposite its name on Schedule I
hereto; if to any other Lender Party, at its Domestic Lending Office specified
in the
71
75
Assignment and Acceptance pursuant to which it became a Lender Party; and if to
the Administrative Agent, at its address at 000 Xxxxxxx Xxxxxx, Xxx Xxxx, Xxx
Xxxx 00000, Attention: Xxxxx Xxxx, telecopier number (000) 000-0000; or, as to
each party, at such other address as shall be designated by such party in a
written notice to the other parties. All such notices and communications shall,
when mailed, telegraphed, telecopied, telexed or sent by courier, be effective
when deposited in the mails, delivered to the telegraph company, transmitted by
telecopier, confirmed by telex answerback or delivered to the overnight
courier, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II, III or VII shall not be effective
until received by the Administrative Agent. Delivery by telecopier of an
executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of a manually executed counterpart
thereof.
SECTION 8.03. NO WAIVER; REMEDIES. No failure on the part of any
Lender Party or the Administrative Agent to exercise, and no delay in
exercising, any right hereunder or under the Notes shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude
any other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
SECTION 8.04. COSTS AND EXPENSES. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of the Agents in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for each of the
Agents with respect thereto, with respect to advising the Agents as to its
rights and responsibilities, or the perfection, protection or preservation of
rights or interests, under the Loan Documents, with respect to negotiations
with any Loan Party or with other creditors of any Loan Party or any of its
Subsidiaries arising out of any Default or any events or circumstances that may
give rise to a Default and with respect to presenting claims in or otherwise
participating in or monitoring any bankruptcy, insolvency or other similar
proceeding involving creditors' rights generally and any proceeding ancillary
thereto) and (ii) all costs and expenses of the Agents and the Lender Parties
in connection with the enforcement of the Loan Documents, whether in any
action, suit or litigation, any bankruptcy, insolvency or other similar
proceeding affecting creditors' rights generally (including, without
limitation, the reasonable fees and expenses of counsel for the Agents and each
Lender Party with respect thereto).
(b) (i) To the fullest extent permitted by applicable law,
the Loan Parties agree, jointly and severally, to indemnify and hold harmless
each of the Administrative Agent and Syndication Agent, the Lenders and the
affiliated entities, directors, officers, employees, legal counsel, agents and
controlling persons (within the meaning of the federal securities laws) of each
of the Administrative Agent and Syndication Agent and the other Lenders (all of
the foregoing, collectively, the "INDEMNIFIED PARTIES"), from and against any
and all losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements and any and all actions, suits,
proceedings and investigations in respect thereof and any and all legal or
other costs, expenses and disbursements in giving testimony or furnishing
documents in response to a subpoena or otherwise (including, without
limitation, the costs, expenses and disbursements, as and when incurred, of
investigating, preparing or defending any such action, proceeding or
investigation (whether or not in connection with litigation in which any of the
Indemnified Parties is a party) and including, without
72
76
limitation, any and all losses, claims, damages, obligations, penalties,
judgments, awards, liabilities, costs, expenses and disbursements, resulting
from any negligent act or omission of any of the Indemnified Parties), directly
or indirectly, caused by, relating to, based upon, arising out of or in
connection with (i) the Transaction, (ii) the Transaction Documents, (iii) Fee
Letters, or (iii) any untrue statement or alleged untrue statement of a
material fact contained in, or omissions or alleged omissions from any filing
with any governmental agency or similar statements or omissions in or from any
information furnished by the Parent Guarantor or any of its Subsidiaries or
Affiliates to any of the Indemnified Parties or any other person in connection
with the Transaction or the Transaction Documents, PROVIDED, HOWEVER, such
