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EXHIBIT 10.1
EIGHTH AMENDMENT TO CREDIT AGREEMENT AND MODIFICATION TO
PLEDGE AND SECURITY AGREEMENT
EIGHTH AMENDMENT TO CREDIT AGREEMENT AND MODIFICATION TO
PLEDGE AND SECURITY AGREEMENT (this "Amendment"), dated as of July 2, 1999,
among STARWOOD HOTELS & RESORTS, a Maryland real estate investment trust
("Starwood REIT"), SLT REALTY LIMITED PARTNERSHIP, a Delaware limited
partnership ("SLT RLP"), STARWOOD HOTELS & RESORTS WORLDWIDE, INC., a
Maryland corporation (the "Corporation"), ITT CORPORATION, a Nevada corporation
("ITT" and, together with Starwood REIT, SLT RLP and the Corporation, the
"Original Borrowers"), the other Credit Parties (as defined in the Credit
Agreement referred to below), the lenders from time to time party to the Credit
Agreement referred to below (the "Lenders"), BANKERS TRUST COMPANY and THE CHASE
MANHATTAN BANK, as Administrative Agents (in such capacity, the "Administrative
Agents") and ▇▇▇▇▇▇ COMMERCIAL PAPER INC. and BANK OF MONTREAL, as Syndication
Agents (in such capacity, the "Syndication Agents") and BANKERS TRUST COMPANY,
as Collateral Agent (in such capacity, the "Collateral Agent"). Unless otherwise
defined herein, all capitalized terms used herein shall have the respective
meanings provided such terms in the Credit Agreement referred to below.
W I T N E S S E T H:
WHEREAS, the Original Borrowers, the Lenders, the
Administrative Agents and the Syndication Agents are parties to that certain
Credit Agreement, dated as of February 23, 1998 (as amended, modified or
supplemented to the date hereof, the "Credit Agreement");
WHEREAS, the Credit Parties and the Collateral Agent are
parties to that certain Pledge and Security Agreement as defined in the Credit
Agreement (as amended, modified or supplemented to the date hereof, the "Pledge
and Security Agreement");
WHEREAS, SLT RLP presently owns ninety-nine (99) shares of
common stock, no par value, of ITT (the "Option Shares"), which Option Shares
represent 9.9 percent of the issued and outstanding shares of Capital Stock of
ITT;
WHEREAS, the Corporation desired to obtain the ability to
purchase all or a portion of the Option Shares from SLT RLP in order to provide
flexibility for structuring future transactions;
WHEREAS, SLT RLP granted to the Corporation, and the
Corporation purchased from SLT RLP, an option to acquire from time to time all
or a portion of the Option Shares from SLT RLP pursuant to that certain Option
Agreement (the "Option Agreement") dated as of March 8, 1999, a true, correct
and complete copy of which is attached hereto as EXHIBIT A;
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WHEREAS, the Parent Companies are requesting the Lenders'
consent to the performance by the Corporation and SLT RLP of their respective
obligations under the Option Agreement in accordance with the terms of the
Option Agreement, including, without limitation, (i) the granting of the option
by SLT RLP to the Corporation and the payment of consideration in connection
therewith and (ii) the exercise of all or any part of the option from time to
time by the Corporation and the payment of consideration in connection therewith
(all of the foregoing being collectively referred to herein as the "ITT Stock
Option Transaction"); it being understood and agreed that the Option Shares will
at all times (both before and after any purchase thereof pursuant to the Option
Agreement) be pledged, and be delivered for pledge, pursuant to the Pledge and
Security Agreement;
WHEREAS, on or about April 27, 1999, the Corporation, ITT,
Starwood Canada Corp. ("Starwood Canada"), ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. ("▇▇▇▇▇▇▇
▇▇▇▇▇"), Sheraton Desert Inn Corporation, Sheraton Tunica Corporation ("Tunica")
and Park Place Entertainment Corporation ("Park Place") entered into a Stock
Purchase Agreement (as amended or modified from time to time and in accordance
with the requirements of Section 2(d) of Part I of this Amendment, the "Caesars
Stock Purchase Agreement") pursuant to which, inter alia, Park Place agreed to
purchase, and the Corporation and certain Subsidiaries of the Corporation agreed
to sell, (i) all of the outstanding shares of common stock of each of ▇▇▇▇▇▇▇
▇▇▇▇▇ and Tunica and (ii) all of Starwood Canada's partnership interests in
Metropolitan Entertainment Group, a Canadian partnership, which partnership
interests represent ninety-five percent (95%) of the economic ownership interest
therein (all of the foregoing, the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale" and, together with the
matters described in the following four recitals, being collectively referred to
herein as the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Transaction" and the date upon which the ▇▇▇▇▇▇▇
▇▇▇▇▇ Sale is consummated being referred to as the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective
Date");
WHEREAS, approximately $150 Million in aggregate principal
amount of Senior Subordinated Debt Securities of ▇▇▇▇▇▇▇ ▇▇▇▇▇ are currently
outstanding pursuant to that certain Indenture dated as of August 15, 1992 (the
"Caesars Bonds"), and the Corporation desires to redeem all of the outstanding
Caesars Bonds;
WHEREAS, certain real property assets relating to the ▇▇▇▇▇▇▇
▇▇▇▇▇ Sale (collectively, the "▇▇▇▇▇▇▇ ▇▇▇▇▇ Assets") presently secure the
Intercompany Mortgage Note, and it is a condition to the consummation of the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale that the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Assets be released from the collateral
security for the Intercompany Mortgage Note;
WHEREAS, in connection with the release of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Assets, (i) the Corporation and ITT may either (x) reduce the outstanding
principal balance of the Intercompany Mortgage Note by all or any portion of the
minimum amount (the "Undercollateralized Amount") necessary to prevent the
Intercompany Mortgage Note from being undercollateralized after the release of
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Assets (the amount of such reduction being referred to herein
as the "Intercompany Mortgage Reduction Amount") and (y) cause a portion of the
payee's interest under the Intercompany Mortgage Note in an amount equal to all
or a portion of the Undercollateralized Amount to be assigned or distributed to
the Corporation or any Wholly-
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Owned Domestic Subsidiary of the Corporation, subject to the requirements
hereinafter set forth and (ii) the Corporation may, in order to reduce the
Intercompany Mortgage Reduction Amount, grant mortgages on certain real estate
assets owned by the Corporation or any Subsidiary of the Corporation in order to
further secure the Intercompany Mortgage Note;
WHEREAS, the Corporation desires to use a portion of the Net
Sale Proceeds from the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Transaction to repay all or a portion of
(a) the Senior Secured Bridge Notes issued under Section 9.04(viii)(A) of the
Credit Agreement and commonly referred to as the Tranche I Increasing Rate
Senior Secured Bridge Notes (the "Tranche I IRN's") and (b) the Senior Secured
Bridge Notes issued under Section 9.04(viii)(B) of the Credit Agreement and
commonly referred to as the Tranche II Increasing Rate Senior Secured Bridge
Notes (the "Tranche II IRN's");
WHEREAS, the Corporation and certain Subsidiaries of the
Corporation are contemplating the intercompany transactions described in greater
detail in Schedule 1 attached hereto (collectively, the "Intercompany
Transactions");
WHEREAS, the Borrowers wish to request certain waivers from
certain restrictions set forth in certain sections of the Credit Agreement in
order to permit the ITT Stock Option Transaction, the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Transaction
and certain other transactions described herein; and
WHEREAS, the parties hereto also wish to amend the Credit
Agreement and the Pledge and Security Agreement in certain respects as herein
provided;
NOW, THEREFORE, it is agreed:
I. Waivers, Amendments and Agreements with Respect to the Credit
Agreement
SECTION 1. ITT Stock Option Transaction.
(a) Consent. Notwithstanding anything to the contrary
contained in the Credit Agreement (including, without limitation, Section 9.02
thereof) or the other Credit Documents, but subject to the terms of this
Amendment (including, without limitation, the following clause (b)), the Lenders
hereby consent to the ITT Stock Option Transaction; provided that, in accordance
with the terms of the Option Agreement, no Option (as defined therein) shall be
exercised if any Event of Default (as defined in the Credit Agreement) exists
and is continuing unless the prior written consent of the Required Lenders is
obtained.
(b) Confirmation of Pledge. The Original Borrowers and the
other Credit Parties hereby confirm and agree that, both before and after giving
effect to the ITT Stock Option Transaction, 100% of the Stock of ITT Corporation
shall continue to be pledged to the Secured Creditors (and held by the
Collateral Agent on their behalf) pursuant to the Pledge and Security Agreement
and the other Credit Documents.
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SECTION 2. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Transaction.
(a) Consent. Notwithstanding anything to the contrary
contained in the Credit Agreement or the other Credit Documents, but subject to
the terms of this Amendment, the Lenders hereby consent to the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Transaction and agree that the Corporation and any of its Subsidiaries
(including, without limitation, Starwood REIT, SLT RLP, and any Wholly-Owned
Subsidiary of Starwood REIT or SLT RLP) shall be permitted to enter into and
consummate the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Transaction in accordance with the terms set forth
in the Caesars Stock Purchase Agreement as in effect on the date hereof, with
such amendments, modifications or supplements thereto adopted after the date
hereof; provided the same could not reasonably be expected to be materially
adverse in any respect to the Corporation and its Subsidiaries or to the
Lenders; and provided further that the aggregate Net Sale Proceeds received by
the Corporation and its Wholly-Owned Domestic Subsidiaries on the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Effective Date as a result of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale equals or exceeds
$2,500,000,000.
