ASSUMPTION AND CONSENT AGREEMENT - FORM
THIS ASSUMPTION AND CONSENT AGREEMENT ("Assumption Agreement") is made as
of the ___ day of ___________, ____, by and among [Insert names of Lenders
funding increase] (collectively referred to as the "Assuming Lenders" and each
individually as an "Assuming Lender"), GOLDEN ROAD MOTOR INN, INC., Nevada
corporation (the "Borrower") and XXXXX FARGO BANK, National Association, in its
capacity as Agent Bank as described hereinbelow.
R_E_C_I_T_A_L_S:
A. Reference is made to that certain Credit Agreement, dated as of
February 20, 2004 (as may be amended, supplemented or otherwise modified from
time to time, the "Credit Agreement"), by and among Borrower, the Guarantor and
the Banks therein named and Xxxxx Fargo Bank, National Association, as
administrative and collateral agent for the Banks (herein, in such capacity,
called the "Agent Bank").
B. In this Assumption Agreement, all capitalized words and terms not
otherwise defined herein shall have the respective meanings to be construed
herein as provided in Section 1.01 of the Credit Agreement and any reference to
a provision of the Credit Agreement shall be deemed to incorporate such
provision as a part hereof in the same manner and with the same effect as if
the same were fully set forth herein.
C. Pursuant to Section 2.01(e) of the Credit Agreement, Borrower desires
to further increase the Aggregate Commitment from Fifty Million Dollars
($50,000,000.00) to _______________________ Million Dollars ($___,000,000.00),
an increase of ________ Million Dollars ($___,000,000.00) (the "Commitment
Increase").
D. Each Assuming Lender is willing to commit to advance the portion of the
Commitment Increase set forth below, so that as of the Effective Date, as
hereinafter defined, Assuming Lenders shall hold the respective Pro Rata Shares
of the Aggregate Commitment as increased by the Commitment Increase and the
respective Syndication Interests in the Revolving Credit Facility set forth
below (each individually an "Assumed Interest" and collectively the "Assumed
Interests"):
PRO RATA SHARE
OF TOTAL PROPORTIONATE
COMMITMENT AFTER SYNDICATION
NAME OF PORTION OF COMMITMENT INTERESTS AFTER
ASSUMING COMMITMENT COMMITMENT COMMITMENT
LENDER INCREASE INCREASE INCREASE
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$ $ %
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e. This Assumption Agreement is made, executed and delivered pursuant to
Section 2.01(e) of the Credit Agreement and shall also constitute the
assumption by and delegation to Assuming Lenders of the Syndication Interests
particularly described hereinbelow.
NOW, THEREFORE, in consideration of the foregoing and other good and
valuable considerations, the receipt and sufficiency of which are hereby
acknowledged, the parties hereto do agree as follows:
1. From and after the Effective Date, each Assuming Lender shall and does
hereby assume and agree to perform all of the promises and covenants of a
Lender as to its respective Assumed Interest arising or performable from and
after the Effective Date and does further agree to assume and be bound by each
and every term, condition, provision and covenant contained in the Credit
Agreement and each of the Loan Documents, effective as of the Effective Date,
to the same extent and manner as if such Assuming Lender had originally been
named in the Credit Agreement as a Lender holding the Assumed Interest therein
and Assuming Lender shall be deemed to be a Lender party to the Credit
Agreement for all purposes thereof.