indemnity agreement shall not apply to any portion of any such loss, claim,
damage, obligation, penalty, judgment, award, liability, cost, expense or
disbursement to the extent it is found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) to have resulted
primarily and directly from the gross negligence or willful misconduct of any
of the Indemnified Parties. The indemnification provisions contained in this
Section 8.04(b) shall be in addition to any liability which any Loan Party may
have to the Indemnified Parties. If any action, suit, proceeding or
investigation is commenced, as to which any of the Indemnified Parties proposes
to demand indemnification, it shall notify the Borrower with reasonable
promptness; PROVIDED, HOWEVER, that any failure by any of the Indemnified
Parties to so notify the Borrower shall not relieve the Borrower or any other
Loan Party from its obligations hereunder. Each of the Administrative Agent and
Syndication Agent, on behalf of the Indemnified Parties, shall have the right
to retain counsel of its choice to represent the Indemnified Parties, and the
Borrower shall, or shall cause the other Loan Parties, jointly and severally,
to pay the fees, expenses and disbursement of such counsel; and such counsel
shall, to the extent consistent with its professional responsibilities,
cooperate with the Borrower and the other Loan Parties and any counsel
designated by the Borrower or the other Loan Parties. The Borrower and the Loan
Parties shall be jointly and severally liable for any settlement of any claim
against any of the Indemnified Parties made with the Borrower's written
consent, which consent shall not be unreasonably withheld. Without the prior
written consent of the Agents, the Borrower shall not, and shall not permit any
of the other Loan Parties to, settle or compromise any claim, or permit a
default or consent to the entry of any judgment in respect thereof, unless such
settlement, compromise or consent includes, as an unconditional term thereof,
the giving by the claimant to each of the Indemnified Parties of an
unconditional and irrevocable release from all liability in respect of such
claim. No party hereto liable for any damages hereunder to any other party
shall ever be liable for any special, indirect or consequential damages or, to
the fullest extent that a claim for punitive damages may lawfully be waived,
for any punitive damages on any claim (whether founded in contract, tort, legal
duty or any other theory of liability) arising from or related in any manner to
the Loan Documents or the negotiation, execution, administration, performance,
breach or enforcement of the Loan Documents or any amendment thereto or the
consummation of, or any failure to consummate, the Transaction or any act,
omission, breach or wrongful conduct in any manner related thereto.
(ii) In order to provide for just and equitable contribution,
if a claim for indemnification pursuant to the indemnification provisions of
this Section 8.04(b) is made but is found in a final judgment by a court of
competent jurisdiction (not subject to further appeal) that such
indemnification may not be enforced in such case, even though the express
provisions hereof provide for indemnification in such case, then the Borrower
and other Loan Parties, if any, on the one hand, and the Indemnified Parties,
on the other hand, shall contribute to the losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses and
disbursements to which the Indemnified Parties may be subject in accordance
with the relative benefits received by the Borrower
73
77
and the other Loan Parties, on the one hand, and the Indemnified Parties, on
the other hand, and also the relative fault of the Borrower and the other Loan
Parties, on the one hand, and the Indemnified Parties, on the other hand, in
connection with the statements, acts or omissions which resulted in such
losses, claims, damages, obligations, penalties, judgments, awards,
liabilities, costs, expenses and disbursements and the relevant equitable
considerations shall also be considered. No person found liable for a
fraudulent misrepresentation shall be entitled to contribution from any other
person who is not also found liable for such fraudulent misrepresentation.
Notwithstanding the foregoing, none of the Indemnified Parties shall be
obligated to contribute any amount hereunder that exceeds the amount of fees
(but not interest) previously received by such Indemnified Party pursuant to
the Transaction Documents.