(b) Section 4.02, Proceeds from Asset Sales; Section 9.02,
Consolidation, Merger, etc. Notwithstanding anything to the contrary contained
in Sections 4.02, 9.02 or elsewhere in the Credit Agreement or the other Credit
Documents, the parties hereto hereby agree that all of the Net Sale Proceeds
received by the Corporation and its Subsidiaries from the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale
shall be applied promptly (and in any event within five (5) Business Days, or
such longer period as is necessary to comply with the redemption or prepayment
provisions of the respective issue of Indebtedness being repaid) after the
receipt thereof by the Corporation or its respective Subsidiaries in the
following order of priority (in each case to the extent of the then remaining
Net Sale Proceeds): (A) first (to the extent the amount of Net Sale Proceeds has
not already been applied to reduce the outstanding Caesars Bonds), to redeem all
of the then outstanding Caesars Bonds and to pay any penalty, premium,
defeasance payment or other amount due in connection therewith (collectively,
the "Caesars Bonds Redemption Amount") or, if the Caesars Bonds Redemption
Amount shall have been paid prior to the consummation of the ▇▇▇▇▇▇▇ ▇▇▇▇▇
Transaction, then to prepay the principal amount of any Revolving Loans then
outstanding under the Credit Agreement in an amount up to the Caesars Bonds
Redemption Amount, (B) second, to repay permanently the principal amount of any
Tranche I IRN's then outstanding, (C) third, to repay permanently the principal
amount of any Tranche II IRN's then outstanding, (D) fourth, to prepay the
principal amount of any Revolving Loans then outstanding under the Credit
Agreement, and (E) fifth, to prepay the principal amount of other Indebtedness
of the Corporation and its Wholly-Owned Subsidiaries then outstanding.
(c) Section 9.12; Limitations on Voluntary Payments, etc.
Notwithstanding anything to the contrary contained in the Credit Agreement,
including, without limitation, Section 9.12 thereof, or any other Credit
Document, the Corporation and/or ITT shall be permitted to enter into and
consummate any of the following transactions or do any of the following actions:
(i) release the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Assets from the
collateral security for the Intercompany Mortgage Note;
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(ii) make a prepayment on the Intercompany Mortgage
Note in an amount up to the Undercollateralized Amount, and the
proceeds received by SLT RLP as a result of such prepayment shall not
be required to be used to prepay the then outstanding principal balance
of the Loans in accordance with Section 4.02(h) of the Credit Agreement
as long as such proceeds are held by SLT RLP and the subsequent use of
such funds is otherwise in compliance with the terms of the Credit
Agreement;
(iii) grant mortgages on certain real estate assets
owned by the Corporation or any Subsidiary of the Corporation to secure
the Intercompany Mortgage Note and to reduce the Intercompany Mortgage
Reduction Amount;
(iv) cause a portion of the payee's interest under
the Intercompany Mortgage Note in an amount up to the
Undercollateralized Amount to be assigned, contributed or distributed
by SLT RLP to the Corporation or any Wholly-Owned Domestic Subsidiary
of the Corporation which is (and remains) a Credit Party; provided that
(x) such Credit Party acknowledges and agrees in writing that all
payments to be received by it with respect to the Intercompany Mortgage
Note or portion thereof assigned to it are subordinated on the terms
applicable to the Intercompany Mortgage Note and (y) such Credit Party
is party to or executes a Subordination Agreement in accordance with
the requirements of the first sentence of the last paragraph of Section
9.04 of the Credit Agreement; and
(v) amend, modify or change, and permit the
amendment, modification or change of any provision of the Intercompany
Mortgage Note or any documents evidencing, or relating to, the
Intercompany Mortgage Note, including, without limitation, any
modification, amendment or change permitting prepayments, reloans or
readvances under the Intercompany Mortgage Note; provided that (A) the
aggregate outstanding principal balance of the Intercompany Mortgage
Note at any time shall not exceed $3,450,000,000, (B) no changes shall
be made to the subordination provisions applicable to the Intercompany
Mortgage Note, (C) the Corporation shall provide the Lead Agents with
prior written notice of any such amendment, modification, or change,
and (D) either (i) the prior written consent of the Lead Agents shall
be obtained (it being understood and agreed that the Lead Agents may
(but shall not be required to) withhold taking such action without
obtaining the consent of the Required Lenders) or (ii) the Corporation
in good faith determines, prior to entering into the respective
amendment, modification or change, that the respective amendment,
modification or change could not reasonably be expected to result in a
Material Adverse Effect or be adverse to the Lenders, in which case the
Corporation shall be deemed to have made a representation and warranty
to the Lenders, on the effective date of such amendment, modification
or change, that such amendment, modification or change could not
reasonably be expected to result in a Material Adverse Effect or be
adverse to the Lenders.
(d) Amendments to the Caesars Stock Purchase Agreement.
Notwithstanding anything to the contrary contained elsewhere in this Amendment,
in the Credit Agreement or in
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any of the other Credit Documents, the Corporation shall not, and shall not
permit any of its Subsidiaries to, agree to any amendment, modification or
supplement to the Caesars Stock Purchase Agreement which (x) could reasonably be
expected to result in a Material Adverse Effect or be materially adverse to the
Lenders or (y) would result in the Corporation and its Wholly-Owned Domestic
Subsidiaries receiving less than $2,500,000,000 of Net Sale Proceeds on the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date as a result of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale.
(e) Use of Proceeds from Permanent Senior Notes; Section
9.04(viii)(A); Indebtedness. Effective as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date,
Section 9.04(viii)(A) of the Credit Agreement shall be amended and restated in
its entirety to read as follows:
"(A) the Corporation shall be permitted to issue
Senior Secured Bridge Notes on the Initial Borrowing
Date as required by Section 5.06(a) (with the Senior
Secured Bridge Note Documents to be in the form
provided pursuant to Section 5.06(b) on or prior to
the Initial Borrowing Date) and shall be permitted
from time to time to issue (but not to any Borrower
or Affiliate thereof) Permanent Senior Notes for
cash; provided that
(1) all of the terms and conditions of the
Permanent Senior Notes (including, without
limitation, amortization, maturities, interest rates,
covenants, defaults, remedies, guaranties, sinking
fund provisions and other terms) shall be reasonably
satisfactory to the Lead Agents;
(2) at the option of the Corporation,
Permanent Senior Notes may be issued as Permanent
Senior Secured Notes and, in such event, may be
secured to the extent provided in the Pledge and
Security Agreement;
(3) notwithstanding anything to the contrary
contained elsewhere in the Credit Agreement or any
Credit Documents, all Net Proceeds from any issuance
of Permanent Senior Notes under this clause (viii)(A)
or clause (viii)(B) below shall be applied in the
following order of priority (in each case to the
extent of such remaining Net Proceeds): (I) first, to
repay the then outstanding Senior Secured Bridge
Notes until all such Senior Secured Bridge Notes are
repaid in full and (II) second, any remaining Net
Proceeds shall be used as follows:
(a) if (1) either (x) the Combined
Leverage Ratio (after giving effect to any
issuance of Indebtedness then
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being made and any concurrent application of
the proceeds thereof) is less than 4.5:1.0
or (y) the Unsecured Debt Rating of the
Corporation shall be at least BBB- by S&P
and Baa3 by ▇▇▇▇▇'▇, and (2) no Specified
Default, and no Event of Default, then
exists, such Net Proceeds shall be used for
general corporate purposes of the
Corporation otherwise permitted under the
terms of this Agreement;
(b) if (1) the Combined Leverage
Ratio (after giving effect to any issuance
of Indebtedness then being made and any
concurrent application of the proceeds
thereof) is less than 4.75:1.00 and greater
than or equal to 4.50:1.00, (2) no Specified
Default and no Event of Default then exists,
and (3) the test set forth in sub-clause
(a)(1)(y) above is not satisfied, fifty
percent (50%) of such Net Proceeds to be
applied pursuant to this clause (II) shall
be used for general corporate purposes of
the Corporation otherwise permitted under
the terms of this Agreement and fifty
percent (50%) of such Net Proceeds to be
applied pursuant to this clause (II) shall
be used to permanently prepay (and in the
case of any prepayment of revolving or
similar types of facilities, with a
corresponding permanent reduction to the
commitments thereunder) the principal amount
of any Indebtedness (excluding the Senior
Secured Bridge Notes) then outstanding of
any Original Borrower and the Wholly-Owned
Subsidiaries of one or more Original
Borrowers; provided that at such time (if
any) as the application of amounts to the
permanent prepayment of Indebtedness as
required by this clause (b) would cause the
Combined Leverage Ratio to be less than
4.5:1.0, the remaining amount which would
have been required to be applied to
permanently prepay outstanding Indebtedness
may instead, so long as no Specified Default
and no Event of Default then exists, be used
by the Corporation as otherwise provided in
preceding clause (a); and
(c) if neither preceding clause (a)
or (b) is applicable in accordance with its
terms (whether because of the existence of a
Specified Default or Event of Default, or
because the Combined Leverage Ratio
requirements or rating requirements are not
satisfied), 100% of such Net Proceeds to be
applied pursuant to this clause (II) shall
be used to permanently prepay (and in the
case of any prepayment of revolving or
similar types of facilities, with a
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corresponding permanent reduction to the
commitments thereunder) the principal amount
of any Indebtedness (excluding the Senior
Secured Bridge Notes) of any Original
Borrower and the Wholly-Owned Subsidiaries
of one or more Original Borrowers; provided
that, so long as no Specified Default and no
Event of Default is in existence, at such
time as the application of amounts required
by this clause (c) results in the Combined
Leverage Ratio being less than 4.75:1.00,
all remaining amounts which would otherwise
have been required to be applied pursuant to
this clause (c) may instead be applied
pursuant to the provisions of preceding
clause (b) (and at such time, if any, as the
conditions specified in the proviso thereto
are satisfied, giving effect to such
proviso); and
(4) in no event shall the aggregate
principal amount of Indebtedness at any time
outstanding pursuant to this Section 9.04(viii)(A)
exceed $2.5 billion (as the same may be adjusted
pursuant to the Seventh Amendment); and"
(f) Clarification to Section 9.04(viii)(B). Effective as of
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, Section 9.04(viii)(B) of the Credit Agreement
shall be amended by (i) inserting, immediately after the phrase "cash; provided
that" appearing therein the following new clause:
"(v) all Net Proceeds from any issuance of Permanent
Senior Notes under this clause (viii)(B) shall be
applied in accordance with the requirements of clause
(viii)(A)(3) above,"
and (ii) inserting, immediately after the words "exceed $1.0 billion" thereof,
the following parenthetical: "(as the same may be adjusted pursuant to the
Seventh Amendment)."