2. The "Effective Date" as used herein shall mean _____________, provided
that each of the following conditions precedent have been satisfied on or
before the Effective Date: (a) Assuming Lenders, Borrower and Agent Bank have
executed sufficient duplicate originals of this Assumption Agreement for each
of the Assuming Lenders, Borrower and Agent Bank and each of such originals
have been delivered to Agent Bank, (b) Borrower has executed and delivered to
Agent Bank, on behalf of the Lenders, a restatement of the Revolving Credit
Note payable to the order of Agent Bank on behalf of the Lenders, in the
principal amount of Million Dollars ($___________), (c) the Borrower has
executed and delivered to Agent Bank such amendments, supplements, restatements
and modifications to the Security Documentation as Agent Bank reasonably
requests and in a form and content acceptable to Agent Bank, for the purpose of
securing repayment of the Commitment Increase and the restated Revolving Credit
Note, (d) Title Company has committed to issue, at Borrower's expense, its
modified 108.8 (or other appropriate endorsement) endorsement to the Title
Insurance Policies increasing coverage thereunder by an additional __________
Million Dollars ($___________), (e) each Lender realizing a decrease in its
respective Syndication Interest has received from Agent Bank such amount as is
necessary to adjust such Lender's Pro Rata Share of the Funded Outstandings as
of the Effective Date equal to such Lender's Syndication Interest as set forth
on the Schedule of Lenders' Proportions in Revolving Credit Facility as of
_________________ attached hereto, (f) each Assuming Lender realizing an
increase in its respective Syndication Interest has delivered to Agent Bank an
amount representing its Pro Rata Share of the Funded Outstandings as of the
Effective Date, less Assuming Lenders' Pro Rata Share of the Funded
Outstandings immediately prior to the Effective Date, for distribution to the
Lenders in such amounts as are necessary to adjust each such Lenders' Pro Rata
Share of the Funded Outstandings as of the Effective Date to a percentage equal
to the Syndication Interests set forth on the Schedule of Lenders' Proportions
in Revolving Credit Facility as of ____________ attached hereto, and (g) Agent
Bank has received from Borrower for the account of the applicable Lenders, any
Breakage Charges due under Section 2.07(c) of the Credit Agreement. Interest
accrued but remaining unpaid on the portion of the outstanding principal
balance under the Revolving Credit Facility shall be prorated to the Effective
Date and disbursed by Agent Bank to Lenders upon receipt of the next payment of
accrued interest under the Revolving Credit Note.
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3. On the Effective Date, the respective aggregate Syndication Interests
of the Lenders in the Revolving Credit Facility shall be as set forth on the
Schedule of Lenders' Proportions in Revolving Credit Facility as of
_____________, a copy of which is marked "Schedule 2.01(a)" affixed hereto and
by this reference incorporated herein and made a part hereof, which shall
restate the Schedule of Lenders' Proportions in Revolving Credit Facility
attached as Schedule 2.01(a) to the Credit Agreement, and all previous
amendments and restatements thereof, for the purpose of showing the Commitment
Increase, the adjustment of the respective Syndication Interests held by each
of the Lenders and evidencing each Assuming Lender's applicable Syndication
Interest in the Revolving Credit Facility on and after the Effective Date.
4. Agent Bank, on behalf of itself and each of the Lenders, makes no
representation or warranty and assumes no responsibility with respect to any
statements, warranties or representations made by Borrower in or in connection
with the Credit Agreement or the execution, legality, validity, enforceability,
genuineness, sufficiency or value of the Credit Agreement, the Loan Documents
or any other instrument or document furnished pursuant thereto. Agent Bank, on
behalf of itself and each of the Lenders, makes no representation or warranty
in connection with, and assumes no responsibility with respect to, the
solvency, financial condition or statements of the Borrower or the performance
or observance by the Borrower of any of its obligations under the Credit
Agreement, the Loan Documents or any other instrument or document furnished in
connection therewith.
5. Each Assuming Lender represents and warrants on behalf of itself that:
a. (i) it is duly organized and existing and it has full power and
authority to take, and has taken, all action necessary to execute and deliver
this Assumption Agreement and any other documents required to be executed or
delivered by it in connection with this Assumption Agreement, and to fulfill
its obligations hereunder; (ii) no notices to, or consents, authorizations or
approvals of, any person are required (other than any already given or
obtained) for its due execution, delivery and performance of this Assumption
Agreement; and apart from any agreements or undertakings or filings required by
the Credit Agreement, no further action by, or notice to, or filing with, any
person is required of it for such execution, delivery or performance; (iii)
this Assumption Agreement has been fully executed and delivered by it and
constitutes its legal, valid and binding obligations, enforceable against it in
accordance with the terms hereof, subject, as to enforcement, to bankruptcy,
insolvency, moratorium, reorganization and other laws of general application
relating to or affecting creditors' rights and to general equitable principles;
and (iv) it is eligible under the Credit Agreement to be a Lender in accordance
with the terms hereof.