(iii) This Agreement does not create, and shall not be
construed as creating, any rights enforceable by a person or entity not a party
hereto, except as provided in this Section 8.04(b) . The Borrower, on behalf of
itself and each other Loan Party, acknowledges and agrees that: (i) none of the
Agents or Lenders is, nor shall any one of them be construed as, a fiduciary or
agent of any Loan Party or any other person and shall have no duties or
liabilities to any such person's equity holders or creditors by virtue of this
Agreement, which is hereby expressly waived, and none of the Agents has been
retained to advise or has advised the Borrower regarding the wisdom, prudence
or advisability of entering into this Agreement or consummating the
Transaction; (ii) none of the Agents or Lenders shall have any liability
(including, without limitation, liability for any losses, claims, damages,
obligations, penalties, judgments, awards, liabilities, costs, expenses or
disbursements resulting from any negligent act or omission of any of them)
(whether direct or indirect, in contract, tort or otherwise) to the Borrower or
any other Loan Party (including, without limitation, their respective equity
holders and creditors) or any other person for or in connection with this
Agreement or the Transaction, except that a claim in contract for actual direct
damages directly and proximately caused by a breach of any contractual
obligation expressly set forth in any written agreement signed by the party
against which enforcement of such claim is sought shall not be impaired hereby
and (iii) each of the Agents was induced to enter into this Agreement by, INTER
ALIA, this Article VIII.
(c) If any payment of principal of, or Conversion of, any
Eurodollar Rate Advance is made by the Borrower to or for the account of a
Lender Party other than on the last day of the Interest Period for such
Advance, as a result of an assignment in connection with a syndication of the
Facility during the period from the Closing Date to the earlier of (x) three
months from such Date and (y) the completion of syndication of the Facility (as
shall be specified by the Syndication Agent in a written notice to the
Borrower), a payment or Conversion pursuant to Section 2.05, 2.08(b)(i) or
2.09(d), acceleration of the maturity of the Advances pursuant to Section 6.01
or for any other reason or by an Eligible Assignee to a Lender Party other than
on the last day of the Interest Period for such Advance upon an assignment of
rights and obligations under this Agreement pursuant to Section 8.07 as a
result of a demand by the Borrower pursuant to Section 8.07(a), the Borrower
shall, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party any amounts required to compensate such Lender Party for any
additional losses, costs or expenses that it may reasonably incur as a result
of such payment, including, without limitation, any loss (including loss of
anticipated profits), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Lender Party to fund or
maintain such Advance.
74
78
(d) If any Loan Party fails to pay when due any costs,
expenses or other amounts payable by it under any Loan Document, including,
without limitation, fees and expenses of counsel and indemnities, such amount
may be paid on behalf of such Loan Party by the Administrative Agent or any
Lender Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement
of any Loan Party hereunder or under any other Loan Document, the agreements
and obligations of the Borrower contained in Sections 2.09 and 2.11 and this
Section 8.04 shall survive the payment in full of principal, interest and all
other amounts payable hereunder and under any of the other Loan Documents.
SECTION 8.05. RIGHT OF SET-OFF. Upon (a) the occurrence and
during the continuance of any Event of Default and (b) the making of the
request or the granting of the consent specified by Section 6.01 to authorize
the Administrative Agent to declare the Advances due and payable pursuant to
the provisions of Section 6.01, each Lender Party and each of its respective
Affiliates is hereby authorized at any time and from time to time, to the
fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Lender Party or such
Affiliate to or for the credit or the account of the Borrower against any and
all of the Obligations of the Borrower now or hereafter existing under this
Agreement and the Note or Notes held by such Lender Party, irrespective of
whether such Lender Party shall have made any demand under this Agreement or
such Note or Notes and although such obligations may be unmatured. Each Lender
Party agrees promptly to notify the Borrower after any such set-off and
application; PROVIDED, HOWEVER, that the failure to give such notice shall not
affect the validity of such set-off and application. The rights of each Lender
Party and its respective Affiliates under this Section are in addition to other
rights and remedies (including, without limitation, other rights of set-off)
that such Lender Party and its respective Affiliates may have. Notwithstanding
anything in the foregoing to the contrary, no Lender Party shall exercise any
right of set-off against any Loan Party with respect to the Borrower's
Obligations under the Loan Documents without the prior written consent of the
Administrative Agent if the exercise of such right could limit or adversely
affect the remedies available to the Lender Parties or restrict the order of
the exercise of such remedies under any law applicable to the parties or to the
exercise of any such remedies. If any Lender Party shall receive any payment or
proceeds from any Loan Party in respect of the Obligations, such Person shall
immediately pay such amounts to the Administrative Agent for distribution to
the other Lender Parties in accordance with this Agreement and the other Loan
Documents. In the event that any such Lender Party improperly exercises any
right of set off in violation of the terms of this Agreement, then such Person
shall indemnify, defend and hold harmless the Administrative Agent and each of
the other Persons among the Lender Parties from any loss or injury that may
result from such Person's exercise of its right of set off.