SECTION 3. Interest; Section 1.09. Section 1.09(i) of the
Credit Agreement shall be amended by deleting the parenthetical in clause (iii)
of Section 1.09(i) and by inserting in lieu thereof the following new
parenthetical:
"(and (x) in the case of any Interest Period with a duration in excess
of one month at any time when the proviso to the definition of F&I
Payment Date is operative in accordance with its terms, at one-calendar
month intervals occurring after the first day of the respective
Interest Period and (y) in the case of any Interest Period with a
duration of six months, at the date which occurs three calendar months
after the first day of such Interest Period, as well as on the last day
of the respective Interest Period)."
SECTION 4. Interest Periods; Section 1.10. Section 1.10 of the
Credit Agreement shall be amended by deleting the word "or" appearing
immediately before the word
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"three" and replacing the same with "," and inserting the words "or six"
immediately after the word "three" thereof.
SECTION 5. Clarification of Use of Proceeds; Sections 4.02(d),
(e) and (k).
(a) Sections 4.02(d) and (e) of the Credit Agreement shall be
amended and restated in their entirety to read as follows:
"(d) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each
date after the Effective Date upon which the Corporation or
any of its Subsidiaries receives any Debt Proceeds, an amount
equal to the Applicable Debt Percentage of the Net Proceeds
from the respective issuance of Indebtedness shall be applied
in accordance with the requirements of Sections 4.02(h) and
(j); provided that (x) the Net Proceeds of any issuance of
Indebtedness pursuant to Section 9.04(viii) shall be applied
in accordance with the requirements of said Section
9.04(viii), (y) the requirements set forth in this Section
4.02(d) are subject to the qualifications expressly set forth
in Section I.A of the Fourth Amendment, and (z) Net Proceeds
received in respect of Indebtedness incurred pursuant to, and
in accordance with the requirements of, clause (xii) of
Section 9.04 and which otherwise would be required to be
applied as mandatory repayments or commitment reductions
hereunder shall not be required to be so applied and may be
reinvested in assets used or to be used in Hotel and Gaming
Businesses if the following conditions are satisfied:
(1) no Specified Default and no Event of Default then
exists; and
(2) the Corporation delivers a certificate to the Paying
Agent on or prior to such date stating that such Net
Proceeds shall be used (or contractually committed to
be used) to purchase Assets used or to be used in
Hotel and Gaming Businesses within 360 days (or
earlier to the extent required to be so applied
pursuant to the terms of any outstanding
Indebtedness) following the date of the incurrence of
such Indebtedness (which certificate shall set forth
the estimates of the proceeds to be so expended);
provided further, that if (x) all or any portion of such Net
Proceeds not so applied pursuant to the immediately preceding
proviso in
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clause (z) above as a mandatory repayment are not so used (or
contractually committed to be used) within the 360-day period
after the date of the respective incurrence of Indebtedness
(or earlier to the extent required to be so applied pursuant
to the terms of any outstanding Indebtedness), such remaining
portion shall be applied on the last day of such period as
provided above in this Section 4.02(d) (without regard to the
immediately preceding proviso in clause (z) above) and (y) all
or any portion of such Net Proceeds are contractually
committed to be used and subsequent to such date such contract
is terminated or expires without such portion being so used,
then such remaining portion shall be applied on the date of
such termination or expiration as provided in this Section
4.02(d) (without regard to the immediately preceding proviso
in clause (z) above).
(e) In addition to any other mandatory repayments or
commitment reductions pursuant to this Section 4.02, on each
date after the Effective Date upon which either the
Corporation or any of its Subsidiaries receives cash proceeds
from any Asset Sale or the Corporation and any of its
Subsidiaries receives Equity Proceeds, an amount equal to the
Applicable Asset Sale Percentage of the Net Proceeds therefrom
shall be applied in accordance with the requirements of
Sections 4.02(h) and (j); provided that, Net Proceeds received
in respect of Asset Sales made pursuant to, and in accordance
with the requirements of, clause (viii) of Section 9.02 and
which otherwise would be required to be applied as mandatory
repayments or commitment reductions hereunder shall not be
required to be so applied and may be reinvested in assets used
or to be used in Hotel and Gaming Businesses if the following
conditions are satisfied:
(1) no Specified Default, and no Event of
Default, then exists;
(2) the Corporation delivers a certificate to
the Paying Agent on or prior to such date
stating that such Net Proceeds shall be used
(or contractually committed to be used) to
purchase Assets used or to be used in Hotel
and Gaming Businesses within 360 days (or
earlier to the extent required to be so
applied pursuant to the terms of any
outstanding Indebtedness) following the date
of such Asset Sale (which certificate shall
set forth the estimates of the proceeds to
be so expended);
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(3) the amount of Net Sale Proceeds which may be
reinvested (including the amounts of any
"deemed reinvestments" pursuant to following
clause (4)) shall not exceed $500,000,000
for Net Sale Proceeds received during any
Fiscal Year; and, if, at the time of the
respective Asset Sale and after giving
effect thereto, either (1) the Combined
Leverage Ratio is less than 4.5:1.0 or (2)
the Unsecured Debt Rating of the Corporation
shall be at least BBB- by S&P and Baa3 by
▇▇▇▇▇'▇), then there shall be no further
limitation on the amount of such permitted
reinvestments; and
(4) any Asset Sale structured in the form of a
"like-kind exchange" in accordance with
Section 1031 of the Code shall be treated as
the sale of an Asset with the Net Sale
Proceeds (deemed to be an amount equal to
the fair market value of the Assets so
exchanged) therefrom reinvested pursuant to
clause (3) of this proviso;
provided further, that if (x) all or any portion of such Net
Sale Proceeds not so applied pursuant to the immediately
preceding proviso as a mandatory repayment are not so used (or
contractually committed to be used) within the 360 day period
after the date of the respective Asset Sale (or earlier to the
extent required to be so applied pursuant to the terms of any
outstanding Indebtedness), such remaining portion shall be
applied on the last day of such period as provided above in
this Section 4.02(e) (without regard to the immediately
preceding proviso) and (y) all or any portion of such Net Sale
Proceeds are contractually committed to be used and subsequent
to such date such contract is terminated or expires without
such portion being so used, then such remaining portion shall
be applied on the date of such termination or expiration as
provided in this Section 4.02(e) (without regard to the
immediately preceding proviso). Notwithstanding the foregoing,
the Net Sale Proceeds from the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale (as defined
in the Eighth Amendment) shall be applied in accordance with
the requirements of the Eighth Amendment.
(b) Section 4.02(k) of the Credit Agreement is hereby amended
by deleting the phrase "and/or (y) pursuant to the second proviso to Section
9.12(iii)" appearing therein and by inserting in lieu thereof the following new
phrase:
", (y) pursuant to the second proviso to Section 9.12(iii)
and/or made with Net Sale Proceeds of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale (as
defined in the Eighth Amendment) in accordance with the requirements of
the Eighth Amendment)."
SECTION 6. Assets of Starwood REIT; Section 7.29. Section 7.29
of the Credit Agreement shall be deleted in its entirety and replaced with the
following: "[Intentionally Deleted]."
- 11 -
12
SECTION 7. Reporting Requirements; Section 8.01; Information
Covenants. Section 8.01(g) shall be amended and restated in its entirety to read
as follows:
"(g) Other Reports and Filings. The Corporation shall promptly
notify the Lead Agents after any Borrower or any Subsidiary
files with, or delivers to, the Securities and Exchange
Commission (or any successor thereto) any Form 8-K or any
other financial information, proxy material, registration
statement, or report which contains information materially
adverse to the Corporation or any of its Subsidiaries, and, if
requested by any Lead Agent or Lender, shall furnish it with a
copy thereof."
SECTION 8. Creation of Intermediate Holding Company; Section
8.17. Notwithstanding anything to the contrary contained in the Credit Agreement
or the other Credit Documents, but subject to the terms of this Amendment, the
Lenders hereby consent to the Corporation creating a direct Wholly-Owned
Domestic Subsidiary of the Corporation (such subsidiary being referred to herein
as the "New Intermediate Holding Company") so that (i) the Corporation shall
directly own 100% of the equity interests in the New Intermediate Holding
Company and (ii) the New Intermediate Holding Company shall own 100% of the
Class A Shares in Starwood REIT; provided that (x) the New Intermediate Holding
Company, concurrently with the establishment thereof, executes and delivers
counterparts of the Guaranty and the Pledge and Security Agreement, and thereby
becomes a Guarantor, and otherwise complies with the applicable provisions of
Section 8.15 of the Credit Agreement, (y) all of the Corporation's equity
interest in the New Intermediate Holding Company shall at all times be pledged,
and be delivered for pledge, pursuant to the Pledge and Security Agreement, and
(z) all of the Class A Shares in Starwood REIT shall at all times (both before
and after the creation of the New Intermediate Holding Company) be pledged, and
be delivered for pledge, pursuant to the Pledge and Security Agreement.