B. (i) under applicable law and treaties no tax will be required to be
withheld by Borrower or any Bank with respect to any payments to be made to
such Assuming Lender under the Credit Agreement, (ii) it agrees to furnish (if
it is organized under the laws of any jurisdiction other than the United States
or any State thereof) to the Agent Bank and the Borrower prior to the time that
the Agent Bank or Borrower are required to make any payment of principal,
interest or fees hereunder, duplicate executed original of either U.S. Internal
Revenue Service Form W-8BEN or U.S. Internal Revenue Service Form W-8ECI
(wherein the Assuming Lender claims entitlement to the benefits of a tax treaty
that provides for a complete exemption from U.S. federal
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income withholding tax on all payments hereunder) and agrees to provide new
Forms W-8BEN or W-8ECI upon the expiration of any previously delivered form or
comparable statements in accordance with applicable U.S. law and regulations
and amendments thereto, duly executed and completed by the Assuming Lender, and
(iii) it agrees to comply with all applicable U.S. laws and regulations with
regard to such withholding tax exemption.
6. Borrower represents and warrants as of the Effective Date that:
a. the representations and warranties contained in Article IV of the
Credit Agreement and contained in each of the other Loan Documents (other than
representations and warranties which expressly speak only as of a different
date, which shall be true and correct in all material respects as of such date)
are true and correct on and as of the Effective Date in all material respects
as though such representations and warranties had been made on and as of the
Effective Date, except to the extent that such representations and warranties
are not true and correct as a result of a change which is permitted by the
Credit Agreement or by any other Loan Document or which has been otherwise
consented to by Agent Bank;
b. Since the date of the most recent financial statements referred to
in Section 5.08 of the Credit Agreement, no Material Adverse Change has
occurred and no event or circumstance which could reasonably be expected to
result in a Material Adverse Change has occurred; and
c. no event has occurred and is continuing which constitutes a Default
or Event of Default under the terms of the Credit Agreement.
7. Each Assuming Lender (a) acknowledges that it has received a copy of
the Credit Agreement and the Loan Documents, together with copies of the most
recent financial statements referred to in Section 5.08 of the Credit
Agreement, and such other documents and information as it has deemed
appropriate to make its own credit and legal analysis and decision to enter
into this Assumption Agreement; (b) agrees that it will, independently and
without reliance upon the Agent Bank or any other Lender and based on such
documents and information as it shall deem appropriate at the time, continue to
make its own credit and legal decisions in taking or not taking action under
the Credit Agreement; and (c) appoints and authorizes the Agent Bank to take
such action as agent on its behalf and to exercise such powers under the Credit
Agreement as are delegated to the Agent Bank by the terms thereof, together
with such powers as are reasonably incidental thereto.
8. Each Assuming Lender [Insert for each new Lender] hereby advises
Borrower and Agent Bank of the following administrative details:
a. Credit/Business Matters:
____________________________
____________________________
____________________________
Telephone: ___________________
Facsimile: ____________________
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b. Operations/Administration:
____________________________
____________________________
____________________________
Telephone: ___________________
Facsimile: ____________________
c. Payment Instructions:
____________________________
____________________________
ABA No. _____________________
Cr: _________________________
Attn: ________________________
Ref: _________________________
9. This Assumption Agreement may be signed in any number of counterparts,
and signatures to all counterparts thereto, when assembled together, shall
constitute signatures to this entire agreement with the same effect as if all
signatures were on the same document.
10. This Assumption Agreement shall be governed by and construed in
accordance with the internal laws of the State of Nevada without regard to
principles of conflicts of law. Borrower further agree that the full and
exclusive forum for the determination of any action relating to this Assumption
Agreement, the Loan Documents, or any other document or instrument delivered in
favor of Banks pursuant to the terms hereof shall be either an appropriate
Court of the State of Nevada or the United States District Court or United
States Bankruptcy Court for the District of Nevada.
11. Any amendment or waiver of any provision of this Assumption Agreement
shall be in writing and signed by the parties hereto. No failure or delay by
either party hereto in exercising any right, power or privilege hereunder shall
operate as a waiver thereof and any waiver of any breach of the provisions of
this Assumption Agreement shall be without prejudice to any rights with respect
to any other or further breach thereof.
IN WITNESS WHEREOF, the parties hereto have executed the foregoing
Assumption Agreement as of the day and year first above written.
GOLDEN ROAD MOTOR INN, INC.,
a Nevada corporation
Name: _____________________
Title: ______________________
Authorized Officer
Print
Name:
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AGENT BANK:
XXXXX FARGO BANK,
National Association
By
Name
Title
ASSUMING LENDERS:
By
Name
Title
By
Name
Title