SECTION 8.06. BINDING EFFECT. This Agreement shall become
effective when it shall have been executed by the Borrower and the Agents and
when the Administrative Agent shall have been notified by each Initial Lender
that such Initial Lender has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, the Agents and each Lender Party and
their respective successors and assigns, except that the Borrower shall not
have the right to assign its rights hereunder or any interest herein without
the prior written consent of the Lender Parties.
SECTION 8.07. ASSIGNMENTS AND PARTICIPATIONS. (a) Each Lender
may assign to one or more Eligible Assignees all or a portion of its rights and
obligations under this Agreement
75
79
(including, without limitation, all or a portion of its Commitment or
Commitments, the Advances owing to it and the Note or Notes held by it);
PROVIDED, HOWEVER, that (i) each such assignment shall be of a uniform, and not
a varying, percentage of all rights and obligations under and in respect of the
Facility, (ii) except in the case of an assignment to a Person that,
immediately prior to such assignment, was a Lender, an Affiliate of any Lender
or an Approved Fund of any Lender or an assignment of all of a Lender's rights
and obligations under this Agreement, the aggregate amount of the Commitments
being assigned to such Eligible Assignee pursuant to such assignment
(determined as of the date of the Assignment and Acceptance with respect to
such assignment) shall in no event be less than $5,000,000 and shall be in an
integral multiple of $500,000, (iii) each such assignment shall be to an
Eligible Assignee, and (iv) the parties to each such assignment shall execute
and deliver to the Administrative Agent, for its acceptance and recording in
the Register, an Assignment and Acceptance, together with the Note or Notes
subject to such assignment and a processing and recordation fee of $3,500.
(b) Upon such execution, delivery, acceptance and recording,
from and after the effective date specified in such Assignment and Acceptance,
(x) the assignee thereunder shall be a party hereto and, to the extent that
rights and obligations hereunder have been assigned to it pursuant to such
Assignment and Acceptance, have the rights and obligations of a Lender
hereunder and (y) the Lender assignor thereunder shall, to the extent that
rights and obligations hereunder have been assigned by it pursuant to such
Assignment and Acceptance, relinquish its rights and be released from its
obligations under this Agreement (and, in the case of an Assignment and
Acceptance covering all or the remaining portion of an assigning Lender's
rights and obligations under this Agreement, such Lender shall cease to be a
party hereto).
(c) By executing and delivering an Assignment and Acceptance,
each Lender Party assignor thereunder and each assignee thereunder confirm to
and agree with each other and the other parties thereto and hereto as follows:
(i) other than as provided in such Assignment and Acceptance, such assigning
Lender Party makes no representation or warranty and assumes no responsibility
with respect to any statements, warranties or representations made in or in
connection with this Agreement or any other Loan Document or the execution,
legality, validity, enforceability, genuineness, sufficiency or value of, or
the perfection or priority of any lien or security interest created or
purported to be created under or in connection with, this Agreement or any
other Loan Document or any other instrument or document furnished pursuant
hereto or thereto; (ii) such assigning Lender Party makes no representation or
warranty and assumes no responsibility with respect to the financial condition
of the Borrower or any other Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon the Agents, such assigning Lender Party
or any other Lender Party 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 this Agreement; (v) such assignee confirms
that it is an Eligible Assignee; (vi) such assignee appoints and authorizes the
Administrative Agent to take such action as Administrative Agent on its behalf
and to exercise such powers and discretion under the Loan Documents as are
delegated to the Administrative Agent by the terms hereof, together with such
powers and discretion as are reasonably incidental thereto; and (vii) such
assignee agrees that it will perform in accordance with
76
80
their terms all of the obligations which by the terms of this Agreement are
required to be performed by it as a Lender.