SECTION 9. ▇▇▇▇▇▇ and Interest Rate Protection Agreements;
Section 8.20. Section 8.20 of the Credit Agreement shall be amended by
inserting, immediately after the last word thereof, the following:
"; provided that neither the Corporation nor any of its
Subsidiaries shall be required to comply with this Section
8.20 at any time that fifty percent (50%) or more of the
Combined Indebtedness of the Corporation and its Subsidiaries
is either based on a fixed rate of interest or, if subject to
a floating rate of interest, subject to Interest Rate
Protection Agreements which have the effect of fixing the rate
of interest applicable thereto or subjecting same to a cap or
collar, in each case on terms reasonably satisfactory to the
Lead Agents."
- 12 -
13
SECTION 10. Pre-Consent Requirement for Permitted
Acquisitions; Section 9.02; Consolidation, Merger, Purchase or Sale of Assets.
(a) Pre-Consent Requirement. Section 9.02 of the Credit
Agreement shall be amended by (i) deleting the word "and" appearing at the end
of clause (x) thereof, (ii) deleting the period appearing in clause (xi) thereof
and inserting in lieu thereof ", and" and (iii) inserting the following new
clause (xii) immediately after clause (xi) thereof:
"(xii) provided no Specified Default and no Event of
Default then exists or would result therefrom, the Corporation
or any of its Subsidiaries, (including, without limitation,
Starwood REIT, SLT RLP or any of their Subsidiaries) may enter
into any agreement to do any of the transactions prohibited by
this Section 9.02 (although the consummation of the respective
transaction may not occur until such time, if any, as the
Required Lenders have consented thereto in their sole
discretion), provided that (x) the Corporation or such
Subsidiary shall provide written notice to the Lead Agents
within 5 Business Days after it has entered into any such
agreement and (y) either (i) the consummation of such
transaction is expressly contingent upon obtaining the prior
written consent of the Required Lenders (with no damages,
break-up fees or other similar amounts payable as a result of
any failure to obtain such consent) or (ii) with respect to
all agreements entered into pursuant to this Section 9.02
(excluding any such agreements where the respective
transactions subject thereto have been consummated with the
consent of the Required Lenders or have otherwise been
terminated with no amounts payable thereunder), the failure of
the Corporation or any such Subsidiary to consummate the
transactions contemplated by such agreements could not
reasonably be expected to result in the Corporation and its
Subsidiaries being (or becoming) obligated to pay, or having
paid, amounts in respect of damages, breakup fees, or other
similar amounts to any Person or Persons in an aggregate
amount for all agreements as contemplated by this clause (xii)
in excess of $100,000,000; and"
(b) Permitted Acquisitions. Section 9.02(ix) of the Credit
Agreement is hereby amended by deleting "$750,000,000" in each place it appears
therein and by inserting "$1,000,000,000" in lieu thereof in each such place.
SECTION 11. Intercompany Transactions; Sections 9.01, 9.02,
9.05 and 9.06.
(a) Consent. Notwithstanding anything to the contrary
contained in the Credit Agreement or the other Credit Documents, but subject to
the terms of this Amendment, the Lenders hereby consent to each of the
Intercompany Transactions.
- 13 -
14
(b) Section 9.01(xiv); Intercompany Liens. Section 9.01(xiv)
of the Credit Agreement is amended and restated in its entirety to read as
follows:
"(xiv) Indebtedness owed by any Original Borrower or any
Wholly-Owned Domestic Subsidiary of any Original Borrower
which is a Credit Party to any Original Borrower or any
Wholly-Owned Domestic Subsidiary of any Original Borrower
which is a Credit Party, in each case to the extent permitted
to be outstanding pursuant to Section 9.04(vii), may be
secured by any Assets (but excluding Capital Stock or other
equity interests in any Persons) of the respective such
obligor;"
(c) Section 9.02(xiii); Intercompany Asset Transfers and
Sales. Section 9.02 of the Credit Agreement is amended by inserting, immediately
after new clause (xii) in Section 9.02, the following new clause:
"(xiii) provided no Specified Default and no Event of Default
then exists or would result therefrom, any Original Borrower
or any Wholly-Owned Domestic Subsidiary of any Original
Borrower which is a Credit Party may, in addition to any of
the matters described in Section 9.02 (xi), transfer, convey,
purchase, sell, lease (including, without limitation, by way
of sale-leaseback transactions) or otherwise dispose of all or
any portion of its Assets to, or make, cancel, eliminate,
exchange, prepay, redeem, distribute, contribute, or transfer
intercompany loans and advances of cash or any other Assets to
or with (or agree to do any of the foregoing at any future
time), in one or a series of related transactions, any
Original Borrower or any Wholly-Owned Domestic Subsidiary of
any Original Borrower which is a Credit Party; provided that
(x) the Corporation delivers at least 5 Business Day's prior
written notice to the Lead Agents of such Asset transfer,
which notice shall describe in reasonably sufficient detail
the nature of such transaction and (y) in the case of any
transfer of any Capital Stock or other equity interests which
were theretofore subject to pledge pursuant to the Pledge and
Security Agreement, or which will be required to be pledged in
accordance with the terms of the Pledge and Security Agreement
after the consummation of the respective Asset transfer, the
Corporation takes, and causes its respective Subsidiaries to
take, all actions so that the respective Capital Stock or
other equity interests remain, or become, as the case may be,
pledged and delivered for pledge pursuant to the Pledge and
Security Agreement in accordance with the requirements
thereof."
- 14 -
15
(d) Section 9.05(viii); Intercompany Advances, Investments and
Loans. Section 9.05(viii) of the Credit Agreement is amended and restated in its
entirety to read as follows:
"(viii) after the Initial Borrowing Date and subject to
Section 9.03, (i) the Corporation or any Subsidiary of the
Corporation which is a Guarantor may make intercompany loans
and advances of cash to the Corporation or any other
Subsidiary of the Corporation which is a Guarantor, and (II)
provided no Specified Default and no Event of Default then
exists or would result therefrom, the Corporation, any
Original Borrower, or any Wholly-Owned Domestic Subsidiary of
any Original Borrower which is a Credit Party may (x) make
Investments or intercompany loans and advances, in each case,
resulting from intercompany Asset transfers made in accordance
with the requirements of Section 9.02(xiii) and (y) cancel,
forgive, eliminate, exchange, prepay, redeem or otherwise
reduce the amount of any intercompany loans or advances of
cash or any other Assets owed to it by any other Credit Party;
provided that all intercompany loans and advances made
pursuant to this clause (viii) are subject to the provisions
of validly executed Subordination Agreements as required by
the last paragraph of Section 9.04."
(e) Section 9.06; Transactions with Affiliates. Section
9.06(iii) of the Credit Agreement is amended by inserting, immediately after the
word "Sections" in the last line thereof, "9.01,".
(f) The first sentence of the last paragraph of Section 9.02
shall be amended by (i) deleting the word "and" immediately before clause (iii)
and inserting "," in its place and (ii) inserting, immediately after the last
word of said sentence, the following:
", and (iv) sales, transfers or other dispositions of Capital
Stock may be made to one or more Credit Parties in accordance
with the provisions (and requirements) of Section 9.02(xiii),
provided no violation of Section 8.17 arises as a result
thereof."
(g) Notwithstanding anything to the contrary contained in the
Credit Agreement or the other Credit Documents, the Corporation or any of its
Subsidiaries (including, without limitation, Starwood REIT, SLT RLP, and any of
their Subsidiaries), and, with respect to clause (iii) below only, any Preferred
Stock Subsidiary, may enter into and consummate any of the following
transactions or do any of the following actions:
(i) wind up, liquidate or dissolve its affairs (or
agree to do any of the foregoing at any future time) provided (A) none
of the Corporation, Starwood REIT, SLT RLP, SLC OLP, or ITT shall
either be dissolved, liquidated or wound up and (B) the Assets, if any,
of the Person being dissolved, liquidated or wound up shall be
transferred
- 15 -
16
or succeeded (whether by operation of law or otherwise) to the
Corporation, any Wholly-Owned Domestic Subsidiary of the Corporation
which is a Credit Party, Starwood REIT, SLT RLP, or any Wholly-Owned
Domestic Subsidiary of Starwood REIT or SLT RLP which is a Credit
Party;
(ii) enter into and consummate any transaction of
merger or consolidation with the Corporation, Starwood REIT, SLT RLP,
or any other Person that, prior to the consummation of such merger or
consolidation, is either a Borrower or a Wholly-Owned Domestic
Subsidiary of the Corporation, Starwood REIT, or SLT RLP (or agree to
do any of the foregoing at any future time) provided (A) the surviving
Person shall either be any Original Borrower or any Wholly-Owned
Domestic Subsidiary of any Original Borrower which is a Credit Party,
(B) in no event shall the Corporation, Starwood REIT, SLT RLP, SLC OLP,
or ITT enter into any transaction of merger or consolidation with any
other Person where such other Person is the surviving entity of such
merger or consolidation, (C) none of the Corporation, Starwood REIT,
SLT RLP, SLC OLP or ITT shall be merged or consolidated out of
existence (or shall cease to be in existence after giving effect to any
transaction otherwise permitted pursuant to this clause (ii)), and (D)
no consideration shall be paid to any Person (other than to the
Corporation, Starwood REIT, SLT RLP, or any other Person that, prior to
the consummation of such merger or consolidation, is either an Original
Borrower or a Wholly-Owned Domestic Subsidiary of an Original Borrower
which is a Credit Party); or
(iii) any Preferred Stock Subsidiary which is a
Wholly-Owned Domestic Subsidiary of the Corporation but which is not a
Credit Party may (A) wind up, liquidate or dissolve its affairs (or
agree to do any of the foregoing at any future time), provided the
Assets, if any, of such Preferred Stock Subsidiary being dissolved,
liquidated or wound up shall be transferred or succeeded (whether by
operation of law or otherwise) to another Preferred Stock Subsidiary
which is a Wholly-Owned Domestic Subsidiary of the Corporation, the
Corporation, any Wholly-Owned Domestic Subsidiary of the Corporation
which is a Credit Party, Starwood REIT, SLT RLP, or any Wholly-Owned
Domestic Subsidiary of Starwood REIT or SLT RLP which is a Credit Party
and (B) enter into and consummate any transaction of merger or
consolidation with any other Preferred Stock Subsidiary which is a
Wholly-Owned Domestic Subsidiary of the Corporation but which is not a
Credit Party; provided that no consideration shall be paid to any
Person (other than to a Preferred Stock Subsidiary which is a
Wholly-Owned Domestic Subsidiary of the Corporation); and
provided further that, in each case, (A) no Specified Default and no Event of
Default then exists or would result therefrom; (B) the Corporation determines in
good faith that the respective transaction or transactions could not reasonably
be expected to result in a Material Adverse Effect or otherwise be adverse to
the Lenders; (C) the Corporation delivers, or causes its respective Subsidiary
to deliver, at least 5 Business Days' prior written notice to the Lead Agents of
the intended consummation of the respective transaction, which shall describe in
reasonably sufficient detail the nature of such transaction; and (D) the
Corporation shall take, or cause its respective
- 16 -
17
Subsidiaries to take, such actions as may from time to time be reasonably
requested by the Lead Agents to assure that all surviving Persons of mergers or
consolidations permitted above are parties to the respective Credit Documents
(and that they deliver such acknowledgments or assumption agreements as may from
time to time be reasonably requested by any Lead Agent) and take such actions as
may be necessary or desirable to assure that all collateral required to be
pledged by them pursuant to the Pledge and Security Agreement has in fact been
so pledged (and appropriate financing statements and other required security
instruments have been filed).
SECTION 12. Recourse Basket; Section 9.04; Indebtedness.
Effective as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, Section 9.04(xii) of the
Credit Agreement shall be amended and restated in its entirety to read as
follows:
"(xii) additional Indebtedness of the Corporation and any of
its Subsidiaries not otherwise permitted hereunder in
aggregate principal amount outstanding at any time not
exceeding $600,000,000 (with the amount of Indebtedness
permitted to be outstanding at any time pursuant to this
clause (xii) being herein referred to as the "Recourse
Basket"); provided that (a) the amount of the Recourse Basket
shall be reduced from time to time to the extent provided in
Parts I.A. and I.B. of the Fourth Amendment and the last
sentence of the definition of Permitted Refinancing
Indebtedness contained herein and (b) the Net Proceeds
therefrom are applied as a mandatory repayment and/or
commitment reduction if and to the extent required by the
provisions of Section 4.02(e);"
SECTION 13. Loans to Employees; Section 9.05(x); Advances,
Investments and Loans. Effective as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, clause
(x) of Section 9.05 of the Credit Agreement shall be amended by deleting the
number "$10,000,000" appearing therein and by inserting the number "$20,000,000"
in its place.
SECTION 14. Sliver Equity Transactions and Loans; Sections
9.05(xi) and (xii); Advances, Investments and Loans.
(a) Section 9.05(xi) of the Credit Agreement shall be amended
by inserting, immediately after the words "equity investments (in respect of
minority interests only)," the following:
"in, or make mortgage, mezzanine or other loans to, any
Person, in each case,".
(b) Effective as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, Section
9.05(xi) of the Credit Agreement shall be further amended by deleting the amount
"$300,000,000" appearing in Section 9.05(xi) and inserting "$400,000,000" in
lieu thereof.
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18
(c) Effective as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, Section
9.05(xii) of the Credit Agreement is amended by deleting "$250,000,000" in said
Section and inserting "$150,000,000" in its place.
SECTION 15. Section 9.09; Maximum Combined Leverage Ratio.
Effective as of the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, the periods and ratios set
forth in Section 9.09 of the Credit Agreement are amended and restated in their
entirety to read as follows:
Period Ratio
------- ---------
From and including the Initial 6.50:1.00
Borrowing Date to and including
September 30, 1998
From and including October 1, 1998 to 5.75:1.00
and including March 31, 1999
From and including April 1, 1999 to 5.50:1.00
and including the Amendment
Effective Date
From and including the Amendment 5.00:1.00
Effective Date to and including
September 30, 1999
From and including October 1, 1999 to 4.75:1.00
and including June 30, 2000
From and including July 1, 2000 and 4.50:1.00
thereafter
SECTION 16. Business; Section 9.15. Effective as of the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date, Section 9.15 of the Credit Agreement is amended
and restated in its entirety to read as follows:
"No Borrower will, nor will any Borrower permit any of its
Subsidiaries to, engage (directly or indirectly) in any
business other than the Hotel and Gaming Businesses, and in no
event shall the Gaming Business be a material part of the
Hotel and Gaming Business of the Corporation and its
Subsidiaries taken as one enterprise."
- 18 -
19
SECTION 17. Partnership Agreements; Section 9.20. Section 9.20
of the Credit Agreement is amended and restated in its entirety to read as
follows:
"9.20. Partnership Agreements. (x) Neither Starwood REIT nor
SLT RLP shall default under any obligations under SLT RLP's
Partnership Agreement, (y) neither the Corporation nor SLC OLP
shall default under any obligations under SLC OLP's
Partnership Agreement, and (z) promptly after the written
request of any Lead Agent, each of Starwood REIT and the
Corporation shall deliver true, correct and complete copies of
SLT RLP's Partnership Agreement and SLC OLP's Partnership
Agreement, respectively."
SECTION 18. Section 9.23; Encumbered EBITDA Ratio. Section
9.23 of the Credit Agreement is hereby amended and restated in its entirety to
read as follows:
"The Borrowers will not permit the ratio of Combined EBITDA to
Encumbered EBITDA for any Test Period ending during a period
set forth below to be less than the ratio set forth below:
Period Ratio
------ -----
Fifth Amendment Effective Date 4.00:1.00
through March 30, 1999
March 31, 1999 through 3.00:1.00
July 31, 1999
August 1, 1999 and thereafter 2.86:1.00"
SECTION 19. Certain Definitions. (a) The following new
definitions shall be inserted in proper alphabetical order in Section 11.01:
"▇▇▇▇▇▇▇ ▇▇▇▇▇ Effective Date" shall mean the date upon which
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale is consummated.
"Debt Proceeds" means any cash proceeds from the incurrence by
the Corporation or any of its Subsidiaries of Indebtedness for
borrowed money or from any CMBS Transaction to the extent the
Indebtedness incurred pursuant to the respective CMBS
Transaction is permitted as a result of an increase in
availability as specifically contemplated in the last sentence
of Section 9.04 (with such increased Indebtedness pursuant to
CMBS Transactions being herein called "Increased CMBS
Indebtedness"); provided that (x) except as otherwise provided
in clause (y) below, Debt Proceeds
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shall not include proceeds from incurrences of Indebtedness
permitted to be incurred pursuant to Section 9.04 as such
Section is in effect on the Eighth Amendment Effective Date
after giving effect to the Eighth Amendment and (y) Debt
Proceeds shall include proceeds from incurrences of (i)
Indebtedness incurred pursuant to clause (viii) of Section
9.04, (ii) Indebtedness incurred pursuant to clause (xii) of
Section 9.04 in excess of amounts permitted to be incurred
under such clause as same was in effect on the Effective Date
and (iii) Increased CMBS Indebtedness.
"Eighth Amendment" shall mean that certain Eighth Amendment to
Credit Agreement, dated as of July 2, 1999.
"Eighth Amendment Effective Date" shall mean the date upon
which the Eighth Amendment becomes effective in accordance
with its terms.
"Equity Proceeds" shall mean any cash proceeds from the
issuance or sale of equity by the Corporation or any of its
Subsidiaries; provided that Equity Proceeds shall not include
cash proceeds from the issuance of common stock of the
Corporation, Perpetual Preferred Stock of the Corporation and
Qualified Preferred Stock permitted to be issued pursuant to
Section 9.14(c), unless and to the extent such Qualified
Preferred Stock is issued as a result of an increase in
availability as specifically contemplated by the last sentence
of Section 9.04.
"Maximum Indebtedness Scheduled Asset Sale Credit Amount"
shall mean $0.
"Original Borrower" shall mean any Borrower which is one of
the Corporate Borrowers or one of the REIT Borrowers.
"Seventh Amendment" shall mean that certain Seventh Amendment,
dated as of March 5, 1999.
(b) The definition of "Combined Indebtedness" appearing in
Section 11.01 of the Credit Agreement is hereby amended by adding, immediately
after the phrase "notwithstanding anything to the contrary contained above, to
the extent not already reflected therein," appearing in the last sentence
thereof the following phrase:
"(x) the amount of Contingent Obligations at any time
outstanding pursuant to Section 9.04(xii) of the Credit Agreement (as
described in the last sentence of the definition of Contingent
Obligation contained herein) shall be added to, and form part of,
Combined Indebtedness (regardless of any contrary treatment under GAAP)
and (y)."
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21
(c) The definition of "Net Proceeds" appearing in Section
11.01 of the Credit Agreement is hereby amended by deleting the proviso thereto
in its entirety.