(d) The Administrative Agent shall maintain at its address
referred to in Section 8.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under the Facility of, and
principal amount of the Advances owing under the Facility to, each Lender Party
from time to time (the "REGISTER"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or
any Lender Party at any reasonable time and from time to time upon reasonable
prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender Party and an assignee, together with the Note or Notes
requested by the Assignee subject to such assignment, the Administrative Agent
shall, if such Assignment and Acceptance has been completed and is in
substantially the form of Exhibit C hereto, (i) accept such Assignment and
Acceptance, (ii) record the information contained therein in the Register and
(iii) give prompt notice thereof to the Borrower.
(f) Each Lender Party may sell participations in or to all or
a portion of its rights and obligations under this Agreement (including,
without limitation, all or a portion of its Commitments, the Advances owing to
it and the Note or Notes held by it) to any Person other than any Loan Party or
any of its Subsidiaries or Affiliates; PROVIDED, HOWEVER, that (i) such Lender
Party's obligations under this Agreement (including, without limitation, its
Commitments) shall remain unchanged, (ii) such Lender Party shall remain solely
responsible to the other parties hereto for the performance of such
obligations, (iii) such Lender Party shall remain the holder of such Advances
and such Note for all purposes of this Agreement, (iv) the Borrower, the Agents
and the other Lender Parties shall continue to deal solely and directly with
such Lender Party in connection with such Lender Party's rights and obligations
under this Agreement and (v) no participant under any such participation shall
have any right to approve any amendment or waiver of any provision of any Loan
Document, or any consent to any departure by any Loan Party therefrom, except
to the extent that such amendment, waiver or consent would reduce the principal
of, or interest on, the Advances or any fees or other amounts payable
hereunder, in each case to the extent subject to such participation, postpone
any date fixed for any payment of principal of, or interest on, the Advances or
any fees or other amounts payable hereunder, in each case to the extent subject
to such participation, or release all or substantially all of the Collateral.
(g) Any Lender Party may, in connection with any assignment
or participation or proposed assignment or participation pursuant to this
Section 8.07, disclose to the assignee or participant or proposed assignee or
participant, any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower.
(h) Notwithstanding any other provision set forth in this
Agreement, any Lender Party may at any time create a security interest in all
or any portion of its rights under this Agreement (including, without
limitation, the Advances owing to it and the Note or Notes held by it) in favor
of
77
81
any Federal Reserve Bank in accordance with Regulation A of the Board of
Governors of the Federal Reserve System.
SECTION 8.08. EXECUTION IN COUNTERPARTS. This Agreement may
be executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of a manually executed
counterpart of this Agreement.
SECTION 8.09. JURISDICTION, ETC. (a) Each of the parties
hereto hereby irrevocably and unconditionally submits, for itself and its
property, to the nonexclusive jurisdiction of any New York State court or
federal court of the United States of America sitting in New York City, and any
appellate court from any thereof, in any action or proceeding arising out of or
relating to this Agreement or any of the other Loan Documents to which it is a
party, or for recognition or enforcement of any judgment, and each of the
parties hereto hereby irrevocably and unconditionally agrees that all claims in
respect of any such action or proceeding may be heard and determined in any
such New York State court or, to the extent permitted by law, in such federal
court. Each of the parties hereto agrees that a final judgment in any such
action or proceeding shall be conclusive and may be enforced in other
jurisdictions by suit on the judgment or in any other manner provided by law.
Nothing in this Agreement shall affect any right that any party may otherwise
have to bring any action or proceeding relating to this Agreement or any of the
other Loan Documents in the courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and
unconditionally waives, to the fullest extent it may legally and effectively do
so, any objection that it may now or hereafter have to the laying of venue of
any suit, action or proceeding arising out of or relating to this Agreement or
any of the other Loan Documents to which it is a party in any New York State or
federal court. Each of the parties hereto hereby irrevocably waives, to the
fullest extent permitted by law, the defense of an inconvenient forum to the
maintenance of such action or proceeding in any such court.