II. Modification of the Pledge and Security Agreement
The parties hereto acknowledge and agree that the Pledge and
Security Agreement shall be, and hereby is, modified as follows:
A. Section 2(a) of the Pledge and Security Agreement is hereby
amended by deleting the phrase "and (iv) the term "Securities" shall mean all of
the Stock, Limited Liability Company Interests and Partnership Interests"
appearing therein and inserting in lieu thereof the following phrase:
"(iv) the term "REIT Interest" shall mean all equity interests
at any time owned by each Pledgor in any real estate
investment trust, in any event including all equity interests
(including all Class A Shares) owned by each Pledgor in
Starwood REIT; and (v) the term "Securities" shall mean all of
the Stock, Limited Liability Company Interests, Partnership
Interests and REIT Interests."
B. Section 2(b) of the Pledge and Security Agreement is hereby
amended by deleting the phrase "all of the Pledged Stock, Pledged Limited
Liability Interests and Pledged Partnership Interests" appearing therein and
inserting in lieu thereof the following phrase:
"all of the REIT Interests at any time pledged or required to
be pledged hereunder are hereinafter called the "Pledged REIT
Interests," and all of the Pledged Stock, Pledged Limited
Liability Company Interests, Pledged Partnership Interests and
Pledged REIT Interests."
C. Section 3.2 of the Pledge and Security Agreement is hereby
amended by deleting the phrase "or Partnership Interests" appearing in the first
sentence thereof and inserting in lieu thereof the phrase ", Partnership
Interests or REIT Interests."
D. Section 5 of the Pledge and Security Agreement is hereby
amended by inserting, immediately after the phrase "pertaining to the Pledged
Stock" appearing in clause (i) thereof, the phrase "and Pledged REIT Interests."
E. Each of Sections 6 and 7 of the Pledge and Security
Agreement are hereby amended by inserting, immediately after the phrase "Pledged
Stock," in each place it appears therein the phrase "Pledged REIT Interests."
In addition to the amendments specifically set forth above,
the Corporation acknowledges and agrees that all of the Class A Shares of
Starwood REIT owned by it have previously been delivered to the Collateral Agent
for pledge pursuant to the Pledge and Security
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22
Agreement, and that all of such Class A Shares have been, and shall remain,
validly pledged pursuant thereto.
III. Miscellaneous Provisions
A. Each Guarantor and each Borrower, by their signatures
below, hereby confirms that (x) the Guaranty shall remain in full force and
effect and the Guaranty covers the obligations of each of the Borrowers under
the Credit Agreement, as modified and amended by this Amendment, as provided in
the Guaranty, and (y) the Pledge and Security Agreement (as modified by this
Amendment) shall remain in full force and effect as security for the obligations
under the Credit Agreement, as modified and amended by this Amendment.
B. This Amendment is limited as specified and shall not
constitute a modification, acceptance or waiver of any other provision of the
Credit Agreement or any other Credit Document.
C. This Amendment may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which counterparts when executed and delivered shall be an original, but all
of which shall together constitute one and the same instrument. A complete set
of counterparts shall be lodged with the Borrowers and the Paying Agent.
D. THIS AMENDMENT AND THE RIGHTS AND OBLIGATIONS OF THE
PARTIES HEREUNDER SHALL BE CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS
OF THE STATE OF NEW YORK.
E. This Amendment shall become effective on the date (the
"Amendment Effective Date") when each of the Borrowers, each Guarantor and the
Required Lenders shall have signed a counterpart hereof (whether the same or
different counterparts) and shall have delivered (including by way of facsimile
transmission) the same to the Paying Agent at its Notice Office.
F. From and after the Amendment Effective Date, all references
in the Credit Agreement and each of the other Credit Documents to the Credit
Agreement shall be deemed to be references to the Credit Agreement as modified
hereby.
G. The Borrowers hereby covenant and agree that, so long as
the Amendment Effective Date occurs, they shall pay (and shall be jointly and
severally obligated to pay) each Lender which executes and delivers to the
Paying Agent a counterpart hereof by the later to occur of (x) the close of
business on the Amendment Effective Date or (y) 12:00 p.m. (New York time) on
Friday, July 2, 1999 (the "Outside Date") or which is an immediate or successive
assignee of any Lender described above (with respect to amounts obtained,
directly or indirectly, by assignment from such Lender), the following:
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(i) a non-refundable cash fee in an amount equal to
17.5 basis points (0.175%) of an amount equal to the sum of the
outstanding principal amount of Term Loans of such Lender and the
Revolving Loan Commitment of such Lender, in each case as same is in
effect on the Amendment Effective Date, which fees shall be paid by the
Borrowers to the Paying Agent for distribution to the Lenders not later
than the fifth Business Day following the Outside Date; and
(ii) if the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale has not been
consummated by the close of business on October 1, 1999, then
commencing on November 1, 1999 and on the first day of each calendar
month thereafter to and including April 1, 2000 (with the first day of
each such calendar month being herein called an "Eighth Amendment
Monthly Fee Payment Date"), a non-refundable cash fee, in arrears, in
an amount equal to 3.25 basis points (0.0325%) of an amount equal to
the sum of the outstanding principal amount of Term Loans of such
Lender and the Revolving Loan Commitment of such Lender, in each case
as same is in effect on the first day of the preceding month, which fee
shall be paid by the Borrowers to the Paying Agent for distribution to
the Lenders not later than the third Business Day following each Eighth
Amendment Monthly Fee Payment Date; provided that (x) if the ▇▇▇▇▇▇▇
▇▇▇▇▇ Sale is consummated in accordance with the requirements of this
Eighth Amendment on any day other than the first day of a calendar
month, the fee due on the immediately succeeding Eighth Amendment
Monthly Fee Payment Date shall be prorated by taking the fee which
would otherwise have been payable as provided above (i.e., 3.25 basis
points on the amount of Term Loans and Revolving Loan Commitments
provided above) and multiplying same by a fraction the numerator of
which is the number of days in the calendar month in which the ▇▇▇▇▇▇▇
▇▇▇▇▇ Sale occurred through and including the date upon which the
▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale occurred and the denominator of which is the actual
number of days in such calendar month and (y) no fees shall be payable
on (or in respect of) any Eighth Amendment Monthly Fee Payment Date if
the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale was actually consummated in accordance with the
requirements of this Eighth Amendment on or before the first day of the
immediately preceding calendar month.
[SCHEDULE 1 AND SIGNATURE PAGES FOLLOW]
- 23 -
24
SCHEDULE I
Description of Intercompany Transactions
1. Poconos Resorts: The Poconos resorts are currently operated by six
separate Subsidiaries owned by ▇▇▇▇▇▇▇ ▇▇▇▇▇, Inc. Five of these
Subsidiaries shall be merged into the sixth Subsidiary, and the Stock
of the remaining Subsidiary shall be transferred to ITT Sheraton Corp.
ITT Sheraton Corp. shall pledge the stock of this new Subsidiary
pursuant to the Pledge and Security Agreement and shall (and shall
cause the remaining Subsidiary so transferred to) comply with Section
8.15 of the Credit Agreement. It is understood and agreed that the
remaining Subsidiary referenced above shall be a Wholly-Owned Domestic
Subsidiary of the Corporation, which shall be (or become) a Guarantor
and shall be (or become) party to each of the Guaranty and the Pledge
and Security Agreement.
2. San Antonio: Starwood REIT shall distribute, contribute or transfer all
of its equity interest in San Antonio Resort Company to the
Corporation. The Corporation shall pledge the stock of this Subsidiary
pursuant to the Pledge and Security Agreement.
3. Boardwalk Regency: Boardwalk Regency Corp. ("Boardwalk") indirectly
owns an interest in the Atlantic City Convention Center Hotel. All of
Boardwalk's interests and other assets relating to said hotel
(including, without limitation, certain cash deposits and notes made by
Headquarters Hotel Associates L.P.) shall be contributed, distributed
or transferred (either in one transaction or a series of transactions)
to ITT Sheraton Corp., the Corporation, or another Wholly-Owned
Domestic Subsidiary of the Corporation which is a Credit Party.
4. Headquarters Hotel Assoc. L.P.: Baltic Investment Company LLC ("Baltic
LLC") currently is the limited partner of Headquarters Hotel Assoc.
L.P., the owner of the Atlantic City Hotel. Boardwalk and certain other
Subsidiaries of the Corporation currently own all of the outstanding
limited liability company interests of Baltic LLC. Headquarters Hotel
Management LLC ("HHM") is a limited liability company, the members of
which are Caesars New Jersey, Inc. ("Caesars NJ") and Boardwalk. HHM is
the manager of the Atlantic City Hotel. All of the limited liability
company interests in Baltic LLC and HHM will be transferred,
contributed or distributed to ITT Sheraton Corp. or another
Wholly-Owned Domestic Subsidiary of the Corporation which is a Credit
Party, and said limited liability company interests will be pledged to
the Secured Creditors pursuant to the Pledge and Security Agreement. In
addition, any other assets relating to the Atlantic City Hotel and not
being sold to the buyer in connection with the ▇▇▇▇▇▇▇ ▇▇▇▇▇ Sale shall
be transferred to the Corporation or a Wholly-Owned Domestic Subsidiary
of any Original Borrower which is a Credit Party.
25
5. Foreign Licenses: Sheraton International, Inc. (or, if applicable, the
Corporation or any of its Subsidiaries) ("Licensor") shall, in the
ordinary course of its business, enter into certain foreign license
agreements relating to certain intangibles or other assets held by the
Corporation and its Subsidiaries with a Wholly-Owned Subsidiary of the
Corporation ("Licensee"). These intangibles and other assets shall not
be transferred to Licensee, but Licensee shall have the license rights
with respect to said assets. In connection with the foregoing, Licensee
shall, in the ordinary course of business, pay certain consideration to
Licensor and enter into sub-license agreements with other Subsidiaries
of the Corporation with respect to such license rights.
26
IN WITNESS WHEREOF, the parties hereto have caused their duly
authorized officers to execute and deliver this Amendment as of the date first
above written.
STARWOOD HOTELS & RESORTS
WORLDWIDE, INC., a Maryland corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
STARWOOD HOTELS & RESORTS,
a Maryland real estate investment trust
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Vice President and Treasurer
SLT REALTY LIMITED PARTNERSHIP,
a Delaware limited partnership
By: Starwood Hotels & Resorts, a Maryland real estate
investment trust, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Vice President and Treasurer
ITT CORPORATION, a Nevada corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
27
CHARLESTON HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
CRYSTAL CITY HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
LONG BEACH HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
SANTA ▇▇▇▇ HOTEL ASSOCIATES, LLC,
a New Jersey limited liability company,
SLT ALLENTOWN LLC,
a Delaware limited liability company,
SLT ARLINGTON LLC,
a Delaware limited liability company,
SLT ASPEN ▇▇▇▇ STREET, LLC,
a Delaware limited liability company,
SLT BLOOMINGTON LLC,
a Delaware limited liability company,
SLT CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company,
SLT DANIA LLC,
a Delaware limited liability company,
SLT DC MASSACHUSETTS AVENUE, LLC,
a Delaware limited liability company,
SLT INDIANAPOLIS LLC,
a Delaware limited liability company,
SLT KANSAS CITY LLC,
a Delaware limited liability company,
SLT LOS ANGELES LLC,
a Delaware limited liability company,
28
SLT MINNEAPOLIS LLC,
a Delaware limited liability company,
SLT PALM DESERT LLC,
a Delaware limited liability company,
SLT PHILADELPHIA LLC,
a Delaware limited liability company,
SLT REALTY COMPANY, LLC,
a Delaware limited liability company,
SLT SAN DIEGO LLC,
a Delaware limited liability company,
SLT SOUTHFIELD LLC,
a Delaware limited liability company,
SLT ST. LOUIS LLC,
a Delaware limited liability company,
SLT TUCSON LLC,
a Delaware limited liability company,
STARLEX LLC,
a New York limited liability company,
STARWOOD ATLANTA II LLC,
a Delaware limited liability company,
STARWOOD ATLANTA LLC,
a Delaware limited liability company,
STARWOOD MISSION HILLS, L.L.C.,
a Delaware limited liability company,
STARWOOD ▇▇▇▇▇▇▇ LLC,
a Delaware limited liability company,
29
STARWOOD WALTHAM LLC,
a Delaware limited liability company,
By: SLT Realty Limited Partnership,
a Delaware limited partnership, the managing member of
each of the above listed entities
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: Vice President and Treasurer
BW HOTEL REALTY, LP,
a Maryland limited partnership,
CP HOTEL REALTY, LP,
a Maryland limited partnership,
EDISON HOTEL ASSOCIATES, LP,
a New Jersey limited partnership,
NOVI HOTEL ASSOCIATES, LP,
a Delaware limited partnership,
PARK RIDGE HOTEL ASSOCIATES LP,
a Delaware limited partnership,
SLT FINANCING PARTNERSHIP,
a Delaware general partnership,
SLT HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership,
VIRGINIA HOTEL ASSOCIATES, LP,
a Delaware limited partnership,
30
PRUDENTIAL HEI JOINT VENTURE,
a Georgia general partnership,
By: SLT Realty Limited Partnership,
a Delaware limited partnership, the general partner of
each of the above listed entities
By: Starwood Hotels & Resorts,
a Maryland real estate investment trust,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Title: Vice President and Treasurer
HEI HOTELS, L.L.C.,
a Delaware limited liability company,
OPERATING PHILADELPHIA LLC,
a Delaware limited liability company,
SLC ALLENTOWN LLC,
a Delaware limited liability company,
SLC ARLINGTON LLC,
a Delaware limited liability company,
SLC ASPEN ▇▇▇▇ STREET, LLC,
a Delaware limited liability company,
SLC ATLANTA II LLC,
a Delaware limited liability company,
SLC ATLANTA LLC,
a Delaware limited liability company,
SLC BLOOMINGTON LLC,
a Delaware limited liability company,
SLC CENTRAL PARK SOUTH, LLC,
a Delaware limited liability company,
31
SLC DANIA LLC,
a Delaware limited liability company,
SLC DC MASSACHUSETTS AVENUE, LLC,
a Delaware limited liability company,
SLC INDIANAPOLIS LLC,
a Delaware limited liability company,
SLC KANSAS CITY L.L.C.,
a Delaware limited liability company,
SLC LOS ANGELES LLC,
a Delaware limited liability company,
SLC MINNEAPOLIS LLC,
a Delaware limited liability company,
SLC ▇▇▇▇▇▇▇ LLC,
a Delaware limited liability company,
SLC PALM DESERT LLC,
a Delaware limited liability company,
SLC SAN DIEGO LLC,
a Delaware limited liability company,
SLC SOUTHFIELD LLC,
a Delaware limited liability company,
SLC ST. LOUIS LLC,
a Delaware limited liability company,
SLC TUCSON LLC,
a Delaware limited liability company,
SLC WALTHAM LLC,
a Delaware limited liability company,
32
STARWOOD MANAGEMENT COMPANY, LLC,
a Delaware limited liability company,
By: SLC Operating Limited Partnership,
a Delaware limited partnership, the managing member of
each of the above listed entities
By: Starwood Hotels & Resorts
Worldwide, Inc., a Maryland corporation, its
general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Vice President Finance
and Treasurer
SLC OPERATING LIMITED PARTNERSHIP,
a Delaware limited partnership,
By: Starwood Hotels & Resorts Worldwide, Inc., a Maryland
corporation, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------------------
Title: Senior Vice President Finance and Treasurer
MILWAUKEE BROOKFIELD LP,
a Wisconsin limited partnership,
SLC-CALVERTON LP,
a Delaware limited partnership,
SLC HOUSTON BRIAR OAKS, LP,
a Delaware limited partnership,
By: SLC Operating Limited Partnership,
a Delaware limited partnership, the general partner of
each of the above listed entities
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------
Title: Senior Vice President Finance
and Treasurer
33
MOORLAND HOTEL LP,
a Wisconsin limited partnership,
By: Milwaukee Brookfield LP,
a Wisconsin limited partnership, its general partner
By: SLC Operating Limited Partnership,
a Delaware limited partnership, its general partner
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation, its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------
Title: Senior Vice President Finance
and Treasurer
ITT BROADCASTING CORP.,
a Delaware corporation
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
ITT SHERATON CORPORATION,
a Delaware corporation,
DESTINATION SERVICES OF SCOTTSDALE, INC.,
a Delaware corporation,
GENERAL FIDUCIARY CORPORATION,
a Massachusetts corporation,
GLOBAL CONNEXIONS INC.,
a Delaware corporation,
ITT SHERATON RESERVATIONS CORPORATION,
a Delaware corporation,
MANHATTAN SHERATON CORPORATION,
a New York corporation,
34
SAN DIEGO SHERATON CORPORATION,
a Delaware corporation,
SAN ▇▇▇▇▇▇▇▇ SHERATON CORPORATION,
a Delaware corporation,
SHERATON ARIZONA CORPORATION,
a Delaware corporation,
SHERATON 45 PARK CORPORATION,
a Delaware corporation,
SHERATON ASIA-PACIFIC CORPORATION,
a Delaware corporation,
SHERATON BLACKSTONE CORPORATION,
a Delaware corporation,
SHERATON BOSTON CORPORATION
a Massachusetts corporation,
SHERATON CALIFORNIA CORPORATION,
a Delaware corporation,
SHERATON CAMELBACK CORPORATION,
a Delaware corporation,
SHERATON FLORIDA CORPORATION,
a Delaware corporation,
SHERATON HARBOR ISLAND CORPORATION,
a Delaware corporation,
SHERATON HARTFORD CORPORATION,
a Connecticut corporation,
SHERATON HAWAII HOTELS CORPORATION,
a Hawaii corporation,
SHERATON INTERNATIONAL, INC.,
a Delaware corporation,
35
SHERATON INTER-AMERICAS, LTD.,
a Delaware corporation,
SHERATON INTERNATIONAL DE MEXICO, INC.,
a Delaware corporation,
SHERATON MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON OVERSEAS MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON WARSAW CORPORATION,
a Delaware corporation,
SHERATON MARKETING CORPORATION,
a Delaware corporation,
SHERATON MIAMI CORPORATION,
a Delaware corporation,
SHERATON MIDDLE EAST MANAGEMENT CORPORATION,
a Delaware corporation,
SHERATON NEW YORK CORPORATION,
a New York corporation,
SHERATON OVERSEAS TECHNICAL SERVICES CORPORATION,
a Delaware corporation,
SHERATON PEACHTREE CORPORATION,
a Delaware corporation,
SHERATON PHOENICIAN CORPORATION,
a Delaware corporation,
SHERATON SAVANNAH CORPORATION,
a Delaware corporation,
SHERATON SERVICES CORPORATION,
a Delaware corporation,
36
SOUTH CAROLINA SHERATON CORPORATION,
a Delaware corporation,
ST. REGIS SHERATON CORPORATION,
a New York corporation,
WORLDWIDE FRANCHISE SYSTEMS, INC.,
a Delaware corporation,
SHERATON VERMONT CORPORATION,
a Vermont corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
▇▇▇▇▇▇ SHERATON CORPORATION LLC,
a Delaware limited liability company
By: ITT SHERATON CORPORATION
a Delaware corporation, its managing member
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
--------------------------------------------------
Title: Senior Vice President Finance and Treasurer
W&S DENVER CORP.,
a Delaware corporation,
W&S REALTY CORPORATION OF DELAWARE,
a Delaware corporation,
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ HOTEL, INC.,
a Washington corporation,
LAUDERDALE HOTEL COMPANY,
a Delaware corporation,
WESTIN BAY HOTEL COMPANY,
a Delaware corporation,
CINCINNATI PLAZA COMPANY,
a Delaware corporation,
▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ HOTEL COMPANY,
a Delaware corporation,
TOWNHOUSE MANAGEMENT INC.,
a Delaware corporation,
WVC RANCHO MIRAGE, INC.,
a Delaware corporation,
WESTIN ASSET MANAGEMENT COMPANY,
a Delaware corporation,
WESTIN HOTEL COMPANY,
a Delaware corporation,
W&S ATLANTA CORP.,
a Delaware corporation,
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
WESTIN SEATTLE HOTEL COMPANY,
a Washington general partnership,
By: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ Hotel, Inc.,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
By: W&S Realty Corporation of Delaware,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
WESTIN PREMIER, INC.,
a Delaware corporation,
WESTIN VACATION MANAGEMENT CORPORATION,
a Delaware corporation,
38
WESTIN VACATION EXCHANGE COMPANY,
a Delaware corporation,
By: Starwood Hotels & Resorts Worldwide, Inc.,
a Maryland corporation, the sole stockholder of each
of the above listed entities
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------------------------
Title: Senior Vice President Finance and Treasurer
W&S LAUDERDALE CORP.,
a Delaware corporation,
W&S SEATTLE CORP.,
a Delaware corporation,
By: SLT Realty Limited Partnership,
a Delaware limited partnership, the sole stockholder
of each of the above listed entities
By: Starwood Hotels & Resorts
a Maryland real estate investment trust,
its general partner
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President and Treasurer
BANKERS TRUST COMPANY,
Individually and as Administrative Agent and as Paying Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Principal
THE CHASE MANHATTAN BANK,
Individually and as Administrative Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Managing Director
39
▇▇▇▇▇▇ COMMERCIAL PAPER, INC.,
Individually and as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: Authorized Signatory
BANK OF MONTREAL, CHICAGO BRANCH,
Individually and as Syndication Agent
By: /s/ ▇▇▇▇▇▇▇ ▇. Turf
----------------------------------------
Title: Director
ARAB BANKING CORPORATION (B.S.C.)