SECTION 8.10. GOVERNING LAW. This Agreement and the Notes
shall be governed by, and construed in accordance with, the laws of the State
of New York.
SECTION 8.11. WAIVER OF JURY TRIAL. EACH PARTY HERETO
IRREVOCABLY WAIVES ANY RIGHT TO TRIAL BY JURY WITH RESPECT TO ANY CLAIM,
ACTION, SUIT OR PROCEEDING ARISING OUT OF THIS AGREEMENT OR THE TRANSACTIONS OR
THE MATTERS CONTEMPLATED BY THIS AGREEMENT. EACH PARTY HEREBY SUBMITS TO THE
EXCLUSIVE JURISDICTION OF THE FEDERAL AND NEW YORK COURTS LOCATED IN THE CITY
OF NEW YORK IN CONNECTION WITH ANY DISPUTE RELATED TO THIS AGREEMENT, THE
TRANSACTIONS CONTEMPLATED BY THIS AGREEMENT OR ANY MATTERS RELATED TO THIS
AGREEMENT. IN THE EVENT OF LITIGATION, THIS AGREEMENT MAY BE FILED AS A WRITTEN
CONSENT TO A TRIAL BY THE COURT.
78
82
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly
authorized, as of the date first above written.
FLORIDA PANTHERS HOTEL
CORPORATION, as the Borrower
By: /s/ Xxxxxxx X. Xxxxxx
------------------------------------
Title: Senior Vice President
BEAR, XXXXXXX & CO. INC.,
as Syndication Agent and Secured Party
By: /s/ Xxxxxxx Xxxxx
-------------------------------------
Title: Senior Managing Director
BANKERS TRUST COMPANY,
as Administrative Agent and Initial Lender
and Secured Party
By: /s/ Xxxxx X. Xxxxxxx
-------------------------------------
Title: Principal
BEAR XXXXXXX CORPORATE LENDING
INC., as Initial Lender and Secured Party
By: /s/ Xxxxxxx Xxxxx
---------------------------------------
Title: Senior Managing Director
79
83
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 3.01(a)(iii)(G) - Blocked Account Banks
Schedule 3.01(a)(vi) - Subsidiary Guarantors
Schedule 3.01(a)(xi) - Secretary of State Certificates
Schedule 3.01(a)(xix) - Insurance
Schedule 3.01(h) - Surviving Debt
Schedule 4.01(a) - Equity Interests
Schedule 4.01(b) - Subsidiary Guarantors with Interests in Operating Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(h) - Litigation
Schedule 4.01(m)(vi) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(o) - Open Years
Schedule 4.01(q) - Existing Debt (other than Surviving Debt)
Schedule 4.01(s) - Leased Real Property
Schedule 4.01(t) - Investments
Schedule 4.01(u) - Intellectual Property
Schedule 4.01(v) - Existing Liens
Schedule 5.01(w) - Engineering Matters
84
EXHIBITS
Exhibit A - Form of Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D-1 - Form of Subsidiary Guarantor Security Agreement
Exhibit D-2 - Form of Parent Guarantor Security Agreement
Exhibit E - Form of Mortgage
Exhibit F-1 - Form of Parent Guaranty
Exhibit F-2 - Form of Subsidiary Guaranty
Exhibit G - Form of Borrowing Base Certificate
Exhibit H-1 - Form of Parent Guarantor Solvency Certificate
Exhibit H-2 - Form of Operating Subsidiary Solvency Certificate
Exhibit I-1 - Form of Opinion of Akerman, Senterfitt & Xxxxxx, P.A., Counsel to the Loan
Parties
Exhibit I-2 - Form of Opinion of Paul, Hastings, Xxxxxxxx & Xxxxxx LLP, Special Counsel
to the Loan Parties
Exhibit J - Form of Indemnification Agreement
Exhibit K - Form of Survey Recertification
Exhibit L - Rent Roll
Exhibit M - Form of Notice to Tenants
Exhibit N - Form of Environmental Indemnity Agreement