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
BANCA POPOLARE DI MILANO
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------------
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President/Chief Credit Officer
BANKBOSTON, N.A.
By: /s/ ▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Vice President
By:
----------------------------------------
Name:
Title:
40
BANK LEUMI USA
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------------------
Title: Managing Director and First Vice President
THE BANK OF TOKYO-MITSUBISHI, LIMITED,
NEW YORK BRANCH
By: /s/ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
BANK OF HAWAII
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
BANK POLSKA KASA OPIEKI S.A. PEKAO S.A.
GROUP, NEW YORK BRANCH
By: /s/ ▇.▇. ▇▇▇▇▇
----------------------------------------
Title: Vice President
PARIBAS
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
BANQUE WORMS CAPITAL CORP.
By: /s/ ▇. ▇▇▇▇▇▇▇ /F. Garnet
----------------------------------------
Title: VP& General Counsel/Senior VP
41
BEAR ▇▇▇▇▇▇▇ INVESTMENT PRODUCTS INC.
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
BARCLAYS BANK PLC
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Director
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK, LTD., NEW
YORK BRANCH
By: /s/ Wan-Tu Yeh
----------------------------------------
Title: VP & General Manager
▇▇▇▇▇ ▇▇▇▇ BANK CO., LTD. NEW YORK AGENCY
By: /s/ ▇▇▇▇▇-Si ▇▇▇▇
----------------------------------------------
Title: Senior Vice President & General Manager
CIBC INC.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
-------------------------------------------
Title: Executive Director
CIBC World Markets Corp., AS AGENT
COMPAGNIE FINANCIERE DE CIC ET DE L'UNION
EUROPEENNE
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: First Vice President
42
CREDIT LYONNAIS NEW YORK BRANCH
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇
----------------------------------------
Title: Vice President
CREDIT SUISSE FIRST BOSTON
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇ / ▇▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
Title: Vice President /Associate
CREDITO ITALIANO
By: /s/ Gianfranco BBisagni
----------------------------------------
Title: First Vice President
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
DEUTSCHE BANK AG NEW YORK AND/OR
CAYMAN ISLANDS BRANCH
By: /s/ ▇▇▇▇-▇▇▇▇▇ ▇▇▇▇▇▇
----------------------------------------
Title: Director
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Director
DOMINION BANK
By:
----------------------------------------
Name:
Title:
43
ERSTE BANK DER OESTERREICHISCHEN
SPARKASSEN AG
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇ /▇▇▇▇▇ Maheim
------------------------------------------------
Title: Vice President /Assistant Vice President
Erste Bank New York Branch
FIRST COMMERCIAL BANK
By: /s/ ▇▇▇▇▇ ▇▇
----------------------------------------
Title: Deputy General Manager
THE INDUSTRIAL BANK OF JAPAN, LIMITED NEW
YORK BRANCH
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Vice President
KZH CNC LLC
By: /s/ ▇▇▇▇▇ ▇▇▇▇
----------------------------------------
Title: Authorized Agent
LAND BANK OF TAIWAN, LOS ANGELES BRANCH
By:
----------------------------------------
Name:
Title:
THE LONG TERM CREDIT BANK
OF JAPAN, LTD.
By:
----------------------------------------
Name:
Title:
44
MITSUBISHI TRUST & BANKING CORPORATION
By: /s/ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
----------------------------------------
Title: Senior Vice President
ML KZH STERLING LLC
By:
----------------------------------------
Name:
Title:
NATIONSBANK, N.A.
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
----------------------------------------
Title: Vice President
THE ROYAL BANK OF SCOTLAND, PLC
By:
----------------------------------------
Name:
Title:
SOCIETE GENERALE, SOUTHWEST AGENCY
By: /s/ ▇▇▇▇▇▇ ▇. Day
----------------------------------------
Title: Director
SOUTHERN PACIFIC BANK
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Vice President
THE SUMITOMO BANK, LIMITED, NEW YORK
BRANCH
By: /s/ ▇▇▇▇▇▇ ▇. Tata
----------------------------------------
Title: Senior Vice President
45
MC CLO XIX STERLING (Cayman) Ltd.
Sterling Asset Manager, L.L.C.,
as its Investment Advisor
By:
----------------------------------------
Name:
Title:
WACHOVIA BANK, N.A.
By:
----------------------------------------
Name:
Title:
WESTDEUTSCHE LANDESBANK GIROZENTRALE
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------------
Title: Managing Director
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇
----------------------------------------
Title: Director
▇▇▇ ▇▇▇▇▇▇
PRIME RATE INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice Pres. & Director
▇▇▇ ▇▇▇▇▇▇ SENION FLOATING RATE FUND
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice Pres. & Director
46
▇▇▇ ▇▇▇▇▇▇ CLO I, LIMITED
By: ▇▇▇ ▇▇▇▇▇▇ MANAGEMENT INC.,
as Collateral Manager
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice Pres. & Director
▇▇▇ ▇▇▇▇▇▇
SENIOR INCOME TRUST
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
----------------------------------------
Title: Sr. Vice Pres. & Director
MELLON BANK, N.A., solely in its capacity as Trustee for the
GENERAL MOTORS CASH MANAGEMENT MASTER TRUST, (as directed by
▇▇▇▇▇▇▇▇ Capital Management, Inc.), and not in its individual
capacity
By:
----------------------------------------
Name:
Title:
SENIOR DEBT PORTFOLIO
By: Boston Management and Research,
as Investment Advisor
By:
----------------------------------------
Name:
Title:
OXFORD STRATEGIC INCOME FUND
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT,
as Investment Advisor
By:
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Name:
Title:
47
INDOSUEZ CAPITAL FUNDING III, LIMITED
By: Indosuez Capital as Portfolio Advisor
By: /s/ ▇▇▇ ▇. ▇▇▇▇▇
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Title: First Vice President
▇▇▇▇▇ ▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇▇▇ ▇▇▇▇▇ MANAGEMENT,
as Investment Advisor
By:
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Name:
Title:
ISTITUTO BANCARIO SAN PAOLO DI TORINO ISTITUTO MOBILIARE
ITALIANO S.P.A.
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ / ▇▇▇▇▇ ▇▇▇▇▇▇▇
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Title: First Vice President / Deputy General Manager
FIRST SECURITY BANK, N.A.
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Vice President
FLEET BANK, N.A.
By: /s/ ▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇
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Title: Senior Vice President
GENERAL ELECTRIC CAPITAL CORPORATION
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
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Title: Duly Authorized Signatory
▇▇▇▇▇▇▇ ▇▇▇▇▇ CREDIT PARTNERS L.P.
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
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Title: Authorized Signatory
48
GULF INTERNATIONAL BANK B.S.C.
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ /Abdel-Pattsh Tahoun
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Title: AVP / SVP
▇▇▇ ▇▇▇ COMMERCIAL BANK, LTD. NEW YORK
AGENCY
By: /s/ ▇▇▇▇▇▇▇ ▇.▇. ▇▇▇
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Name:
Title:
