EXHIBIT 10.15
CREDIT AGREEMENT
BY AND AMONG
XXXXXXX ENTERTAINMENT COMPANY, AS BORROWER
OPRYLAND HOTEL - FLORIDA LIMITED PARTNERSHIP, AS CO-BORROWER
AND
THE LENDERS PARTY HERETO
AND
BANKERS TRUST COMPANY
AS ADMINISTRATIVE AGENT
OCTOBER 9, 2001
WITH
DEUTSCHE BANC ALEX. XXXXX INC.
AND XXXXXXX XXXXX BARNEY, INC.,
AS JOINT BOOK RUNNING MANAGERS
DEUTSCHE BANC ALEX. XXXXX INC.,
XXXXXXX XXXXX BARNEY, INC.
AND CIBC WORLD MARKETS CORP.,
AS CO-LEAD ARRANGERS
XXXXXXX XXXXX XXXXXX, INC., AS SYNDICATION AGENT
AND
CIBC WORLD MARKETS CORP., AS DOCUMENTATION AGENT
TABLE OF CONTENTS
Page
ARTICLE I DEFINITIONS................................................................................ 1
ARTICLE II THE CREDITS................................................................................ 28
2.1 Commitment..................................................................................... 28
2.2 Required Payments; Termination................................................................. 29
2.3 Ratable Loans.................................................................................. 29
2.4 Types of Advances.............................................................................. 29
2.5 Commitment and Agency Fees..................................................................... 29
2.6 Minimum Amount of Each Advance; Disbursement Provisions........................................ 30
2.7 Optional Principal Payments.................................................................... 31
2.8 Method of Selecting Types and Interest Periods for New Advances................................ 31
2.9 Conversion and Continuation of Outstanding Advances............................................ 32
2.10 Interest Rate; Changes in Interest Rate; Interest Periods; etc................................. 32
2.11 Rates Applicable After Default................................................................. 33
2.12 Method of Payment.............................................................................. 33
2.13 Notes; Evidence of Indebtedness................................................................ 34
2.14 Telephonic Notices............................................................................. 34
2.15 Interest Payment Dates; Interest and Fee Basis................................................. 35
2.16 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions..................................................................................... 35
2.17 Lending Offices................................................................................ 35
2.18 Non-Receipt of Funds by the Administrative Agent............................................... 35
2.19 Intentionally Omitted.......................................................................... 36
2.20 Capitalization Covenants....................................................................... 36
2.20.1 Equity Contributions.................................................................. 36
2.20.2 Cost Overruns......................................................................... 36
2.20.3 Interest Reserve; Blocked Commitment Amount........................................... 36
2.20.4 Loan Balancing; Completion Reserve.................................................... 37
2.20.5 FF&E Reserve.......................................................................... 38
2.21 Replacement of Lender.......................................................................... 39
ARTICLE III YIELD PROTECTION; TAXES.................................................................... 39
3.1 Yield Protection............................................................................... 39
3.2 Changes in Capital Adequacy Regulations........................................................ 40
3.3 Availability of Types of Advances.............................................................. 40
3.4 Funding Indemnification........................................................................ 40
3.5 Taxes.......................................................................................... 41
3.6 Lender Statements; Survival of Indemnity....................................................... 42
3.7 Reasonable Efforts to Mitigate................................................................. 43
ARTICLE IV CONDITIONS PRECEDENT....................................................................... 43
4.1 Closing Deliveries............................................................................. 43
4.2 Conditions Precedent to Each Advance........................................................... 48
4.3 Limited Nature of Waivers of Requirements...................................................... 49
4.4 Notices to Owner............................................................................... 50
ARTICLE V REPRESENTATIONS AND WARRANTIES............................................................. 50
5.2 Authorization and Validity..................................................................... 50
5.3 No Conflict; Government Consent................................................................ 51
5.4 Financial Statements........................................................................... 51
5.5 Intentionally Omitted.......................................................................... 51
5.6 Taxes.......................................................................................... 51
5.7 Litigation and Contingent Obligations.......................................................... 52
5.8 Subsidiaries................................................................................... 52
5.9 Affiliate Contracts............................................................................ 53
5.10 Accuracy of Information........................................................................ 53
5.11 Margin Regulations............................................................................. 53
5.12 Material Agreements............................................................................ 53
5.13 Compliance With Laws........................................................................... 53
5.14 Ownership of Certain Properties................................................................ 53
5.15 Plan Assets; Prohibited Transactions; ERISA.................................................... 54
5.16 Environmental Matters.......................................................................... 54
5.17 Investment Company Act......................................................................... 55
5.18 Public Utility Holding Company Act............................................................. 55
5.19 Solvency....................................................................................... 56
5.20 Permits, Zoning, Government Approvals, Trademarks, Etc......................................... 56
5.21 Utilities; Access; Structural Soundness........................................................ 57
5.22 Leasehold Matters.............................................................................. 57
5.23 Ground Lease Matters........................................................................... 57
5.24 Casualty; Condemnation......................................................................... 58
5.25 Construction................................................................................... 58
5.26 Brokerage Fees................................................................................. 59
5.27 Personal Property.............................................................................. 59
5.28 Zoning......................................................................................... 59
5.29 Incentive Agreements........................................................................... 59
5.30 SAILS Contract................................................................................. 59
ARTICLE VI COVENANTS.................................................................................. 59
6.1 Financial Reporting............................................................................ 59
6.2 Use of Proceeds................................................................................ 62
6.3 Notice of Default.............................................................................. 62
6.4 Conduct of Business; Corporate Existence....................................................... 62
6.5 Taxes and Claims............................................................................... 62
6.6 Insurance...................................................................................... 64
6.7 Compliance with Laws........................................................................... 68
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6.8 Alterations.................................................................................... 68
6.9 Inspections; Books and Records................................................................. 68
6.10 Completion of Project; Required Completion Date................................................ 70
6.11 Correction of Defects.......................................................................... 70
6.12 Changes and Amendments; Monthly Budget Updates................................................. 70
6.13 Distributions; Mandatory Application of Net Operating Income to the Loans...................... 71
6.14 Indebtedness; Pledge of Equity Interests in Opryland Hotel Nashville, LLC...................... 72
6.15 Merger......................................................................................... 73
6.16 Ownership of Opryland Hotel Nashville, LLC..................................................... 73
6.17 Sales of Assets; Prepayments from Asset Sales; Execution of Guaranty by
Creative Group Subsidiaries; Releases of Subsidiary Guarantors................................. 73
6.18 Investments; New Subsidiary Guarantors......................................................... 74
6.19 Liens.......................................................................................... 75
6.20 Affiliates..................................................................................... 75
6.21 Required Rate Management Transactions.......................................................... 75
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet Liabilities........................ 76
6.23 Intentionally Omitted.......................................................................... 76
6.24 Financial Contracts............................................................................ 76
6.25 Financial Covenants............................................................................ 76
6.25.1 Loan-to-Cost Ratio.................................................................... 76
6.25.2 Minimum Consolidated Net Worth........................................................ 76
6.25.3 Minimum Interest Coverage Ratios...................................................... 76
6.25.4 Maximum Debt Leverage Ratio........................................................... 77
6.26 Environmental Audits........................................................................... 78
6.27 Insurance and Condemnation Proceeds............................................................ 79
6.28 The Administrative Agent's and the Lenders' Actions for Their Own
Protection Only................................................................................ 81
6.29 Storage of Property............................................................................ 82
6.30 Proceedings to Enjoin or Prevent Construction.................................................. 82
6.31 No Obligation to Monitor....................................................................... 82
6.32 Compliance with Agreements..................................................................... 82
6.33 Organizational Documents....................................................................... 83
6.34 Leasing Provisions............................................................................. 83
6.35 Ground Lease Covenants......................................................................... 83
6.36 Zoning Changes................................................................................. 87
6.37 Fiscal Year.................................................................................... 87
6.38 Cooperation with Construction Consultant....................................................... 87
6.39 Security Interest in Accounts; Certain Remedies................................................ 87
6.40 Principal Places of Business; Names............................................................ 90
6.41 Documents of Further Assurance................................................................. 90
6.42 Wetlands....................................................................................... 90
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ARTICLE VII DEFAULTS................................................................................... 90
ARTICLE VIII ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES............................................. 93
8.1 Acceleration................................................................................... 93
8.2 All Remedies................................................................................... 94
8.3 Construction................................................................................... 94
8.4 Enforcement.................................................................................... 95
8.5 Preservation of Rights......................................................................... 95
ARTICLE IX GENERAL PROVISIONS......................................................................... 96
9.1 Survival of Representations.................................................................... 96
9.2 Governmental Regulation........................................................................ 96
9.3 Headings....................................................................................... 96
9.4 Entire Agreement............................................................................... 96
9.5 Obligations; Benefits of this Agreement........................................................ 96
9.6 Expenses; Indemnification...................................................................... 96
9.7 Numbers of Documents........................................................................... 97
9.8 Accounting..................................................................................... 97
9.9 Severability of Provisions..................................................................... 97
9.10 Nonliability of Lenders........................................................................ 98
9.11 Confidentiality................................................................................ 98
9.12 Nonreliance.................................................................................... 98
9.13 Disclosure..................................................................................... 98
9.14 Marshalling; Payments Set Aside................................................................ 99
9.15 Successors and Assigns......................................................................... 99
9.16 Inconsistencies................................................................................ 99
9.17 Disclaimer by Lender........................................................................... 99
9.18 Time is of the Essence......................................................................... 100
9.19 Protective Advances............................................................................ 100
ARTICLE X THE ADMINISTRATIVE AGENT AND THE LENDERS................................................... 100
10.1 Appointment.................................................................................... 100
10.2 Nature of Duties............................................................................... 101
10.3 Lack of Reliance on the Administrative Agent................................................... 101
10.4 Certain Rights of the Administrative Agent..................................................... 102
10.5 Reliance....................................................................................... 102
10.6 Indemnification................................................................................ 102
10.7 The Administrative Agent in its Individual Capacity............................................ 102
10.8 Holders........................................................................................ 102
10.9 Resignation by the Administrative Agent........................................................ 103
10.10 Other Agents................................................................................... 103
10.11 Lender Default................................................................................. 103
10.12 Authority...................................................................................... 107
10.13 Borrower Default............................................................................... 109
10.14 Acquisition of Project......................................................................... 110
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10.15 Documents...................................................................................... 111
10.16 Receipt and Maintenance of Loan Documents...................................................... 111
10.17 No Representations............................................................................. 112
10.18 No Relation.................................................................................... 112
10.19 Standard of Care............................................................................... 112
10.20 No Responsibility for Loans, Etc............................................................... 112
10.21 Payments After Default......................................................................... 112
10.22 Payments Received.............................................................................. 113
ARTICLE XI SETOFF; RATABLE PAYMENTS................................................................... 113
11.1 Setoff......................................................................................... 113
11.2 Ratable Payments............................................................................... 113
ARTICLE XII BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS.......................................... 114
12.1 Successors and Assigns......................................................................... 114
12.2 Participations................................................................................. 114
12.2.1 Permitted Participants; Effect........................................................ 114
12.2.2 Voting Rights......................................................................... 115
12.3 Assignments.................................................................................... 115
12.3.1 Permitted Assignments................................................................. 115
12.3.2 Effect; Effective Date................................................................ 116
12.4 Dissemination of Information................................................................... 116
12.5 Tax Treatment.................................................................................. 117
ARTICLE XIII NOTICES.................................................................................... 117
13.1 Notices........................................................................................ 117
13.2 Change of Address.............................................................................. 117
ARTICLE XIV COUNTERPARTS............................................................................... 117
ARTICLE XV CHOICE OF LAW; CONSENT TO JURISDICTION;
WAIVER OF JURY TRIAL....................................................................... 118
15.1 CHOICE OF LAW.................................................................................. 118
15.2 CONSENT TO JURISDICTION........................................................................ 118
15.3 WAIVER OF JURY TRIAL........................................................................... 118
LIST OF EXHIBITS AND SCHEDULES
Exhibit A Form of Architect's Certificate
Exhibit B Form of Note
Exhibit C Permitted Existing Liens
Exhibit D Legal Description of Project Real Estate
Exhibit E-1 Form of Borrower's Certification of Completion
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Exhibit E-2 Form of Project General Contractor's Certification of Completion
Exhibit E-3 Form of Project Architect's Certification of Completion
Exhibit F Form of Assignment Agreement
Exhibit G Form of Borrower's and Co-Borrower's Compliance Certificate
Schedule 1 Initial Construction Budget
Schedule 2 Commitments
Schedule 3 Environmental Reports
Schedule 4 Initial Subsidiary Guarantors
Schedule 5.1 Ownership Chart
Schedule 5.7 Litigation Pending or Threatened
Schedule 5.9 Affiliate Contracts with respect to Project
Schedule 5.13 Violations of Law
Schedule 5.14 Defective Property
Schedule 5.16 Environmental Matters
Schedule 5.20 Permits not obtained as of Effective Date
Schedule 5.22 Leasehold Matters
Schedule 6.14 Existing Indebtedness as of Effective Date
Schedule 6.18 Existing Loans to Subsidiaries Other Than Subsidiary Guarantors
and Not Expected To Be Paid
Schedule 6.20 Non-Arms Length Transactions
Schedule 6.38 Items to be Provided by Co-Borrower to Construction Consultant
Schedule 6.39 Certain Project Accounts
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CREDIT AGREEMENT
This Agreement, dated as of October 9, 2001 (the "Effective Date"), is
among Xxxxxxx Entertainment Company, a Delaware corporation, as Borrower,
Opryland Hotel-Florida Limited Partnership, as Co-Borrower, the Lenders, Bankers
Trust Company, as Administrative Agent, Deutsche Banc Alex. Xxxxx Inc., Xxxxxxx
Xxxxx Xxxxxx, Inc. and CIBC World Markets Corp., as Co-Lead Arrangers, Xxxxxxx
Xxxxx Barney, Inc., as Syndication Agent and CIBC World Markets Corp., as
Documentation Agent;
W I T N E S S E T H:
WHEREAS, subject to and upon the terms and conditions herein set
forth, the Lenders are willing to make available to the Borrower the credit
facility provided for herein;
NOW, THEREFORE, IT IS AGREED:
ARTICLE I
DEFINITIONS
As used in this Agreement:
"Account Collateral" is defined in Section 6.39.
"Account Holders" is defined in Section 6.39.
"Account Control Agreement" means, (a) in the case of the Completion
Reserve Account, the Account Pledge, Assignment and Control Agreement dated as
of the Effective Date, between Borrower, Administrative Agent and Bankers Trust
Company (the "Reserve Account Bank"), (b) in the case of the FF&E Reserve
Account, the Account Pledge, Assignment and Control Agreement, substantially in
the form of the Agreement referred to in the preceding clause (a) to be entered
into on or before May 1, 2002 in accordance with Section 2.20.5, between
Co-Borrower, Administrative Agent and the Reserve Account Bank with respect to
the FF&E Reserve Account and (c) in the case of the Interest Reserve Account,
the Account Pledge, Assignment and Control Agreement, substantially in the form
of the Agreement referred to in the preceding clause (a), to be entered into on
or before May 1, 2002 in accordance with Section 2.20.3, between Borrower,
Administrative Agent and the Reserve Account Bank with respect to the Interest
Reserve Account.
"Accounts" is defined in Section 6.39.
"Administrative Agent" means Bankers Trust Company, in its capacity as
contractual representative of the Lenders pursuant to Article X, and not in its
individual capacity as a Lender, and any successor Administrative Agent
appointed pursuant to Article X.
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"Adjusted Debt Service" as of any determination date means the product
obtained by multiplying (i) the Aggregate Outstanding Credit Exposure as of such
date by (ii) the Assumed Rate as of such date.
"Adjusted NOI" for any period means Net Operating Income with respect to
the Project for such period, less the sum of (a) an assumed management fee of 5%
of Gross Revenues for such period, (b) actual deposits required to be made into
the FF&E Reserve Account for such period hereunder and (c) ground rents payable
for such period under the Hotel Ground Lease, all to the extent not already
deducted in determining Net Operating Income, and as adjusted for real estate
taxes as follows: for the first 12 full calendar months following the Completion
Date, real estate taxes shall be deemed to be the greater of (i) actual real
estate taxes for such period or (ii) Five Million Dollars ($5,000,000.00).
"Adjustment Date" means the date on which all of the following have
occurred: (a) Xxxxxxx Creative Group, Inc. has been released from the Guaranty
in accordance with Section 6.17(d) hereof, (b) Net Cash Proceeds in respect of
the Asset Sale resulting in such release have been applied to prepayment of the
Loans and (c) the Opening Date has occurred.
"Advance" means a borrowing hereunder, (i) made by the Lenders on the same
Borrowing Date, or (ii) converted or continued by the Lenders on the same date
of conversion or continuation, consisting, in either case, of the aggregate
amount of the several Loans of the same Type and, in the case of Eurodollar
Loans, for the same Interest Period.
"Affiliate" of any Person means any other Person directly or indirectly
controlling, controlled by or under common control with such Person. A Person
shall be deemed to control another Person if the controlling Person owns 50% or
more of any class of voting securities (or other ownership interests) of the
controlled Person or possesses, directly or indirectly, the power to direct or
cause the direction of the management or policies of the controlled Person,
whether through ownership of stock, by contract or otherwise.
"Agency Fee" is defined in Section 2.5.
"Aggregate Commitment" means the aggregate of the Commitments of all the
Lenders, as reduced from time to time pursuant to the terms hereof.
"Aggregate Outstanding Credit Exposure" means, at any time, the aggregate
of the Outstanding Credit Exposure of all the Lenders.
"Agreement" means this Credit Agreement, as it may be amended or modified
and in effect from time to time.
"Agreement Accounting Principles" means generally accepted accounting
principles as in effect from time to time ("GAAP"), applied in a manner
consistent with that used in preparing the financial statements referred to in
Section 6.1(i).
"Alternate Base Rate" means, for any day, a rate of interest per annum
equal to the higher of (i) the Prime Lending Rate for such day and (ii) the sum
of the Federal Funds Effective Rate for such day plus 1/2% per annum.
2
"Applicable Margin" means the following:
(a) with respect to Eurodollar Advances: 3.375%; and
(b) with respect to Floating Rate Advances: 2.125%
"Appraisal" means, with respect to the Project, the appraisal by CB
Xxxxxxx Xxxxx and obtained by the Administrative Agent prior to the Effective
Date or another written appraisal prepared by an appraiser selected and engaged
by the Administrative Agent and in all respects acceptable to the Required
Lenders as an approved Appraisal for purposes of this Agreement, using
assumptions and containing information approved by the Administrative Agent and
conforming with the provisions of Title XI of the Financial Institutions Reform,
Recovery and Enforcement Act of 1989, as amended, reformed or otherwise modified
from time to time, and any rules promulgated to implement such provisions.
"Approved Construction Budget" means the Initial Construction Budget as
and when approved by the Administrative Agent on the advice of the Construction
Consultant on or before the date which is 30 days after the Effective Date,
together with any modifications thereto so approved and any further
modifications thereto made thereafter that are either Permissible Modifications
or are approved in writing by Borrower, Co-Borrower and the Administrative Agent
in accordance with the terms of this Agreement.
"Approved Construction Costs" means the Construction Costs identified by
line item category and dollar amount in the Approved Construction Budget (or,
until the Approved Construction Budget is in effect, the Initial Construction
Budget).
"Approved FF&E Budget" means Co-Borrower's budget for normal maintenance
capital expenditures, as in effect and approved by the Administrative Agent from
time to time.
"Approved Plans and Specifications" means the Plans and Specifications,
together with any modifications thereto which are after the Effective Date
approved in writing by Borrower, Co-Borrower and, to the extent such
modifications are not Permissible Modifications, the Administrative Agent.
"Approved Project Schedule" means the Project Schedule, together with any
modifications thereto which are after the Effective Date approved in writing by
Borrower, Co-Borrower and, to the extent such modifications are not Permissible
Modifications, the Administrative Agent.
"Architect's Certificate" means the form of Architect's Certificate
attached hereto as Exhibit A, as the same may be revised from time to time with
the written consent of Borrower and the Administrative Agent.
"Article" means an article of this Agreement unless another document is
specifically referenced.
"Asset Sale" means (a) the sale, lease (other than operating leases in
respect of facilities which are ancillary to the operation of Borrower's or a
Subsidiary's properties), conveyance or
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other disposition of any property or assets of Borrower or any Subsidiary of
Borrower (including by way of a sale-leaseback transaction and including a
disposition by Borrower or a Subsidiary of Equity Interests in a Subsidiary),
(b) the issuance or sale of Equity Interests of any of the Borrower's
Subsidiaries or (c) any event of loss by reason of casualty, condemnation or
otherwise, other than, with respect to clauses (a), (b), and (c) above, the
following: (1) the sale or disposition of personal property held for sale in the
ordinary course of business, (2) the sale or disposal of damaged, worn out or
other obsolete property in the ordinary course of business so long as such
property is no longer necessary for the proper conduct of the business of
Borrower or such Subsidiary, as applicable, or is simultaneously replaced with
similar property, (3) the transfer of assets (other than assets that constitute
Collateral) by Borrower to Co-Borrower or a Subsidiary Guarantor or by a
Subsidiary of Borrower to Borrower, Co-Borrower or a Subsidiary Guarantor.
"Assumed Rate" means, as of any date of determination thereof, the higher
of (i) the weighted average annual interest rate on the Loans for the then
most-recently ended period of four consecutive Fiscal Quarters and (ii) 9% per
annum.
"Authorized Officer" means either the Chief Executive Officer or the Chief
Financial Officer of Borrower, acting singly, or such other representative of
Borrower designated from time to time by the Borrower, in a written notice
signed by Borrower and delivered to the Administrative Agent.
"Available Aggregate Commitment" means (a) at any time on or prior to May
1, 2002, the Aggregate Commitment then in effect minus the Aggregate Outstanding
Credit Exposure at such time and (b) at any time after May 1, 2002, zero.
"Balancing Notice" is defined in Section 2.20.4.
"Balancing Payment" is defined in Section 2.20.4.
"Blocked Commitment Amount" is defined in Section 2.20.3.
"Borrower" means Xxxxxxx Entertainment Company, a Delaware corporation.
"Borrowing Date" means a date on which an Advance is made hereunder.
"Borrowing Notice" is defined in Section 2.8.
"Budget Approval Notice" is defined in Section 2.20.4(b).
"Business Day" means (i) with respect to any borrowing, payment or rate
selection of Eurodollar Advances, a day (other than a Saturday or Sunday) on
which banks generally are open in New York for the conduct of substantially all
of their commercial lending activities, interbank wire transfers can be made on
the Fedwire system and dealings in United States dollars are carried on in the
London interbank market and (ii) for all other purposes, a day (other than a
Saturday or Sunday) on which banks generally are open in New York for the
conduct of substantially all of their commercial lending activities and
interbank wire transfers can be made on the Fedwire system.
4
"Capex Restriction Date" is defined in Section 6.18(b).
"Capital Stock" means, with respect to any Person, any capital stock,
partnership or joint venture interests of such Person and shares, interests,
participations or other ownership interests (however designated) of any Person
and any rights (other than debt securities convertible into any of the
foregoing), warrants or options to purchase any of the foregoing.
"Capital Expenditures" means with respect to any Person, all expenditures
by such Person which should be capitalized in accordance with Agreement
Accounting Principles, including all such expenditures with respect to fixed or
capital assets (including, without limitation, expenditures for maintenance and
repairs which should be capitalized in accordance with Agreement Accounting
Principles) and the amount of capital assets associated with Capitalized Lease
Obligations incurred by such Person (which shall be deemed to include (i)
expenditures by such Person to acquire stock or other evidence of beneficial
ownership of any other Person for the purpose of acquiring the capital assets of
such Person (to the extent of such capital assets) and (ii) expenditures for
fixed or capital equipment or real property).
"Capitalized Lease" of a Person means any lease of Property by such Person
as lessee which would be capitalized on a balance sheet of such Person prepared
in accordance with Agreement Accounting Principles.
"Capitalized Lease Obligations" of a Person means the amount of the
obligations of such Person under Capitalized Leases which would be shown as a
liability on a balance sheet of such Person prepared in accordance with
Agreement Accounting Principles.
"Cash Equivalent Investments" means (i) short-term obligations of, or
fully guaranteed by, the United States of America, (ii) commercial paper rated
A-1 or better by S&P or P-1 or better by Moody's, (iii) demand deposit accounts
maintained in the ordinary course of business, provided in each case that the
same provides for payment of both principal and interest (and not principal
alone or interest alone) and is not subject to any contingency regarding the
payment of principal or interest, and (iv) investments in money market funds
substantially all of the assets of which are comprised of investments of the
types described in clauses (i) through (iii) above or corporate securities
(other than commercial paper) with maturities of 397 days or less, provided that
the weighted average maturity of such securities does not exceed 90 days.
"Change of Control" means the occurrence of any of the following: (i) the
sale, lease or transfer, in one or a series of related transactions, of all or
substantially all of Borrower's assets to any person or group (as such term is
used in Section 13(d)(3) of the Securities Exchange Act), (ii) the adoption of a
plan relating to the liquidation or dissolution of Borrower, (iii) the
acquisition by any person or group (as such term is used in Section 13 (d)(3) of
the Securities Exchange Act) of a direct or indirect interest in more than 50%
of the ownership of Borrower or the voting power of the voting stock of Borrower
by way of purchase, merger or consolidation or otherwise (other than a creation
of a holding company that does not involve a change in the beneficial ownership
of Borrower as a result of such transaction), (iv) any consolidation of Borrower
with, or merger of Borrower into, any other Person or any merger of another
Person into Borrower, in each case with the effect that immediately after such
transaction the stockholders of Borrower immediately prior to such transaction
hold less than 50% of the total
5
voting power of all securities generally entitled to vote in the election of
directors, managers, or trustees of the Person surviving such merger or
consolidation, (v) the first day on which a majority of the members of the Board
of Directors of Borrower are not Continuing Directors or (vi) Borrower ceases to
own, directly or indirectly 100% of all ownership interests in Co-Borrower or
Opryland Hotel Nashville, LLC, a Delaware limited liability company or Borrower
or Co-Borrower is otherwise in breach of Section 6.16 or Section 6.17(a). A
"beneficial owner" shall be determined in accordance with Rule 13d-3 promulgated
by the Securities and Exchange Commission under the Securities Exchange Act, as
in effect on the date hereof.
"Claim" means any claim, action, suit or demand, by any Person, of
whatsoever kind or nature for any alleged Liabilities and Costs, whether based
in contract, tort, implied or express warranty, strict liability, criminal or
civil statute, Permit, ordinance or regulation, common law or otherwise.
"Co-Borrower" means Opryland Hotel - Florida Limited Partnership, a
Florida limited partnership.
"Code" means the Internal Revenue Code of 1986, as amended, reformed or
otherwise modified from time to time.
"Collateral" means all Property and interests in Property (now owned or
hereafter acquired) upon which a Lien is granted under any of the Loan
Documents, including the Project.
"Collateral Assignments" means (a) that certain Assignment of Lessor's
Interest in Leases and Rents of even date herewith executed and delivered by
Co-Borrower in favor of the Administrative Agent, for the benefit of the Lenders
and other Holders of Secured Obligations, as it may be amended or modified and
in effect from time to time and (b) that certain Assignment of Agreements,
Licenses, Permits and Contracts of even date herewith executed and delivered by
Co-Borrower in favor of the Administrative Agent, for the benefit of the Lenders
and other Holders of Secured Obligations, as it may be amended or modified and
in effect from time to time.
"Collateral Documents" means, collectively, the Mortgage, the Pledge
Agreement, the Collateral Assignments, the Account Control Agreements and all
other Loan Documents under which a Lien is granted in, against or with respect
to the Project or any other Property.
"Commitment" means, for each Lender, the obligation of such Lender to make
Loans to the Borrower in an aggregate amount not exceeding the amount set forth
for such Lender in Schedule 2 or as set forth in any instrument of assignment
relating to any assignment that has become effective pursuant to Section 12.3.2,
as such amount may be reduced from time to time pursuant to Section 2.1 or the
other applicable terms hereof.
"Completion" with respect to the Project means the occurrence of all of
the following (collectively, the "Completion Conditions"):
(a) Construction of the Project shall be completed substantially in
accordance with the Approved Plans and Specifications and all Laws, and (i) the
Administrative Agent shall have received a report with respect thereto from the
Construction Consultant, reasonably
6
satisfactory to the Administrative Agent, and (ii) the Co-Borrower shall have
delivered to the Administrative Agent certifications with respect thereto
executed by the Co-Borrower, the Project General Contractor and the Project
Architect (in the respective forms attached as Exhibits E-1, E-2 and E-3),
properly completed.
(b) The entire Project shall have opened for business to the general
public and shall be accepting paying guests on a regular daily and nightly
basis.
(c) Co-Borrower shall have furnished to the Administrative Agent a
copy of the valid, permanent certificate or certificates of occupancy with
respect to the Project, including all aspects of the hotel and spa and
convention center facilities and all other material Improvements for which
certificates of occupancy are required under applicable Laws, and copies of all
other Permits required under applicable Laws or otherwise necessary for the use,
occupancy and operation of the entire Project.
(d) Co-Borrower shall have furnished the Administrative Agent with
copies of all Required Lien Waivers necessary to cause the Date Down Endorsement
described in clause (f) of this definition to be issued.
(e) Co-Borrower shall have furnished the Administrative Agent with
an updated Survey of the Project, showing the Improvements completed on the
Project with the dimensions thereof and distances to the property lines,
utilities, easements, parking areas and spaces, as well as any set-back
requirements or violations of the same, and encroachments by the Improvements on
easement areas and adjoining property and encroachments on the Project; and
encroachments or violations shall have been insured against under the Mortgage
Title Insurance Policy for the Project and shall have been determined to be
reasonably acceptable to the Administrative Agent.
(f) Co-Borrower shall have furnished the Administrative Agent a Date
Down Endorsement which continues the coverage under and all existing
endorsements to the Mortgage Title Insurance Policy to a current date and also
includes a Form 9 endorsement and an updated survey endorsement based on the
Title Insurer's review of the "as built" Survey, each based on the Improvements
to the Project as completed, without exception for any matter not previously
approved by the Administrative Agent in writing. Co-Borrower shall also have
furnished the Administrative Agent with evidence reasonably satisfactory to the
Administrative Agent regarding the compliance of all aspects of the Project with
applicable zoning, subdivision and land use Requirements of Law.
(g) All fixtures, furniture, furnishings, equipment and other
property contemplated under the Approved Construction Budget and the Approved
Plans and Specifications to be incorporated into or installed in the Project
(with the exception of de minimis items having no adverse effect on the
operation of the Project and reasonably expected to be completed within 90 days
after the Completion Date) shall have been so incorporated or installed free and
clear of all Liens (other than mechanics' liens being contested in accordance
with the provision in Section 6.5(b) hereof and other Customary Permitted
Liens), and Co-Borrower shall have furnished the Administrative Agent with
current searches of all Uniform Commercial Code financing statements filed
against Co-Borrower, as debtor, in such offices and
7
jurisdictions as the Administrative Agent may require, showing no Uniform
Commercial Code financing statements are filed against Co-Borrower (other than
those filed in favor of the Administrative Agent for the benefit of the Holders
of the Secured Obligations and in favor of equipment lessors under equipment
leases otherwise permitted under this Agreement).
(h) Co-Borrower shall have furnished evidence reasonably
satisfactory to the Administrative Agent that the Project as completed has
adequate water, gas and electrical supply, storm and sanitary sewage facilities
and other required utilities, and adequate means of vehicular and pedestrian
ingress and egress to public streets.
(i) The Project shall be undamaged by fire or other cause, or if
damaged, shall have been fully repaired and restored and there shall be no
condemnation or eminent domain proceedings pending or threatened against the
Project.
(j) The Administrative Agent (i) shall have approved in writing and
received an executed copy of the Management Agreement, which shall be reasonably
satisfactory to the Administrative Agent, and (ii) shall be satisfied in its
reasonable discretion that such agreement is sufficient to provide for suitable
pre-opening, management and operating services for the Project.
"Completion Date" means the date on which all Completion Conditions have
been met.
"Completion Reserve Account" as defined in Section 2.20.4.
"Consent and Agreement" as defined in Section 4.2.
"Consolidated EBIT" means for any period, the Consolidated Net Income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with Agreement Accounting Principles, before Consolidated
Interest Expense and any non-cash interest expense and provision for taxes and
without giving effect to any extraordinary or unusual or nonrecurring gains or
losses, including, without limitation, unrealized gains or losses from the SAILS
Forward Exchange Contract and any other Financial Contract.
"Consolidated EBITDA" means, for any period, Consolidated EBIT, adjusted
by adding thereto the amount of all depreciation and amortization charges that
were deducted in arriving at Consolidated EBIT for such period.
"Consolidated Indebtedness" means, at any time, without duplication, the
sum of the aggregate outstanding principal amount of all Indebtedness and the
principal component of Capitalized Lease Obligations, of the Borrower and its
Consolidated Subsidiaries determined on a consolidated basis in accordance with
Agreement Accounting Principles.
"Consolidated Interest Expense" means for any period, the total interest
expense of any Person for such period (calculated without regard to any
limitations on the payment thereof), determined on a consolidated basis in
accordance with Agreement Accounting Principles, plus, without duplication, that
portion of Capitalized Lease Obligations of such Person representing the
interest factor for such period in each case net of the total consolidated cash
interest income
8
of such Person for such period; provided, however, that all other non-cash
interest expenses reflected on such Person's financial statements shall be
excluded.
"Consolidated Net Income" means, for any period, net after tax income of
the Borrower and its Consolidated Subsidiaries determined on a consolidated
basis in accordance with Agreement Accounting Principles.
"Consolidated Net Worth" means at any date the sum of all amounts which,
in conformity with Agreement Accounting Principles, would be included under the
caption "redeemable preferred stock" and "total stockholders' equity" (or like
captions) on a consolidated balance sheet of Borrower on and as at such date.
"Consolidated Subsidiaries" means, as to any Person, all Subsidiaries of
such Person which are consolidated with such Person for financial reporting
purposes in accordance with Agreement Accounting Principles.
"Construction Agreements" is defined in Section 4.1(v).
"Construction Consultant" means, collectively, with respect to the
Project, the architect(s), engineer(s) and any other consultant(s) engaged by
the Administrative Agent from time to time to review plans and specifications,
budgets, schedules, construction and other matters relating to the Project.
"Construction Costs" means (i) all costs incurred by the Co-Borrower in
connection with the acquisition and construction of the Project, including (a)
the cost of acquisition of the underlying ground lease interest in Real Property
included within the Project, (b) the "hard costs" costs described within
categories in the Approved Project Budget, (c) pre-opening expenses and (d) all
so-called "soft costs," including fees and charges of the Project Architect and
all other architects, engineers and other consultants engaged by Co-Borrower,
and the costs and fees incurred in connection with the procurement of all
Permits necessary to make the Project ready for use and occupancy, including
costs and fees incurred in connection with Real Property not included within the
Project to the extent that the Co-Borrower establishes to the satisfaction of
the Administrative Agent that such costs were necessary to obtain Permits
required for development or use of the Project, (ii) to the extent projected
revenues are not sufficient to pay the same, real estate taxes, insurance
premiums, leasing, maintenance and operation costs and other carrying costs for
the Project which accrue or become payable during the Construction Period;
provided, that under no circumstances shall Construction Costs include (A) any
principal or interest payments on Indebtedness, (B) any dividends, distributions
or other payments to any shareholder of Co-Borrower or any Affiliate of
Co-Borrower, or (C) except for those amounts provided for in clause (i)(c)
above, any land acquisition costs, infrastructure costs, development costs or
other hard or soft costs attributable or allocable to any Property which is not
a part of the Project.
"Construction Period" means the period of time beginning as of the
Effective Date and ending on the Required Completion Date.
"Contaminant" means gasoline, petroleum and other petroleum by-products,
asbestos, explosives, PCBs, radioactive materials or any "hazardous" or "toxic"
material, substance or
9
waste which is defined by those or similar terms or is regulated as such under
any statute, law, ordinance, rule or regulation of any Governmental Authority
having jurisdiction over the Project or any portion thereof or its use,
including any material, substance or waste which is: (a) defined as a "hazardous
substance" under the Water Pollution Control Act (33 U.S.C. Section 1301 et
seq.), as amended; (b) defined as a "hazardous waste" under Section 10.4 of The
Resource Conservation and Recovery Act of 1976, 42 U.S.C. Section 6901 et seq.,
as amended; (c) defined as a "hazardous substance" or "hazardous waste" under
Section 101 of The Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended by the Superfund Amendment and Reauthorization
Act of 1986, 42 U.S.C. Section 9601 et seq., or any other so-called "superfund"
or "superlien" law, including the judicial interpretations thereof; (d) defined
as a "pollutant" or "contaminant" under 42 U.S.C.A. Section 9601(33); (e)
defined as "hazardous waste" pursuant to 40 C.F.R. Parts 260 and 261; (f)
defined as a "hazardous chemical" under 29 C.F.R. Part 1910; (g) subject to any
other law or other past (and still in effect), present or future requirement of
any Governmental Authority regulating, relating to, or imposing obligations,
liability or standards of conduct concerning, the protection of human health,
plant life, animal life, natural resources, property or the enjoyment of life or
property free from the presence in the environment of any solid, liquid, gas,
odor or any form of energy from whatever source.
"Contingent Obligation" means, as to any Person, any obligation of such
Person guaranteeing or intended to guarantee any Indebtedness, leases, dividends
or other obligations ("primary obligations") of any other Person (the "primary
obligor") in any manner, whether directly or indirectly, including, without
limitation, any obligation of such Person, whether or not contingent, (i) to
purchase any such primary obligation or any property constituting direct or
indirect security therefor, (ii) to advance or supply funds (x) for the purchase
or payment of any such primary obligation or (y) to maintain working capital or
equity capital of the primary obligor or otherwise to maintain the net worth or
solvency of the primary obligor, (iii) to purchase property, securities or
services primarily for the purpose of assuring the owner of any such primary
obligation of the ability of the primary obligor to make payment of such primary
obligation or (iv) otherwise to assure or hold harmless the holder of such
primary obligation against loss in respect thereof; provided, however, that the
term Contingent Obligation shall not include endorsements of instruments for
deposit or collection in the ordinary course of business. The amount of any
Contingent Obligation shall be deemed to be an amount equal to the stated or
determinable amount of the primary obligation in respect of which such
Contingent Obligation is made (or, if less, the maximum amount of such primary
obligation for which such Person may be liable pursuant to the terms of the
instrument evidencing such Contingent Obligation) or, if not stated or
determinable, the maximum reasonably anticipated liability in respect thereof
(assuming such Person is required to perform thereunder) as determined by such
Person in good faith.
"Continuing Directors" means, as of any date of determination, any member
of the board of directors of Borrower who (a) was a member of such board of
directors on the Effective Date or (b) was nominated for election or elected to
such board of directors with the affirmative vote of at least a majority of the
Continuing Directors who were members of such board of directors at the time of
such nomination or election.
"Conversion/Continuation Notice" is defined in Section 2.9.
10
"Customary Permitted Liens" means Permitted Existing Liens, together with
(i) Liens with respect to real estate taxes and assessments to the extent not
due and payable, (ii) Liens to the extent permitted by Section 6.5, (iii) Liens
in favor of the Administrative Agent and securing the Secured Obligations, and
(iv) utility, sanitary sewer, storm drainage access and other easements,
provided such easements do not adversely affect the Project in any material
respect and access to or use of such easements would not materially disturb or
materially affect any material Improvement.
"Date Down Endorsement" is defined in Section 4.2(f).
"Default" means an event described in Article VII.
"Default Amount" is defined in Section 10.11.
"Default Amount Accrued Interest" is defined in Section 10.11(f)(i).
"Default Rate" means the default rate of interest determined pursuant to
Section 2.11.
"Defaulting Lender" is defined in Section 10.11.
"De Minimis Lease" is defined in Section 6.34.
"Effective Date" is defined in the preamble of this Agreement.
"Effective Date Advance" means the Advance in the amount of at least
$100,000,000 that the Lenders have made to Borrower on the Effective Date.
"Eligible Assignee" means (i) any bank, saving and loan association,
investment bank, insurance company, trust company, commercial credit
corporation, real estate mortgage investment conduit, grantor trust, pension
trust, pension plan, pension fund or pension advisory firm, mutual fund,
government entity or plan, real estate investment trust, investment company,
money management firm, "qualified institutional buyer" (within the meaning of
Rule 144A under the Securities Act of 1933, as amended), "accredited investor"
(as defined in Regulation D of the Securities Act), publicly traded corporation,
publicly or privately held fund engaged in real estate, corporate or commercial
lending or investing, or any entity substantially similar to any of the
foregoing, which in each case has a minimum net worth, net assets or net capital
of $100,000,000, and (ii) any Affiliate of any of the foregoing.
"Environmental Indemnity Agreement" means that certain Environmental
Indemnity Agreement dated as of the Effective Date, executed and delivered by
Borrower, Co-Borrower and Subsidiary Guarantors in favor of the Administrative
Agent, for the benefit of the Lenders and other Holders of Secured Obligations,
as it may be amended or modified and in effect from time to time.
"Environmental Laws" means any and all federal, state, local and foreign
statutes, laws, judicial decisions, regulations, ordinances, rules, judgments,
orders, decrees, plans, injunctions, permits, concessions, grants, franchises,
licenses, agreements and other governmental restrictions relating to (i) the
protection of the environment, (ii) the effect of the environment on human
11
health, (iii) emissions, discharges or releases of pollutants, Contaminants,
hazardous substances or wastes into surface water, ground water or land, or (iv)
the manufacture, processing, distribution, use, treatment, storage, disposal,
transport or handling of pollutants, Contaminants, hazardous substances or
wastes or the clean-up or other remediation thereof.
"Environmental Lien" means a Lien in favor of any Governmental Authority
for any (i) liabilities under any Environmental Law, or (ii) damages arising
from, or costs incurred by such Governmental Authority in response to, a Release
or threatened Release of a Contaminant into the environment.
"Environmental Property Transfer Act" means any applicable Requirement of
Law that conditions, restricts, prohibits or requires any notification or
disclosure triggered by the transfer, sale, lease or closure of any Property or
deed or title for any Property for environmental reasons, including, but not
limited to, any so-called "Industrial Site Recovery Act" or "Transfer Act."
"Environmental Report" means, collectively, those reports listed and
described on Schedule 3 hereto.
"Equity Interests" means Capital Stock and all warrants, options or other
rights to acquire Capital Stock.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
amended from time to time, and any rule or regulation issued thereunder.
"Eurodollar Advance" means an Advance which, except as otherwise provided
in Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the applicable Eurodollar Rate.
"Eurodollar Rate" means, with respect to a Eurodollar Advance for the
relevant Interest Period, (a) (i) the arithmetic average (rounded to the nearest
1/16 of 1%) of the offered quotation to first-class banks in the New York
interbank Eurodollar market by the Administrative Agent for United States Dollar
deposits of amounts in immediately available funds comparable to the outstanding
principal amount of the such Eurodollar Advance with maturities comparable to
the Interest Period applicable to such Eurodollar Advance commencing two
Business Days thereafter as of 10:00 A.M. (New York time) on the date which is
two Business Days prior to the commencement of such Interest Period, divided by
(ii) a percentage equal to 100% minus the then stated maximum rate of all
reserve requirements (including, without limitation, any marginal, emergency,
supplemental, special or other reserves required by applicable law) applicable
to any member bank of the Federal Reserve System in respect of Eurocurrency
funding or liabilities as defined in Regulation D (or any successor category of
liabilities under Regulation D) plus (b) the Applicable Margin.
"Excluded Taxes" means, in the case of each Lender or applicable Lending
Office and the Administrative Agent, taxes imposed on its overall net income,
and franchise taxes imposed on it.
12
"Exercise Notice" is defined in Section 10.11.
"Exhibit" refers to an exhibit to this Agreement, unless another document
is specifically referenced.
"FF&E Reserve" is defined in Section 2.20.5.
"FF&E Reserve Account" is defined in Section 2.20.5.
"Federal Funds Effective Rate" means, for any day, an interest rate per
annum equal to the weighted average of the rates on overnight Federal funds
transactions with members of the Federal Reserve System arranged by Federal
funds brokers on such day, as published for such day (or, if such day is not a
Business Day, for the immediately preceding Business Day) by the Federal Reserve
Bank of New York, or, if such rate is not so published for any day which is a
Business Day, the average of the quotations at approximately 11:00 a.m. (New
York time) on such day on such transactions received by the Administrative Agent
from three Federal funds brokers of recognized standing selected by the
Administrative Agent in its sole discretion.
"Financial Contract" of a Person means (i) any exchange-traded or
over-the-counter futures, forward, swap or option contract or other financial
instrument with similar characteristics, or (ii) any Rate Management
Transaction.
"First Required Contributions" is defined in Section 2.20.1.
"Fiscal Quarter" means each calendar quarter beginning January 1, April 1,
July 1 and October 1 of each Fiscal Year.
"Fiscal Year" means January 1 through December 31 of each year.
"Floating Rate" means, for any day, a rate per annum equal to (i) the
Alternate Base Rate for such day plus (ii) the Applicable Margin, in each case
changing when and as the Alternate Base Rate changes.
"Floating Rate Advance" means an Advance which, except as otherwise
provided in Section 2.11, bears interest at the Floating Rate.
"Floating Rate Loan" means a Loan which, except as otherwise provided in
Section 2.11, bears interest at the Floating Rate.
"Force Majeure Event" means a delay in Project Construction due to
strikes, acts of God, casualties, enemy action, insurrection, or other matters
beyond the control of Borrower (despite commercially reasonable efforts to
mitigate the delay in Project Construction caused by such matters), provided
that Borrower gives written notice of any such delay to the Administrative Agent
within the earlier to occur of (a) five (5) Business Days after Borrower knows
or with the exercise of reasonable diligence should have known of the occurrence
of the event resulting in such delay or (b) five (5) Business Days after notice
of same from the Project General Contractor.
13
"Funded Default Amount" is defined in Section 10.11(c).
"Xxxxxxx Cable Networks" means the division of the Borrower consisting of
Country Music Television International, Inc. ("CMTI"), a wholly-owned subsidiary
of Borrower and the nine (9) direct and indirect subsidiaries of CMTI, which
operate five (5) cable networks comprised of MusicCountry Asia Pacific,
MusicCountry Brazil, MusicCountry Latin America, Solo Tango and Video Rola.
"Governmental Approval" means all right, title and interest in any
existing or future certificates, licenses, permits, variances, authorizations
and approvals issued with respect to the Project by any Governmental Authority
having jurisdiction with respect to any Person or Property.
"Governmental Authority" means any nation or government, any federal,
state, local or other political subdivision thereof and any entity exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"GP LP" means GP Limited Partnership, a Florida limited partnership.
"Gross Revenues" means, for any period, all receipts resulting from the
operation of the Project determined net of allowances in accordance with
Agreement Accounting Principles and consistent with the Uniform System of
Accounts for Hotels, 9th Revised Edition, 1996, as published by the Hotel
Association of New York City, as the same may be further revised from time to
time, including, without limitation, rents or other payments from guests and
customers, tenants, licensees and concessionaires and business interruption and
rental loss insurance payments; provided, that Gross Revenues shall exclude (a)
excise, sales, use, occupancy and similar taxes and charges collected from
guests or customers and remitted to Governmental Authorities, (b) gratuities
collected for employees (excluding service charges), (c) security deposits and
other advance deposits, unless and until same are forfeited to Co-Borrower, (d)
federal, state or municipal excise, sales, use or similar taxes collected
directly from patrons or guests or included as part of the sales price of any
goods or services, (e) interest income on the Project's bank accounts or
otherwise earned by Co-Borrower, and (f) rebates, refunds or discounts
(including, without limitation, free or discounted accommodations).
"Ground Leases" means collectively, the Hotel Ground Lease and the Master
Ground Lease.
"Ground Lessor" means Xentury City, or its successors, from time to time,
as the holder or holders of the lessor's interest under the Hotel Ground Lease.
"Guaranty" means that certain Guaranty dated as of the Effective Date,
executed and delivered by the Subsidiary Guarantors in favor of the
Administrative Agent, for the benefit of the Lenders and other Holders of
Secured Obligations, as it may be amended or modified and in effect from time to
time, together with any additional guaranty of payment executed and delivered by
a Subsidiary of Borrower in accordance with Section 6.17 or Section 6.18.
"hereof," "hereto," "hereunder, "herewith" and "herein" shall be deemed to
refer to this Agreement as a whole, and not a particular clause, Section or
Article of this Agreement.
14
"Holders of Secured Obligations" shall mean the Administrative Agent, the
Lenders and the Secured Counterparties under Secured Rate Management
Transactions, if any.
"Hotel Ground Lease" means that certain Opryland Hotel - Florida Ground
Lease, dated as of March 3, 1999, by and between Xentury City, as landlord and
Co-Borrower, as tenant, a memorandum of which was recorded on March 23, 2000 in
Book 1717, Page 796 of the Official Records, as the same may have been or
hereinafter may be amended, modified, substituted or replaced.
"Improvements" means all buildings, fixtures, structures, parking areas,
landscaping and all other improvements whether existing now or hereafter
constructed, together with all machinery and mechanical, electrical, HVAC and
plumbing systems presently located thereon and used in the operation thereof,
excluding (i) any such items owned by utility service providers, (ii) any such
items owned by tenants or other third-parties unaffiliated with the Borrower or
Co-Borrower and (iii) any items of personal property.
"including" means including without limitation.
"Incentive Agreements" means the following, as amended and in effect from
time to time: (a) the Joint Marketing Agreement dated as of October 1, 1998, by
and between Osceola County, Florida (the "County") and Opryland Hospitality,
Inc. and (b) the Public Improvements Partnership Agreement (the "PIP") dated as
of October 1, 1998, between the County and Xentury City Community Development
District.
"Indebtedness" means, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services
(other than, to the extent deferred in the ordinary course of business, deferred
payments in respect of services by employees) due more than 90 days after
acquisition of the property or receipt of services or which is otherwise
represented by a note, (ii) the maximum amount available to be drawn under all
Letters of Credit issued for the account of such Person and all unpaid drawings
in respect of such Letters of Credit, (iii) all Indebtedness of the types
described in clause (i), (ii), (iv), (v) or (vi) of this definition secured by
any Lien on any property owned by such Person, whether or not such Indebtedness
has been assumed by such Person (to the extent of the lesser of the amount of
such Indebtedness and the value of the respective property), (iv) Capitalized
Lease Obligations, (v) all Contingent Obligations of such Person, and (vi) Rate
Management Obligations.
"Initial Construction Budget" means the construction budget attached
hereto as Schedule 1, together with any modifications thereto made after the
Effective Date and prior to the existence of the Approved Construction Budget
that are either Permissible Modifications or approved in writing by Borrower,
Co-Borrower and the Administrative Agent pursuant to the terms of this
Agreement.
"Initial Funding Date" means the date on which all of the conditions
described in Article IV, as applicable, have been satisfied (or waived) in a
manner satisfactory to the Lenders and on which the Effective Date Advance under
this Agreement is made by the Lenders.
"Initial Lender Affiliate" is defined in Section 9.5.
15
"Interest Period" means, with respect to a Eurodollar Advance, a period of
one, two or three months commencing on a Business Day selected by Borrower
pursuant to this Agreement. Such Interest Period shall end on the day which
corresponds numerically to such date one, two or three months thereafter;
provided, however, that if there is no such numerically corresponding day in
such next, second or third succeeding month, such Interest Period shall end on
the last Business Day of such next, second or third succeeding month. If an
Interest Period would otherwise end on a day which is not a Business Day, such
Interest Period shall end on the next succeeding Business Day; further provided,
however, that if said next succeeding Business Day falls in a new calendar
month, such Interest Period shall end on the immediately preceding Business Day.
Notwithstanding the foregoing, during the period when Advances are being made
hereunder, an Interest Period that is up to five (5) days more or less than one
month may be selected in order to coordinate the expiration of such Interest
Period with that of another Interest Period.
"Interest Reserve Account" is defined in Section 2.20.3.
"Interest Reserve Deposit" is defined in Section 2.20.3.
"Investment" of a Person means any loan, advance (other than commission,
travel and similar advances to officers and employees made in the ordinary
course of business), extension of credit (other than accounts receivable arising
in the ordinary course of business on terms customary in the trade) or
contribution of capital by such Person; stocks, bonds, mutual funds, partnership
interests, notes, debentures or other securities owned by such Person; any
deposit accounts and certificate of deposit owned by such Person; and structured
notes, derivative financial instruments and other similar instruments or
contracts owned by such Person.
"Law" means, collectively, all Requirements of Law and all Environmental
Laws.
"Lease" means a lease, sublease, license, concession agreement or other
agreement (not including the Ground Leases) providing for the use or occupancy
of any portion of any Real Property owned or leased by Co-Borrower, including
all amendments, supplements, modifications and assignments thereof and all side
letters or side agreements relating thereto.
"Lender Payment Portion" is defined in Section 10.11(b).
"Lenders" means the lending institutions listed on the signature pages of
this Agreement and their respective successors and assigns.
"Lending Office" means, with respect to a Lender or the Administrative
Agent, the office, branch, subsidiary or affiliate of such Lender or the
Administrative Agent listed on the signature pages hereof or otherwise selected
by such Lender or the Administrative Agent pursuant to Section 2.17.
"Letter of Credit" of a Person means a letter of credit or similar
instrument which is issued upon the application of such Person or upon which
such Person is an account party or for which such Person is in any way liable.
16
"Liabilities and Costs" means all liabilities, obligations,
responsibilities, losses, damages, personal injury, death, punitive damages,
economic damages, consequential damages, treble damages, intentional, willful or
wanton injury, damage or threat to the environment, natural resources or public
health or welfare, disbursements, costs and expenses (including attorney, expert
and consulting fees and costs of investigation, feasibility or Remedial Action
studies), fines, penalties and monetary sanctions, interest, direct or indirect,
known or unknown, absolute or contingent, past, present or future.
"Lien" means any mortgage, deed of trust, pledge, hypothecation,
assignment, conditional sale agreement, deposit arrangement, security interest,
encumbrance, lien (statutory or other and including any Environmental Lien),
preference, priority or other security agreement or preferential arrangement of
any kind or nature whatsoever in respect of any property of a Person, whether
granted voluntarily or imposed by law, and includes the interest of a lessor
under a Capitalized Lease or under any financing lease having substantially the
same economic effect as any of the foregoing and the filing of any financing
statement or similar notice naming the owner of such property as debtor, under
the Uniform Commercial Code or other comparable law of any jurisdiction.
"Loan" means, with respect to a Lender, a loan made by such Lender
pursuant to Article II (or any conversion or continuation thereof).
"Loan-to-Cost Limit" at any time means the least of (a) the Aggregate
Commitment, (b) an amount which is fifty percent (50%) of the total Approved
Construction Costs for the Project incurred through such date and (c) an amount
which is fifty percent (50%) of the prospective appraised value of the Project
as of the date of completion, as determined by the Appraisal delivered to the
Administrative Agent in satisfaction of the condition precedent set forth in
Section 4.1(n) hereof.
"Loan Documents" means this Agreement, any Notes issued pursuant to
Section 2.13, the Collateral Documents, the Environmental Indemnity Agreement,
the Guaranty, the Property Manager's Subordination Agreement and all other
agreements, assignments, consents, acknowledgments and other instruments,
including, without limitation, opinions of counsel, executed by Borrower,
Co-Borrower, the Property Manager or any other Person in favor of any of the
Administrative Agent or the Lenders pursuant to this Agreement or in connection
with the Advances and other transactions contemplated hereby.
"Management Agreement" means the property management agreement with the
Property Manager for the Project, as approved by the Administrative Agent prior
to or in connection with Borrower's satisfaction of the Completion Conditions.
"Management Fees" means the management and other fees payable under the
Management Agreement.
"Master Ground Lease" means that certain GP/Xentury Master Ground Lease,
dated as of March 3, 1999, by and between GP LP, as landlord and Xentury City,
as tenant, a memorandum of which was recorded on March 23, 2000 in Book 1717,
Page 775 of the Official Records, as the same may have been or hereinafter may
be amended, modified, substituted or replaced.
17
"Master Lessor" means GP LP, or its successors, from time to time, as the
holder or holders of the Lessor's interest under the Master Ground Lease.
"Material Adverse Effect" means a material adverse effect on the business,
operations, property, condition (financial or otherwise) or prospects of
Borrower and the Subsidiary Guarantors, taken as a whole, and/or Co-Borrower, or
an event, condition or circumstance as a result of which any of the following
shall have occurred or the Administrative Agent, after consultation with the
Construction Consultant, if applicable, determines that it is substantially
likely that any of the following may occur: (i) that the Completion Conditions
would not be fulfilled on or before the Required Completion Date, or (ii) that
the validity or enforceability of any of the Loan Documents, or the rights or
remedies of the Administrative Agent or the Lenders thereunder, shall be
impaired.
"Maturity Date" means the third anniversary of the Effective Date.
"Moody's" means Xxxxx'x Investors Service, Inc.
"Mortgage" means the Leasehold and Fee Mortgage, Security Agreement,
Assignment of Rents and Leases and UCC Fixture Filing, executed and delivered to
the Administrative Agent (for the benefit of the Lenders and other Holders of
Secured Obligations) by the Co-Borrower securing the Secured Obligations, as
such document may be amended, restated, modified or supplemented from time to
time.
"Mortgage Title Insurance Policy" means an American Land Title Association
loan policy (1970 Form), insuring the Mortgage as a valid and subsisting first
mortgage, encumbering the Project, subject only to the Permitted Existing Liens,
and naming the Administrative Agent as the insured party, in such form as
excludes any exception for creditors' rights, and containing (i) a so-called
Florida Form 9 endorsement; (ii) a survey endorsement; (iii) a contiguity
endorsement; (iv) an additional interest endorsement; and (v) such other
endorsements as the Administrative Agent may require and which are available in
the State of Florida, and also accompanied by reinsurance in such amounts and
from such title insurance reinsurers as the Administrative Agent may require,
provided pursuant to direct access facultative reinsurance agreements in form
and substance satisfactory to Administrative Agent, as such title insurance
policy and reinsurance agreements may be revised and updated from time to time
with the Administrative Agent's consent.
"Nashville Financing" means, collectively, (a) the loan in the original
principal amount of $275,000,000.00 made as of March 27, 2001 by Xxxxxxx Xxxxx
Mortgage Lending, Inc. to Opryland Hotel Nashville, LLC, secured by, among other
things, a first priority deed of trust encumbering Opryland Nashville, as in
effect on the date hereof and (b) the loan (the "Nashville Mezzanine Loan") in
the original principal amount of $100,000,000.00 made as of March 27, 2001 by
Xxxxxxx Xxxxx Mortgage Capital Inc. to OHN Holdings LLC, secured by, among other
things, a Pledge by OHN Holdings LLC of its membership interest in Opryland
Hotel Nashville, LLC, as in effect on the date hereof.
"Net Cash Proceeds" means the aggregate cash proceeds (including any cash
received by way of deferred payment pursuant to, or by monetization of, a note
receivable or otherwise, as
18
and when so received) received by Borrower or any of its Subsidiaries from any
Asset Sale less the sum, without duplication, of (a) the amounts required to be
applied to the repayment of Indebtedness or secured by a Lien on such Property
(other than the Obligations), (b) the direct costs relating to such sale or
other disposition (including, without limitation, legal, accounting and sales
fees and commissions), including income taxes paid or estimated to be actually
payable as a result thereof, after taking into account any available tax credits
or deductions and any tax sharing arrangements (provided that the amount of
income taxes so estimated to be actually payable shall be approved by the
Administrative Agent, which approval shall not be unreasonably withheld,
conditioned or delayed), (c) a reserve for all adjustments that are reasonably
likely to be made to the sales price, and (d) the amount of any cash reserve
actually provided by Borrower or the applicable Subsidiary, in accordance with
Agreement Accounting Principles, after such sale or other permanent disposition,
including, without limitation, for liabilities related to environmental matters
and liabilities under any indemnification obligations, but only to the extent
and for so long as a cash reserve is actually established.
"Net Operating Income" means, for any period, the amount by which Gross
Revenues for such period exceeds Operating Expenses for such period, where Gross
Revenues and Operating Expenses are determined on an accrual basis, except for
ground rents payable under the Hotel Ground Lease, which, for the purposes of
this definition, will be determined on a cash basis, in accordance with
Agreement Accounting Principles, excluding from Operating Expenses for the
purpose of calculating Net Operating Income, however, (i) deposits into the FF&E
Reserve Account, (ii) Management Fees and (iii) pre-opening expenses.
"Non-Defaulting Lenders" means at any time all Lenders which are not then
Defaulting Lenders or their Affiliates.
"Non-Material Casualty" means a casualty occurring prior to the Completion
Date in connection with which (i) the Co-Borrower has developed a plan for the
Restoration of the Project which provides for satisfaction of the Completion
Conditions on or before the Required Completion Date and is otherwise
satisfactory to the Administrative Agent, (ii) the Co-Borrower has demonstrated
to the Administrative Agent's satisfaction that such Restoration shall be
completed pursuant to such plan, and (iii) the Co-Borrower has demonstrated to
the Administrative Agent's satisfaction that the combination of insurance
proceeds, equity contributions and remaining Available Aggregate Commitment, if
any, will be sufficient to pay the costs of such Restoration pursuant to such
plan without causing an Out-of-Balance Condition. A casualty which initially is
determined to be a Non-Material Casualty shall no longer constitute a
Non-Material Casualty if the conditions set forth in clauses (i) through (iii)
above are no longer satisfied, due to a change in circumstances or otherwise.
"Non-Material Condemnation" means a condemnation in connection with which
(i) the Administrative Agent determines that no material portion of the Project
is affected, and no portion of the Project is affected which could reasonably be
expected to have a material adverse impact on the development, construction,
completion, use, operation or value of the Project or any of its components,
including any driveways, accessways, parking areas or recreation facilities,
(ii) the Co-Borrower has developed a plan for any necessary (in the
Administrative Agent's determination) Restoration of the Project which provides
for the satisfaction of the Completion Conditions on or before the Required
Completion Date and is otherwise reasonably
19
satisfactory to the Administrative Agent, (iii) the Co-Borrower has demonstrated
to the Administrative Agent's reasonable satisfaction that such Restoration
shall be completed pursuant to such plan, and (iv) the Co-Borrower has
demonstrated to the Administrative Agent's satisfaction that the combination of
the condemnation award, equity contributions and remaining Available Aggregate
Commitment, if any, will be sufficient to pay the costs of such Restoration
pursuant to such plan without causing an Out-of-Balance Condition. A
condemnation which initially is determined to be a Non-Material Condemnation
shall no longer constitute a Non-Material Condemnation if the conditions set
forth in clauses (i) through (iv) above are no longer satisfied, due to a change
in circumstances or otherwise.
"Non-Material Project Agreements" is defined in the definition of "Project
Agreements."
"Non-U.S. Lender" is defined in Section 3.5(iv).
"Note" means any promissory note in the form of Exhibit B issued pursuant
to Section 2.13.
"Obligations" means all unpaid principal of and accrued and unpaid
interest on the Loans, all accrued and unpaid fees and all expenses,
reimbursements, indemnities and other obligations of Borrower and Co-Borrower to
the Lenders or to any Lender, the Administrative Agent or any indemnified party
arising under the Loan Documents. The term "Obligations" includes all interest,
charges, expenses, fees, Protective Advances, attorneys' fees and disbursements
and any other sum chargeable to Borrower, Co-Borrower or any Subsidiary
Guarantor under this Agreement or any other Loan Document.
"Off-Balance Sheet Liability" of a Person means (i) any repurchase
obligation or liability of such Person with respect to accounts or notes
receivable sold by such Person, (ii) any liability under any Sale and Leaseback
Transaction which is not a Capitalized Lease, (iii) any liability under any
so-called "synthetic lease" transaction entered into by such Person, or (iv) any
obligation arising with respect to any other transaction which is the functional
equivalent of or takes the place of borrowing but which does not constitute a
liability on the balance sheets of such Person.
"Official Records" means the official records of Osceola County, Florida.
"Opening Date" means the date on which the Project or any material portion
thereof first opens for business to the general public.
"Operating and Capital Budget" is defined in Section 6.1(iv).
"Operating Expenses" means, for any period, the actual costs and expenses
of owning, operating, managing, repairing and maintaining the Project during
such period incurred by Co-Borrower; provided, however, that in no event shall
Operating Expenses include (a) interest and/or principal due on the Loans, or
other Indebtedness, (b) distributions or other payments to Co-Borrower,
Borrower, or any partners, members or Affiliates of either, (c) income taxes,
and (d) depreciation, amortization and other non-cash items.
"Operating Year" is defined in the definition of "Required FF&E
Percentage."
20
"Opryland Nashville" is defined in Section 6.18.
"Organizational Documents" means, with respect to any corporation, limited
liability company, or partnership (i) the articles/certificate of incorporation
(or the equivalent organizational documents) of such corporation or limited
liability company, (ii) the partnership agreement executed by the partners in
the partnership, (iii) the by-laws (or the equivalent governing documents) of
the corporation, limited liability company or partnership and (iv) any document
setting forth the designation, amount and/or relative rights, limitations and
preferences of any class or series of such corporation's capital stock or such
limited liability company's or partnership's equity or ownership interests.
"Other Taxes" is defined in Section 3.5(ii).
"Out-of-Balance Condition" is defined in Section 2.20.4.
"Outstanding Credit Exposure" means, as to any Lender at any time, the sum
of the aggregate principal amount of its Loans outstanding at such time.
"Participants" is defined in Section 12.2.1.
"Permissible Modification" means (i) any reallocation among line items in
the Approved Construction Budget, (ii) any change order or other amendment to
any Construction Agreement, (iii) any amendment, addition or other change to the
Approved Plans and Specifications or (iv) any amendment or other change to the
Approved Project Schedule (any of items (i), (ii), (iii) and (iv) being
hereinafter referred to as a "Modification"), which Modification satisfies all
of the following conditions:
(a) Such Modification has been approved in writing by Borrower,
Co-Borrower and (1) in the case of a Modification (including any change order)
to any agreement, the parties thereto, and (2) in the case of any Modification
to the Plans and Specifications, the Project General Contractor and the Project
Architect, and copies of such Modification and approvals have been promptly
furnished to the Administrative Agent;
(b) Such Modification is consistent with the Project Scope of Work
and complies with all applicable Laws;
(c) Such Modification does not impair the ability of Co-Borrower to
fulfill the Completion Conditions on or before the Required Completion Date;
(d) Such Modification will not have a material adverse effect on the
operation or financial performance of the Project;
(e) Such Modification is not otherwise prohibited by this Agreement;
and
(f) In the case of a Modification consisting of a reallocation of
line items within the Approved Construction Budget, such Modification is either
(i) a reallocation of actual cost savings in one or more line items within a
single category of line item costs to one or more line items within the same
category (i.e., a reallocation of actual cost savings among line items
21
within "Building Construction" or "Furniture, Fixtures and Equipment" or "Soft
Costs" but not from one of such line item categories to another) or (ii) a
reallocation from the "Contingency" line item to any other line item, not in
excess of $500,000 in any one instance or in excess of $3,000,000 in the
aggregate, taken together with all such reallocations from "Contingency" to
another line item.
"Permits" means any permit, consent, approval, authorization license,
variance, or permission with respect to the Project required from any Person,
including any Governmental Approvals.
"Permitted Debt" is defined in Section 6.14.
"Permitted Existing Liens" means the Liens identified as such on Exhibit
C.
"Permitted FF&E Expenditures" means expenditures made by Co-Borrower from
time to time after the Completion Date for normal maintenance capital
expenditures or capital improvements in connection with the Project, including
furniture, fixtures and equipment, provided that all such expenditures are
substantially consistent with Co-Borrower's Approved FF&E Budget, as the same
may be adjusted from time to time, with the consent of the Administrative Agent,
which shall not be unreasonably withheld, to reallocate cost savings among line
items therein.
"Person" means any natural person, corporation, firm, joint venture,
partnership, limited liability company, association, enterprise, trust or other
entity or organization, or any government or political subdivision or any
agency, department or instrumentality thereof.
"PIP" is defined in the definition of "Incentive Agreements."
"Plans and Specifications" is defined in Section 4.1(p).
"Pledge Agreement" means the Pledge Agreement of even date herewith by
Borrower in favor of the Administrative Agent with respect to Borrower's direct
and indirect equity interests in Co-Borrower.
"Prime Lending Rate" means a rate per annum equal to the prime lending
rate announced from time to time by the New York office of the Administrative
Agent (in its individual capacity) or, if such office ceases to announce such
rate, such other United States office of the Administrative Agent or an
Affiliate selected by it from time to time, such per annum rate changing when
and as said prime rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. The Administrative Agent may make commercial loans or other loans at
rates of interest at, above or below the Prime Lending Rate.
"Project" means Co-Borrower's ground lease and other interests in the Real
Property more particularly described on Exhibit D and the Improvements
constructed and to be constructed thereon, consisting of a first-class hotel and
convention center known as the "Opryland Hotel Florida," comprised of an
approximately 1,400 room full-service hotel, 380,000 square feet of meeting
space, a 178,000 square foot exhibition hall; three full service restaurants,
22
a spa and fitness facility and related facilities, together with all Property of
Co-Borrower now or hereafter constructed or located thereon or used in
connection therewith.
"Project Agreements" means all material agreements executed by the
Co-Borrower (or to which the Co-Borrower or the Project shall be subject) for
the construction, development, financing, leasing and management of the Project,
including the Management Agreement, the Incentive Agreements and all
Construction Agreements. The following (collectively, "Non-Material Project
Agreements") shall not be "Project Agreements" for the purposes of this
Agreement: (a) agreements with respect to operation of the Project entered into
by Co-Borrower in the ordinary course of business, other than Leases and the
Management Agreement, provided that each of such Agreements is (i) on
arms-length terms and conditions (ii) cancelable on not more than 90 days
notice, without penalty or premium and (iii) represents a cost not in excess of
$300,000.00 in any Fiscal Year, and (b) De Minimis Leases.
"Project Architect" is defined in Section 4.1(o).
"Project Architect's Agreement" is defined in Section 4.1(o).
"Project Construction" means the construction of the Project contemplated
under the Approved Plans and Specifications, and all work related thereto.
"Project General Contract" is defined in Section 4.1(s).
"Project General Contractor" means Xxxxxx Xxxxx Joint Venture, a Florida
joint venture.
"Project Schedule" is defined in Section 4.1(t).
"Project Scope of Work" means the development and construction of the
Project substantially in accordance with the Approved Plans and Specifications.
"Pro Rata Share" means, with respect to a Lender, a portion equal to a
fraction the numerator of which is such Lender's Commitment and the denominator
of which is the Aggregate Commitment.
"Property" of a Person means any and all property, whether real, personal,
tangible, intangible, or mixed, of such Person, or other assets owned, leased or
operated by such Person.
"Property Award Event" is defined in Section 6.27.
"Property Awards" means all compensation, awards, damages, refunds,
claims, rights of action and proceeds (including cash, equivalents readily
convertible into cash, and such proceeds of any notes received in lieu of cash)
payable under policies of property damage, boiler and machinery, rental loss,
rental value and business interruption insurance or with respect to any
condemnation or eminent domain claim or award relating to the Project or any
portion thereof.
"Property Manager" means Opryland Hospitality, LLC, a Tennessee limited
liability company, and its successors and permitted assigns under the Management
Agreement.
23
"Protective Advances" is defined in Section 9.19.
"Quarterly Payment Date" means each March 31, June 30, September 30 and
December 31 occurring after the Effective Date.
"Rate Management Obligations" of a Person means any and all obligations of
such Person, whether absolute or contingent and however and whenever created,
arising, evidenced or acquired (including all renewals, extensions and
modifications thereof and substitutions therefor), under (i) any and all Rate
Management Transactions, and (ii) any and all cancellations, buy backs,
reversals, terminations or assignments of any Rate Management Transactions.
"Rate Management Transaction" means, with respect to any Person, any
transaction (including an agreement with respect thereto) now existing or
hereafter entered into between such Person and any counterparty which is a rate
swap, basis swap, forward rate transaction, commodity swap, commodity option,
equity or equity index swap, equity or equity index option, bond option,
interest rate option, foreign exchange transaction, cap transaction, floor
transaction, collar transaction, forward transaction, currency swap transaction,
cross-currency rate swap transaction, currency option or any other similar
transaction (including any option with respect to any of these transactions) or
any combination thereof, whether linked to one or more interest rates, foreign
currencies, commodity prices, equity prices or other financial measures.
"Real Property" means the present and future right, title and interest
(including any leasehold estate) in (i) any plots, pieces or parcels of land,
(ii) any Improvements of every nature whatsoever (the rights and interests
described in clauses (i) and (ii) above being, for the purpose of this
definition, the "Premises"), (iii) all easements, rights of way, gores of land
or any lands occupied by streets, ways, alleys, passages, sewer rights, water
courses, water rights and powers, and public places adjoining such land, and any
other interests in property constituting appurtenances to the Premises, or which
hereafter shall in any way belong, relate or be appurtenant thereto, (iv) all
hereditaments, gas, oil, minerals (with the right to extract, sever and remove
such gas, oil and minerals), and easements, of every nature whatsoever, located
in, on or benefiting the Premises and (v) all other rights and privileges
thereunto belonging or appertaining and all extensions, additions, improvements,
betterments, renewals, substitutions and replacements to or of any of the rights
and interests described in clauses (iii) and (iv) above.
"Regulation D" means Regulation D of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor thereto or other
regulation or official interpretation of said Board of Governors relating to
reserve requirements applicable to member banks of the Federal Reserve System.
"Regulation T" means Regulation T of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof
"Regulation U" means Regulation U of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor or other
regulation or official interpretation of said Board of Governors relating to the
extension of credit by banks for the purpose of purchasing or carrying margin
stocks applicable to member banks of the Federal Reserve System.
24
"Regulation X" means Regulation X of the Board of Governors of the Federal
Reserve System as from time to time in effect and any successor to all or a
portion thereof.
"Release" means any release, spill, emission, leaking, pumping, pouring,
dumping, injection, deposit, disposal, abandonment, or discarding of barrels,
containers or other receptacles, discharge, emptying, escape, dispersal,
leaching or migration into the indoor or outdoor environment or into or out of
any Property, including the movement of Contaminants through or in the air,
soil, surface water, groundwater or Property.
"Remedial Action" means any remedial actions as may be prudent or required
from time to time to comply with Environmental Laws.
"Required Completion Date" means June 30, 2002.
"Required FF&E Percentage" of Gross Revenues means, with respect to each
Operating Year, the following percentage:
Operating Year Designated Percentage
-------------- ---------------------
Operating Year One 1.0%
Operating Year Two 2.0%
Operating Year Three 3.0%
As used herein, "Operating Year" means each period of one year beginning
on the Opening Date and thereafter on each anniversary thereof.
"Required Lenders" means at least two Non-Defaulting Lenders in the
aggregate having at least fifty-one percent (51%) of the aggregate of the
Commitments of all the Non-Defaulting Lenders or, if the Aggregate Commitment
has been expired or terminated, at least two Non-Defaulting Lenders in the
aggregate holding at least fifty-one percent (51%) of the aggregate of the
Outstanding Credit Exposures held by each of the Non-Defaulting Lenders.
"Required Lien Waivers" means written waivers of Lien from Persons
furnishing labor or materials in connection with the Project, in customary form,
duly executed, acknowledged and delivered, and sufficient in all respects to
cause the Title Insurer to issue the Mortgage Title Insurance Policy and Date
Down Endorsements thereto from time to time provided for in this Agreement.
"Requirements of Law" means, as to any Person the charter and by-laws or
other organizational or governing documents of such Person, and as to any Person
or Property, any law, rule, code or regulation, or determination of an
arbitrator or a court or other Governmental Authority, in each case applicable
to or binding upon such Person or Property or to which such Person or Property
is subject, including the Securities Act, the Securities Exchange Act,
Regulations G, T, U and X, ERISA, the Fair Labor Standards Act, the Worker
Adjustment and Retraining Notification Act, Americans with Disabilities Act of
1990, any certificate of occupancy, zoning or land use ordinance, building,
environmental or land use requirement, code or Permit.
25
"Reserve Account Bank" is defined in definition of "Account Control
Agreement."
"Reserve Requirement" means, with respect to an Interest Period, the
maximum aggregate reserve requirement (including all basic, supplemental,
marginal and other reserves) which is imposed under Regulation D on Eurocurrency
liabilities.
"Restoration" is defined in Section 6.27(b).
"Restoration Account" is defined in Section 6.27(c).
"SAILS Forward Exchange Contract" means the SAILS Mandatorily Exchangeable
Securities Contract dated May 22, 2000, among Borrower, OLH, GP, Credit Suisse
First Boston International, and Credit Suisse First Boston Corporation, as
Agent, together with the SAILS Pledge Agreement dated as of May 22, 2000, among
Borrower, Credit Suisse First Boston International, and Credit Suisse First
Boston Corporation, as Agent, as amended by letter dated October 6, 2000 by
Credit Suisse First Boston International and Credit Suisse First Boston
Corporation to OLH G.P. and Xxxxxxx Xxxxx Mortgage Capital, Inc.
"S&P" means Standard and Poor's Ratings Services, a division of The McGraw
Hill Companies, Inc.
"Sale and Leaseback Transaction" means any sale or other transfer of
Property by any Person with the intent to lease such Property as lessee.
"Schedule" refers to a specific schedule to this Agreement, unless another
document is specifically referenced.
"Section" means a numbered section of this Agreement, unless another
document is specifically referenced.
"Secured Counterparties" means Lenders and any Affiliates of any of them,
which in either case are parties to any Secured Rate Management Transactions
entered into by Borrower in accordance with Section 6.21 of this Agreement,
together with their successors and assigns under such Secured Rate Management
Transactions.
"Secured Obligations" means, collectively, (i) the Obligations and (ii)
the Secured Rate Management Obligations.
"Secured Rate Management Obligations" means Rate Management Obligations
from time to time payable by Borrower to one or more Secured Counterparties
under a Secured Rate Management Transaction.
"Secured Rate Management Transaction" means a Rate Management Transaction
between the Borrower and one or more of the Secured Counterparties (but not any
other Rate Management Transaction to which Borrower is or may hereafter be a
party).
"Securities Act" means the Securities Act of 1933, as amended from time to
time, and any successor statute.
26
"Securities Exchange Act" means the Securities Exchange Act of 1934, as
amended from time to time, and any successor statute.
"Subsidiary" means, with respect to any Person, any corporation,
partnership, limited liability company, association, joint venture or other
business entity of which more than 50% of the total voting power of shares of
stock or other ownership interests entitled (without regard to the occurrence of
any contingency) to vote in the election of the Person or Persons (whether
directors, managers, trustees or other Persons performing similar functions)
having the power to direct or cause the direction of the management and policies
thereof is at the time owned or controlled, directly or indirectly, by that
Person or one or more of the other Subsidiaries of that Person or a combination
thereof.
"Subsidiary Guarantor" means each of the Persons listed on Schedule 4,
together with each direct and indirect wholly-owned Subsidiary of Borrower
formed or acquired after the date hereof and, if required to execute a guaranty
pursuant to Section 6.18(c), the Creative Group Subsidiaries.
"Survey" means a plat of survey showing the outline of the applicable Real
Property (A) prepared in accordance with the standards issued by the American
Land Title Association, bearing a proper certificate by the surveyor, which
certificate shall include the legal description of the Real Property and shall
be made in favor of the Administrative Agent, the Title Insurer, Co-Borrower,
and such other parties as the Administrative Agent may direct, (B) showing or
stating (1) the square footage of the land; (2) any encroachments by any
Improvements located on adjoining property onto such Real Property or of any
Improvements comprising a portion of such Real Property onto adjoining property;
(3) that such Improvements are not located in a 100-year flood plain or special
flood hazard area; and (4) such additional information as may be required by the
Administrative Agent or the Title Insurer and (C) if any water, gas, electrical,
storm or sanitary sewerage or other utility facilities serving any of such Real
Property are located or are to be located in land beyond such Real Property,
other than land or easements which have been dedicated to the public or to the
utility which is to furnish the service, accompanied by evidence satisfactory to
the Administrative Agent of the existence of permanent easement rights therefor
benefiting such Real Property, in form and substance reasonably satisfactory to
the Administrative Agent, which easement rights shall be covered by the Lien of
the Mortgage and which Lien shall be insured under the applicable Mortgage Title
Insurance Policy.
"Syndication Date" shall mean the earlier to occur of (x) February 28,
2002 and (y) that date upon which the Administrative Agent and Joint Book
Running Managers determine in their sole discretion (and notify the Borrower)
that the primary syndication with respect to the Commitments and Loans
contemplated hereby (and the resultant addition of Persons as Lenders pursuant
to Article XII) has been completed.
"Taxes" means any and all present or future taxes, duties, levies,
imposts, deductions, charges or withholdings, and any and all liabilities with
respect to the foregoing, but excluding Excluded Taxes and Other Taxes.
"Title Insurer" means First American Title Insurance Company, Lawyers
Title Insurance Corporation, Chicago Title Insurance Company, as co-insurers.
27
"Transfer" means any sale, conveyance, transfer, disposition, alienation,
hypothecation, lease, assignment, pledge, mortgage, encumbrance or divestiture,
whether direct or indirect, voluntary or involuntary.
"Transferee" is defined in Section 12.4.
"Type" means, with respect to any Advance, its nature as a Floating Rate
Advance or a Eurodollar Advance.
"Unanimous Lenders" means Non-Defaulting Lenders in the aggregate having
one hundred percent (100%) of the aggregate of the Commitments of all the
Non-Defaulting Lenders or, if the Aggregate Commitment has expired or been
terminated, Non-Defaulting Lenders in the aggregate holding one hundred percent
(100%) of the aggregate of the Outstanding Credit Exposures held by each of the
Non-Defaulting Lenders.
"Uniform Commercial Code" means the Uniform Commercial Code as enacted in
the State of New York, as it may be amended from time to time.
"Unmatured Default" means an event which but for the lapse of any time
period or the giving of any notice, or both, would constitute a Default.
"Unmatured Monetary Default" means, as of any date, any nonpayment of
principal of or interest on any Loan, any commitment fee or any other
Obligations payable to the Administrative Agent or any of the Lenders under any
of the Loan Documents due on or before such date, of which nonpayment the
Administrative Agent has given the Borrower and the Co-Borrower written notice
and which nonpayment has not been cured as of such date.
"Creative Group Subsidiaries" means, collectively, Xxxxxxx Creative Group
Records, Inc., a Tennessee corporation, Word Music Group, Inc., a Tennessee
corporation, Dayspring Music, Inc., a Tennessee corporation, Word Music, Inc., a
Tennessee corporation, Wordspring Music, Inc., a Tennessee corporation and Word
Entertainment Direct, LLC, a Tennessee limited liability company (each, a
"Creative Group Subsidiary").
"Xentury City" means Xentury City Development Company, L.C., a Florida
limited liability company.
The foregoing definitions shall be equally applicable to both the singular
and plural forms of the defined terms.
ARTICLE II
THE CREDITS
2.1 Commitment. (a) From and including the Effective Date and on or prior
to May 1, 2002 (or any earlier date on which the Aggregate Commitment is reduced
to zero or otherwise terminated pursuant to the terms hereof), each Lender
severally agrees, on the terms and conditions set forth in this Agreement, to
make Advances to Borrower, ratably in accordance with each Lender's Pro Rata
Share, provided that, after giving effect to the making of each such
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Loan, such Lender's Outstanding Credit Exposure shall not exceed the amount of
its Commitment. Principal payments made on the Advances may not be reborrowed
and shall permanently reduce each Lender's Commitment by the amount of such
principal payment multiplied by such Lender's Pro Rata Share.
2.2 Required Payments; Termination.
(a) Borrower shall make the principal payments on the Loans required
under Sections 6.13 and 6.17, and shall make additional principal payments
necessary to reduce the Aggregate Outstanding Credit Exposure to an amount not
in excess of the amounts set forth below, on or before the corresponding date
set forth for each such amount:
----------------------------------------------------- ------------------------------------
Maximum Aggregate Outstanding Credit
Date Exposure
----------------------------------------------------- ------------------------------------
Eighteenth-month anniversary of the Effective Date: $150,000,000
----------------------------------------------------- ------------------------------------
Twenty-four month anniversary of the Effective Date: $100,000,000
----------------------------------------------------- ------------------------------------
Thirty-month anniversary of the Effective Date: $ 50,000,000
----------------------------------------------------- ------------------------------------
(b) The Aggregate Outstanding Credit Exposure and all other unpaid
Obligations shall be paid in full by the Borrower on the Maturity Date or on any
earlier date on which the Obligations become due and payable pursuant to the
terms hereof.
2.3 Ratable Loans.
Each Advance hereunder shall consist of Loans made from the several
Lenders ratably according to their Pro Rata Shares.
2.4 Types of Advances.
The Advances may be Floating Rate Advances or Eurodollar Advances,
or a combination thereof, selected by the Borrower in accordance with Sections
2.8 and 2.9.
2.5 Commitment and Agency Fees.
(a) Borrower agrees to pay to the Administrative Agent (i) for the
account of each Lender party hereto on the date hereof according to its Pro Rata
Share as of the date hereof all commitment fees, as and when payable pursuant to
the terms of that certain letter agreement dated August 13, 2001, between
Bankers Trust Company, Citicorp Real Estate, Inc. and CIBC Inc. and Borrower and
(ii) for the account of each Lender according to its Pro Rata Share an undrawn
fee of 0.375% per annum on the average daily Available Aggregate Commitment from
the Effective Date to and including May 1, 2002, payable in arrears on November
5, 2001, February 5, 2002 and May 5, 2002. All accrued undrawn fees shall be
payable on the effective date of any termination of the obligations of the
Lenders to make Advances hereunder.
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(b) Borrower agrees to pay when due to the Administrative Agent, for
its own account, the fees (herein referred to as the "Agency Fee") set forth in
that certain letter agreement dated August 13, 2001, between Administrative
Agent and Borrower.
2.6 Minimum Amount of Each Advance; Disbursement Provisions.
(a) With the exception of the Effective Date Advance, each
Eurodollar Advance shall be in the minimum amount of $3,000,000, and each
Floating Rate Advance shall be in the minimum amount of $3,000,000, provided,
however, that any Floating Rate Advance may be less than such minimum amount if
it is in the amount of the Available Aggregate Commitment. No more than eight
(8) Eurodollar Advances may be outstanding at any time. Loan disbursements shall
be made subject to the provisions of Section 2.8 hereof, and shall be made not
more frequently than once each calendar month at intervals of not less than
thirty (30) days.
(b) The Lenders shall not be obligated to:
(i) make any Loans hereunder unless and until the applicable
conditions precedent set forth in Article IV shall have been satisfied or waived
by the Administrative Agent;
(ii) make any Loans for any purpose, in an amount which, in
the aggregate, taken together with all Loans previously made, would exceed the
Loan-to-Cost Limit;
(iii) make any Loan if (A) except for a Non-Material Casualty
or a Non-Material Condemnation, the Improvements are demolished or are in the
Administrative Agent's reasonable determination substantially destroyed or
condemnation or eminent domain proceedings are commenced or threatened against
the Project, (B) a change in the status of title to or encroachment on or off
the Project (other than Customary Permitted Liens) exists or has occurred
subsequent to the Initial Funding Date without the Administrative Agent's prior
written consent, (C) subject to Section 6.5(b) hereof, any event has occurred
which has given or is likely to give rise to a Lien claim of equal or superior
rank to the Liens in favor of or benefiting the Administrative Agent and the
Lenders intended to be created by the Loan Documents, or which calls into
question the validity or priority of such Liens, (D) any litigation or
proceeding is commenced to enjoin the construction at the Project or any portion
thereof, alter in any adverse way the zoning or land use classification of the
Project or any portion thereof, to prohibit the construction or operation of the
Project or any portion thereof, or to enjoin or prohibit Borrower, the
Administrative Agent or the Lenders from performing their respective obligations
under this Agreement, (E) any material deviation, other than a Permissible
Modification, exists in the construction of the Improvements on the Project from
the Approved Plans and Specifications without the prior written approval of the
Administrative Agent, or the Administrative Agent determines, upon consultation
with the Construction Consultant, that there are material defects in the
workmanship or materials, or (F) the completion of the Project is not being
diligently pursued in accordance with the Approved Project Schedule, subject to
Permissible Modifications;
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(iv) disburse any Loans if any material Project Agreement is
amended, modified or terminated without the prior written consent of the
Administrative Agent or there shall occur and shall continue either (A) a
material default by Borrower thereunder or (B) a material default by any other
Person thereunder;
(v) disburse any Loans after May 1, 2002; or
(vi) disburse any Loans (A) after the Administrative Agent's
delivery of a Balancing Notice under Section 2.20.4 unless and until the
Administrative Agent determines that an Out-of-Balance Condition no longer
exists, or (B) in the event and to the extent the Administrative Agent
determines that such disbursement would result in an Out-of-Balance Condition.
2.7 Optional Principal Payments. Borrower may from time to time pay,
without penalty or premium, all outstanding Floating Rate Advances, or, in a
minimum aggregate amount of $1,000,000 or any integral multiple of $100,000 in
excess thereof, any portion of the outstanding Floating Rate Advances, upon two
Business Days' prior notice to the Administrative Agent. Borrower may from time
to time pay, subject to the payment of any funding indemnification amounts
required by Section 3.4 but without penalty or premium, all outstanding
Eurodollar Advances, or, in a minimum aggregate amount of $1,000,000 or any
integral multiple of $100,000 in excess thereof, any portion of the outstanding
Eurodollar Advances, upon three Business Days' prior notice to the
Administrative Agent.
2.8 Method of Selecting Types and Interest Periods for New Advances.
Borrower shall select the Type of Advance and, in the case of each
Eurodollar Advance, the Interest Period applicable thereto from time to time,
provided that (a) the Interest Period with respect to the Effective Date Advance
and any subsequent Advance made prior to the Syndication Date shall be one
month, and Interest Periods with respect to all Advances made prior to the
Syndication Date shall begin and end on the same days and (b) no Interest Period
may be selected prior to the Syndication Date if the Administration Agent has
notified Borrower that the selection of such Interest Period would interfere
with the closing of the primary syndication of the Commitments and the Loans.
Borrower shall give the Administrative Agent irrevocable notice (a "Borrowing
Notice") not later than 1:00 p.m. (Eastern time) at least five Business Days
before the Borrowing Date of each Floating Rate Advance and five Business Days
before the Borrowing Date for each Eurodollar Advance, specifying:
(i) the Borrowing Date, which shall be a Business Day, of such
Advance,
(ii) the aggregate amount of such Advance,
(iii) the Type of Advance selected, and
(iv) in the case of each Eurodollar Advance, the Interest Period
applicable thereto,
and containing a certification by an Authorized Officer that all conditions
precedent specified in Article IV are satisfied on the specified Borrowing Date.
Not later than 5:00 p.m. (New York
31
time) on the Business Day on which the Administrative Agent receives a Borrowing
Notice, the Administrative Agent shall notify each Lender of the aggregate
amount of the Advance and the amount of such Lender's Loan to be advanced on the
Borrowing Date, the type of Advance and, in the case of each Eurodollar Advance,
the Interest Period applicable thereto. Not later than 12:00 Noon (New York
time) on each Borrowing Date, each Lender shall make available its Loan or Loans
in immediately available funds to the Administrative Agent at its address
specified pursuant to Article XIII. The Administrative Agent will make the funds
so received from the Lenders available to Borrower at the Administrative Agent's
aforesaid address.
2.9 Conversion and Continuation of Outstanding Advances. Floating Rate
Advances shall continue as Floating Rate Advances unless and until such Floating
Rate Advances are converted into Eurodollar Advances pursuant to this Section
2.9 or are repaid in accordance with Section 2.7. Each Eurodollar Advance shall
continue as a Eurodollar Advance until the end of the then applicable Interest
Period therefor, at which time such Eurodollar Advance shall continue as a
Eurodollar Advance for an interest period of one month unless (x) such
Eurodollar Advance is or was repaid in accordance with Section 2.7, (y) Borrower
shall have given the Administrative Agent a Conversion/Continuation Notice (as
defined below) requesting that, at the end of such Interest Period, such
Eurodollar Advance be converted to a Floating Rate Advance or continued as a
Eurodollar Advance for an Interest Period of more than one month or (z) a
Default or Unmatured Monetary Default has occurred and continues, in which event
such Eurodollar Advance shall, unless the Required Lenders otherwise agree, be
automatically converted into a Floating Rate Advance. Subject to the terms of
Section 2.6, Borrower may elect from time to time to convert all or any part of
a Floating Rate Advance into a Eurodollar Advance. Borrower shall give the
Administrative Agent irrevocable notice (a "Conversion/Continuation Notice") of
each conversion of a Floating Rate Advance into a Eurodollar Advance or
continuation of a Eurodollar Advance not later than 11:00 a.m. (New York time)
at least three Business Days prior to the date of the requested conversion or
continuation, specifying:
(i) the requested date, which shall be a Business Day, of such
conversion or continuation,
(ii) the aggregate amount and Type of the Advance which is to
be converted or continued, and
(iii) the amount of such Advance which is to be converted into
or continued as a Eurodollar Advance and the duration of the Interest Period
applicable thereto.
2.10 Interest Rate; Changes in Interest Rate; Interest Periods; etc. Each
Floating Rate Advance shall bear interest on the outstanding principal amount
thereof, for each day from and including the date such Advance is made or is
converted from a Eurodollar Advance into a Floating Rate Advance pursuant to
Section 2.9, to but excluding the date it is paid or is converted into a
Eurodollar Advance pursuant to Section 2.9 hereof, at a rate per annum equal to
the Floating Rate for such day. Changes in the rate of interest on that portion
of any Advance maintained as a Floating Rate Advance will take effect
simultaneously with each change in the Alternate Base Rate. Each Eurodollar
Advance shall bear interest on the outstanding principal amount thereof from and
including the first day of the Interest Period applicable thereto to (but
32
not including) the last day of such Interest Period at the Eurodollar Rate
determined by the Administrative Agent as applicable to such Eurodollar Advance
based upon Borrower's selections under Sections 2.8 and 2.9 and otherwise in
accordance with the terms hereof. Unless the Required Lenders otherwise agree,
no Interest Period may be selected at any time when a Default or Unmatured
Default has occurred and is continuing. No Interest Period may end after the
Maturity Date. All Loans comprising a Eurodollar Advance in respect of any
single borrowing hereunder shall at all times have the same Interest Period. The
initial Interest Period for any Eurodollar Advance shall commence on the date
such Advance is made or converted into a Eurodollar Advance, and each Interest
Period thereafter in respect of such Eurodollar Advance shall commence on the
day on which the next preceding Interest Period applicable thereto expires.
2.11 Rates Applicable After Default. Notwithstanding anything to the
contrary contained in Section 2.8 or 2.9, during the continuance of a Default or
Unmatured Monetary Default, no Advance may be made as, converted into or
continued as a Eurodollar Advance, unless the Required Lenders otherwise agree
(notwithstanding any provision of Section 10.2 requiring unanimous consent of
the Lenders to changes in interest rates). During the continuance of a Default
the Required Lenders may, at their option, by notice to the Borrower (which
notice may be revoked at the option of the Required Lenders notwithstanding any
provision of Section 10.2 requiring unanimous consent of the Lenders to changes
in interest rates), declare that (i) each Eurodollar Advance shall bear interest
for the remainder of the applicable Interest Period at the rate otherwise
applicable to such Interest Period plus 3% per annum, and (ii) each Floating
Rate Advance shall bear interest at a rate per annum equal to the Floating Rate
in effect from time to time plus 3% per annum, provided that, during the
continuance of a Default under Section 7.6 or 7.7, the interest rates set forth
in clauses (i) and (ii) above shall be applicable to all Advances without any
election or action on the part of the Administrative Agent or any Lender.
2.12 Method of Payment. All payments of the Obligations hereunder shall be
made, without setoff, deduction, or counterclaim, in immediately available funds
to the Administrative Agent at the Administrative Agent's address specified
pursuant to Article XIII, or at any other Lending Office of the Administrative
Agent specified in writing by the Administrative Agent to the Borrower, by 2:00
p.m. (Eastern time) on the date when due and shall be applied as follows:
(a) Subject to the provisions of Section 2.12(b) below, all payments
of principal and interest in respect of outstanding Loans, all payments of fees
and all other payments in respect of any other Obligations, and any other
amounts received by the Administrative Agent from or for the benefit of the
Borrower shall be applied in the following order:
(i) to pay principal of and interest on any portion of the
Loans which the Administrative Agent may (at its sole option, and without any
obligation to do so) have advanced on behalf of any Lender (other than itself in
its capacity as a Lender) for which the Administrative Agent has not then been
reimbursed by such Lender or the Borrower;
(ii) to pay principal of and interest on any Protective
Advance made by the Administrative Agent (at its sole option, and without any
obligation to do so) for which the Administrative Agent has not then been paid
by Borrower or reimbursed by the Lenders; and
33
(iii) to pay all other Obligations then due and payable in the
order designated by the Borrower and, unless otherwise designated by the
Borrower, all principal payments in respect of Loans shall be applied first, to
repay outstanding Floating Rate Loans, and then to repay outstanding Eurodollar
Loans with those Eurodollar Loans which have earlier expiring Interest Periods
being repaid prior to those which have later expiring Interest Periods.
(b) After the occurrence and during the continuance of a Default,
the Administrative Agent and the Lenders may apply all payments in respect of
any Obligations and all proceeds of Collateral to the Secured Obligations in
such order and manner as the Administrative Agent and Lenders may elect in their
sole and absolute discretion, subject, as among themselves, to any intercreditor
or similar agreement from time to time entered into among the Administrative
Agent and the Lenders.
Each payment delivered to the Administrative Agent for the account of any Lender
shall be delivered promptly by the Administrative Agent to such Lender in the
same type of funds that the Administrative Agent received at its address
specified pursuant to Article XIII or at any Lending Office specified in a
notice received by the Administrative Agent from such Lender.
2.13 Notes; Evidence of Indebtedness.
(a) Each Lender's Loans shall be evidenced by a promissory note (a
"Note") executed and delivered by Borrower on the Effective Date to such Lender
in the form of Exhibit B. If a Lender assigns a part (but less than all) of its
Note, Borrower shall, upon request, execute and deliver new Notes to the
respective owners of the original note that aggregate the amount of the original
Note, as directed jointly by the assignor and assignee, and upon delivery of the
new Note or Notes, the original Note shall be endorsed to state that it has been
replaced by such new Note or Notes.
(b) Each Lender is hereby authorized to maintain in accordance with
its usual practice an account or accounts evidencing the indebtedness of the
Borrower to such Lender resulting from each Loan made by such Lender from time
to time, including the amounts of principal and interest payable and paid to
such Lender from time to time hereunder.
(c) The Administrative Agent shall also maintain accounts in which
it will record (i) the amount of each Loan made hereunder, the Type thereof and
the Interest Period with respect thereto, (ii) the amount of any principal or
interest due and payable or to become due and payable from the Borrower to each
Lender hereunder, and (iii) the amount of any sum received by the Administrative
Agent hereunder from Borrower and each Lender's share thereof.
(d) The entries maintained in the accounts maintained pursuant to
paragraphs (b) and (c) above shall be prima facie evidence, absent manifest
error, of the existence and amounts of the Obligations therein recorded;
provided, however, that the failure of the Administrative Agent or any Lender to
maintain such accounts or any error therein shall not in any manner affect the
obligation of the Borrower to repay the Obligations in accordance with their
terms.
2.14 Telephonic Notices. Borrower hereby authorizes the Lenders and the
Administrative Agent to extend, convert or continue Advances, effect selections
of Types of
34
Advances and to transfer funds based on telephonic notices made by any person or
persons the Administrative Agent or any Lender in good faith believes to be an
Authorized Officer acting on behalf of Borrower, it being understood that the
foregoing authorization is specifically intended to allow Borrowing Notices and
Conversion/Continuation Notices to be given telephonically. The Borrower agrees
to deliver promptly to the Administrative Agent a written confirmation, if such
confirmation is requested by the Administrative Agent or any Lender, of each
telephonic notice, signed by an Authorized Officer. If the written confirmation
differs in any material respect from the action taken by the Administrative
Agent and the Lenders, the records of the Administrative Agent and the Lenders
shall govern absent manifest error.
2.15 Interest Payment Dates; Interest and Fee Basis. Interest accrued on
each Floating Rate Advance shall be payable on each Quarterly Payment Date,
commencing with the first such date to occur after the Effective Date, on any
date on which the Floating Rate Advance is prepaid, whether due to acceleration
or otherwise, and at maturity. Interest accrued on that portion of the
outstanding principal amount of any Floating Rate Advance converted into a
Eurodollar Advance on a day other than a Quarterly Payment Date shall be payable
on the date of conversion. Interest accrued on each Eurodollar Advance shall be
payable on the last day of its applicable Interest Period, on any date on which
the Eurodollar Advance is prepaid, whether by acceleration or otherwise, and at
maturity. Interest and commitment fees shall be calculated for actual days
elapsed on the basis of a 360-day year. Interest shall be payable for the day an
Advance is made but not for the day of any payment on the amount paid if payment
is received prior to 2:00 p.m. (Eastern time) at the place of payment. If any
payment of principal of or interest on an Advance shall become due on a day
which is not a Business Day, such payment shall be made on the next succeeding
Business Day and, in the case of a principal payment, such extension of time
shall be included in computing interest in connection with such payment.
2.16 Notification of Advances, Interest Rates, Prepayments and Commitment
Reductions. Promptly after receipt thereof, the Administrative Agent will notify
each Lender of the contents of each Borrowing Notice, Conversion/Continuation
Notice, and repayment notice received by it hereunder. The Administrative Agent
will notify each Lender of the interest rate applicable to each Eurodollar
Advance promptly upon determination of such interest rate.
2.17 Lending Offices. Each Lender may book its Loans at any Lending Office
selected by such Lender, and may change its Lending Office from time to time.
All terms of this Agreement shall apply to any such Lending Office and the Loans
and any Notes issued hereunder shall be deemed held by each Lender for the
benefit of any such Lending Office. Each Lender may, by written notice to the
Administrative Agent and the Borrower in accordance with Article XIII, designate
replacement or additional Lending Offices through which Loans will be made by it
and for whose account Loan payments are to be made.
2.18 Non-Receipt of Funds by the Administrative Agent.
Unless Borrower or a Lender, as the case may be, notifies the
Administrative Agent prior to the date on which it is scheduled to make payment
to the Administrative Agent of (a) in the case of a Lender, the proceeds of a
Loan or (b) in the case of the Borrower, a payment of principal, interest or
fees to the Administrative Agent for the account of the Lenders, that it does
not intend to make such payment, the Administrative Agent may assume that such
payment has
35
been made. The Administrative Agent may, but shall not be obligated to, make the
amount of such payment available to the intended recipient in reliance upon such
assumption. If such Lender or Borrower, as the case may be, has not in fact made
such payment to the Administrative Agent, the recipient of such payment shall,
on demand by the Administrative Agent, repay to the Administrative Agent the
amount so made available together with interest thereon in respect of each day
during the period commencing on the date such amount was so made available by
the Administrative Agent until the date the Administrative Agent recovers such
amount at a rate per annum equal to (x) in the case of payment by a Lender, the
Federal Funds Effective Rate for such day for the first three days and,
thereafter, the interest rate applicable to the relevant Loan or (y) in the case
of payment by Borrower, the interest rate applicable to the relevant Loan.
2.19 Intentionally Omitted.
2.20 Capitalization Covenants.
2.20.1 Equity Contributions.
Borrower hereby represents and warrants to the Administrative Agent
and the Lenders that it has, as of the date hereof, made cash equity
contributions and/or loans to Co-Borrower of not less than $225,000,000, which
funds have been applied prior to the Initial Funding Date solely to pay Approved
Construction Costs (the "First Required Contributions").
2.20.2 Cost Overruns. Borrower shall fund, from additional equity
contributions to and/or loans by Borrower to Co-Borrower, any cost overruns for
Construction Costs in excess of those set forth in the Approved Construction
Budget.
2.20.3 Interest Reserve; Blocked Commitment Amount.
(a) Borrower agrees that it will, on or before May 1, 2002,
establish a segregated account maintained with the Reserve Account Bank pursuant
to arrangements satisfactory to the Administrative Agent (the "Interest Reserve
Account"), in the name of Borrower and subject to an Account Control Agreement.
Borrower will invest all funds from time to time on deposit in the Interest
Reserve Account solely in Cash Equivalent Investments.
(b) On or before May 1, 2002, Borrower shall deposit in the Interest
Reserve Account (in immediately available funds) an amount (the "Interest
Reserve Deposit") equal to the product of a (i) the aggregate outstanding
principal balance of the Loans on May 1, 2002, multiplied by (ii) 9.25%,
multiplied by (iii) a fraction, the numerator of which is 92 and the denominator
of which is 360. Unless a Default or an Unmatured Default has occurred and is
continuing, funds deposited in the Interest Reserve Account may be withdrawn by
Co-Borrower from and after May 1, 2002, from time to time as necessary to pay
interest as and when due and payable in respect of the Loans. If a Default or
Unmatured Default has occurred and is continuing, Co-Borrower shall not withdraw
any funds from the Interest Reserve Account, and if a Default has occurred and
is continuing, the Administrative Agent (i) shall have the right to give an
Account Control Notice (as defined in the Account Control Agreement) to the
Reserve Account Bank pursuant to the Account Control Agreement and (ii) may
apply or direct the
36
Reserve Account Bank to apply all funds then on deposit in the Interest Reserve
Account to the Secured Obligations in accordance with the provisions of Section
8.1.
(c) Notwithstanding anything to the contrary in Section 2.1, a
portion of the Aggregate Commitment (the "Blocked Commitment Amount") in an
amount sufficient to pay all interest on the Loans from the Effective Date
through July 31, 2002 at an assumed, fixed rate of interest of 9.25% per annum
shall be reserved and shall be available only to fund (i) interest on the Loans
with respect to the period from the Effective Date to May 1, 2002, (ii) the
Interest Reserve Deposit and (iii) the Advance, if any, described in clause (C)
of the next sentence. Advances in respect of the Blocked Commitment Amount shall
be made only (A) directly to the Lenders, in respect of interest on the Loans
for the period from the Effective Date to May 1, 2002, or (B) directly to the
Interest Reserve Account, in respect of the Interest Reserve Deposit or (C) to
Borrower, on May 1, 2002, provided that all interest on the Loans from the
Effective Date to May 1, 2002 has been paid in full and the Interest Reserve
Deposit has been made (or will be made with the proceeds of a simultaneous
Advance). The Blocked Commitment Amount shall be determined and reset in
connection with each borrowing and each repayment of the Loans, as the same are
made.
2.20.4 Loan Balancing; Completion Reserve. (a) On or prior to the
Effective Date, Borrower has deposited the sum of $44,778,925 in a segregated
account of Borrower maintained with the Reserve Account Bank (the "Completion
Reserve Account"), which account is subject to an Account Control Agreement.
Borrower will invest all funds from time to time on deposit in the Completion
Reserve Account solely in Cash Equivalent Investments. Borrower acknowledges
that the Administrative Agent has not made a final determination as to the
adequacy of the Borrower's initial deposit to the Completion Reserve Account. In
the event the Administrative Agent determines, based on advice of the
Construction Consultant, at any time that the sum of (i) the amounts then on
deposit in the Completion Reserve Account and (ii) the Available Aggregate
Commitment will be insufficient to pay all then unpaid Construction Costs
expected to be incurred through the Completion Date (assuming that construction
of the Project is completed in accordance with the Approved Plans and
Specifications), an "Out-of-Balance Condition" (hereby so defined) shall be
deemed to exist. If an Unmatured Default (other than such Out-of-Balance
Condition) then exists, or occurs while such Out-of-Balance Condition exists, or
if such Out-of-Balance Condition continues for more than 10 consecutive Business
Days after Borrower has received written notice from the Administrative Agent of
such Out-of-Balance Condition (a "Balancing Notice"), the Borrower shall, within
five Business Days after the Administrative Agent's subsequent demand, deposit
into the Completion Reserve Account the amount specified by the Administrative
Agent in the Balancing Notice as necessary to reserve against such deficiency
(each such deposit is herein referred to as a "Balancing Payment") and give
notice to the Administration Agent that such deposit has been made. If and so
long as such Out-of-Balance Condition exists and continues to exist, the Lenders
shall have no obligation to make any further Advances and all Construction Costs
and interest payments on the Loans shall be funded by the Borrower from advances
of funds otherwise provided by the Borrower. Subject to Section 2.20.4(b) hereof
and Section 4(b)(ii) of the Account Control Agreement, unless a Default, an
Unmatured Default or an Out-of-Balance Condition has occurred and is continuing,
funds deposited into the Completion Reserve Account shall be available to be
withdrawn by Borrower in its sole discretion. If a Default or Unmatured Default
or Out-of-Balance Condition has occurred and is continuing, Borrower shall not
withdraw any
37
funds from the Completion Reserve Account, and if a Default has occurred and is
continuing, the Administrative Agent (a) shall have the right to give an Account
Control Notice (as defined in the Account Control Agreement) to the Reserve
Account Bank pursuant to the Account Control Agreement and (b) may apply or
direct the Reserve Account Bank to apply all funds then on deposit in the
Completion Reserve Account to the Secured Obligations in accordance with the
provisions of Section 8.1.
(b) A $30,000,000 portion (the "Blocked Deposit") of the
amount initially deposited in the Completion Reserve Account shall not be
withdrawn by Borrower and shall be held by the Reserve Account Bank pursuant to
the Account Control Agreement under the sole dominion and control of the
Administrative Agent as additional collateral for the Secured Obligations
unless, on or before the date which is 30 days after the Effective Date, (1)
Borrower delivers to the Administrative Agent and the Construction Consultant
AIA forms and progress payment worksheets, properly executed and completed, in
accordance with standard industry practice, and executed by the Project
Architect and Project General Contractor, as applicable, showing payments made,
costs incurred, and costs remaining to complete the Project, on a current basis
and all in form and substance acceptable to the Construction Consultant and the
Administrative Agent, and (2) the Administrative Agent, based on the advice of
the Construction Consultant, has approved the Initial Budget. If the conditions
described in the preceding clauses (1) and (2) are satisfied on or before the
date which is 30 days after the Effective Date, then Administrative Agent shall,
on the same day, give notice thereof (the "Budget Approval Notice") to the
Reserve Account Bank, whereupon the provisions of this Section 2.20.4(b) shall
no longer be effective and the Blocked Deposit shall continue to be held and
disbursed in accordance with all of the other terms and provisions hereof and of
the Account Control Agreement.
2.20.5 FF&E Reserve. Co-Borrower shall, on or before May 1, 2002,
establish and maintain a segregated account of Co-Borrower with the Reserve
Account Bank, which account (the "FF&E Reserve Account") shall be subject to an
Account Control Agreement, and from and after the Opening Date, Co-Borrower or
Borrower shall deposit into the FF&E Reserve Account, within 45 days after the
last day of each Fiscal Quarter, an amount equal to the Required FF&E Percentage
of the Gross Revenues from the Project for such Fiscal Quarter, and shall insure
that the total deposits into the FF&E Reserve Account for each Operating Year
are not less than the Required FF&E Percentage of the Gross Revenues from the
Project for such Operating Year. Co-Borrower shall invest all funds from time to
time on deposit in the FF&E Reserve Account solely in Cash Equivalent
Investments. Unless a Default or an Unmatured Default has occurred and is
continuing, funds deposited in the FF&E Reserve Account (the amount on deposit
therein from time to time, the "FF&E Reserve") may be withdrawn by the
Co-Borrower from time to time as necessary to pay for Permitted FF&E
Expenditures as the same are incurred. If a Default or Unmatured Default has
occurred and is continuing, Co-Borrower shall not withdraw any funds from the
FF&E Reserve Account, and if a Default has occurred and is continuing, the
Administrative Agent (i) shall have the right to give an Account Control Notice
(as defined in the Account Control Agreement) to the Reserve Account Bank
pursuant to the Account Control Agreement and (ii) may apply or direct the
Reserve Account Bank to apply all funds then on deposit in the FF&E Reserve
Account to the Secured Obligations in accordance with the provisions of Section
8.1.
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2.21 Replacement of Lender. If Borrower is required pursuant to Section
3.1, 3.2 or 3.5 to make any additional payment to any Lender or if any Lender's
obligation to make or continue, or to convert Floating Rate Advances into,
Eurodollar Advances shall be suspended pursuant to Section 3.3 (any Lender so
affected an "Affected Lender"), Borrower may elect, if such amounts continue to
be charged or such suspension is still effective, to replace such Affected
Lender as a Lender party to this Agreement, provided that no Default shall have
occurred and be continuing at the time of such replacement, and provided further
that, concurrently with such replacement, (i) another bank or other entity which
is reasonably satisfactory to Borrower and the Administrative Agent shall agree,
as of such date, to purchase for cash the Advances and other Obligations due to
the Affected Lender pursuant to an assignment substantially in the form of
Exhibit F and to become a Lender for all purposes under this Agreement and to
assume all obligations of the Affected Lender to be terminated as of such date
and to comply with the requirements of Section 12.3 applicable to assignments,
and (ii) Borrower shall pay to such Affected Lender in same day funds on the day
of such replacement (A) all interest, fees and other amounts then accrued but
unpaid to such Affected Lender by the Borrower hereunder to and including the
date of termination, including without limitation payments due to such Affected
Lender under Sections 3.1, 3.2 and 3.5, and (B) an amount, if any, equal to the
payment which would have been due to such Lender on the day of such replacement
under Section 3.4 had the Loans of such Affected Lender been prepaid on such
date rather than sold to the replacement Lender.
ARTICLE III
YIELD PROTECTION; TAXES
3.1 Yield Protection. If, on or after the Effective Date, the adoption of
any law or any governmental or quasi-governmental rule, regulation, policy,
guideline or directive (whether or not having the force of law), or any change
in the interpretation or administration thereof by any governmental or
quasi-governmental authority, central bank or comparable agency charged with the
interpretation or administration thereof, or compliance by any Lender or
applicable Lending Office with any request or directive (whether or not having
the force of law) of any such authority, central bank or comparable agency:
(i) subjects any Lender or any applicable Lending Office to
any Taxes, or changes the basis of taxation of payments (other than with respect
to Excluded Taxes) to any Lender in respect of its Eurodollar Loans, or
(ii) imposes or increases or deems applicable any reserve,
assessment, insurance charge, special deposit or similar requirement against
assets of, deposits with or for the account of, or credit extended by, any
Lender or any applicable Lending Office (other than reserves and assessments
taken into account in determining the interest rate applicable to Eurodollar
Advances), or
(iii) imposes any other condition the result of which is to
increase the cost to any Lender or any applicable Lending Office of making,
funding or maintaining its Eurodollar Loans, or reduces any amount receivable by
any Lender or any applicable Lending Office in connection with its Eurodollar
Loans or requires any Lender or any applicable Lending
39
Office to make any payment calculated by reference to the amount of Eurodollar
Loans held or interest received by it, by an amount deemed material by such
Lender,
and the result of any of the foregoing is to increase the cost to such Lender or
applicable Lending Office of making or maintaining its Eurodollar Loans or
Commitment or to reduce the return received by such Lender or applicable Lending
Office in connection with such Eurodollar Loans or Commitment, then, within 15
days of demand by such Lender, the Borrower shall pay such Lender such
additional amount or amounts as will compensate such Lender for such increased
cost or reduction in amount received.
3.2 Changes in Capital Adequacy Regulations. If a Lender determines the
amount of capital required or expected to be maintained by such Lender, any
Lending Office of such Lender or any corporation controlling such Lender is
increased as a result of a Change (as defined below in this Section 3.2), then,
within 15 days of demand by such Lender, the Borrower shall pay such Lender the
amount necessary to compensate for any shortfall in the rate of return on the
portion of such increased capital which such Lender determines is attributable
to this Agreement, its Outstanding Credit Exposure or its Commitment to make
Loans hereunder (after taking into account such Lender's policies as to capital
adequacy). "Change" means (i) any change after the Effective Date in the
Risk-Based Capital Guidelines or (ii) any adoption of or change in any other
law, governmental or quasi-governmental rule, regulation, policy, guideline,
interpretation, or directive (whether or not having the force of law) after the
Effective Date which affects the amount of capital required or expected to be
maintained by any Lender or any Lending Office or any corporation controlling
any Lender. "Risk-Based Capital Guidelines" means (i) the risk-based capital
guidelines in effect in the United States on the Effective Date, including
transition rules, and (ii) the corresponding capital regulations promulgated by
regulatory authorities outside the United States implementing the July 1988
report of the Basle Committee on Banking Regulation and Supervisory Practices
Entitled "International Convergence of Capital Measurements and Capital
Standards," including transition rules, and any amendments to such regulations
adopted prior to the Effective Date.
3.3 Availability of Types of Advances. If any Lender determines that
maintenance of its Eurodollar Loans at a suitable Lending Office would violate
any applicable law, rule, regulation, or directive, whether or not having the
force of law, or if the Required Lenders determine that by reason of changes
affecting the interbank Eurodollar market, (i) deposits of a type and maturity
appropriate to match fund Eurodollar Advances are not available or (ii) the
interest rate applicable to Eurodollar Advances does not accurately reflect the
cost of making or maintaining Eurodollar Advances, then the Administrative Agent
shall suspend the availability of Eurodollar Advances until the first date on
which the circumstances causing such suspension cease to exist and require any
affected Eurodollar Advances to be repaid or converted to Floating Rate
Advances, subject to the payment of any funding indemnification amounts required
by Section 3.4.
3.4 Funding Indemnification. If any payment of a Eurodollar Advance occurs
on a date which is not the last day of the applicable Interest Period, whether
because of acceleration, prepayment or otherwise, or a Eurodollar Advance is not
made on the date specified by the Borrower for any reason other than default by
the Lenders, the Borrower will indemnify each Lender for any loss or cost
incurred by it resulting therefrom, including, without limitation, any
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loss or cost in liquidating or employing deposits acquired to fund or maintain
such Eurodollar Advance, provided that such indemnity shall not apply to any
such loss or cost incurred solely by reason of an adjustment to any Interest
Period made by the Administrative Agent in connection with syndicating the
Loans.
3.5 Taxes. (i) All payments by the Borrower to or for the account of any
Lender or the Administrative Agent hereunder or under any Note shall be made
free and clear of and without deduction for any and all Taxes. If the Borrower
shall be required by law to deduct any Taxes from or in respect of any sum
payable hereunder to any Lender or the Administrative Agent, (a) the sum payable
shall be increased as necessary so that after making all required deductions
(including deductions applicable to additional sums payable under this Section
3.5) such Lender or the Administrative Agent (as the case may be) receives an
amount equal to the sum it would have received had no such deductions been made,
(b) the Borrower shall make such deductions, (c) the Borrower shall pay the full
amount deducted to the relevant authority in accordance with applicable law and
(d) the Borrower shall furnish to the Administrative Agent the original copy of
a receipt evidencing payment thereof within 30 days after such payment is made.
(ii) In addition, the Borrower hereby agrees to pay any
present or future stamp or documentary taxes and any other excise or property
taxes, charges or similar levies which arise from any payment made hereunder or
under any Note or from the execution or delivery of, or otherwise with respect
to, this Agreement or any Note ("Other Taxes").
(iii) The Borrower hereby agrees to indemnify the
Administrative Agent and each Lender for the full amount of Taxes or Other Taxes
(including, without limitation, any Taxes or Other Taxes imposed on amounts
payable under this Section 3.5) paid by the Administrative Agent or such Lender
and any liability (including penalties, interest and expenses) arising therefrom
or with respect thereto. Payments due under this indemnification shall be made
within 30 days of the date the Administrative Agent or such Lender makes demand
therefor pursuant to Section 3.6.
(iv) Each Lender that is not incorporated under the laws of
the United States of America or a state thereof (each a "Non-U.S. Lender")
agrees that it will, not less than ten Business Days after the Effective Date
(or such later date upon which it becomes a Lender hereunder), deliver to each
of the Borrower and the Administrative Agent two duly completed copies of United
States Internal Revenue Service Form W-8BEN or W-8ECI, certifying in either case
that such Lender is entitled to receive payments under this Agreement without
deduction or withholding of any United States federal income taxes, or backup
withholding tax. Each Non-U.S. Lender further undertakes to deliver to each of
the Borrower and the Administrative Agent (x) renewals or additional copies of
such form (or any successor form) on or before the date that such form expires
or becomes obsolete, and (y) after the occurrence of any event requiring a
change in the most recent forms so delivered by it, such additional forms or
amendments thereto as may be reasonably requested by the Borrower or the
Administrative Agent. All forms or amendments described in the preceding
sentence shall certify that such Lender is entitled to receive payments under
this Agreement without deduction or withholding of any United States federal
income taxes, unless an event (including without limitation any change in
treaty, law or regulation) has occurred prior to the date on which any such
delivery would otherwise be
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required which renders all such forms inapplicable or which would prevent such
Lender from duly completing and delivering any such form or amendment with
respect to it and such Lender advises the Borrower and the Administrative Agent
that it is not capable of receiving payments without any deduction or
withholding of United States federal income tax.
(v) For any period during which a Non-U.S. Lender has failed
to provide the Borrower with an appropriate form pursuant to clause (iv) above
(unless such failure is due to a change in treaty, law or regulation, or any
change in the interpretation or administration thereof by any governmental
authority, occurring subsequent to the date on which a form originally was
required to be provided), such Non-U.S. Lender shall not be entitled to
indemnification under this Section 3.5 with respect to Taxes imposed by the
United States; provided that, should a Non-U.S. Lender which is otherwise exempt
from or subject to a reduced rate of withholding tax become subject to Taxes
because of its failure to deliver a form required under clause (iv), above, the
Borrower shall take such steps (but without material expense to the Borrower) as
such Non-U.S. Lender shall reasonably request to assist such Non-U.S. Lender to
recover such Taxes.
(vi) Any Lender that is entitled to an exemption from or
reduction of withholding tax with respect to payments under this Agreement or
any Note pursuant to the law of any relevant jurisdiction or any treaty shall
deliver to the Borrower (with a copy to the Administrative Agent), at the time
or times prescribed by applicable law, such properly completed and executed
documentation prescribed by applicable law as will permit such payments to be
made without withholding or at a reduced rate.
(vii) If the U.S. Internal Revenue Service or any other
governmental authority of the United States or any other country or any
political subdivision thereof asserts a claim that the Administrative Agent did
not properly withhold tax from amounts paid to or for the account of any Lender
(because the appropriate form was not delivered or properly completed, because
such Lender failed to notify the Administrative Agent of a change in
circumstances which rendered its exemption from withholding ineffective, or for
any other reason), such Lender shall indemnify the Administrative Agent and
Borrower fully for all amounts paid, directly or indirectly, by the
Administrative Agent or Borrower, as the case may be, as tax, withholding
therefor, or otherwise, including penalties and interest, and including taxes
imposed by any jurisdiction on amounts payable to the Administrative Agent or
Borrower under this subsection, together with all costs and expenses related
thereto (including attorneys fees and time charges of attorneys for the
Administrative Agent or Borrower, as the case may be, which attorneys may be
employees of the Administrative Agent or Borrower, as the case may be). The
obligations of the Lenders under this Section 3.5(vii) shall survive the payment
of the Obligations and termination of this Agreement.
3.6 Lender Statements; Survival of Indemnity. To the extent reasonably
possible, each Lender shall designate an alternate Lending Office with respect
to its Eurodollar Loans to reduce any liability of the Borrower to such Lender
under Sections 3.1, 3.2 and 3.5 or to avoid the unavailability of Eurodollar
Advances under Section 3.3, so long as such designation is not, in the judgment
of such Lender, disadvantageous to such Lender. Each Lender shall deliver a
written statement of such Lender to the Borrower (with a copy to the
Administrative Agent) as to the amount due, if any, under Section 3.1, 3.2, 3.4
or 3.5. Such written statement shall set forth
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in reasonable detail the calculations upon which such Lender determined such
amount and shall be final, conclusive and binding on the Borrower in the absence
of manifest error. Determination of amounts payable under such Sections in
connection with a Eurodollar Loan shall be calculated as though each Lender
funded its Eurodollar Loan through the purchase of a deposit of the type and
maturity corresponding to the deposit used as a reference in determining the
Eurodollar Rate applicable to such Loan, whether in fact that is the case or
not. Unless otherwise provided herein, the amount specified in the written
statement of any Lender shall be payable on demand after receipt by the Borrower
of such written statement. The obligations of the Borrower under Sections 3.1,
3.2, 3.4 and 3.5 shall survive payment of the Obligations and termination of
this Agreement.
3.7 Reasonable Efforts to Mitigate. Each Lender shall use its reasonable
best efforts (consistent with its internal policy and legal and regulatory
restrictions) to minimize any amounts payable by the Borrower under Section 3.1
and Section 3.2 and to minimize any period of illegality under Section 3.3. Each
Lender further agrees to notify the Borrower promptly, but in any event within
30 Business Days, after such Lender learns of the circumstances giving rise to
such a right of payment or such illegality or any circumstances that have
changed such that such right to payment or such illegality, as the case may be,
no longer exists.
ARTICLE IV
CONDITIONS PRECEDENT
4.1 Closing Deliveries. On the Effective Date and as conditions precedent
to Lenders' obligations to make the Effective Date Advance, Borrower shall
satisfy the following conditions and/or furnish to the Administrative Agent the
following:
(a) Borrower shall provide the Administrative Agent with copies of
the articles or certificate of incorporation or certificate of formation, and
certificates of good standing, of Borrower, Co-Borrower, each of the Subsidiary
Guarantors, and Opryland Hotel Nashville, LLC, together with all amendments,
certified by the appropriate governmental officer in its jurisdiction of
organization.
(b) Borrower shall provide the Administrative Agent with copies,
each certified by the Secretary or Assistant Secretary of Borrower, Co-Borrower,
each of the Subsidiary Guarantors and each of the other entities described in
the preceding clause (a), of the by-laws of such Person and Board of Directors'
resolutions and of resolutions or actions of any other body authorizing the
execution by such Person of the Loan Documents and Project Agreements to which
such Person is a party, and copies, certified by the Secretary or Assistant
Secretary or other authorized individual acting on behalf of each such entity of
its Organizational Documents and of resolutions of such of its shareholders,
partners, members or other body whose approval is required under such entity's
Organizational Documents authorizing the execution of the Loan Documents and
Project Agreements to which each such entity is a party.
(c) Borrower shall provide the Administrative Agent with incumbency
certificates, executed by the Secretary or Assistant Secretary of Borrower,
Co-Borrower, Subsidiary Guarantors and the other entities specified in the
preceding clause (a), respectively,
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which shall identify by name and title and bear the signatures of the officers
or other authorized individuals acting on behalf of such Persons authorized to
sign the Loan Documents and Project Agreements to which such Persons are a
party, upon which certificates the Administrative Agent and the Lenders shall be
entitled to rely.
(d) Borrower shall provide the Administrative Agent with written
opinions of respective counsel to Borrower, Co-Borrower, Subsidiary Guarantors
and the other entities specified in the preceding clause (a), addressed to the
Administrative Agent and the Lenders in form and substance satisfactory to the
Administrative Agent.
(e) Borrower shall provide each Lender with the Note required to be
provided to such Lender pursuant to Section 2.13, payable to the order of such
Lender.
(f) Borrower shall provide the Administrative Agent with the
Guaranty, the Environmental Indemnity Agreement, the Mortgage, the Pledge
Agreement, the Collateral Assignments and the other Loan Documents.
(g) Borrower shall provide the Administrative Agent with the
Mortgage Title Insurance Policy with respect to the Mortgage dated as of the
Effective Date in the amount of the sum of the Aggregate Commitment and the
Administrative Agent's determination of the amount of the Secured Rate
Management Obligations (without limiting the amount of the Secured Rate
Management Obligations for any other purposes under the Loan Documents) with all
premiums paid in full on or before the date of issuance and under which Lenders
are not considered to be co-insurers. Borrower shall deliver to the Title
Insurer all affidavits of title, ALTA statements, undertakings and such other
papers, instructions and documents as the Title Insurer may require for the
issuance of the Mortgage Title Insurance Policy in the form required hereunder.
(h) Borrower shall provide the Administrative Agent with UCC
searches for the Persons and in all jurisdictions as required by the
Administrative Agent, and the Administrative Agent shall be satisfied with the
results of such searches.
(i) Borrower shall provide the Administrative Agent with a Survey of
the Project.
(j) Borrower shall provide the Administrative Agent with certified
copies of all Leases (if any) and all amendments thereto for premises located at
the Project.
(k) Borrower shall provide the Administrative Agent with copies of
all underlying title documents for the Project.
(l) Borrower shall provide the Administrative Agent with evidence
that all financing statements relating to the Collateral have been (or will be)
timely filed or recorded for the benefit of the Administrative Agent and the
Lenders, and all title charges, recording fees and filing taxes have been paid.
(m) There shall have been paid to the Administrative Agent and
Lenders all fees due and payable to the Administrative Agent and Lenders on or
before the Effective Date and all expenses incurred by the Administrative Agent
on or before the Effective Date, including
44
the Agency Fee and commitment fees as set forth in Section 2.5 and all recording
and filing fees, documentary stamp, intangible, mortgage recording and other
similar taxes and charges, title insurance premiums, survey charges, reasonable
attorneys' fees and expenses, and other costs and expenses incurred in
connection with the preparation, negotiation, execution and delivery of the Loan
Documents.
(n) The Administrative Agent shall have been provided with (i) an
Appraisal of the Project showing a minimum prospective appraised value of the
Project as of the date of completion of $380,000,000.00 and at stabilization of
$435,000,000.00 and (ii) environmental reports and soils, engineering, traffic
and infrastructure impact studies and reports respecting the construction of the
Project, prepared by such Persons, addressing such matters, containing such
detail and in all other respects in such form and substance as is satisfactory
to the Administrative Agent in its sole and absolute discretion.
(o) Co-Borrower shall have selected architects, engineers and other
consultants (collectively, the "Project Architect") satisfactory to the
Administrative Agent, and entered into an agreement or agreements with such
Persons for the performance of services respecting the Project on terms
satisfactory to the Administrative Agent, which agreement or agreements, as well
as any modifications thereto approved by Co-Borrower and the Administrative
Agent in writing and any Permissible Modifications thereto shall constitute the
"Project Architect's Agreement."
(p) Co-Borrower shall have submitted and the Administrative Agent
shall have approved all plans and specifications for the construction and
completion of the Project (the "Plans and Specifications"), and the
Administrative Agent shall have delivered Borrower's schedule of the Plans and
Specifications to the Lenders.
(q) Co-Borrower shall have furnished evidence reasonably
satisfactory to the Administrative Agent that all Persons (other than
Co-Borrower) party to the Project Agreements have approved the Plans and
Specifications (to the extent they have such rights of approval under the
Project Agreements or otherwise).
(r) Co-Borrower shall have submitted and the Administrative Agent
shall have approved (and provided to the Lenders) a detailed construction
schedule (upon the Administrative Agent's approval of such schedule, such
schedule shall constitute the "Project Schedule") providing for Completion of
the construction of the Project occurring prior to the Required Completion Date.
(s) Borrower's contract or contracts with the Project General
Contractor for the performance of the work at and Completion of the Project
Construction, (which contract or contracts, together with any modifications
thereto approved by the Borrower and the Administrative Agent in writing and any
Permissible Modifications thereto, shall constitute the "Project General
Contract,") shall provide for the Completion of the Project Construction in
accordance with the Approved Plans and Specifications prior to the Required
Completion Date and otherwise contain terms and provisions satisfactory to the
Construction Consultant.
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(t) To the extent requested by the Construction Consultant,
Co-Borrower shall have submitted to the Administrative Agent each of its
contracts with engineers and other consultants (other than the Project
Architect) concerning the Project, and any agreements other than the Project
General Contract for the performance of construction work at the Project
(collectively, with the Project Architect's Agreement and the Project General
Contract, the "Construction Agreements"), and the same shall have been approved
by the Administrative Agent.
(u) The Administrative Agent shall have received from the Project
Architect a certificate substantially in the form of the Architect's Certificate
addressing such matters as the Administrative Agent may require. The
Administrative Agent shall also have received confirmation from the Construction
Consultant that all utilities necessary to service the Project are available, or
will be available when needed, in sufficient supply at the Project, subject only
to payment of customary connection and user fees.
(v) Co-Borrower shall have provided the Administrative Agent with
(i) evidence reasonably satisfactory to it that each of the Approved Plans and
Specifications, Permits, Construction Agreements and other Project Agreements
have been collaterally assigned, to the extent the same are assignable, to the
Administrative Agent for the benefit of the Lenders and other Holders of Secured
Obligations pursuant to the Loan Documents and that the Administrative Agent
holds a valid, existing and continuing Lien thereon, and (ii) a Consent and
Agreement respecting such collateral assignment of each of the foregoing, in
form and substance satisfactory to the Administrative Agent, duly authorized,
executed and delivered by each of the Project Architect, the Project General
Contractor and each of the other Persons (other than Co-Borrower) party to any
of the then-existing Construction Agreements and Project Agreements from whom or
which the Administrative Agent requires such Consent and Agreement.
(w) Co-Borrower shall have provided the Administrative Agent with
the site plan for the Project as approved by the zoning authorities and any
other necessary Governmental Authorities, outlining the location of all
Improvements constructed and to be constructed on the Project, together with
evidence satisfactory to the Administrative Agent that the Project is properly
zoned for the construction of the Improvements contemplated thereon and intended
operation thereof and that, when completed and operating, the Project will not
violate any zoning, land use, subdivision or similar land use laws and
ordinances or any other Laws, and that all Permits required for the construction
of the Project have been obtained by Co-Borrower, including all building permits
and all filings by or with Governmental Authorities, and that upon substantial
completion of the Project all Permits required for the operation of the Project
shall be obtainable in accordance with the schedule for the obtaining of such
Permits included as part of the Approved Project Schedule.
(x) Co-Borrower shall have provided evidence satisfactory to the
Administrative Agent that the Project is benefited by such easements or other
rights as may be necessary for the Project, vehicular and pedestrian ingress and
egress, installation and maintenance of utilities, parking and other site
improvements, and operation of the Project, including any such easements or
rights as are necessary for continued compliance with all Permits and other
Laws, all Leases and all Project Agreements.
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(y) Borrower shall have furnished to the Administrative Agent a
certificate, signed by an Authorized Officer, stating that to the knowledge of
such individual on the initial Borrowing Date no Default or Unmatured Default
(including, without limitation, any Out-of-Balance Condition) has occurred and
is continuing.
(z) No law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Administrative Agent shall not have
received any notice that litigation is pending or threatened which is likely to
(i) enjoin, prohibit or restrain the making of the Advances on the Initial
Funding Date or (ii) result in a Material Adverse Effect.
(aa) The Administrative Agent shall be reasonably satisfied (i) with
the collective bargaining or other organized labor agreements to which Borrower,
Co-Borrower and/or any of their respective Affiliates is or are a party and (ii)
that, before and after the Initial Funding Date, Co-Borrower has not encountered
and will not encounter any adverse labor union organizing activity, employee
strike, work stoppage, shutdown or lockout which results in a Material Adverse
Effect.
(bb) No Default or Unmatured Default shall have occurred that is
continuing or would result from the making of the Advances.
(cc) All of the representations and warranties contained in the Loan
Documents shall be true and correct on and as of the Initial Funding Date.
(dd) Co-Borrower shall have provided to the Administrative Agent and
the Lenders insurance certificates required under Section 6.6 with respect to
the Project and shall have satisfied all other requirements of Section 6.6 then
applicable.
(ee) The Administrative Agent shall have received a Borrowing
Notice, properly completed.
(ff) The Administrative Agent shall have received confirmation from
the Construction Consultant that the First Required Contributions have been made
and applied to Construction Costs.
(gg) The Administrative Agent shall have received the Initial
Construction Budget.
(hh) Borrower and Co-Borrower shall have established the Completion
Reserve Account and made the deposit therein required by Section 2.20.4 with the
proceeds of the Effective Date Advance or cash otherwise available to Borrower.
(ii) Borrower shall have delivered all documents, instruments and
agreements required to effect the Rate Management Transactions and the other
documents required by Section 6.21 to the Administrative Agent.
(jj) Borrower and Co-Borrower shall have provided the Administrative
Agent with such other documents as any Lender or its counsel may have reasonably
requested.
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4.2 Conditions Precedent to Each Advance. The Lenders shall not be
required to make any Advance (other than the Effective Date Advance) unless the
following conditions are satisfied on the applicable Borrowing Date:
(a) (i) There exists no Default or Unmatured Default (including,
without limitation, any Out-of-Balance Condition or failure to comply with
Section 6.21 hereof) that is continuing.
(ii) The Administrative Agent and the Construction Consultant
shall have (A) received the materials described in Section 2.20.4(b)
hereof all in form and substance acceptable to the Construction Consultant
and the Administrative Agent, and (B) approved the Initial Construction
Budget and given the Budget Approval Notice to the Reserve Account Bank.
(b) The representations and warranties contained in Article V are
true and correct as of such Borrowing Date except to the extent any such
representation or warranty is stated to relate solely to an earlier date, in
which case such representation or warranty shall have been true and correct on
and as of such earlier date.
(c) The Administrative Agent shall have received a Borrowing Notice,
properly completed by Borrower, with respect to the requested Advance, together
with a certification by an Authorized Officer showing the calculations necessary
to make the required representation with respect to the continuing adequacy of
amounts then on deposit in the Completion Reserve Account pursuant to Section
5.25(iii).
(d) The Administrative Agent shall have received a current report
from the Construction Consultant to verify that as of the date of each Advance,
all work and materials have been performed and incorporated into the Project
substantially in accordance with the Approved Plans and Specifications, and that
the Completion Conditions will be achieved within the Approved Project Budget
and on or before the Required Completion Date.
(e) The Administrative Agent shall have received Required Lien
Waivers sufficient to cause the current Date Down Endorsement to be issued.
(f) The Administrative Agent shall have received an endorsement to
the Mortgage Title Insurance Policy extending the coverage to include the date
and amount of the requested disbursement, without exception for mechanic's liens
or claims of liens, or any other matters not previously approved by the
Administrative Agent in writing (each, a "Date Down Endorsement").
(g) The Administrative Agent shall have received copies of all
documents required by the Title Insurer in order to issue the Date Down
Endorsements.
(h) The Administrative Agent shall have received copies of and
(except in the case of Permissible Modifications) approved in writing any
amendments, supplements, or modifications to the Approved Plans and
Specifications and any Project Agreements which have not been previously
provided to and (except in the case of Permissible Modifications) approved in
writing by the Administrative Agent, together with copies of any such
amendments,
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supplements and modifications which are proposed to be made and which have been
submitted to contractors.
(i) The Administrative Agent shall have received copies of and
approved in writing all Project Agreements (other than Non-Material Project
Agreements) executed since the last disbursement or not previously provided to
the Administrative Agent, together with (i) evidence reasonably satisfactory to
the Administrative Agent, including the written acknowledgment of Co-Borrower,
that all such Project Agreements (other than Non-Material Project Agreements)
have been collaterally assigned to the Administrative Agent for the benefit of
the Lenders and other Holders of Secured Obligations pursuant to the Loan
Documents and that the Administrative Agent holds a valid, existing and
continuing Lien thereon, and (ii) a consent and agreement (each, a "Consent and
Agreement") respecting such collateral assignment, in form and substance in all
respects satisfactory to the Administrative Agent, duly authorized, executed and
delivered by each of the Persons (other than Co-Borrower) party to such Project
Agreements (other than Non-Material Project Agreements) from whom or which the
Administrative Agent requires such Consent and Agreement.
(j) The Administrative Agent shall have received copies of all
Leases (other than De Minimis Leases) entered into for space at the Project
since the last Advance.
(k) If any material dispute has arisen between Borrower and any
other Person party to a Project Agreement or if any material extra or change
order is being negotiated by Borrower, the Administrative Agent shall have
received a written summary of the nature of such dispute or negotiation and the
current status thereof.
(l) No law, regulation, order, judgment or decree of any
Governmental Authority shall, and the Administrative Agent shall not have
received from any Lender, notice that, any litigation is pending or threatened
which is likely to, in the reasonable judgment of the Administrative Agent or
such Lender, enjoin, prohibit or restrain, or impose or result in the imposition
of any material adverse condition upon the construction and completion of the
Project or the making of the requested Advance.
(m) No litigation, arbitration, governmental investigation,
proceeding or inquiry shall be pending or threatened against Borrower,
Co-Borrower, or any other Subsidiary of Borrower that, in the reasonable
judgment of the Administrative Agent, is likely to have a Material Adverse
Effect.
Each Borrowing Notice with respect to each such Advance shall constitute a
representation and warranty by Borrower to the Administrative Agent and the
Lenders that the conditions contained in this Section 4.2 have been satisfied.
4.3 Limited Nature of Waivers of Requirements. It is expressly understood
and agreed that if any of the Lenders shall intentionally or unintentionally
waive or fail to require satisfaction of any condition precedent or other
provision or requirement set forth in this Agreement for the first or any
subsequent Advance, the Administrative Agent shall be deemed to have reserved
the right to require compliance with such condition precedent or other provision
or
49
requirement prior to any subsequent Advance, notwithstanding any previous
continuing or intermittent pattern of such waivers or failures to require such
satisfaction thereof.
4.4 Notices to Owner. In the event that, from and after the Effective
Date, any Person delivers a Notice to Owner under Florida law relating to
mechanics' lien claims, Borrower shall deliver a copy thereof to the
Administrative Agent within 15 days after the receipt thereof and obtain a lien
waiver from such Person as a pre-condition to any Advances.
ARTICLE V
REPRESENTATIONS AND WARRANTIES
Each of Borrower and Co-Borrower represents and warrants to the Lenders
that, as of the Effective Date, and thereafter whenever the representations and
warranties under this Article V are updated, remade or deemed to be remade:
5.1 Ownership, Existence and Standing. Each of Borrower, Co-Borrower, each
Subsidiary Guarantor and each Creative Group Subsidiary is a corporation,
limited partnership or limited liability company duly and properly incorporated
or organized, as the case may be, validly existing and (to the extent such
concept applies to such entity) in good standing under the laws of its
jurisdiction of incorporation or organization and has all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
True, correct and complete copies of the Organizational Documents of Borrower,
Co-Borrower, each Subsidiary Guarantor and each Creative Group Subsidiary have
been delivered to the Administrative Agent, each of which is in full force and
effect, has not been modified or amended except to the extent set forth therein
and there are no defaults under such Organizational Documents and, to the best
of Borrower's and Co-Borrower's knowledge, no events exist which, with the
passage of time or giving of notice or both, would constitute a default under
such Organizational Documents. As of the date hereof, the ownership structure of
Borrower, Co-Borrower, Subsidiary Guarantors, the Creative Group Subsidiaries
and all direct and indirect owners of membership interests therein are
completely and accurately disclosed on the ownership chart attached as Schedule
5.1. Neither Borrower nor Co-Borrower is a "foreign person" within the meaning
of Section 1445 of the Internal Revenue Code.
5.2 Authorization and Validity. Each of Borrower, Co-Borrower, the
Subsidiary Guarantors and the Creative Group Subsidiaries has the power and
authority and legal right to execute and deliver the Loan Documents to which it
is a party and to perform its obligations thereunder. The execution and delivery
by each of Borrower, Co-Borrower or any Subsidiary Guarantor of the Loan
Documents to which it is a party and the performance of its obligations
thereunder have been duly authorized by proper corporate or company proceedings.
Each of the Loan Documents to which Borrower, Co-Borrower or any Subsidiary
Guarantor is a party (A) has been duly executed and delivered on behalf of
Borrower, Co-Borrower or Subsidiary Guarantors, as the case may be, (B) to the
extent the same constitutes a security agreement or a collateral document,
creates valid first Liens in the Collateral covered thereby, securing the
payment of all of the Secured Obligations purported to be secured thereby, (C)
assuming due authorization and execution by the Lenders party thereto,
constitutes the legal, valid and binding obligation of the Borrower, Co-Borrower
or Subsidiary Guarantors, as the case may be,
50
enforceable against such Person, in accordance with its terms except to the
extent that the enforcement thereof or the availability of equitable remedies
may be limited by applicable bankruptcy, reorganization, insolvency, moratorium,
fraudulent transfer or similar laws now or hereafter in effect relating to or
affecting creditors' rights generally or by general principles of equity, or by
the discretion of any court of competent jurisdiction in awarding equitable
remedies, regardless of whether such enforcement is considered in a proceeding
in equity or at law and (D) is in full force and effect. All the terms,
provisions, agreements and conditions set forth in the Loan Documents and
required to be performed or complied with by Borrower, Co-Borrower or Subsidiary
Guarantors have been performed or complied with and no Default or breach of any
covenant by any such Person exists thereunder.
5.3 No Conflict; Government Consent. Neither the execution and delivery by
the Borrower, Co-Borrower and Subsidiary Guarantors of the Loan Documents to
which any of them is a party, nor the consummation of the transactions therein
contemplated, nor compliance with the provisions thereof will violate (i) any
law, rule, regulation, order, writ, judgment, injunction, decree or award
binding on any such Person or (ii) such Person's articles or certificate of
incorporation, partnership agreement, certificate of partnership, articles or
certificate of organization, by-laws, or limited liability company operating
agreement, as the case may be, or (iii) the provisions of any indenture,
instrument or agreement to which such Person is a party or is subject, or by
which it, or its Property, is bound, or conflict with or constitute a default
thereunder, or result in, or require, the creation or imposition of any Lien in,
of or on the property of such Person pursuant to the terms of any such
indenture, instrument or agreement. No order, consent, adjudication, approval,
license, authorization, or validation of, or filing, recording or registration
with, or exemption by, or other action in respect of any governmental or public
body or authority, or any subdivision thereof, which has not been obtained by
Borrower or Subsidiary Guarantors, is required to be obtained by any of them in
connection with the execution and delivery of the Loan Documents, the borrowings
under this Agreement, the payment and performance by Borrower, Co-Borrower and
Subsidiary Guarantors of the Obligations or the legality, validity, binding
effect or enforceability of any of the Loan Documents.
5.4 Financial Statements. The respective financial statements of the
Borrower, Co-Borrower, Subsidiary Guarantors and the Creative Group Subsidiaries
heretofore delivered to the Lenders were prepared in accordance with generally
accepted accounting principles in effect on the date such statements were
prepared and fairly present the financial condition and operations of the
Borrower, Co-Borrower, Subsidiary Guarantors and the Creative Group
Subsidiaries, as the case may be, at such date and the results of its operations
for the period then ended. Since December 31, 2000, there has been no material
adverse change in the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Borrower and its Subsidiaries
taken as a whole.
5.5 Intentionally Omitted.
5.6 Taxes. Borrower, Co-Borrower, Subsidiary Guarantors and the Creative
Group Subsidiaries have filed all United States federal tax returns and all
other tax returns which are required to be filed and for which the due date
(including extensions) has occurred and has paid all taxes due and payable
pursuant to said returns. All taxes (including real estate taxes), assessments,
fees and other charges of Governmental Authorities upon or relating to the
51
Borrower's, Co-Borrower's or any Subsidiary Guarantor's or Creative Group
Subsidiary's assets (including the Project), receipts, sales, use, payroll,
employment, income, licenses and franchises which are due and payable have been
paid, except to the extent such taxes, assessments, fees and other charges of
Governmental Authorities are being contested in good faith by an appropriate
proceeding diligently pursued with the security delivered as and to the extent
required by the terms of Section 6.5. Neither Borrower, nor Co-Borrower has any
knowledge of any proposed tax assessment against the Borrower, Co-Borrower, any
Subsidiary Guarantor, Creative Group Subsidiary or the Project that will have or
is reasonably likely to have a Material Adverse Effect. No tax liens have been
filed and no claims are being asserted with respect to any such Taxes.
Co-Borrower qualifies for partnership pass-through entity treatment under United
States federal tax law.
5.7 Litigation and Contingent Obligations. Except as otherwise described
on Schedule 5.7, there is, as of the date hereof, no litigation, arbitration,
governmental investigation, proceeding or inquiry pending or, to the knowledge
of any of their officers, threatened (a) against or affecting Borrower,
Co-Borrower any Subsidiary Guarantor or other Subsidiary of Borrower or any of
their respective Properties or (b) which seeks to prevent, enjoin or delay the
completion or operation of the Project or the making of any Advances. Except as
otherwise described on Schedule 5.7, none of Borrower, Co-Borrower, the
Subsidiary Guarantors or other Subsidiaries of Borrower has any material
Contingent Obligations not provided for or disclosed in the financial statements
referred to in Section 5.4.
5.8 Subsidiaries. (a) As of the date hereof, Borrower has no Subsidiaries
other than as shown on the ownership chart attached hereto as Schedule 5.1. The
percentage numbers shown on the chart attached hereto as Schedule 5.1 indicate
the percentage of Borrower's ownership in entities in which Borrower owns,
directly or indirectly, less than one hundred percent of all ownership
interests. The state or country of formation of each entity on such chart is
correctly shown thereon.
(b) The following direct or indirect Subsidiaries of Borrower are
defunct or "shell" companies which Borrower intends to dissolve:
(i) Zmusic Management, Inc. (operated a cable channel that no
longer exists);
(ii) Showpark Management, Inc. (managed entertainment for a
theme park that no longer exists);
(iii) Xxxxxxx Digital, LLC (digital media; no longer
operational);
(iv) GBRJ Music, LLC (digital media; no longer operational);
(v) Lightsource, LLC (digital media; no longer operational);
and
(vi) TV Force, LLC (digital media; no longer operational).
(c) Oklahoma City Athletic Club, Inc. is an indirect Subsidiary of
Borrower that is a party to franchise agreements with major league baseball and
the Pacific Coast Baseball
52
League, both of which prohibit incurring contingent obligations on behalf of
affiliates or subsidiaries for debt that is not directly related to baseball
operations.
5.9 Affiliate Contracts. Other than as disclosed on Schedule 5.9, there
are no material contracts or other agreements between Borrower or Co-Borrower
and any Affiliate of either in effect with respect to the Project or any part
thereof.
5.10 Accuracy of Information. No written or documentary information,
exhibit or report furnished by or on behalf of the Borrower, Co-Borrower and
Subsidiary Guarantors to the Administrative Agent or to any Lender in connection
with the syndication of the Commitments and the Loans, or the negotiation of, or
compliance with, the Loan Documents contained any material misstatement of fact
or omitted to state a material fact or any fact necessary to make the statements
contained therein not misleading.
5.11 Margin Regulations. No part of the proceeds of any Loan will be used
to purchase or carry any margin stock (as defined in Regulation U) or to extend
credit for the purpose of purchasing or carrying any margin stock. Neither the
making of any Loan nor the use of the proceeds thereof will violate or be
inconsistent with the provisions of Regulation T, Regulation U or Regulation X.
5.12 Material Agreements. Neither Borrower, Co-Borrower nor any Subsidiary
Guarantor or Creative Group Subsidiary is a party to any agreement or instrument
or subject to any charter or other corporate or company restriction which could
reasonably be expected to have a Material Adverse Effect. Neither Borrower,
Co-Borrower nor any Subsidiary Guarantor is in default in the performance,
observance or fulfillment of any material obligation, covenant or condition
contained in (i) any Project Agreement, (ii) any other agreement to which it is
a party, which default could reasonably be expected to have a Material Adverse
Effect or (iii) any agreement or instrument evidencing or governing
Indebtedness.
5.13 Compliance With Laws. Except where any failure to comply would not
have a material adverse effect on the business, operations, property, condition
(financial or otherwise) or prospects of any of them, Borrower, Co-Borrower and
each of the Subsidiary Guarantors and Creative Group Subsidiaries have complied
with all applicable statutes, rules, regulations, orders and restrictions of any
domestic or foreign government or any instrumentality or agency thereof having
jurisdiction over the conduct of their respective businesses or the ownership of
their respective Property, and except as otherwise described on Schedule 5.13,
neither Borrower nor any of its Subsidiaries nor the Project is subject to or in
default with respect to any final judgment, writ, injunction, restraining order
or order of any nature, decree, rule or regulation of any court or Governmental
Authority.
5.14 Ownership of Certain Properties. (a) Borrower owns, directly or
indirectly 100% of all ownership interests in Co-Borrower. Co-Borrower has good,
insurable (at normal rates) leasehold title to the Project. The Project and all
assets and Property constituting Collateral are free and clear of all Liens and
rights of others and any underlying easements, covenants, conditions, and other
encumbrances, except Liens securing the Secured Obligations and Customary
Permitted Liens. Except as otherwise described in Schedule 5.14, all Property
owned by, leased to or used by Co-Borrower is in good operating condition and
repair, ordinary wear
53
and tear excepted, is free and clear of any known defects except such defects as
do not substantially interfere with the continued use thereof in the conduct of
normal operations, and is able to serve the function for which it is currently
being used. Neither this Agreement nor any other Loan Document, nor any
transaction contemplated under any such agreement, will affect any right, title
or interest of Co-Borrower in and to any of such Property (other than in
connection with Liens in favor of the Administrative Agent). The Project is
taxed separately without regard to any other Property. The Project may be
mortgaged, conveyed and operated as a parcel separate and independent from any
other Real Property, subject only to Customary Permitted Liens.
(b) Borrower owns, directly or indirectly, 100% of all ownership
interests in Opryland Hotel Nashville LLC, which is the fee owner of the
property known as Opryland Hotel Nashville.
5.15 Plan Assets; Prohibited Transactions; ERISA. Neither Borrower nor any
of its Subsidiaries is an entity deemed to hold "plan assets" within the meaning
of 29 C.F.R. Section 2510.3-101 of an employee benefit plan (as defined in
Section 3(3) of ERISA) which is subject to Title I of ERISA or any plan (within
the meaning of Section 4975 of the Code), and neither the execution of this
Agreement nor the making of Advances hereunder gives rise to a prohibited
transaction within the meaning of Section 406 of ERISA or Section 4975 of the
Code. None of Borrower or any of its Subsidiaries is or shall while any Advances
are outstanding be or become (A) obligated to make any contributions to, or
incur any liability on account of any funding deficiency (as defined in Section
302(a)(2) of ERISA and Section 412(a) of the Code) with respect to, any employee
pension benefit plan qualified under Section 401(a) of the Code, (B) party to or
otherwise obligated to make any payments under any agreement relating to any
such plan, or (C) obligated to make any payments under Title IV of ERISA.
5.16 Environmental Matters. Except as disclosed on Schedule 5.16:
(i) the operations of Co-Borrower and the Project comply, and to the
best of Borrower's and Co-Borrower's knowledge, the operations of all prior
owners of the Project have complied, in all respects with all applicable
Environmental Laws except as otherwise set forth in the Environmental Report;
(ii) all environmental, health and safety Permits necessary for the
operation of the Project (other than Permits available only upon completion of
construction) have been obtained, and all such Permits are in good standing and
the Borrower is currently in compliance with all terms and conditions of such
Permits;
(iii) neither Borrower, Co-Borrower nor the Project is subject to
or, to the best of the knowledge of Borrower and Co-Borrower, is the subject of,
any investigation, judicial or administrative proceeding, order, judgment,
decree, dispute, negotiations, agreement or settlement respecting (1) any
Environmental Laws, (2) any Remedial Action, (3) any Claims or Liabilities and
Costs arising from the Release or threatened Release of a Contaminant into the
environment or (4) any violation of or liability under any Environmental Laws;
54
(iv) except as expressly disclosed in the Environmental Report,
neither Borrower, Co-Borrower nor, to the best of the knowledge of Borrower and
Co-Borrower, any other Person, has filed any notice under any applicable
Requirement of Law with respect to the Project (1) reporting a Release of a
Contaminant; (2) indicating past or present treatment, storage or disposal of a
hazardous waste, as that term is defined under 40 C.F.R. Part 261 or any state
equivalent or (3) reporting a violation of any applicable Environmental Laws.
(v) the Project is not listed or proposed for listing on the
National Priorities List ("NPL") pursuant to CERCLA or on the Comprehensive
Environmental Response Compensation Liability Information System List
("CERCLIS") or any similar state list of sites requiring Remedial Action;
(vi) neither Borrower, Co-Borrower nor any other Person (in
connection with the Project) has sent or directly arranged for the transport of
any waste to any site listed or proposed for listing on the NPL, CERCLIS or any
similar state list;
(vii) except as expressly disclosed in the Environmental Report,
there is not now, nor, to the best of Borrower's and Co-Borrower's knowledge,
has there ever been on the Project (1) any treatment, recycling, storage or
disposal of any hazardous waste, as that term is defined under 40 C.F.R. Part
261 or any state equivalent; (2) any landfill, waste pile, underground storage
tank or surface impoundment; (3) any asbestos-containing material or (4) any
polychlorinated biphenyls (PCB) used in hydraulic oils, electrical transformers
or other equipment;
(viii) neither Borrower, Co-Borrower, nor, to the best of the
knowledge of Borrower and Co-Borrower, any other Person has received any notice
or Claim to the effect that it is or may be liable to any Person as a result of
the Release or threatened Release of a Contaminant into the environment in
connection with the Project;
(ix) no Environmental Lien has attached to the Project;
(x) the Project is not subject to any Environmental Property
Transfer Act, or to the extent such acts are applicable to the Project, the
Borrower has fully complied with the requirements of such acts;
(xi) no underground storage tanks are located at the Project; and
(xii) except as expressly disclosed in the Environmental Report, no
asbestos or asbestos-containing materials are located on, at or in the Project.
5.17 Investment Company Act. Neither Borrower nor any of its Subsidiaries
is an "investment company" or a company "controlled" by an "investment company",
within the meaning of the Investment Company Act of 1940, as amended.
5.18 Public Utility Holding Company Act. Neither Borrower nor any of its
Subsidiaries is a "holding company" or a "subsidiary company" of a "holding
company", or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company", within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
55
5.19 Solvency. (a) Immediately after the consummation of the transactions
to occur on the Effective Date and immediately following the making of each
Advance, if any, made on the Effective Date and after giving effect to
contribution arrangements among Borrower, Co-Borrower and the Subsidiary
Guarantors and to the application of the proceeds of such Advances, and except
as set forth on Exhibit 5.19 with respect to certain Subsidiaries that are not
Subsidiary Guarantors, (a) the fair value of the assets of each of Borrower and
its Subsidiaries at a fair valuation, in each case will exceed the debts and
liabilities, subordinated, contingent or otherwise, of such entity; (b) the
present fair saleable value of the Property of each of Borrower and its
Subsidiaries, in each case will be greater than the amount that will be required
to pay the probable liability of such entity on its debts and other liabilities,
subordinated, contingent or otherwise, as such debts and other liabilities
become absolute and matured; (c) each of Borrower and its Subsidiaries will be
able to pay its debts and liabilities, subordinated, contingent or otherwise, as
such debts and liabilities become absolute and matured; and (d) each of Borrower
and its Subsidiaries will not have unreasonably small capital with which to
conduct the businesses in which it is engaged as such businesses are now
conducted and are proposed to be conducted after the Effective Date.
(b) Neither the Borrower nor any of its Subsidiaries intends to, or
believes that it will, incur debts beyond its ability to pay such debts as they
mature, taking into account the timing of and amounts of cash to be received by
it and the timing of the amounts of cash to be payable on or in respect of its
Indebtedness.
5.20 Permits, Zoning, Government Approvals, Trademarks, Etc. (a) The
proposed uses of the Project do not, and when the Project is completed and fully
operational will not, violate any Requirements of Law in any material respect.
Borrower and Co-Borrower own or have all Permits and other Governmental
Approvals (other than building permits and other permits and approvals
identified in Schedule 5.20 that have not yet been issued, but will be obtained
in sufficient time to enable Co-Borrower to fulfill the Completion Conditions by
the Required Completion Date), trademarks, trade names, copyrights, technology,
know-how and processes used in or necessary for the construction of the Project
and the operation thereof as a first class hotel and convention center, with
meeting rooms, convention center, restaurants and spa, upon completion of such
construction. No claims are pending and neither the Borrower, nor to the best of
the Borrower's knowledge, any other Person, has received written notice of any
threatened claim, in either case, asserting that the Borrower or any of its
Subsidiaries or Affiliates (or such other Person) is infringing or otherwise
adversely affecting the rights of any Person in any material respect with
respect to such Permits and other Governmental Approvals, trademarks, trade
names, copyrights, technology, know-how and processes. Neither the zoning or
land use classification, nor any other Permit for or relating to the Project is
to any extent dependent upon or related to any Property other than the Property
comprising the Project.
(b) There have not been and there are no pending proceedings or
actions to revoke, attack, invalidate, rescind, or modify the zoning or land use
classification of the Project or any part thereof or any Permits heretofore
issued with respect thereto, or asserting that such zoning, land use
classification or Permits do not permit the ownership, construction, operation
or use of the Project as a first class hotel and convention center with
associated facilities and, to the best of the Borrower's knowledge, no facts
exist which would reasonably be expected to result in
56
the denial, disapproval or revocation of any Governmental Approvals or Permits
necessary to operate the Project or any other Property.
5.21 Utilities; Access; Structural Soundness. (a) The Project has or will
have upon completion of construction water, gas and electrical supply, storm and
sanitary sewage facilities, other required public utilities, and fire and police
protection adequate for the continuous operation of the Project in the manner
contemplated upon completion of the construction thereof, and all such
facilities and utilities comply (or, will comply upon completion of
construction) with all applicable Requirements of Law.
(b) The Project has legal access for both pedestrians and vehicles
at locations contemplated by or otherwise consistent with the Approved Plans and
Specifications. The Borrower has received no written notice of any denial of
access to the Project nor does the Borrower have knowledge that any such denial
is being contemplated by any Governmental Authority.
(c) To the best of Borrower's and Co-Borrower's knowledge following
diligent inquiry, the Project (to the extent constructed) is structurally sound
and has been constructed in a good and workmanlike manner, is free from any
structural or latent defects or other material defects, and is in good repair.
5.22 Leasehold Matters. Except as set forth on Schedule 5.22, (a) there
are no Leases or other arrangements for occupancy of space within the Project
except for Leases entered into in accordance with Section 6.34 and (b) there are
no Persons (excluding guests and invitees) in possession of all or any part of
the Project other than as permitted under Leases entered into in accordance with
Section 6.34. Co-Borrower is not in default in any material respect under any
Lease. Co-Borrower has delivered to the Administrative Agent true and complete
copies of all Leases entered into as of the date hereof.
5.23 Ground Lease Matters.
(a) Each of the Ground Leases is in full force and effect,
unmodified by any writing or otherwise, and Co-Borrower has not waived, canceled
or surrendered any of its rights thereunder, nor has Co-Borrower made any
election or exercised any option thereunder.
(b) All rent, additional rent, percentage rent and/or other charges
reserved in or payable under the Hotel Ground Lease have been paid to the extent
that they are payable to the date hereof.
(c) Co-Borrower has not delivered or received any notice of default
under the Ground Leases and is not in default under any of the terms of the
Ground Leases, and there are no circumstances which, with either the passage of
time or the giving of notice, or both, would constitute a default by Co-Borrower
under either of the Ground Leases.
(d) To Co-Borrower's knowledge as of the date hereof, (i) the Master
Lessor is not in default under any of the terms of either of the Ground Leases
on its part to be observed and/or performed, and (ii) there are no circumstances
which, with the passage of time or the
57
giving of notice, or both, would constitute a default by the Master Lessor under
either of the Ground Leases.
(e) To Co-Borrower's knowledge as of the date hereof, the Ground
Lessor is not in default under any of the terms of either of the Ground Leases
on its part to be observed and/or performed, and to Co-Borrower's knowledge as
of the date hereof, there are no circumstances which, with the passage of time
or the giving of notice, or both, would constitute a default by the Ground
Lessor under either of the Ground Leases.
(f) Co-Borrower has delivered to Lender a true, accurate and
complete copy of each of the Ground Leases, together with all amendments,
renewals and other modifications thereto.
(g) There is no adverse claim to Co-Borrower's title to or
possession of the leasehold estate created by the Hotel Ground Lease.
(h) The Ground Lessor has approved the Approved Plans and
Specifications and the Approved Project Schedule.
5.24 Casualty; Condemnation Except for any Non-Material Casualty, neither
the Project nor any portion thereof is materially affected by any fire,
explosion, accident, drought, storm, hail, earthquake, embargo, act of God or
other casualty. Except for any Non-Material Condemnation, no condemnation of the
Project (nor any roadways abutting thereto) or any portion thereof is pending,
nor has the Borrower received any written notice of any potential condemnation
by any Governmental Authority.
5.25 Construction. On the Initial Funding Date and on the date of each
Advance, (i) the statements contained in all certificates of Borrower or
Co-Borrower delivered in connection with the disbursement of Loans shall be, in
all material respects, true, correct, complete and not misleading, whether by
omission to state facts or otherwise, (ii) the amounts set forth in the Approved
Construction Budget (or, until the Approved Construction Budget is in effect,
the Initial Construction Budget) present a full, complete and accurate
representation of all Construction Costs which Co-Borrower expects to pay or
anticipates becoming obligated to pay to complete the construction of the
Project in accordance with the Approved Plans and Specifications and Laws
satisfy all Completion Conditions on or before the Required Completion Date and
to operate the Project through such completion, (iii) the amount on deposit in
the Completion Reserve Account, together with the Available Aggregate Commitment
after giving effect to the Advance made on such date, will be sufficient to pay
all then unpaid Construction Costs (which shall not include interest payments on
the Loans) expected to be incurred and paid in order to achieve Completion by
the Completion Date, (iv) the Approved Plans and Specifications are complete and
correct in all material respects, containing all detail requisite for
construction and completion of the Project, (v) the Approved Project Schedule is
realistic and feasible in all material respects, and the Project has proceeded
to date in substantial accordance therewith, (vi) Co-Borrower shall have
provided the Administrative Agent with true, correct and complete copies of all
the Project Agreements and other documents required to be provided to the
Administrative Agent under Article IV, and (vii) there are no material defaults
under, or to the best of the Borrower's and Co-Borrower's knowledge, no events
exist which, with the
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passage of time or giving of notice or both, would constitute a material default
under, any of the documents set forth in clause (vi) above.
5.26 Brokerage Fees. No brokerage fees or commissions are payable by or to
any Person with whom Borrower, Co-Borrower or any Subsidiary Guarantor has dealt
in connection with this Agreement or the Loans.
5.27 Personal Property. All furnishings, equipment and other tangible
personal property necessary for the efficient use and operation of the Project
are, to the extent incorporated in the Project as of the date hereof and as of
the date of each Advance hereunder, in substantially good condition and repair,
are free from Liens (other than the Customary Permitted Liens) and are usable
for their intended purposes.
5.28 Zoning. Neither Borrower nor Co-Borrower has taken any action, and,
to the best of the Borrower's and Co-Borrower's knowledge as of the date hereof,
no action has been initiated or is contemplated by any other Person, which could
result in any modification to the zoning or land use ordinances, laws or
regulations affecting the Project.
5.29 Incentive Agreements. Borrower has furnished to the Administrative
Agent true, complete and correct copies of the Incentive Agreements, which
Agreements are unmodified and in full force and effect. Borrower and Co-Borrower
have engaged in discussions with Osceola County to amend and modify the PIP to
create a direct economic incentive-based agreement with the intention of
alleviating the requirement of a bond validation process. Borrower and
Co-Borrower do not anticipate that the substantive economic terms of the PIP
will be changed in connection with such amendment. Borrower and Co-Borrower
acknowledge and agree that they will not cause, permit or agree to any amendment
to the PIP without the prior consent of the Administrative Agent, which shall
not be unreasonably withheld or delayed.
5.30 SAILS Contract. Borrower has furnished to the Administrative Agent a
true, complete and correct copy of the SAILS Forward Exchange Contract, which
remains unmodified and in full force and effect.
ARTICLE VI
COVENANTS
During the term of this Agreement, unless the Required Lenders shall
otherwise consent in writing, Borrower and Co-Borrower covenant and agree as
follows:
6.1 Financial Reporting. Borrower and Co-Borrower each will maintain for
itself a system of accounting established and administered in accordance with
generally accepted accounting principles, and furnish to the Administrative
Agent for distribution to the Lenders:
(i) As soon as available and in any event within 90 days after the
close of each of its Fiscal Years, an unqualified audit report, certified by
Xxxxxx Xxxxxxxx or another "big five" accounting firm, prepared in accordance
with Agreement Accounting Principles for Borrower (which shall, in any event,
include balance sheets as of the end of such period, related profit and loss and
reconciliation of surplus statements, and a statement of cash flows).
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(ii) As soon as available and in any event, within 45 days after the
close of each of its Fiscal Quarters, unaudited financial reports, prepared in
accordance with Agreement Accounting Principles for Borrower (which shall, in
any event, include balance sheets as of the end of such period, related profit
and loss statements, and a statement of cash flows).
(iii) The annual operating and capital budget for Borrower, on a
consolidated basis, for each Fiscal Year, in each case provided not later than
60 days after the commencement of such Fiscal Year during the term of this
Agreement.
(iv) From and after the Completion Date, the annual operating and
capital budget for the Project for each Fiscal Year, in the case of the first
such budget, provided no later than the date on which the first unaudited
operating statement is required to be delivered pursuant to the following clause
(v)(B), and in the case of each subsequent budget, provided not later than the
commencement of such Fiscal Year during the term of this Agreement, which budget
shall constitute the "Operating and Capital Budget" for such Fiscal Year.
(v) From and after the Opening Date, (A) as soon as possible and in
any event within 45 days after the close of each Fiscal Quarter, a complete
statement and accounting of any use or disbursement of funds in the FF&E Reserve
Account for such Fiscal Quarter, identifying the purpose, size and type of each
expenditure and accompanied by copies of all bank statements with respect to the
FF&E Reserve Account not previously delivered to the Administrative Agent, and
(B) within 30 days after the close of each month end (and, from and after the
later of December 31, 2002 and date on which the Aggregate Outstanding Credit
Exposure is reduced to $85,000,000, within 30 days after the close of each
Fiscal Quarter), an unaudited operating statement for the Project for such month
(or, if applicable, such Fiscal Quarter), including a discussion of results and
any material line item variances from the current Operating and Capital Budget,
all certified by an Authorized Officer and by the Property Manager.
(vi) As soon as available and in any event within 45 days after the
close of each Fiscal Quarter and 90 days after the close of each Fiscal Year, a
compliance certificate for Borrower and Co-Borrower in substantially the form of
Exhibit G signed by an Authorized Officer, (1) showing the calculations
necessary to determine compliance with this Agreement, including those covenants
set forth in Section 6.25, (2) stating that to such Authorized Officer's
knowledge, no Default or Unmatured Default exists, or if any Default or
Unmatured Default exists, stating the nature and status thereof, and (3) showing
Co-Borrower's calculations (and supporting information) of amounts then required
to be maintained in the Completion Reserve Account and the FF&E Account and all
disbursements therefrom (identifying the purpose, size and type of each
expenditure), accompanied by copies of all bank statements with respect to the
Completion Reserve Account and the FF&E Reserve Account received to date and not
previously delivered to the Administrative Agent.
(vii) Promptly upon the occurrence of any of the following, and in
all events within 10 Business Days after any such occurrence, written notice of
the following:
(a) receipt by Borrower, Co-Borrower, Property Manager or a
Person responsible for the environmental matters at the Project of a notice or
claim to the effect that Borrower, Co-Borrower, any Subsidiary of Borrower or
Property Manager is or may be liable to
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any Person as a result of the Release or threatened Release of any Contaminant
into the environment;
(b) receipt by Borrower, Co-Borrower, Property Manager or a
Person responsible for the environmental matters at the Project of a notice that
Borrower, Co-Borrower or Property Manager or any portion of the Project is
subject to investigation by any Governmental Authority evaluating whether any
Remedial Action is needed to respond to the Release or threatened Release of any
Contaminant into the environment at or from the Project;
(c) receipt by Borrower, Co-Borrower, Property Manager or a
Person responsible for the environmental matters at the Project of a notice that
the Project is subject to an Environmental Lien;
(d) receipt by Borrower, Co-Borrower, Property Manager or a
Person responsible for the environmental matters at the Project of a notice of a
material violation of any Environmental Laws with respect to the Project;
(e) any condition which might reasonably be expected to result
in a violation of any Environmental Laws by Borrower, Co-Borrower or Property
Manager or with respect to the Project; or
(f) commencement or written threat of which Borrower,
Co-Borrower or Property Manager has knowledge of any judicial or administrative
proceeding alleging a violation of any Environmental Laws by Borrower,
Co-Borrower or Property Manager or with respect to the Project
(viii) (a) Promptly upon Borrower's or Co-Borrower's obtaining
knowledge of the institution of, or written threat of, any action, suit,
proceeding, governmental investigation or arbitration against or affecting the
Borrower, Property Manager or the Project other than any Ordinary Course Claim,
written notice thereof and such other information as may be reasonably available
to enable each Lender and the Administrative Agent and its counsel to evaluate
such matters; (b) as soon as practicable and in any event within forty-five days
after the end of each Fiscal Quarter, a written quarterly report covering the
institution of any action, suit, proceeding, governmental investigation or
arbitration (not previously reported) against or affecting the Borrower,
Property Manager or the Project (including, without limitation, all Ordinary
Course Claims), containing such information as may be reasonably available to
enable the Administrative Agent and its counsel to evaluate such matters; and
(c) in addition to the requirements set forth in clauses (a) and (b) above, upon
request of the Administrative Agent prompt written notice of the status of any
action, suit, proceeding, governmental investigation or arbitration covered by a
report delivered pursuant to clause (a) above, including such information as may
be reasonably available to it to enable each Lender and the Administrative Agent
and its counsel to evaluate such matters. For purposes hereof, an "Ordinary
Course Claim" shall mean a claim for which is fully covered by the Borrower's or
Property Manager's insurance (with the exception of permitted deductibles
hereunder) and which neither alleges damages in excess of $500,000 nor seeks to
enjoin development, construction, use or operation of the Project.
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(ix) Promptly upon the Borrower's or Co-Borrower's learning thereof,
written notice of any labor dispute to which the Borrower, Co-Borrower, any
Creative Group Subsidiary or any Subsidiary Guarantor may become a party
(including any strikes, lockouts or other disputes relating to the Project).
(x) Copies of any reports on form 8K filed with the Securities
Exchange Commission, upon filing same.
(xi) Prompt written notice upon the occurrence of any Property Award
Event, given in any event within ten days after the occurrence thereof.
(xii) Such other non-proprietary information (including
non-financial information) as the Administrative Agent or any Lender may from
time to time reasonably request.
6.2 Use of Proceeds. Borrower will use the proceeds of the Advances solely
for the purpose of funding Approved Construction Costs in accordance with this
Agreement or for general corporate purposes of Borrower. Borrower will not use
or permit any of its Subsidiaries to use any of the proceeds of the Advances to
purchase or carry any "margin stock" (as defined in Regulation U) or in any
manner in violation of any other regulation of the Board of the Federal Reserve
System.
6.3 Notice of Default. Borrower and Co-Borrower will give prompt notice in
writing to the Lenders of the occurrence of any Default or Unmatured Default of
which they have knowledge and of any other development, financial or otherwise,
which could reasonably be expected to have a Material Adverse Effect.
6.4 Conduct of Business; Corporate Existence. Borrower and Co-Borrower
shall (and Borrower shall cause all of the Subsidiary Guarantors and Creative
Group Subsidiaries to) (a) maintain in all material respects their Properties
(including the Project) in good, safe and insurable condition and repair, (b)
maintain all utilities, access rights, zoning, land use classification and
necessary Permits for the Project, (c) not permit, commit or suffer any waste or
abandonment of the Project, and (d) from time to time shall make or cause to be
made all material repairs, renewal and replacements thereof, including any
capital improvements which may be required to maintain the same in good
condition and repair. Without any limitation on the foregoing, Co-Borrower shall
staff, maintain, insure and operate the Project as a first class hotel and
convention center. Borrower and Co-Borrower will and Borrower will cause each of
the Subsidiary Guarantors and Creative Group Subsidiaries to do all things
necessary to remain duly incorporated or organized, validly existing and (to the
extent such concept applies to such entity) in good standing as a corporation,
partnership or limited liability company in its jurisdiction of incorporation or
organization, as the case may be, and maintain all requisite authority to
conduct its business in each jurisdiction in which its business is conducted.
6.5 Taxes and Claims.
(a) Co-Borrower shall and Borrower shall and shall cause each
Subsidiary of Borrower to timely file (subject to lawful extension of filing
date requirements) complete and correct United States federal and applicable
foreign, state and local tax returns required by law (it
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being understood that such filings may be in the form of consolidated returns).
Co-Borrower will qualify for pass-through entity treatment under United States
federal tax law. Each of Borrower, Co-Borrower and all other Subsidiaries of
Borrower shall pay (i) all taxes, assessments, rates, dues, charges, fees,
levies, fines, impositions, transit taxes, taxes based on the receipt of rent
and other governmental charges imposed upon it or on any of its Property or
assets or in respect of any of its franchises, licenses, receipts, sales, use,
payroll, employment, business, income or Property before any penalty or interest
accrues thereon and (ii) all Claims (including claims for labor, services,
materials and supplies) for sums which have become due and payable and which by
law have or may become a Lien, prior to the time when any penalty or fine shall
be incurred with respect thereto. Borrower shall provide copies of property tax
bills and other invoices and evidence of payment of property taxes with respect
to the Project, within thirty (30) days following such payment. Notwithstanding
the foregoing, no such taxes, assessments, fees and governmental charges
referred to in clause (i) above or Claims referred to in clause (ii) above need
be paid (unless payment under protest is required by applicable Requirements of
Law in connection with a contest) if (A) being contested in good faith by
appropriate proceedings diligently instituted and conducted, (B) a reserve or
other appropriate provision, if any, as shall be required in conformity with
GAAP shall have been made therefor and (C) with respect to Liens on Collateral,
Borrower shall have deposited with the Administrative Agent security in an
amount and of a kind reasonably satisfactory to the Administrative Agent during
the pendency of such appropriate proceedings. Notwithstanding the foregoing, if
Borrower (1) shall fail to discharge or cause to be discharged within sixty (60)
days after the imposition thereof (but in any event before the same is
reasonably likely to result in either (A) the Property being sold, forfeited or
lost or (B) the Lien in favor of the Administrative Agent for the benefit of the
Lenders and other Holders of Secured Obligations being impaired) any such Lien
for taxes, assessments or other governmental charges or claims filed or
otherwise asserted with respect to any portion of the Project, or (2) shall fail
to contest any of the foregoing and give security therefor within the time
period specified in the preceding clause (1) or, having commenced to contest the
same, and having given such security within such time period, shall thereafter
fail to prosecute such contest in good faith and with due diligence, or fail to
maintain such security for its full amount, or (3) upon adverse conclusion of
any such contest, shall fail to cause any judgment or decree to be satisfied and
such Lien to be released, then, and in any such event, the Administrative Agent
may (but shall not be required to) at its election, (x) procure the release and
discharge of any such Lien and any judgment or decree thereon, without inquiring
into or investigating the amount, validity or enforceability of such Lien and
(y) effect any settlement or compromise of the same, or furnish security or
indemnity to the Title Insurer, and any amounts so expended by the
Administrative Agent, including premiums paid or security furnished in
connection with the issuance of any surety company bonds, shall be deemed to
constitute additional Obligations and shall be secured by the Collateral.
(b) Notwithstanding the foregoing, neither Borrower nor Co-Borrower
shall suffer or permit any mechanics' lien claims to be filed or otherwise
asserted against the Project. If any such claims for Lien or any proceedings for
the enforcement thereof are filed or commenced, Co-Borrower shall discharge the
same within thirty (30) days of such filing or commencement; provided, however,
that (i) Co-Borrower shall have the right to contest in good faith and with due
diligence the validity of any such Lien or Claim upon (A) furnishing to the
Title Insurer such security or indemnity as it may require to induce the Title
Insurer to issue
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endorsements to the Mortgage Title Insurance Policy insuring against all such
Claims, Liens or proceedings or (B) posting with the Administrative Agent a bond
or other security, in form and substance satisfactory to Administrative Agent in
its reasonable discretion with respect to any such mechanics' lien; and (ii) the
Lenders will not be required to make any further Loans unless and until (A) any
such Lien has been released or insured against by the Title Insurer or (B)
Co-Borrower shall have provided the Administrative Agent with such other
security with respect to such Claim as may be acceptable to the Administrative
Agent in its reasonable discretion. In addition, as a condition to any such
contest, the Administrative Agent must be satisfied in its sole discretion,
that: (1) any such Lien is being contested, appealed or otherwise prosecuted
with diligence and continuity, (2) enforcement of such Lien shall be stayed
pending such contest, appeal or other proceeding, and (3) the Project is secure
and the priority of the Mortgage remains unaffected.
6.6 Insurance. (a) Borrower will maintain and will cause all of its
Subsidiaries, including Co-Borrower and the Subsidiary Guarantors, to maintain
with financially sound and reputable insurance companies insurance coverages in
such amounts and covering such risks as is consistent with sound business
practice, and Borrower will furnish to any Lender upon request full information
as to the insurance carried by Borrower and all such Persons. Without limitation
of the foregoing, the Borrower and Co-Borrower shall comply with the provisions
and maintain the insurance coverages set forth below, such coverage to be
evidenced by copies of insurance certificates.
(b) The following insurance coverages shall be required prior to
Completion:
(1) The Borrower shall obtain and maintain property (or cause to be
maintained) insurance policies and such insurance policies shall be
Builder's Risk so-called "all risk" insurance in the amount of one hundred
percent (100%) of the replacement cost value of the completed Improvements
(exclusive of excavation and foundation costs). Such policy shall be
written on a Builder's Risk Completed Value Form (100% non-reporting) or
its equivalent and shall include coverage for loss by collapse, theft,
wind, flood and earthquake. Flood insurance shall be procured in an amount
not less than $30,000,000 and shall include a sublimit of not less than
$500,000 coverage for improvements to landscaping), to the extent such
coverage is available under standard policies at commercially reasonable
terms and earthquake limits of liability shall be not less than $5,000,000
or such greater amount as is customarily carried by operators of similar
high-quality lodging facilities in the same geographic region. Such
insurance policy shall also include coverage for:
(aa) loss suffered with respect to materials, equipment, machinery,
and supplies whether on-site, in transit, or stored off-site
and with respect to temporary structures, hoists, sidewalks,
retaining walls, and underground property;
(bb) soft costs, plans, specifications, blueprints and models in
connection with any Restoration following a casualty;
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(cc) demolition and increased cost of construction, including,
without limitation, increased costs arising out of changes in
applicable laws and codes for a limit equal to not less than
ten percent (10%) of the full insurable value of the Project;
(dd) operation of building laws for the policy limit to the extent
available at commercially reasonable times, but in any event
for a limit that is not less than ten percent (10%) of the
full insurable value of the Project.
All of the above shall include coverage for business interruption
insurance on an actual loss sustained basis with Extended Period of Indemnity
Endorsement for 180 days, or at least 90 days if coverage for 180 days is not
available at commercially reasonable terms. Such insurance policy shall name the
Borrower as the insured. Such policy shall also name the Administrative Agent
and Lender under a standard mortgagee clause or an equivalent endorsement
reasonably satisfactory to the Administrative Agent for the Project and as "Loss
Payee" as respects Loss of Revenue insurance. The insurance policy shall be
endorsed to also provide guaranteed building replacement cost to the
Improvements (exclusive of excavation and foundation costs). All policy
deductibles shall be in amounts as commonly carried by operators of similar
high-quality facilities in the same geographic region and reasonably approved by
Administrative Agent.
(2) Borrower shall cause the Project Architect (excluding any
sub-architects or engineers) to obtain and maintain architect's or
engineer's, as the case may be, professional liability insurance during
the period commencing on the date of their respective agreements for the
work to be performed by them, and expiring no earlier than three (3) years
after completion of the Project. Such insurance shall be in an amount
equal to at least $3,000,000 per occurrence for the Project Architect and
at least $1,000,000 per occurrence for the engineers (excluding
sub-engineers).
(3) Borrower and Co-Borrower shall obtain and maintain Boiler &
Machinery coverage (or similar coverage included in so-called "all risk"
property coverage) immediately as such equipment is delivered and
installed for all mechanical and electrical equipment covering the
replacement value of such equipment with exclusions for testing removed.
Such coverage shall include, without limitation, coverage for business
interruption with a 180-day Extended Period of Indemnity, or at least 90
days if coverage for 180 days is not available at commercially reasonable
terms.
(4) Borrower and the Property Manager shall obtain and maintain
Workers Compensation and Disability insurance as required by law covering
the Borrower and the Property Manager.
(5) Borrower shall obtain and maintain or ensure that the Project
General Contractor maintains Commercial General Liability coverage through
the Owner Controlled Insurance Program implemented by Borrower, including,
but not limited to, coverage for products and completed operations for a
period of three (3) years after Completion and Automobile Liability
insurance with no less than $100,000,000 in limits through primary and
umbrella liability coverages. Such insurance shall name the Borrower,
Administrative Agent and Lenders as additional insureds. Borrower shall
also
65
ensure that all subcontractors to the Project General Contractor maintain
similar coverage with limits satisfactory to the Borrower and the Project
General Contractor. All parties engaged in work on the improvements shall
maintain statutory Workers Compensation and Disability insurance in force
for all workers on the job.
(c) The following insurance coverages shall be required from and
after the Opening Date:
(1) Property insurance shall be required, insuring against loss
customarily included under standard so-called "all risk" policies
including flood, earthquake, vandalism, and malicious mischief, boiler and
machinery, and such other insurable hazards as, under good insurance
practices, from time to time are insured against for other property and
buildings similar to the Project in nature, use, location, height, and
type of construction. Such insurance policy shall also insure costs of
demolition and increased cost of construction (which insurance may contain
a sublimit for demolition and increased cost of construction of not less
than ten percent (10%) of the full insurable value of the Project), and
for operation of building laws for the policy limit to the extent
available at commercially reasonable terms, but in any event for a
sublimit of not less than twenty-five percent (25%) of the full insurable
value of the Project. The amount of such insurance shall be not less than
one hundred percent (100%) of the replacement cost value of the
Improvements (exclusive of excavation and foundation costs). Flood
insurance shall be procured in an amount not less than $30,000,000 and
shall include a sublimit of not less than $500,000 coverage for
improvements to landscaping), to the extent such coverage is available
under standard policies at commercially reasonable terms. Earthquake
limits of liability shall be not less than $5,000,000 or such greater
amount as is customarily carried by operators of similar high quality
lodging facilities in the same geographic region. Each such insurance
policy shall contain an agreed amount or replacement cost endorsement. The
insurance policy shall be endorsed to also provide guaranteed building
replacement cost to the Improvements (exclusive of excavation and
foundation costs). All policy deductibles shall be in amounts as commonly
carried by operators of similar high-quality facilities in the same
geographic region and reasonably approved by Administrative Agent.
(2) Business interruption insurance shall be required in an amount
that equals not less than 6 months projected Net Operating Income and
payment of debt service on the Loan, and be endorsed to provide a 180-day
Extended Period of Indemnity, or at least 90 days if coverage for 180 days
is not available at commercially reasonable terms. The Administrative
Agent shall be named as Loss Payee as respects this coverage.
(3) Borrower and the Property Manager shall obtain and maintain
General Public Liability insurance, including, without limitation,
Commercial General Liability insurance; Owned, Hired and Non Owned Auto
Liability, and Umbrella Liability coverage for Personal Injury, Bodily
Injury, Death, Accident and Property Damage, providing in combination no
less than $100,000,000 per occurrence and in the annual aggregate, per
location, including, but not limited to, coverage for elevators,
escalators, independent contractors, Contractual Liability (covering, to
the maximum extent permitted by law, the Borrower's obligation to
indemnify the Administrative Agent and
66
Lenders as required under this Agreement), Products and Completed
Operations Liability coverage.
(4) Workers Compensation and Disability insurance as required by
law.
(5) Such other types and amounts of insurance with respect to the
Project and the operation thereof which are commonly maintained in the
case of other property and buildings similar to the Project in nature,
use, location, height, and type of construction, as may from time to time
be reasonably required by the Administrative Agent.
(d) All insurance policies (excluding policies in excess of
$50,000,000) required hereunder shall be issued by an insurer or insurers with
an A.M. Best rating of A-VIII or better, and all primary carriers will be
licensed to do business in the State of Florida and reasonably acceptable to the
Administrative Agent. The Property, Boiler and Machinery insurance policies
shall also name the Administrative Agent and Lenders under a standard mortgagee
clause or an equivalent endorsement satisfactory to the mortgagee and shall be
otherwise reasonably satisfactory to the Administrative Agent in form and
content. Business interruption insurance shall name the Administrative Agent as
Loss Payee. All Property insurance policies also shall include a co-insurance
waiver and Agreed Amount Endorsement. The amount of any deductible under any
insurance policy must be consistent with similar projects managed by Xxxxxxx
Entities. Without the Administrative Agent's prior written consent, neither the
Borrower nor Property Manager shall carry separate or additional insurance
coverage covering the Improvements concurrent in form or contributing in the
event of loss with that required by this Agreement and the other Loan Documents.
The Administrative Agent, on reasonable prior notice to Borrower, may examine
the insurance policies (whether in the possession of Borrower or Co-Borrower or
an Affiliate of either) during business hours.
(e) Borrower and the Property Manager shall pay the premiums for the
insurance policies required hereunder as the same become due and payable.
Borrower and the Property Manager shall deliver to the Administrative Agent
certificates of the insurance policies required to be maintained pursuant to
this Agreement provided, however, the Administrative Agent and Lenders shall not
be deemed by reason of the custody of such certificates to have knowledge of the
contents thereof. Borrower and Co-Borrower also shall deliver to the
Administrative Agent, within ten (10) days of the Administrative Agent's
request, a certificate of the Borrower and Co-Borrower or their insurance agent
setting forth the particulars as to all such insurance policies. Prior to the
expiration date of each of the insurance policies the Borrower and Co-Borrower
shall deliver to the Administrative Agent a certificate of insurance evidencing
renewal of coverage as required herein.
(f) Each insurance certificate required hereunder shall contain a
provision whereby the insurer (i) agrees that such policy shall not be canceled,
terminated or reduced in coverage or limits below the coverage and limits of
insurance required by this Agreement, without in each case, at least thirty (30)
days' prior written notice to the Administrative Agent, (ii) waives any right to
claim any premiums and commissions against the Administrative Agent or any
Lender, provided that the policy need not waive the requirement that the premium
be paid in order for a claim to be paid to the insured and (iii) provides that
the Administrative Agent is permitted to make payments to effect the
continuation of such policy upon notice of cancellation
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due to non-payment of premiums. In the event any insurance policy (except for
general public, automobile and other liability and Workers Compensation
insurance or any other similar policies) shall contain breach of warranty
provisions, such policy shall provide that with respect to the interest of the
Administrative Agent and Lenders, such insurance policy shall not be invalidated
by and shall insure the Administrative Agent and Lenders regardless of (A) any
act, failure to act or negligence of or violation of warranties, declarations or
conditions contained in such policy by any named insured, (B) the occupancy or
use of the premises for purposes more hazardous than permitted by the terms
thereof, or (C) any foreclosure or other action or proceeding taken by the
Administrative Agent pursuant to any provision of the Mortgage or any of the
Loan Documents.
(g) Any insurance maintained pursuant to this Agreement may be
evidenced by blanket insurance policies covering the Project and other
properties or assets of the Borrower and the Property Manager or their
affiliates, provided that any such policy shall in all other respects
substantially fulfill the requirements of this section.
(h) Notwithstanding anything to the contrary contained herein, if at
any time the Administrative Agent is not in receipt of written evidence that all
insurance required hereunder is maintained in full force and effect, the
Administrative Agent shall have the right (but not the obligation), upon ten
(10) days' prior written notice to the Borrower (or such lesser notice as may be
necessary to prevent the lapse of insurance coverage), to take such action as
the Administrative Agent deems necessary to protect its interests in the
Project, including, without limitation, the obtaining of such insurance coverage
as the Administrative Agent deems appropriate, and all expenses incurred by the
Administrative Agent in connection with such action will be paid by the Borrower
on demand.
6.7 Compliance with Laws. Borrower and Co-Borrower shall and Borrower
shall cause all of its Subsidiaries to comply in all material respects with all
Requirements of Law and all restrictive covenants affecting their respective
businesses, Properties, assets and operations, and (b) obtain and maintain as
needed all Permits necessary for their operations and maintain such Permits in
good standing. Without limiting the foregoing, Co-Borrower shall comply in all
respects with all Environmental Laws with respect to the Project and shall not
suffer or permit the Release or disposal of Contaminants at the Project in any
manner that, in any single instance or in the aggregate, would violate
Environmental Laws.
6.8 Alterations. With the exception of the Project Construction and change
orders respecting the same made in accordance with Section 6.12 of this
Agreement, neither Borrower nor Co-Borrower shall, without the prior written
consent of Administrative Agent, make, suffer or permit (i) any alterations to
the Project (other than as contemplated by the Approved FF&E Budget) having a
cost in excess of $2,000,000 in any Fiscal Year or (ii) any alterations
affecting the structure or building systems of the Improvements having a cost in
excess of $1,000,000 in any Fiscal Year.
6.9 Inspections; Books and Records.
(a) The Administrative Agent, the Construction Consultant, and any
authorized representative(s) designated by either the Administrative Agent or
the Construction
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Consultant shall have the right at all reasonable times on reasonable notice
(and (i) for so long as no Default exists, at Borrower's expense provided that
such inspections and examinations do not take place more often than annually,
and otherwise at the expense of the Lenders and (ii) from and after the
occurrence of a Default, at Borrower's expense) and any other Lender shall have
the right at its own expense: (i) to enter upon and inspect the Properties of
Borrower, Co-Borrower and Subsidiary Guarantors (including the Project), both as
part of the Administrative Agent's general oversight (both prior to and after
the Completion Date) and to inspect the Project Construction to determine that
it is in conformity with the Approved Plans and Specifications and all the
requirements hereof; and (ii) to examine, copy and make extracts of the books,
records, accounting data and other documents of the Borrower, Co-Borrower,
Property Manager and Subsidiary Guarantors, whether or not the same relate in
any way to the Project, all of which shall be made available promptly upon the
Administrative Agent's written demand therefor (including in connection with
environmental compliance, hazard or liability), and to discuss the Borrower's,
Co-Borrower's, Subsidiary Guarantors' and other Subsidiaries' and Property
Manager's affairs, finances and accounts, including, but not limited to, matters
relating to the Project, with their respective executive officers, as
applicable, all upon reasonable notice and at such reasonable times during
normal business hours, as often as may be reasonably requested. At the request
of the Administrative Agent, Borrower and the Co-Borrower shall furnish
convenient facilities for the purposes of conducting such investigations and
examinations. No Construction Agreements let or amended by the Co-Borrower shall
be inconsistent with the foregoing inspection and examination rights. It is
expressly understood and agreed that the Administrative Agent shall have no duty
to supervise or to inspect the Project (or any other Property) or any books and
records, that any such inspection shall be for the sole purposes of determining
whether or not the obligations of Borrower and the Co-Borrower under this
Agreement are being properly discharged and of preserving the Administrative
Agent's rights hereunder, and that the Administrative Agent's or Construction
Consultant's failure to inspect or examine any matter shall not constitute a
waiver of any of the Lenders' rights hereunder. If the Administrative Agent, or
the Construction Consultant acting on behalf of the Administrative Agent, should
inspect the Project or any books and records, the Administrative Agent and the
Construction Consultant shall have no liability or obligation to the Borrower,
Co-Borrower or any third party arising out of such inspection (other than any
applicable obligation hereunder with respect to confidentiality) and none of the
Borrower, Co-Borrower or any third party shall be entitled to rely upon such
inspection or review. An inspection not followed by notice of default shall not
constitute a waiver of any Unmatured Default or Default then existing, nor shall
it constitute an acknowledgment or representation by the Administrative Agent or
the Construction Consultant that there has been or will be compliance with the
Approved Plans and Specifications and Laws or that the Project is free from
defective materials or workmanship, or a waiver of the Administrative Agent's
right thereafter to insist that the Project be constructed in accordance in all
material respects with the Approved Plans and Specifications and Laws. The
Administrative Agent and the Construction Consultant owe no duty of care to the
Borrower, Co-Borrower or any third person to protect against, or inform the
Borrower, Co-Borrower or any third person of the existence of, negligent,
faulty, inadequate or defective design or construction of the Project or of any
other Property. The Administrative Agent shall cause the Construction Consultant
to deliver copies of each of its reports with respect to the Project to each of
the Lenders.
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(b) Each of Borrower and Co-Borrower shall keep and maintain, and
Borrower shall cause the Subsidiary Guarantors and its other Subsidiaries to
maintain (either individually or on a consolidated basis with Borrower), proper
books of record and account in which entries in conformity with Agreement
Accounting Principles shall be made of all dealings and transactions in relation
to its businesses and activities. If a Default has occurred that is continuing,
the Borrower and the Co-Borrower, upon the Administrative Agent's request, shall
turn over copies of any such records to the Administrative Agent or its
representatives.
6.10 Completion of Project; Required Completion Date. (a) The Co-Borrower
shall complete the construction of the Project in a good and workmanlike manner
with materials of good quality, free of Liens (other than mechanics' liens being
contested pursuant to the provision of Section 6.5(b) and other Customary
Permitted Liens) and material defects, and the Project shall be equipped with
fixtures and equipment of good quality, all in accordance, in all material
respects, with the Approved Plans and Specifications therefor and all Laws,
including all requirements and conditions set forth in all Permits which have
been obtained or are required to be obtained for the construction and operation
of the Project. Co-Borrower shall (i) subject to Force Majeure Events,
diligently continue Project Construction without material interruption or
cessation of work in accordance with the Approved Project Schedule and the
Approved Plans and Specifications, and (ii) on or prior to the Required
Completion Date complete Project Construction such that all the Completion
Conditions shall be satisfied.
(b) At such time as the Co-Borrower has determined that the
Completion Conditions have been satisfied, the Co-Borrower shall promptly
furnish to the Administrative Agent, written notice that the Completion
Conditions have been satisfied. Such notice shall include (to the extent not
theretofore furnished to the Administrative Agent) documents evidencing
satisfaction of the Completion Conditions.
6.11 Correction of Defects. The Co-Borrower shall proceed with diligence
to investigate and correct all material defects in the Project and any material
departures from the Approved Plans and Specifications which have not been
approved in writing by the Administrative Agent. The disbursement of any
Advances shall not constitute a waiver of the Administrative Agent's right to
require compliance with this covenant with respect to any such defect or
departure from the Approved Plans and Specifications or any other requirements
of this Agreement.
6.12 Changes and Amendments; Monthly Budget Updates. (a) Except for
Permissible Modifications, Co-Borrower shall not (i) make any changes or
modifications to or otherwise amend the Approved Plans and Specifications, the
Approved Project Schedule or the Initial Construction Budget or the Approved
Construction Budget, or (ii) enter into, amend in any material respect or
terminate any Project Agreement (other than by reason of a material default by
the applicable contractor or tenant) without the prior written approval of the
Administrative Agent in each instance. The Administrative Agent shall not make a
final determination that Co-Borrower has taken any action in contravention of
this Section 6.12 without first notifying Co-Borrower of the matter in question
and giving Co-Borrower ten (10) Business Days within which to refute or contest
such determination.
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(b) Within 15 days after the end of each calendar month from and
including the month in which the Effective Date occurs through the month in
which Completion occurs, Co-Borrower shall deliver to the Administrative Agent a
description of any changes (including Permissible Modifications) to the Approved
Construction Budget made in such month, together with a copy of the Approved
Construction Budget showing such revisions.
6.13 Distributions; Mandatory Application of Net Operating Income to the
Loans. (a) Borrower will not and will not permit any of its Subsidiaries to
declare or pay any dividend on, or make any payment on account of, or set apart
assets for a sinking or other analogous fund for, the purchase, redemption,
defeasance, retirement or other acquisition of, any shares of any class of
Capital Stock of Borrower or any such Subsidiary or any warrants or options to
purchase any such Stock, whether now or hereafter outstanding, or make any other
distribution in respect thereof, either directly or indirectly, whether in cash
or property or in obligations of Borrower or any such Subsidiary (such
declarations, payments, setting apart, purchases, redemptions, defeasances,
retirements, acquisitions and distributions being herein called "Restricted
Payments," except that any Subsidiary may declare and pay dividends to Borrower,
Co-Borrower or any Subsidiary Guarantor or, in the case of any Subsidiary that
is wholly owned by any other Subsidiary, to such Subsidiary, provided that (i)
no Subsidiary Guarantor shall make or declare any dividend, distribution or
other payment to any Subsidiary that is not a Subsidiary Guarantor (or a direct
or indirect Subsidiary of a Subsidiary Guarantor) and (ii) Co-Borrower shall not
make or declare any dividend, distribution or other payment to Borrower or any
Affiliate of Co-Borrower or Borrower, except that, (i) for so long as no Default
or Unmatured Default has occurred and is continuing, Co-Borrower may pay
management fees in accordance with the Management Agreement when due and payable
and (ii) Co-Borrower may distribute Net Operating Income with respect to the
Project to Borrower.
(b) Borrower shall pay to Administrative Agent for application to
the principal amount of the Obligations, an amount equal to 100% of all Adjusted
NOI with respect to the Project, after interest expense and fees with respect to
the Loans, for each full Fiscal Quarter of Co-Borrower ending prior to the date
on which the sum of the Aggregate Credit Exposure and the Available Aggregate
Commitment is less than $85,000,000.00. In calculating Adjusted NOI for the
purpose of this Section 6.13(b), Operating Expenses and reserves shall not
exceed one-hundred and ten percent (110%) of the aggregate amounts therefor in
the current Operating and Capital Budget, which for the purpose of this Section
6.13(b) shall be subject to the prior approval of the Administrative Agent. Each
such payment shall be made within 45 days after the end of each such Fiscal
Quarter.
(c) In the event that any of the covenants set forth in Section 6.25
is breached at any time, the Administrative Agent shall, in addition to and not
in limitation of any other rights or remedies available to the Administrative
Agent and the Lenders, have the right to require that all rents, receipts and
other revenues with respect to the Project be deposited directly into a cash
collateral account under the sole dominion and control of the Administrative
Agent to be held pursuant to documentation acceptable to the Administrative
Agent as additional collateral for the Secured Obligations.
71
6.14 Indebtedness; Pledge of Equity Interests in Opryland Hotel Nashville,
LLC. (a) Neither Borrower nor the Co-Borrower will create, incur or suffer to
exist any Indebtedness with respect to itself or any Subsidiary Guarantor or
other Subsidiary of Borrower, except the following ("Permitted Debt"):
(i) The Loans and the Guaranty.
(ii) Indebtedness of Borrower arising under Rate Management
Transactions required or expressly permitted under this Agreement.
(iii) The Nashville Financing, but not any refinancing or
replacement thereof.
(iv) The SAILS Forward Exchange Contract.
(v) Unsecured payables incurred in the ordinary course of
business, not in excess of $25,000,000.00 in the aggregate at any one time for
all such Persons, and (except to the extent being actively disputed (x) with
adequate reserves being maintained in respect thereof, (y) in good faith and (z)
in the ordinary course of business) paid within 60 days of the date incurred.
(vi) Equipment financings in the ordinary course of business
and secured only by the equipment acquired with the proceeds thereof (A) by
Borrower and its Subsidiaries other than Co-Borrower and not in excess, for all
such Persons in the aggregate at any one time, of (x) prior to the Adjustment
Date, $7,500,000 and (y) from and after the Adjustment Date, $15,000,000 and (B)
by Co-Borrower and not in excess, in the aggregate at any one time, of (x) prior
to the Adjustment Date, $2,500,000 and (y) from and after the Adjustment Date,
$5,000,000.
(vii) Indebtedness existing on the Effective Date and
described on Schedule 6.14, and any refinancing or replacement thereof.
(viii) Loans or advances by Borrower to any of its
Subsidiaries that are Subsidiary Guarantors and loans or advances by any
Subsidiary of Borrower to Borrower or to another Subsidiary of Borrower that is
a Subsidiary Guarantor, so long as any such intercompany loans or advances made
to Borrower, Co-Borrower or any Subsidiary Guarantor are unsecured and
subordinate to the Loans on terms and provisions acceptable to the
Administrative Agent.
(iv) Investments permitted under Section 6.18(a) hereof.
(b) Neither Borrower nor the Co-Borrower will prepay or permit any
Subsidiary Guarantor or other Subsidiary of Borrower to prepay any Indebtedness
other than Loans and the Nashville Mezzanine Loan, provided that (i) the
Nashville Mezzanine Loan is prepaid in full and not in part, (ii) upon such
prepayment 100% of Borrower's direct and indirect ownership interests in
Opryland Hotel Nashville, LLC are pledged to the Administrative Agent for the
benefit of the Lenders and other Holders of Secured Obligations, pursuant to
documentation, including a pledge and security agreement substantially in the
form of the Pledge Agreement, creating a first, perfected Lien on and security
interest in such Collateral and an
72
intercreditor agreement with the holder of the first mortgage loan on Opryland
Nashville, all in form and substance satisfactory to the Administrative Agent,
(iii) in connection with such pledge, Borrower delivers to the Administrative
Agent such Lien searches, opinions of counsel, financing statements and other
documents and instruments as the Administrative Agent may reasonably require and
(iv) all of Borrower's representations and covenants herein with respect to
Opryland Hotel Nashville, LLC and its assets remain true and correct in all
material respects (except as modified by the transactions described in the
preceding clauses (i) and (ii)). Upon any release of the direct or indirect
ownership interests described in the preceding clause (ii) from the Liens
securing the Nashville Mezzanine Loan, Borrower shall (i) pledge such interests
to the Administrative Agent in the manner described in such clause and (ii) use
commercially reasonable efforts to obtain such amendments to the intercreditor
agreement with the holder of the first mortgage component of the Nashville
Financing as the Administrative Agent may request.
6.15 Merger. Neither Borrower nor Co-Borrower will merge or consolidate
with or into any other Person, provided that any direct or indirect Subsidiary
may be merged into Borrower if Borrower is the surviving entity, after giving
effect to such merger, all representations and warranties by Borrower and
Co-Borrower herein remain true and correct in all material respects, and no
Default or Unmatured Default occurs as a result thereof.
6.16 Ownership of Opryland Hotel Nashville, LLC. Borrower shall at all
times retain ownership, directly or indirectly, of 100% of all ownership
interests in Opryland Hotel Nashville, LLC; shall not suffer cause or permit any
Transfer of any such ownership interests or any direct or indirect interest
therein other than the Liens securing the Nashville Mezzanine Loan or the pledge
contemplated by Section 6.14(b) or Section 6.17(c); and shall not suffer, cause
or permit any Transfer by Opryland Hotel Nashville, LLC of its ownership
interest in the property known as Opryland Hotel Nashville, other than the Liens
securing the Nashville Financing and leases to space tenants for occupancy in
the ordinary course of business of Opryland Hotel Nashville, LLC.
6.17 Sales of Assets; Prepayments from Asset Sales; Execution of Guaranty
by Creative Group Subsidiaries; Releases of Subsidiary Guarantors. (a) Neither
the Borrower nor the Co-Borrower shall sell, assign, convey, or otherwise
Transfer, all or any portion of the Project or any direct or indirect interest
therein or in Co-Borrower (except for the Liens in favor of the Administrative
Agent and Leases permitted under this Agreement), whether now owned or hereafter
acquired, or any income or profits therefrom, or enter into any agreement to do
so, that would be effective prior to the full payment of the Obligations,
whether the same is effected directly, indirectly, by operation of law or
otherwise.
(b) On the date of receipt of Net Cash Proceeds from an Asset Sale
by Borrower or any of its Subsidiaries which occurs prior to the date on which
the sum of the Aggregate Outstanding Credit Exposure and the Available Aggregate
Commitment is $60,000,000.00 or less, Borrower shall apply 100% of the amount of
such Net Cash Proceeds first to prepay the Loans, and second, in the event that
the amount of such Net Cash Proceeds is in excess of the amount required to
prepay all then outstanding Loans in full, the Aggregate Commitment shall be
automatically and permanently reduced by the amount of such excess, until the
sum of the Aggregate Outstanding Credit Exposure and the Available Aggregate
73
Commitment is reduced to $60,000,000.00. Concurrently with any prepayment of the
Loans pursuant to this paragraph, Borrower shall deliver to the Administrative
Agent an officer's certificate demonstrating the derivation of the Net Cash
Proceeds all (or a portion of which) is so applied. Any mandatory prepayments
pursuant to this paragraph shall be applied as specified in Section 2.12. From
and after the date on which the sum of the Aggregate Outstanding Credit Exposure
and the Available Aggregate Commitment is $60,000,000.00 or less, Borrower shall
no longer be required to apply the Net Cash Proceeds of Asset Sales to prepay
the Loans in accordance with this Section 6.17(b).
(c) In the event that Xxxxxxx Creative Group, Inc. has not been
released from the Guaranty in accordance with Section 6.17(d) hereof, on or
before February 28, 2002, Borrower shall cause each of the Creative Group
Subsidiaries, within ten (10) Business Days thereafter, to execute and deliver
to the Administrative Agent, for the benefit of Lenders and the other Holders of
the Secured Obligations a guaranty of payment with respect to the Secured
Obligations substantially in the form of the Guaranty and otherwise in form and
substance satisfactory to the Administrative Agent, together with such Lien
searches, opinions of counsel, financing statements and other documents and
instruments as the Administrative Agent may reasonably require in connection
therewith.
(d) Provided that no Default has occurred and is continuing, and
provided that Borrower has given the Administrative Agent at least 10 Business
Days' prior notice thereof, simultaneously with the closing of any Asset Sale
with respect to a Subsidiary Guarantor or substantially all of its assets and
application of the Net Cash Proceeds thereof, to the extent required by this
Section 6.17, to prepayment of the Loans, such Subsidiary Guarantor shall be
released from the Guaranty, and the Administrative Agent shall execute and
deliver such confirmatory instrument evidencing such release as Borrower shall
reasonably request to facilitate such transaction.
6.18 Investments; New Subsidiary Guarantors. (a) Neither Borrower nor
Co-Borrower shall make or permit any Subsidiary Guarantor or any other
Subsidiary of Borrower (including Opryland Hotel Nashville, LLC) to make any
Investments, or commitments therefor, or, subject to the following sentence,
create any subsidiary or become a partner in any partnership or joint venture,
or acquire any interest, direct or indirect, beneficial or otherwise, in any
Person, except (i) Cash Equivalent Investments, (ii) Investments in Co-Borrower
or a Subsidiary Guarantor, (iii) Investments in Collateral, (iv) loans (other
than the loans described on Schedule 6.18) by Borrower to Subsidiaries of
Borrower that are not Subsidiary Guarantors in an aggregate outstanding
principal amount at any time not in excess of (x) prior to the Adjustment Date,
$22,500,000 and (y) from and after the Adjustment Date, $30,000,000, and (v)
Investments in the aggregate, together with Capital Expenditures which are
permitted pursuant to clause (iv) of Section 6.18(b) and which are not funded by
an Investment, not in excess of (x) prior to the Adjustment Date, $10,000,000 in
any period commencing on the Effective Date and ending on each annual
anniversary thereof and (y) from and after the Adjustment Date, $20,000,000 in
any such period. Borrower may create or acquire additional direct or indirect
wholly-owned Subsidiaries, only if concurrently with the creation or acquisition
thereof, (x) 100% of the Capital Stock of each such Subsidiary is pledged and
delivered to the Administrative Agent for the benefit of the Holders of Secured
Obligations pursuant to documentation, including a pledge and security agreement
substantially in the form of the Pledge Agreement, creating a first,
74
perfected lien on and security interest in such Capital Stock and otherwise in
form and substance satisfactory to the Administrative Agent and (y) each such
Subsidiary executes and delivers to the Administrative Agent a guaranty of
payment with respect to the Secured Obligations substantially in the form of the
Guaranty.
(b) Prior to the date (the "Capex Restriction Date") on which the
sum of the Aggregate Outstanding Credit Exposure and the Available Aggregate
Commitment is less than or equal to $85,000,000.00, Borrower shall not make or
permit any Subsidiary of Borrower to make any Capital Expenditures other than
(i) Construction Costs and Permitted FF&E Expenditures with respect to the
Project, (ii) in connection with completion of the property known as Opryland
Hotel Texas, consisting of approximately 1500 hotel rooms and 400,000 square
feet of meeting and exhibition space under construction, as of the date hereof,
in Grapevine, Texas, (iii) in connection with ownership and operation of the
property ("Opryland Nashville") known as Opryland Hotel Nashville, consisting of
approximately 2,883 hotel rooms and 600,000 square feet of meeting and
exhibition space in Nashville, Tennessee and (iv) Capital Expenditures (in
addition to those described in the preceding clauses (i), (ii) and (iii)) in the
aggregate, together with Investments which are permitted under clause (iv) of
Section 6.18(a) and which are not applied to Capital Expenditures by a
Subsidiary of Borrower, not in excess of $20,000,000.00 in any Fiscal Year. From
and after the Capex Restriction Date, the provisions of this Section 6.18(b)
shall no longer apply for so long as no Default occurs.
6.19 Liens. Neither Borrower nor Co-Borrower will create, incur, or suffer
to exist and Borrower shall cause the Subsidiary Guarantors, the direct and
indirect owners of Opryland Nashville and its other Subsidiaries not to create,
incur, or suffer to exist) any Lien in, of or on the Project or any other
Property of Borrower, Co-Borrower or any such Person or any easements,
covenants, conditions, restrictions or other encumbrances to be recorded against
the Project, except Customary Permitted Liens and Liens in favor of the
Administrative Agent under the Collateral Documents, and except for mechanics'
and materialmens' liens that are discharged of record (by "bonding over" or
otherwise) within thirty (30) days after Borrower or Co-Borrower receives notice
of the filing thereof.
6.20 Affiliates. Except as set forth on Schedule 6.20, neither Borrower
nor Co-Borrower will enter into any agreement or transaction (including, without
limitation, the purchase or sale of any Property or service) with, or Transfer
of any Property to, any Affiliate of Borrower or Co-Borrower except for the
Management Agreement, and other transactions, agreements and transfers disclosed
to and approved in writing by the Administrative Agent in the ordinary course of
business and pursuant to the reasonable requirements of Borrower's and
Co-Borrower's business and upon fair and reasonable terms no less favorable to
the Borrower and Co-Borrower than Borrower and Co-Borrower would obtain in a
comparable arms-length transaction.
6.21 Required Rate Management Transactions. Borrower will obtain and
maintain one or more Rate Management Transactions with one or more of the
Lenders or any of their respective Affiliates or one or more other financial
institutions acceptable to the Administrative Agent, providing for a fixed or
maximum rate of interest at all times from and after the Effective Date, (a) on
a notional amount not less than (i) for the period commencing on the Effective
Date and ending on the first anniversary thereof, $100,000,000.00 and (ii) from
and after the first
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anniversary of the effective date, 50% of the Aggregate Outstanding Credit
Exposure from time to time, giving effect to required and voluntary prepayments
as and when made, (b) at a rate not in excess of 10% per annum, (c) for rolling
periods of at least one year commencing on the Effective Date and (d) otherwise
in form and substance acceptable to the Administrative Agent. The Borrower shall
deliver to the Administrative Agent for the benefit of the Lenders and other
Holders of Secured Obligations valid, first priority, perfected collateral
assignments of all of the Borrower's Rate Management Transactions required to be
maintained hereunder with respect to the Loans and shall obtain the
acknowledgment and agreement of the counterparty or counterparties thereto
(whether or not such counterparty or counterparties include the Administrative
Agent or all or any of the Lenders) to pay any amounts which would otherwise be
payable to the Borrower directly to the Administrative Agent for the benefit of
the Lenders and other Holders of Secured Obligations upon the occurrence and
during the continuance of a Default hereunder. Borrower's Rate Management
Obligations under any Rate Management Transaction with a Secured Counterparty
shall be secured by the Collateral on a pasi passu basis with the Obligations.
Borrower shall increase the amount of the Mortgage Title Insurance Policy from
time to time as necessary to an amount equal to the sum of the Aggregate
Commitment and the Administrative Agent's determination of the Secured Rate
Management Obligations (without limiting the amount of the Secured Rate
Management Obligations for any other purpose under the Loan Documents).
6.22 Sale and Leaseback Transactions and other Off-Balance Sheet
Liabilities. Neither Borrower nor Co-Borrower will enter into or suffer to exist
any (a) Sale and Leaseback Transaction with respect to itself or any Subsidiary
Guarantor or Creative Group Subsidiary or (b) any other transaction pursuant to
which it or any Subsidiary Guarantor or Creative Group Subsidiary incurs or has
incurred Off-Balance Sheet Liabilities, except for Rate Management Obligations
permitted to be incurred under the terms of Section 6.21.
6.23 Intentionally Omitted.
6.24 Financial Contracts. Co-Borrower will not enter into or remain liable
upon any Financial Contract, except Rate Management Transactions required under
Section 6.21.
6.25 Financial Covenants.
6.25.1 Loan-to-Cost Ratio. Borrower and Co-Borrower will not permit the
Aggregate Outstanding Credit Exposure at any time to exceed an amount equal to
50% of the total Approved Construction Costs for the Project incurred through
such date.
6.25.2 Minimum Consolidated Net Worth. Borrower shall not permit at any
time its Consolidated Net Worth to be less than $600,000,000.00.
6.25.3 Minimum Interest Coverage Ratios
(a) As of the last day of any Fiscal Quarter set forth below,
Borrower shall not permit the ratio of (i) Consolidated EBITDA (adjusted to
exclude (x) selling, general and administrative expenses not in excess of
$30,000,000.00 per annum (limited to actual expenses incurred) and (y)
pre-opening expenses) to (ii) the sum of (a) Consolidated Interest Expense plus
(b) all capitalized interest expense to be less than the correlative ratio set
forth below (such
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amounts to be determined with reference to the preceding 12-month period ending
on such last day), provided that, for the purpose of such calculation, (1) for
each Fiscal Quarter ending March 31, 2002 through December 31, 2002,
Consolidated EBITDA shall be adjusted, by annualizing the portion thereof
related to the Project (by multiplying year-to-date Consolidated EBITDA as of
the last day of such Fiscal Quarter by a fraction, the numerator of which is 365
and the denominator of which is the number of days in the period from the
Opening Date through the last day of such Fiscal Quarter) and (2) for the Fiscal
Quarter ending December 31, 2001, Consolidated EBITDA and Consolidated Interest
Expense shall be adjusted to exclude the operating results of the Project and
interest expense with respect to the Loans:
==================================================== ======================================================
PERIOD MINIMUM RATIO OF CONSOLIDATED EBITDA TO CONSOLIDATED
INTEREST EXPENSE
==================================================== ======================================================
Fiscal Quarters ending December 31, 2001 through 2.0 to 1.0
and including March 31, 2002
==================================================== ======================================================
Fiscal Quarters ending June 30, 2002 and thereafter 2.5 to 1.0
==================================================== ======================================================
(b) As of the last day of any Fiscal Quarter set forth below,
Borrower shall not permit the ratio of (i) Adjusted NOI to (ii) Adjusted Debt
Service, to be less than the correlative ratio indicated below (such amounts to
be determined with reference to the preceding 12-month period ending on such
day):
========================================================== ============================================
PERIOD MINIMUM INTEREST COVERAGE RATIO
========================================================== ============================================
March 31, 2003 through and including December 31, 2003 2.25 to 1.0
========================================================== ============================================
March 31, 2004 and thereafter 2.75 to 1.0
========================================================== ============================================
6.25.4 Maximum Debt Leverage Ratio.
(a) As of the last day of any Fiscal Quarter set forth below, Borrower
shall not permit the ratio of (i) Consolidated Indebtedness (adjusted to exclude
the amounts described in clause (ii) of the definition of "Indebtedness" if and
to the extent such amounts are secured by cash collateral held by the issuer of
the applicable Letter of Credit) to (ii) Consolidated EBITDA (adjusted to
exclude (x) selling, general and administrative expenses not in excess of
$30,000,000.00 per annum (limited to actual expenses incurred) and (y)
pre-opening expenses) to exceed the correlative ratio set forth below
(Consolidated Indebtedness to be determined as of such last day and Consolidated
EBITDA to be determined with reference to the preceding 12-month period ending
on such date), provided that, for the purpose of such calculation, (1) for each
Fiscal Quarter ending March 31, 2002 through December 31, 2002, Consolidated
EBITDA shall be adjusted by annualizing the portion thereof related to the
Project (by multiplying year-to-
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date Consolidated EBITDA as of the last day of such Fiscal Quarter by a
fraction, the numerator of which is 365 and the denominator of which is the
number of days in the period from the Opening Date through the last day of such
Fiscal Quarter) and (2) for the Fiscal Quarter ending December 31, 2001,
Consolidated Indebtedness and Consolidated EBITDA shall be adjusted to exclude
the Loans and the operating results of the Project:
=============================================== ============================================
PERIOD MAXIMUM RATIO OF CONSOLIDATED INDEBTEDNESS
TO CONSOLIDATED EBITDA
=============================================== ============================================
Fiscal Quarter ending December 31, 2001 6.25 to 1.0
----------------------------------------------- --------------------------------------------
Fiscal Quarter ending March 31, 2002 6.0 to 1.0
----------------------------------------------- --------------------------------------------
Fiscal Quarter ending June 30, 2002
through and including December 31, 2002 5.5 to 1.0
----------------------------------------------- --------------------------------------------
Fiscal Quarters ending March 31, 2003 5.0 to 1.0
and thereafter
=============================================== ============================================
(b) As of the last day of any Fiscal Quarter set forth below,
Borrower shall not permit the ratio of (i) the aggregate Indebtedness (adjusted
to exclude the amounts described in clause (ii) of the definition of
"Indebtedness" if and to the extent such amounts are secured by cash collateral
held by the issuer of the applicable Letter of Credit) of Co-Borrower (including
the Loans) to (ii) Adjusted NOI to exceed the correlative ratio indicated below
(the aggregate Indebtedness calculations to be determined as of such last day
and Adjusted NOI to be determined with reference to the preceding 12-month
period ending on such day):
============================================================== ============================================
PERIOD MAXIMUM RATIO OF CO-BORROWER'S
INDEBTEDNESS TO ADJUSTED NOI
============================================================== ============================================
March 31, 2003 through and including December 31, 2003 4.75 to 1.00
-------------------------------------------------------------- --------------------------------------------
March 31, 2004 and thereafter 4.0 to 1.00
============================================================== ============================================
6.26 Environmental Audits. Upon the occurrence of (a) a Default that is
continuing, (b) a material change in Environmental Laws or (c) an event with
respect to the Project which, in the reasonable determination of the
Administrative Agent, could result in an environmental issue, question or
concern, the Borrower shall at the Administrative Agent's election (i) cause to
be performed through the employment of a consultant acceptable to the
Administrative Agent, an environmental assessment for the purposes of confirming
compliance with the provisions of this Agreement or (ii) reimburse the
Administrative Agent, on demand, for all reasonable costs, fees and expenses
incurred by the Administrative Agent in connection with its employment of a
consultant to perform such an assessment.
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6.27 Insurance and Condemnation Proceeds. (a) Borrower and Co-Borrower
hereby direct all insurers under policies of property damage, boiler and
machinery, rental loss, and rental value insurance and payors of any
condemnation claim or award relating to the Project to pay all Property Awards
(net of the cost of reasonable attorneys' fees and expenses and other reasonable
expenses incurred in connection with obtaining such Property Awards) directly to
the Administrative Agent, for the benefit of the Lenders and other Holders of
Secured Obligations, and, in no case to the Borrower or Co-Borrower. In the
event of any loss or damage to any portion of the Project due to a casualty or
condemnation event giving rise to a Property Award ("Property Award Event"), so
long as no Default has occurred that is continuing, the Borrower shall have the
sole right and authority to settle any claim for the Property Award; provided,
however, the Administrative Agent shall have the right to participate in
settlement negotiations with respect to Property Award Events in connection with
the Project which are reasonably likely to result in Property Awards in excess
of $3,000,000 in the aggregate. In the event of the Borrower's and Co-Borrower's
failure to settle any such claim for a Property Award within one hundred eighty
(180) days after the occurrence of the related Property Award Event or if a
Default has occurred that is continuing, the Administrative Agent shall have the
right, but not the obligation, to settle all claims for such Property Award on
behalf of the Borrower and Co-Borrower.
(b) Co-Borrower shall promptly after the occurrence of a Property
Award Event with respect to the Project commence and diligently pursue the
repair, restoration or reconstruction of the damaged portion of the Project and
the opening or reopening and operation of the Project ("Restoration"); provided,
however, that the Borrower shall have prepared and delivered to the
Administrative Agent a budget for such Restoration which is satisfactory to the
Administrative Agent.
(c) In the event a Property Award with respect to the Project is
paid to the Administrative Agent, such Property Award shall be made available to
the Borrower for the purpose of Restoration or, in the case of rental loss,
rental value and business interruption insurance, to be applied to debt service
upon the Obligations and for other permitted expenditures with respect to the
Project, subject in each case to the following covenants and conditions:
(i) No Default shall have occurred that is continuing.
(ii) As soon as practicable, but in no event later than ninety
(90) days after the occurrence of the related Property Award Event (A)
Co-Borrower shall deliver to the Administrative Agent written evidence
reasonably satisfactory to the Administrative Agent that, upon completion of the
Restoration, by the expenditure of the Property Award together with any funds
made available by Borrower and Co-Borrower, the Project will be of at least
substantially equal value, quality and character as the Project was immediately
prior to the Property Award Event, free and clear of all Liens except the Liens
in favor of the Administrative Agent and Customary Permitted Liens pertaining
thereto, (B) the Restoration shall be performed in compliance with all then
applicable Laws and with good construction scheduling and good construction
practices and (C) Co-Borrower shall deliver to the Administrative Agent for
approval preliminary plans and specifications for the Restoration setting forth
the construction
79
schedule and budget. Final plans and specifications shall be delivered to the
Administrative Agent for approval promptly upon their completion.
(iii) If the Property Award is, in the Administrative Agent's
reasonable judgment, insufficient to complete the Restoration of the Project,
the Borrower and Co-Borrower shall promptly deposit the amount of the
insufficiency in a cash collateral account (the "Restoration Account") in the
name of Borrower but under the sole dominion and control of the Administrative
Agent and pledged to the Administrative Agent for the benefit of the Holders of
Secured Obligations pursuant to agreements satisfactory to the Administrative
Agent. The Borrower and Co-Borrower may not use and, if applicable, the
Administrative Agent shall not be required to release, any Property Awards until
any such additional funds have been expended toward the Restoration and the
budget for such Restoration shall be "in balance" with the funds comprising the
Property Award sufficient to complete the Restoration. If at any time the
Restoration is "out of balance" with the budget and the remaining Property Award
is no longer sufficient to complete such Restoration, then Borrower and
Co-Borrower may not use and, if applicable, the Administrative Agent shall not
be required to further disburse, any portion of the Property Award until such
time as the Administrative Agent has determined, that the remaining Property
Award is sufficient to fully complete the Restoration. For purposes hereof, the
Restoration shall be deemed to be "in balance" only at such time and from time
to time, as the Administrative Agent determines that the Property Award (and any
additional amounts deposited in the Restoration Account with respect to such
Restoration in accordance with the paragraph) equals or exceeds the aggregate
amount of all unpaid costs, fees and expenses necessary for all work in
connection with the final completion of the Restoration, including the costs of
preparing plans and specifications, the "hard" and "soft" costs of the
construction of the base building and Improvements.
(iv) The Administrative Agent shall be reasonably satisfied
that the Project, when fully restored, will constitute premises suitable for
their intended use of the same or better character and quality as existed prior
to the occurrence of the subject Property Award Event.
(v) The Administrative Agent shall have received and approved
all documentation pertaining to the Restoration which has been requested by the
Administrative Agent, including the construction schedule, construction budget,
plans and specifications and any agreements between the Borrower and any Persons
who will perform services or furnish labor or materials in connection with such
Restoration (all such Persons and agreements being subject to the Administrative
Agent's approval).
(vi) The Administrative Agent shall have received and approved
Lien waivers, contractor's statements and affidavits reflecting that as of the
date of such disbursement, there are (or immediately after disbursement there
will be) no mechanics' liens (subject to the right to contest said Liens set
forth in this Agreement) or other unpermitted Liens pertaining to title
affecting the damaged Property and the Administrative Agent shall have received
a Date Down Endorsement to the Mortgage Title Insurance Policy confirming the
foregoing, in form and substance reasonably satisfactory to the Administrative
Agent.
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(vii) The Borrower shall have satisfied such other conditions
and terms as the Administrative Agent shall reasonably require (which shall be
consistent with those that would be imposed by a prudent institutional
construction lender).
Upon the completion of the Restoration to the reasonable satisfaction of the
Administrative Agent, and after paying all reasonable costs and expenses
relating to the subject Property Award Event and related Restoration, the
Administrative Agent shall apply any unexpended balance of the subject Property
Award to prepayment of the Loans. Notwithstanding anything in this Agreement to
the contrary, in the event that no Default exists that is continuing and the
Property Award with respect to a Property Award Event is less than $3,000,000 in
the aggregate, the Administrative Agent shall pay the entire amount of such
proceeds to Co-Borrower promptly upon receipt thereof by the Administrative
Agent, which proceeds Co-Borrower shall apply for the purposes of Restoration.
(d) Upon the Borrower's failure to satisfy the covenants and
conditions set forth in clause (b) above with respect to a Property Award Event
constituting loss or damage to all or substantially all of the Project, the
Administrative Agent shall have the right to apply the Property Award to the
Secured Obligations in the order of priority set forth in Section 2.12(b). If
the amount of such Property Award so applied is less than the Secured
Obligations, then a Default shall be deemed to have occurred and the
Administrative Agent shall have all rights and remedies set forth herein, in the
Loan Documents, at law and in equity.
6.28 The Administrative Agent's and the Lenders' Actions for Their Own
Protection Only. Borrower and Co-Borrower acknowledge and agree that the
authority herein conferred upon the Administrative Agent and the Lenders, and
any actions taken by the Administrative Agent and the Lenders with respect to
the Project, to procure waivers or sworn statements, to approve contracts,
subcontracts and purchase orders, to approve plans and specifications, or
otherwise, will be exercised and taken by the Administrative Agent and the
Lenders for their own protection only and may not be relied upon by the
Borrower, Co-Borrower or any third party for any purposes whatever; and none of
the Administrative Agent, the Lenders, or the Construction Consultant shall be
deemed to have assumed any responsibility to the Borrower, Co-Borrower or any
third party with respect to any such action herein authorized or taken by the
Administrative Agent, the Lenders or the Construction Consultant, or with
respect to the proper construction of improvements on the Project, performance
of contracts, subcontracts or purchase orders by any contractor, subcontractor
or material supplier, or prevention of mechanics' liens from being claimed or
asserted against any portion of the Project. Any review, investigation or
inspection conducted by the Administrative Agent, the Lenders, the Construction
Consultant, any architectural, engineering or other consultants retained by the
Administrative Agent or the Lenders, or any Administrative Agent or
representative of the Administrative Agent or the Lenders in order to verify
independently Borrower's or Co-Borrower's satisfaction of any conditions
precedent to disbursements under this Agreement, the Borrower's and
Co-Borrower's performance of any of the covenants, agreements and obligations of
the Borrower or Co-Borrower under this Agreement, or the validity of any
representations and warranties made by the Borrower, or Co-Borrower hereunder
(regardless of whether or not the party conducting such review, investigation or
inspection should have discovered that any of such conditions precedent were not
satisfied or that any such covenants, agreements or obligations were not
performed or that any such representations or warranties were not true), shall
not affect (or constitute a waiver
81
by the Administrative Agent or the Lenders of) (i) any of the Borrower's or
Co-Borrower's agreements, covenants, representations and warranties under this
Agreement or the other Loan Documents, or the Lender's reliance thereon or (ii)
the Administrative Agent and Lenders' reliance upon any certifications of the
Borrower, Co-Borrower or any Project Architect required under this Agreement or
any of the other Loan Documents, or any other facts, information or reports
furnished to the Administrative Agent or the Lenders by the Borrower, or
Co-Borrower hereunder.
6.29 Storage of Property. Co-Borrower shall store all Property in its
possession to be incorporated into or installed at the Project (not as yet
incorporated or installed in the Project) either (i) in such bonded warehouse or
warehouses, which provide sufficient security against damage or pilferage, or
other facilities satisfactory to the Administrative Agent, as may be selected by
Co-Borrower and approved by the Administrative Agent, all charges for such
storage to be paid by Co-Borrower promptly when due so that such Property shall
not at any time become subject to any Lien for such storage charges therefore or
(ii) at the Project, in a manner so as to provide security against damage or
pilferage which shall be satisfactory to the Administrative Agent. The
Administrative Agent and its representatives and the Construction Consultant
will be permitted access to such warehouse(s) and other locations(s) at all
reasonable times on reasonable notice to inspect all such Property. Co-Borrower
shall provide the Administrative Agent with satisfactory evidence that the
insurance required to be obtained hereunder protects such Property from loss or
damage to such items occurring while stored at any such location.
6.30 Proceedings to Enjoin or Prevent Construction. If any proceedings are
filed seeking to enjoin or otherwise prevent or declare unlawful the
construction or the occupancy, maintenance or operation of the Project or any
portion thereof, Borrower and Co-Borrower shall at their sole expense (i) cause
such proceedings to be vigorously contested in good faith and (ii) in the event
of an adverse ruling or decision, prosecute all allowable appeals therefrom.
Without limiting the generality of the foregoing, Co-Borrower shall resist the
entry or seek the stay of any temporary or permanent injunction that may be
entered and use its best efforts to bring about a favorable and speedy
disposition of all such proceedings.
6.31 No Obligation to Monitor. Neither the Administrative Agent nor the
Lenders shall have any obligation to monitor or determine the Borrower's or
Co-Borrower's use or application of proceeds of Loans.
6.32 Compliance with Agreements. Co-Borrower shall comply in all material
respects with its obligations under: (a) all Leases affecting the Project; (b)
the Project Agreements; (c) all agreements with Affiliates; (d) any underlying
covenants, conditions and restrictions of record with respect to the Project;
and (e) all other material contractual obligations relating to the ownership,
operation and maintenance of the Project which are not described in the
foregoing clauses (a) through (d) above. In addition to the foregoing
Co-Borrower shall enforce its material rights and remedies under the agreements
described in the foregoing clauses (a) through (e) above.
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6.33 Organizational Documents. Neither Borrower nor Co-Borrower shall
allow any amendment, modification or other change to any of the terms or
provisions in any of their respective Organizational Documents (or any
Organizational Documents of any of the Subsidiary Guarantors or Creative Group
Subsidiaries) without the prior written consent of the Administrative Agent,
which, in the case of any amendment, modification or other change to the
Organizational Documents of a Subsidiary Guarantor or Creative Group Subsidiary
that is not adverse to the interests of the Administrative Agent and the
Lenders, shall not be unreasonably withheld.
6.34 Leasing Provisions. Co-Borrower shall not enter into, terminate,
cancel, amend, restate, supplement or otherwise modify any Lease at the Project
without the Administrative Agent's prior written approval, which shall not be
unreasonably withheld, provided that the tenant, if the Administrative Agent
requires it to do so, enters into a subordination, non-disturbance and
attornment agreement in the form required by the Administrative Agent, subject
to reasonable modifications requested by the tenant; provided, that the
Administrative Agent's approval shall not be required (a) for any Lease (or any
amendment, modification, supplement or termination thereof) which (i) demises
less than 5,000 rentable square feet, (ii) is for a term of five years or less
(including any renewal options exercisable by the tenant thereunder) is on
market-rate terms and conditions, and (iii) by its terms is expressly
subordinate to the Mortgage (any such Lease, a "De Minimis Lease") or (b) to
terminate any Lease by reason of a default by the tenant thereunder, provided
that such termination is commercially reasonable. If requested by the Borrower,
the Administrative Agent shall, if it approves any Lease in writing, enter into
a subordination, non-disturbance and attornment agreement with the tenant under
such Lease in the form required by the Administrative Agent, subject to
reasonable modifications requested by the tenant.
6.35 Ground Lease Covenants. (a) Co-Borrower shall pay when due the rent
and all other sums and charges mentioned in, and payable under, the Hotel Ground
Lease.
(b) Co-Borrower (i) shall timely perform and observe all of the
terms, covenants and conditions required to be performed and observed by it as
the tenant under the Hotel Ground Lease (including, without limitation, all
payment obligations), (ii) shall do all things necessary to preserve and to keep
unimpaired the Hotel Ground Lease and its leasehold estate and other rights
under the Hotel Ground Lease; (iii) shall not waive, excuse or discharge any of
the obligations of the Ground Lessor under the Hotel Ground Lease without the
Administrative Agent's prior written consent in each instance; and (iv) shall
diligently and continuously enforce the obligations of the Ground Lessor under
the Hotel Ground Lease.
(c) Co-Borrower shall not do, permit or suffer (i) any act, event or
omission which would be likely to result in a default or permit the lessor to
terminate or exercise any other remedy under the Hotel Ground Lease or (ii) any
act, event or omission which, with the giving of notice or the passage of time,
or both, would constitute a default or permit the lessor to terminate or
exercise any other remedy under the Hotel Ground Lease.
(d) Co-Borrower shall not cancel, terminate, surrender, modify or
amend or in any way alter, surrender or permit the alteration of any of the
provisions of either of the Ground
83
Leases or agree to any termination, amendment, modification or surrender of
either of the Ground Leases without the Administrative Agent's prior written
consent in each instance.
(e) Co-Borrower shall deliver to the Administrative Agent copies of
all default and other material notices received by Co-Borrower from any party
under the Ground Leases, and of any notice received by Co-Borrower from either
the Ground Lessor or Master Lessor of their intention to terminate the Hotel
Ground Lease or Master Lease, respectively, or to re-enter and take possession
of any premises demised by the Ground Leases, immediately and, in any event,
within one (1) Business Day, of delivery or receipt of any such notice, as the
case may be.
(f) Co-Borrower shall promptly furnish to the Administrative Agent
copies of such information and evidence as the Administrative Agent may
reasonably request concerning Co-Borrower's due observance, performance and
compliance with the terms, covenants and conditions of the Ground Leases.
(g) Co-Borrower shall not consent to the subordination of the Hotel
Ground Lease or the Master Lease to any mortgage or other lease of the fee
interest or any other leasehold interest in any of the premises demised thereby.
(h) To the extent it has the right to do so under the terms of the
Ground Leases, Co-Borrower, at its sole cost and expense, shall execute and
deliver to the Administrative Agent, within five (5) Business Days after
request, such documents, instruments or agreements as may be required to permit
the Administrative Agent to cure any default under the Ground Leases.
(i) In the event of a default by Co-Borrower in the performance of
any of its obligations under the Hotel Ground Lease, including, without
limitation, any default in the payment of any sums payable thereunder, then, in
each and every case, the Administrative Agent may, at its option, cause the
default or defaults to be remedied and otherwise exercise any and all rights of
Co-Borrower thereunder in the name of and on behalf of Co-Borrower. Co-Borrower
shall, on demand, reimburse the Administrative Agent for all expenses incurred
by the Administrative Agent in curing any such default (including, without
limitation, attorneys' fees and disbursements), together with interest thereon
computed at the Default Rate from the date that such expense is incurred, to and
including the date the same is paid to the Administrative Agent.
(j) Co-Borrower shall give the Administrative Agent written notice
of its intention to exercise each and every option, if any, to renew or extend
the term of the Hotel Ground Lease, at least thirty (30) days prior to the
expiration of the time to exercise such option under the terms thereof. If
required by the Administrative Agent, Co-Borrower shall duly exercise any
renewal or extension option with respect to the Hotel Ground Lease. If
Co-Borrower intends to renew or extend the term of the Hotel Ground Lease, it
shall deliver to the Administrative Agent with the notice of such decision, a
copy of the notice of renewal or extension delivered to the Ground Lessor,
together with the terms and conditions of such renewal or extension. Co-Borrower
hereby irrevocably appoints the Administrative Agent as its attorney-in-fact,
coupled with an interest, to execute and deliver, for and in the name of such
Co-
84
Borrower, all instruments and agreements necessary under the Hotel Ground Lease
or otherwise to cause any renewal or extension of the Hotel Ground Lease.
(k) In the event that the Hotel Ground Lease shall be terminated by
reason of a default beyond any applicable cure period thereunder by Co-Borrower,
and the Administrative Agent shall require from the Ground Lessor a Novation
Ground Lease (as such term is defined in the Hotel Ground Lease), Co-Borrower
hereby waives any right, title and interest in and to such Novation Ground Lease
and the leasehold estate created thereby, together with all rights of redemption
now or hereafter operable under any law.
(l) Co-Borrower shall not elect to treat the Hotel Ground Lease as
terminated, canceled or surrendered pursuant to the applicable provisions of the
Bankruptcy Code (including, without limitation, Section 365(h)(1) thereof)
without the Administrative Agent's prior written consent in the event of the
bankruptcy of, or any similar proceedings with respect to, the Ground Lessor.
Co-Borrower shall, in the event of any bankruptcy or similar proceedings with
respect to the Ground Lessor, reaffirm and ratify the legality, validity,
binding effect and enforceability of the Hotel Ground Lease within the
applicable time period therefor in such proceedings, notwithstanding any
rejection thereof by the Ground Lessor or any trustee, custodian or receiver.
(m) Co-Borrower shall give the Administrative Agent not less than
thirty (30) days prior written notice of the date on which Co-Borrower shall
apply to any court or other governmental authority for authority and permission
to reject the Hotel Ground Lease in the event that there shall be filed by or
against Borrower any petition, action or proceeding under the Bankruptcy Code or
under any other similar federal or state law now or hereafter in effect and if
Co-Borrower determines to reject the Hotel Ground Lease. The Administrative
Agent shall have the right, but not the obligation, to serve upon Co-Borrower
within such thirty (30) day period a notice stating that (i) the Administrative
Agent demands that Co-Borrower assume and assign the Hotel Ground Lease to the
Administrative Agent subject to and in accordance with the Bankruptcy Code, and
(ii) the Administrative Agent covenants to cure or provide reasonably adequate
assurance thereof with respect to all defaults reasonably susceptible of being
cured by the Administrative Agent and of future performance under the Hotel
Ground Lease. If the Administrative Agent serves upon Co-Borrower the notice
described above, Co-Borrower shall not seek to reject the Hotel Ground Lease and
shall comply with the demand provided for clause (i) above within ten (10) days
after the notice shall have been given by the Administrative Agent.
(n) During the continuance of a Default, the Administrative Agent
shall have the right, but not the obligation, (i) to perform and comply with all
obligations of Co-Borrower under the Hotel Ground Lease without regard to any
grace period provided therein, (ii) to do and take, without any obligation to do
so, such action as the Administrative Agent deems necessary or desirable to
prevent or cure any default by Co-Borrower under the Hotel Ground Lease,
including, without limitation, any act, deed, matter or thing whatsoever that
Borrower may do in order to cure a default under the Hotel Ground Lease and
(iii) to enter in and upon the Project or any part thereof to such extent and as
often as the Administrative Agent deems necessary or desirable in order to
prevent or cure any default of Co-Borrower under the Hotel Ground Lease.
Co-Borrower shall, within five (5) days after written request is made therefor
by the Administrative Agent, execute and deliver to the Administrative Agent or
to any party designated by the Administrative Agent, such further instruments,
agreements, powers,
85
assignments, conveyances or the like as may be reasonably necessary to complete
or perfect the interest, rights or powers of the Administrative Agent pursuant
to this paragraph or as may otherwise by required by the Administrative Agent.
(o) In the event of any arbitration under or pursuant to any of the
Ground Leases in which the Administrative Agent elects to participate,
Co-Borrower hereby irrevocably appoints the Administrative Agent as its true and
lawful attorney-in-fact (which appointment shall be deemed coupled with an
interest) to exercise, all right, title and interest of Co-Borrower in
connection with such arbitration, including, without limitation, the right to
appoint arbitrators and to conduct arbitration proceedings on behalf of
Co-Borrower and the Administrative Agent. All costs and expenses incurred by the
Administrative Agent in connection with such arbitration and the settlement
thereof shall be borne solely by Co-Borrower, including, without limitation,
reasonable attorneys' fees and disbursements. Nothing contained in this
paragraph shall obligate the Administrative Agent to participate in any such
arbitration.
(p) The Administrative Agent shall have the right, but not the
obligation, to proceed in respect of any claim, suit, action or proceeding
relating to the rejection of any of the Ground Leases by the ground lessor as a
result of bankruptcy or similar proceedings in respect of such ground lessor,
including, without limitation, the right to file and prosecute any and all
proofs of claims, complaints, notices and other documents in any such bankruptcy
case or similar proceeding.
(q) Co-Borrower shall deliver to the Administrative Agent within ten
(10) days after receipt of written demand from the Administrative Agent, an
estoppel certificate in relation to each Ground Lease setting forth (i) the name
of the lessee and the lessor thereunder, (ii) that such Ground Lease is in full
force and effect and has not been modified or, if it has been modified, the date
of each modification (together with copies of each such modification), (iii) the
annual rent and additional rent payable under such Ground Lease, (iv) the date
to which all rental charges have been paid by the lessee under such Ground
Lease, (v) whether any notice of default has been received by Co-Borrower and if
such notice has been received, the date it was received and the nature of the
default, (vi) whether there are any alleged defaults of Co-Borrower under such
Ground Lease, and, if there are, setting forth the nature thereof in reasonable
detail, and (vii) if Co-Borrower is in default under the terms of any Ground
Lease or if any facts or circumstances exist, which with the passage of time or
the giving of notice or both, would constitute a default under any of the Ground
Leases, setting forth in detail the nature of such default, fact or
circumstance.
(r) To the extent of its rights under either of the Ground Leases,
Co-Borrower shall obtain and deliver to the Administrative Agent within thirty
(30) days after written demand by the Administrative Agent, an estoppel
certificate in relation to such Ground Lease from the ground lessor thereunder
setting forth (i) the name of the lessee and the lessor thereunder, (ii) that
the Ground Lease is in full force and effect and has not been modified or, if it
has been modified, the date of each modification (together with copies of each
such modification), (iii) the annual rent and additional rent payable under the
Ground Lease, (iv) the date to which all rental charges have been paid by the
lessee under the Ground Lease, (v) whether a notice of default has been received
by the ground lessor which has not been cured, and if such notice has been
received, the date it was received and the nature of the default, (vi) whether
there are any alleged
86
defaults of the lessee under the Ground Lease and, if there are, setting forth
the nature thereof in reasonable detail, and (vii) if the lessee under the
Ground Lease shall be in default, the default.
6.36 Zoning Changes. Neither Borrower nor Co-Borrower shall cause, permit,
acquiesce in, or consent to any changes or modifications to the zoning and land
use ordinances or other Requirements of Law affecting the Project if such
changes or modifications would adversely affect (i) the ability of Co-Borrower
to construct the Project in accordance with the Approved Plans and
Specifications or operate the Project as intended or (ii) the value of the
Project. Co-Borrower shall give to the Administrative Agent notice of any
material change in zoning and land use ordinances and other Requirements of
Lease affecting the Project promptly after obtaining knowledge thereof.
6.37 Fiscal Year. Neither Borrower nor Co-Borrower shall change, and
Borrower shall not permit any Subsidiary Guarantor or Creative Group Subsidiary
to change, its fiscal year for accounting or tax purposes from the Fiscal Year
without obtaining the written consent of the Required Lenders.
6.38 Cooperation with Construction Consultant. Co-Borrower shall provide
the items described on Schedule 6.38 to the Construction Consultant on a current
basis as the same are available from time to time in order to permit the
Construction Consultant to render periodic reports to the Lenders with respect
to the status of Project Construction.
6.39 Security Interest in Accounts; Certain Remedies. (a) Borrower and
Co-Borrower covenant and agree not to maintain, and not to permit the Property
Manager to maintain with respect to the Project, any bank accounts, investment
accounts or other accounts other than the Interest Reserve Account, the FF&E
Reserve Account, Completion Reserve Account and the Restoration Account (all of
which shall be maintained by Co-Borrower or Borrower, as applicable, and not by
the Property manager) and the other accounts identified in Schedule 6.39 hereto
(collectively, the "Accounts"). To secure the payment and performance of the
Secured Obligations, Borrower and Co-Borrower hereby pledge and assign to the
Administrative Agent for the benefit of itself and the Lenders and other Holders
of Secured Obligations all of the Borrower's and Co-Borrower's right, title and
interest in, and hereby grant to the Administrative Agent for the benefit of
itself and the Lenders and other Holders of the Secured Obligations a security
interest in and right of set-off against, and, without limiting the foregoing,
the right (exercisable only after the occurrence and during the continuance of a
Default) to direct the holders of the Accounts to set-off against and
immediately to turn over to the Administrative Agent: (i) the Accounts; (ii) all
cash, instruments, securities, investments and other property from time to time
transferred or credited to, contained in or comprising the Accounts or any of
them; (iii) all statements, certificates, passbooks and instruments representing
the Accounts or any of them; (iv) any and all substitutions or additions of or
with respect to any of the foregoing; and (v) any and all proceeds and products
of any of the foregoing, whether now owned and existing or hereafter acquired or
arising, including, without limitation (A) interest, principal, dividends and
other amounts or distributions received with respect to any of the foregoing and
(B) property received from the sale, exchange or other disposition of any of the
foregoing (collectively, the "Account Collateral"). Borrower and Co-Borrower
shall cause the Property Manager and the holders of the Accounts (the "Account
Holders") to execute and deliver notices and acknowledgments of the
Administrative Agent's security interest in the Accounts, in form and
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substance satisfactory to the Administrative Agent, prior to the Initial Funding
Date or upon establishing each Account, as applicable. Borrower and Co-Borrower
agree from time to time, at their expense, to execute and deliver and promptly
cause to be filed in the appropriate public offices UCC financing statements and
all further instruments and documents, and to take all further action which
Administrative Agent may reasonably request and which are necessary or desirable
in the opinion of Administrative Agent or its counsel in order to create,
preserve, perfect and protect any security interests granted or purported to be
granted hereby and enable Administrative Agent to exercise and enforce its
rights and remedies hereunder with respect to any Account Collateral. Borrower
and Co-Borrower hereby authorize Administrative Agent to file one or more
financing or continuation statements, and amendments thereto, and authorize
Administrative Agent to take all such further action and execute all such
further documents and instruments as may be reasonably necessary or desirable in
order to create, preserve, perfect and protect the security interest granted
hereby, without the signature of the Borrower or where permitted by law.
Whenever applicable law requires the signature of Borrower or Co-Borrower on a
document to be filed to preserve, perfect or protect the security interest
granted hereby, Borrower and Co-Borrower hereby appoint Administrative Agent as
their respective attorney-in-fact, with full power of substitution, to sign
their names (or the names of any of them) on any such document. Borrower and
Co-Borrower hereby agree that a photocopy or other reproduction of this
Agreement or any financing statement covering the Account Collateral or any part
thereof shall be sufficient as a financing statement where permitted by law.
Neither Borrower nor Co-Borrower shall further pledge, assign or grant a
security interest in the Account Collateral or any part thereof or permit any
other lien to attach thereto or any levy to be made thereon, or any UCC-1
financing statement (except those naming Administrative Agent as secured party)
to be filed with respect thereto.
(b) After the occurrence and during the continuance of a Default,
the Administrative Agent shall, in addition to all remedies conferred upon it
and the Lenders by law and by the terms of the Loan Documents, have the right,
but not the obligation, without notice to the Borrower or Co-Borrower, except as
required by law, and at any time or from time to time to charge, set-off and
otherwise apply all or any portion of the Account Collateral against the Secured
Obligations and direct the disbursement thereof to the Administrative Agent. In
furtherance of the foregoing, the Administrative Agent shall be irrevocably
authorized to direct the Account Holders to withdraw or transfer the Account
Collateral from the Accounts and deposit or deliver the same into an account of,
or designated by, the Administrative Agent in its sole and absolute discretion.
The Account Holders shall be irrevocably authorized to comply with any and all
directions so given by the Administrative Agent.
(c) In addition to (and not in limitation of) all other rights or
remedies granted to the Administrative Agent and the Lenders pursuant to the
Loan Documents, Borrower and Co-Borrower hereby grant the Account Holders, their
Affiliates and the Administrative Agent, in each case for the benefit of the
Administrative Agent and the Lenders, a contractual right of set-off against
each of the Accounts and all of the Account Collateral.
(d) Notwithstanding anything to the contrary contained in this
Agreement, and without limiting the foregoing provisions of this Section 6.39,
after a Default has occurred and during the continuance thereof, the
Administrative Agent may, at its sole and absolute discretion, (A) elect to
apply the Account Collateral in whole or in part to pay Project expenditures,
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including expenditures relating to Project Construction, (B) elect to have all
or any portion of the Account Collateral disbursed to a receiver appointed by a
court of competent jurisdiction and thereafter held and disbursed by such
receiver in accordance with the Administrative Agent's directions; and/or (C)
elect to apply all or any part of the Account Collateral to the Secured
Obligations in such order and in such manner as the Administrative Agent shall
determine in its sole and absolute discretion.
(e) The Administrative Agent may also exercise in respect of the
Account Collateral, in addition to other rights and remedies provided for herein
or otherwise available to it, all the rights and remedies of a secured party
under the UCC, and the Administrative Agent may, without notice except as
specified below, sell the Account Collateral or any part thereof in one or more
parcels at public or private sale, at any of the Administrative Agent's offices
or elsewhere, for cash, on credit or for future delivery, and upon such other
terms as the Administrative Agent may deem commercially reasonable. Borrower and
Co-Borrower shall, upon the request of the Administrative Agent, at the
Borrower's and Co-Borrower's, expense, execute and deliver, all such instruments
and documents, and do or cause to be done all such other acts and things, as may
be reasonably necessary or, in the opinion of the Administrative Agent or its
counsel, advisable to make such sale of the Account Collateral or any part
thereof valid and binding and in compliance with applicable law. Borrower and
Co-Borrower agree that ten (10) days' notice of the time and place of any public
sale or the time after which any private sale is to be made shall constitute
reasonable notification. The Administrative Agent shall not be obligated to make
any sale of the Account Collateral regardless of notice of sale having been
given. The Administrative Agent may adjourn any public or private sale from time
to time by announcement at the time and place fixed therefor, and such sale may,
without further notice, be made at the time and place to which it was so
adjourned.
(f) BORROWER AND CO-BORROWER HEREBY IRREVOCABLY WAIVE ALL RIGHTS TO
NOTICE AND HEARING OF ANY KIND PRIOR TO THE EXERCISE BY THE ADMINISTRATIVE AGENT
OF ITS RIGHTS TO REPOSSESS THE ACCOUNT COLLATERAL WITHOUT JUDICIAL PROCESS OR TO
REPLEVY, ATTACH OR LEVY UPON SUCH COLLATERAL WITHOUT PRIOR NOTICE OR HEARING.
(g) Without limiting the foregoing provisions of this Section 6.39,
after a Default has occurred and during the continuance thereof, the
Administrative Agent shall have the right to apply to a court of competent
jurisdiction for and to obtain appointment of a receiver of the Account
Collateral as a matter of strict right, to take possession of the Account
Collateral, and to apply and disburse the same in accordance with this
Agreement.
(h) To the full extent that they may lawfully so agree, Borrower and
Co-Borrower agree that they shall not at any time plead, claim or take the
benefit of any appraisement, valuation, stay, extension, moratorium or
redemption law now or hereafter in force to prevent or delay the enforcement of
this Agreement, the Loan Documents or the absolute sale of any portion of or all
of the Account Collateral or any portion of the Project, or the possession of
any of the foregoing by any purchaser at any sale under this Agreement or the
other Loan Documents, and Borrower and Co-Borrower, each for itself and all who
may claim under Borrower or Co-Borrower to the full extent that Borrower or
Co-Borrower now or hereafter lawfully may do so, hereby each waives the benefit
of all such laws.
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6.40 Principal Places of Business; Names. Neither Borrower nor Co-Borrower
will relocate its principal place of business, chief executive office, place
where it maintains its records, or residence, or change its name or the name
under which it does business without giving the Administrative Agent at least
thirty (30) days advance written notice thereof or without taking such steps as
the Administrative Agent may reasonably require (including, without limitation,
executing additional Financing Statements) to maintain the perfection of all
Liens in favor of the Administrative Agent with respect to the Collateral.
6.41 Documents of Further Assurance. Borrower and Co-Borrower shall, from
time to time, upon the Administrative Agent's request, promptly execute,
deliver, record and furnish such documents as the Administrative Agent may
reasonably deem necessary to (a) perfect and maintain perfected as valid Liens
upon the Collateral the Liens contemplated by this Agreement, (b) correct any
mistakes of a typographical nature which may be contained herein or in any of
the Loan Documents, (c) replace any Notes or other Loan Documents that may have
been misplaced, lost or destroyed (as evidenced by an affidavit to such effect
from the holder thereof), (d) acknowledge and confirm the unpaid principal
balance of and interest on the Loans and state whether Borrower or Co-Borrower
claim any off-set or defense with respect thereto and (e) consummate fully the
transaction contemplated under this Agreement and the other Loan Documents.
6.42 Wetlands. The Borrower shall not cause or permit any Project
Construction or other activities at the Project that affect any wetlands areas
except to the extent permitted under Permits or other Governmental Approvals
issued by the Army Corps of Engineers or other applicable Government
Authorities.
ARTICLE VII
DEFAULTS
The occurrence of any one or more of the following events shall constitute
a Default:
7.1 Any representation or warranty made or deemed made by or on behalf of
Borrower, Co-Borrower or any Subsidiary Guarantor to the Lenders or the
Administrative Agent under or in connection with this Agreement, any Advance, or
any certificate or material written or documentary information delivered in
connection with this Agreement or any other Loan Document shall be false in any
material respect on the date as of which made or deemed remade in accordance
with the terms hereof.
7.2 Nonpayment of principal of or interest on any Loan, any commitment
fee, undrawn fee, Agency Fee or any other Obligations payable to the
Administrative Agent or any Lender under any of the Loan Documents (i) within
five Business Days after written notice from the Administrative Agent to
Borrower that the same has not been paid when due or (ii) on the Maturity Date
(or such earlier date on which the Obligations may become due or may be declared
due hereunder).
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7.3 The breach by the Borrower or Co-Borrower of any of the terms or
provisions of Sections 2.20.3, 2.20.4, 2.20.5, 6.2, 6.6 (provided that a breach
of any covenant in Section 6.6 with respect to the furnishing of information,
evidence or certificates of insurance shall not be a Default until the same
remains unremedied for ten (10) days after receipt of written notice thereof
from the Administrative Agent to Borrower and Co-Borrower), 6.8, 6.10(a)(ii),
6.12 (after the period of ten (10) Business Days described therein), 6.13, 6.14,
6.15, 6.16, 6.17, 6.18 (provided that a Default shall not occur in respect of
any breach of the covenant in the last sentence of Section 6.18(a) to deliver
documentation with respect to new Subsidiary Guarantors unless such breach is
not remedied within ten (10) days after receipt of written notice thereof from
the Administrative Agent to Borrower and Co-Borrower), 6.19, 6.20, 6.21, 6.22,
6.23, 6.24, 6.25, 6.33, 6.34, 6.35 (provided that a breach of Section 6.35(b)(i)
shall not be a Default unless the same is also a breach of Section 6.35(c)(ii)
or the same remains unremedied for ten (10) days after receipt of written notice
thereof from the Administrative Agent to Borrower and Co-Borrower; a breach of
Section 6.35(b)(iv) shall not be a Default unless the same results in a material
impairment of the Hotel Ground Lease or the Lien of the Mortgage or the same
remains unremedied for ten (10) Business Days after receipt of written notice
thereof from the Administrative Agent to Borrower and Co-Borrower; a breach of
Section 6.35(c)(i) shall not be a Default unless the same is also a breach of
Section 6.35(c)(ii) or the same remains unremedied for ten (10) Business Days
after receipt of written notice thereof from the Administrative Agent to
Borrower and Co-Borrower; and a breach of Section 6.35(f) shall not be a Default
unless the same remains unremedied for ten (10) Business Days after receipt of
written notice thereof from the Administrative Agent to Borrower and
Co-Borrower), 6.36, 6.37, 6.39 or 6.40.
7.4 The breach by the Borrower or Co-Borrower (other than a breach which
constitutes a Default under another Section of this Article VII) of any of the
terms or provisions of this Agreement or any of the other Loan Documents which
(a) if a default in the payment of money as and when due, is not remedied within
five Business Days after written notice from the Administrative Agent to
Borrower and Co-Borrower, or (b) if any other breach or default, is not remedied
for thirty (30) days after receipt of written notice from the Administrative
Agent thereof to Borrower and Co-Borrower, provided that if Borrower or
Co-Borrower commences to remedy such non-monetary breach or default within such
thirty (30) day time period, such thirty (30) day time period for cure shall be
extended for such time as is reasonably necessary to complete such cure so long
as Borrower or Co-Borrower is diligently pursuing the completion of such cure,
but in no event shall the time period for cure be extended for a period in
excess of ninety (90) days after Borrower's or Co-Borrower's receipt of the
initial written notice of breach or default.
7.5 Borrower or any of its Subsidiaries shall (a) default in any payment
of any Indebtedness (other than the Obligations) beyond the period of grace, if
any, provided in the instrument or agreement under which such Indebtedness was
created or (b) default in the observance or performance of any agreement or
condition relating to any Indebtedness (other than the Obligations) or contained
in any instrument or agreement evidencing, securing or relating thereto, or any
other event shall occur or condition exist, the effect of which default or other
event or condition is to cause, or to permit the holder or holders of such
Indebtedness (or a trustee or agent on behalf of such holder or holders) to
cause (determined without regard to whether any notice is required), any such
Indebtedness to become due or required to be repurchased prior to its stated
maturity, provided that (x) it shall not be a Default or Event of
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Default under this Section 7.5 unless the aggregate principal amount of all
Indebtedness as described in preceding clauses (a) and (b) is at least
$5,000,000.
7.6 Borrower, Property Manager, Co-Borrower or any Subsidiary Guarantor or
Creative Group Subsidiary shall (i) have an order for relief entered with
respect to it under the Federal bankruptcy laws as now or hereafter in effect,
(ii) make an assignment for the benefit of creditors, (iii) apply for, seek,
consent to, or acquiesce in, the appointment of a receiver, custodian, trustee,
examiner, liquidator or similar official for it or any of its Property, (iv)
institute any proceeding seeking an order for relief under the Federal
bankruptcy laws as now or hereafter in effect or seeking to adjudicate it a
bankrupt or insolvent, or seeking dissolution, winding up, liquidation,
reorganization, arrangement, adjustment or composition of it or its debts under
any law relating to bankruptcy, insolvency or reorganization or relief of
debtors or fail to file an answer or other pleading denying the material
allegations of any such proceeding filed against it, (v) take any corporate or
partnership action to authorize or effect any of the foregoing actions set forth
in this Section 7.6 or (vi) fail to contest in good faith any appointment or
proceeding described in Section 7.7.
7.7 Without the application, approval or consent of Borrower, Property
Manager, Co-Borrower or any Subsidiary Guarantor or Creative Group Subsidiary a
receiver, trustee, examiner, liquidator or similar official shall be appointed
for Borrower, Property Manager, Co-Borrower or any Subsidiary Guarantor or
Creative Group Subsidiary or any of its Property, or a proceeding described in
Section 7.6(iv) shall be instituted against Borrower, Property Manager,
Co-Borrower or any Subsidiary Guarantor or Creative Group Subsidiary and such
appointment continues undischarged or such proceeding continues undismissed or
unstayed for a period of 60 consecutive days.
7.8 Any court, government or governmental agency shall, other than in a
Non-Material Condemnation, condemn, seize or otherwise appropriate, or take
custody or control of, all or any portion of the Property of Co-Borrower.
7.9 One or more of the following shall occur: (i) any money judgment
(other than a money judgment covered by insurance as to which the insurance
company has acknowledged coverage), writ or warrant of attachment, or similar
process is entered against Borrower, Co-Borrower, any Subsidiary Guarantor or
Creative Group Subsidiary or the Project and shall remain undischarged,
unvacated, unbonded or unstayed for a period of thirty (30) days or in any event
later than five (5) days prior to the date of any proposed sale thereunder, (ii)
a federal, state, local or foreign tax Lien is filed against the Borrower,
Co-Borrower any Subsidiary Guarantor or Creative Group Subsidiary or the Project
which is not discharged of record, bonded over or otherwise secured to the
satisfaction of the Administrative Agent within thirty (30) days after the
filing thereof, or (iii) an Environmental Lien is filed against the Borrower,
Co-Borrower, any Subsidiary Guarantor or Creative Group Subsidiary or the
Project, and the aggregate amount of any or all of the foregoing with respect to
Co-Borrower and the Project exceeds $100,000 or with respect to Borrower,
Subsidiary Guarantors and Creative Group Subsidiaries taken together exceeds
$1,000,000.
7.10 The occurrence of any "Default" or "Event of Default", as defined in
any Loan Document (other than this Agreement).
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7.11 Nonpayment by Borrower of any Rate Management Obligation when due or
the breach by Borrower of any material term, provision or condition contained in
any Rate Management Transaction and the expiration of the cure period, if any,
applicable thereto under the provisions of the Rate Management Transaction.
7.12 The Guaranty shall fail to remain in full force or effect or any
action shall be taken to discontinue or to assert the invalidity or
unenforceability of the Guaranty or any Subsidiary Guarantor shall fail to
comply with any of the terms or provisions of the Guaranty, or shall deny that
it has any further liability thereunder, or shall give notice to such effect.
7.13 Any Collateral Document shall for any reason fail to create a valid
and perfected first priority security interest in any collateral purported to be
covered thereby, or any Collateral Document shall fail to remain in full force
or effect or any action shall be taken to discontinue or to assert the
invalidity or unenforceability of any Collateral Document.
7.14 The representations and warranties set forth in Section 5.15 ("Plan
Assets; Prohibited Transactions; ERISA") shall at any time not be true and
correct.
7.15 Project Construction shall not be completed such that all Completion
Conditions are satisfied on or prior to the Required Completion Date.
7.16 There shall occur either (i) an interruption or cessation of work in
Project Construction not called for in the Approved Project Schedule, not
attributable to Force Majeure, or (ii) a lack of ordinary diligence in
proceeding with the work, for any period in excess of 14 consecutive days, or
for 25 days in total in any three month period.
7.17 There shall occur any Change of Control not consented to by the
Administrative Agent, with the consent of the Required Lenders.
7.18 There shall occur an Event of Default under (and as defined in) the
Hotel Ground Lease.
7.19 The conditions precedent set forth in Section 4.2(a)(ii) hereof shall
not be satisfied on or before the date which is 30 days after the date hereof.
ARTICLE VIII
ACCELERATION, WAIVERS, AMENDMENTS AND REMEDIES
8.1 Acceleration.
(a) If any Default described in Section 7.6 or 7.7 occurs with
respect to the Borrower, Co-Borrower, Property Manager or any Subsidiary
Guarantor, the Aggregate Commitment and the obligations of the Lenders to make
Loans hereunder shall automatically terminate and the Obligations shall
immediately become due and payable without any election or action on the part of
the Administrative Agent or any Lender. If any other Default occurs, the
Administrative Agent shall upon the direction of, and may, with the consent of,
Required Lenders terminate or suspend the Aggregate Commitment and the
obligations of the Lenders to
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make Loans hereunder, or declare the Obligations to be due and payable, or both,
whereupon the Obligations shall become immediately due and payable, without
presentment, demand, protest or notice of any kind, all of which the Borrower
and Co-Borrower hereby expressly waive.
(b) The Administrative Agent may at any time or from time to time
while any Default exists and is continuing apply any funds deposited in any of
the Accounts to the payment of the Secured Obligations and any other amounts as
shall from time to time have become due and payable by Borrower or Co-Borrower
to the Lenders under the Loan Documents.
(c) At any time while any Default is continuing, neither the
Borrower nor any Person claiming on behalf of or through the Borrower shall have
any right to withdraw any of the funds held in any Account. After all of the
Obligations have been indefeasibly paid in full and the Aggregate Commitment has
been terminated, any funds remaining in the Accounts shall be returned by the
Administrative Agent to Borrower or Co-Borrower or paid to whomever may be
legally entitled thereto at such time.
(d) If, after acceleration of the maturity of the Obligations or
termination of the obligations of the Lenders to make Loans hereunder as a
result of any Default (other than any Default as described in Section 7.6 or 7.7
with respect to Borrower or Co-Borrower) and before any judgment or decree for
the payment of the Obligations due shall have been obtained or entered, the
Required Lenders (in their sole discretion) shall so direct, the Administrative
Agent shall, by notice to the Borrower, rescind and annul such acceleration
and/or termination.
8.2 All Remedies. Upon the occurrence and during the continuance of a
Default, the Administrative Agent and the Lenders shall have all rights and
remedies set forth herein, in the Loan Documents, at law and in equity and the
Administrative Agent and the Lenders shall have the right (but not the
obligation) to pursue one or more of such rights and remedies concurrently or
successively, it being the intent hereof that all such rights and remedies shall
be cumulative, and that no remedy shall be to the exclusion of any other.
8.3 Construction. In addition to and without limiting any of its rights
and remedies available hereunder, under the other Loan Documents, at law or in
equity, and without constituting an election of remedies, upon the occurrence
and continuance of any Default, the Administrative Agent and the Lenders may (i)
complete the construction of the Project or any part thereof and take any other
action whatever which, in the Administrative Agent's and the Lenders' sole
judgment, is necessary to fulfill the covenants, agreements and obligations of
Borrower and Co-Borrower under this Agreement and the other Loan Documents,
including the right to avail themselves of and procure performance of existing
Construction Agreements and Project Agreements and (ii) let any contracts with
the same contractors and subcontractors or others and to employ watchmen to
protect the Project or any part thereof from injury. Without restricting the
generality of the foregoing, and for the purpose aforesaid, each of Borrower and
Co-Borrower hereby appoints and constitutes the Administrative Agent its lawful
attorney in fact with full power of substitution and agrees that the
Administrative Agent shall be entitled to: (A) complete the construction of the
Project or any part thereof; (B) use any Balancing Payments, funds in the
Restoration Account, Completion Reserve Account or any other Account or
unadvanced funds remaining in the Aggregate Commitment or which may be reserved,
escrowed or set aside for any purpose whatever at any time, to complete the
construction of the Project or
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any part thereof; (C) advance funds in excess of the amount of any or all the
Loans to complete the construction of the Project; (D) make changes in the
Approved Plans and Specifications which shall be necessary or desirable to
complete the construction of the Project in substantially the manner
contemplated by the Approved Plans and Specifications; (E) retain or employ such
new general contractors, contractors, subcontractors, architects, engineers and
inspectors as may be required for said purposes; (F) pay, settle or compromise
all existing bills and claims, the nonpayment of which might result in Liens on
the Project or any part thereof, or prevent such bills and claims from resulting
in Liens against the Project or any part thereof or against fixtures,
furnishing, furniture or equipment or other Property, or as may be necessary or
desirable for the completion of the construction and equipping and furnishing of
the Project or any part thereof or for the clearance of title; (G) execute all
applications and certificates which may be required by any of the Loan
Documents; (H) prosecute and defend all actions or proceedings connected with or
relating to the Project or any part thereof; (I) take such action and require
such performance as the Administrative Agent deems necessary under any payment
and performance bonds, and make settlements and compromises with the surety or
sureties thereunder, and, in connection therewith, execute instruments of
release and satisfaction; (J) take possession of and operate the Project or any
part thereof; and (K) do any and every act which Borrower or Co-Borrower might
do in its own behalf, it being understood and agreed that the foregoing power of
attorney shall be a power coupled with an interest and cannot be revoked.
8.4 Enforcement. Borrower and Co-Borrower each acknowledges that in the
event the Borrower or Co-Borrower fails to perform, observe or discharge any of
its obligations or liabilities under this Agreement or any other Loan Document,
any remedy of law may prove to be inadequate relief to the Administrative Agent
and the Lenders; therefore, the Borrower and Co-Borrower each agrees that the
Administrative Agent and the Lenders shall be entitled to temporary and
permanent injunctive relief in any such case without the necessity of proving
actual damages.
8.5 Preservation of Rights. No delay or omission of the Lenders or the
Administrative Agent to exercise any right under the Loan Documents shall impair
such right or be construed to be a waiver of any Default or an acquiescence
therein, and the making of an Advance notwithstanding the existence of a Default
or the inability of the Borrower to satisfy the conditions precedent to such
Advance shall not constitute any waiver or acquiescence. Any single or partial
exercise of any such right shall not preclude other or further exercise thereof
or the exercise of any other right, and no waiver, amendment or other variation
of the terms, conditions or provisions of the Loan Documents whatsoever shall be
valid unless in writing signed by the Administrative Agent, and then only to the
extent in such writing specifically set forth. All remedies contained in the
Loan Documents or by law afforded shall be cumulative and all shall be available
to the Administrative Agent and the Lenders until the Obligations have been paid
in full.
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ARTICLE IX
GENERAL PROVISIONS
9.1 Survival of Representations. All representations and warranties made
herein and all obligations, covenants and agreements of Borrower and/or
Co-Borrower in respect of taxes, indemnification and expense reimbursement shall
survive the execution and delivery of this Agreement and the other Loan
Documents, the making and repayment of the Advances and the termination of this
Agreement and shall not be limited in any way by the passage of time or
occurrence of any event and shall expressly cover time periods when the
Administrative Agent or any of the Lenders may have come into possession or
control of any Property of Borrower.
9.2 Governmental Regulation. Anything contained in this Agreement to the
contrary notwithstanding, no Lender shall be obligated to extend credit to the
Borrower in violation of any limitation or prohibition provided by any
applicable statute or regulation unless the same has resulted from the failure
of such Lender to comply with any requirements imposed upon such Lender by
applicable Law.
9.3 Headings. Section headings in the Loan Documents are for convenience
of reference only, and shall not govern the interpretation of any of the
provisions of the Loan Documents.
9.4 Entire Agreement. The Loan Documents embody the entire agreement and
understanding among Borrower, Co-Borrower, the Administrative Agent and the
Lenders and supersede all prior agreements and understandings among Borrower,
Co-Borrower, the Administrative Agent and the Lenders relating to the subject
matter thereof.
9.5 Obligations; Benefits of this Agreement. The respective obligations of
the Lenders hereunder are several and not joint and no Lender shall be the
partner or agent of any other (except to the extent to which the Administrative
Agent is authorized to act as such). The failure of any Lender to perform any of
its obligations hereunder shall not relieve any other Lender from any of its
obligations hereunder. Borrower and Co-Borrower are jointly and severally liable
and obligated for each other's obligations hereunder. This Agreement shall not
be construed so as to confer any right or benefit upon any Person other than the
parties to this Agreement and their respective successors and assigns, provided,
however, that the parties hereto expressly agree that the Joint Book Running
Managers, Co-Lead Arrangers, Syndication Agent and Documentation Agent (each, an
Initial Lender Affiliate, and collectively, the "Initial Lender Affiliates")
shall enjoy the benefits of the provisions of Sections 9.6, 9.10, 10.10, 10.18
and 10.20 to the extent specifically set forth therein and shall have the right
to enforce such provisions on their own behalf and in their own names to the
same extent as if each were a party to this Agreement.
9.6 Expenses; Indemnification. (a) Borrower and Co-Borrower shall
reimburse the Administrative Agent, and the Co-Lead Arrangers for any costs and
out-of-pocket expenses (including reasonable attorneys' fees) paid or incurred
by the Administrative Agent or the Co-Lead Arrangers (but excluding overhead and
internal costs) in connection with the preparation, negotiation, execution,
delivery, syndication, review, amendment, modification, and
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administration of the Loan Documents (other than (i) legal fees and related
disbursements incurred by the Lenders in connection with any amendments to the
Loan Documents requested by the Lenders after the Effective Date to facilitate
the syndication of the Commitments and the Loans, which legal fees and
disbursements shall be borne by the Lenders in proportion to their Pro Rata
Shares and (ii) the fees and expenses of the Construction Consultant, which
shall be borne solely by the Administrative Agent), in connection with
disbursements hereunder and otherwise with respect to the Project. Borrower also
agrees to reimburse the Administrative Agent, Co-Lead Arrangers and the Lenders
for any costs and out-of-pocket expenses (including reasonable attorneys' fees
and time charges of attorneys for the Administrative Agent, Co-Lead Arrangers
and the Lenders, but excluding internal administrative overhead except for legal
fees hereafter referred to in this sentence) paid or incurred by the
Administrative Agent, Co-Lead Arrangers and the Lenders, which attorneys may be
employees of the Administrative Agent, Co-Lead Arrangers or any Lender in
connection with the collection and enforcement of the Loan Documents in the
event of a Default. Expenses required to be reimbursed by Borrower and
Co-Borrower under this Section include, without limitation, the cost and expense
of obtaining Appraisals of the Project, provided that so long as no Default
shall exist that is continuing Borrower shall not be required to pay for
Appraisals other than (i) the initial Appraisal by CB Xxxxxxx Xxxxx obtained by
the Administrative Agent prior to the Effective Date and (ii) a single further
Appraisal which the Administrative Agent may commission in its sole discretion.
(b) Borrower and Co-Borrower hereby further agree to indemnify the
Administrative Agent, the Initial Lender Affiliates, each Lender, their
respective Affiliates, and each of their agents, shareholders, directors,
officers and employees against all losses, claims, damages, penalties,
judgments, liabilities and expenses (including, without limitation, all expenses
of litigation or preparation therefor whether or not the Administrative Agent,
any Initial Lender Affiliate, any Lender or any affiliate is a party thereto)
which any of them may pay or incur arising out of or relating to this Agreement,
the other Loan Documents, the transactions contemplated hereby (including
without limitation the Project Construction and any claims for personal injury,
property damage, economic loss, violation of Law, mechanics Liens, and patent,
trademark or copyright infringement) or the direct or indirect application or
proposed application of the proceeds of any Advance hereunder except to the
extent that they are determined in a final non-appealable judgment by a court of
competent jurisdiction to have resulted from the gross negligence or willful
misconduct of the party seeking indemnification. The obligations of Borrower
under this Section 9.6 shall survive the termination of this Agreement.
9.7 Numbers of Documents. All statements, notices, closing documents, and
requests hereunder shall be furnished to the Administrative Agent with
sufficient counterparts so that the Administrative Agent may furnish one to each
of the Lenders.
9.8 Accounting. Except as provided to the contrary herein, all accounting
terms used herein shall be interpreted and all accounting determinations
hereunder shall be made in accordance with Agreement Accounting Principles.
9.9 Severability of Provisions. Any provision in any Loan Document that is
held to be inoperative, unenforceable, or invalid in any jurisdiction shall, as
to that jurisdiction, be inoperative, unenforceable, or invalid without
affecting the remaining provisions in that
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jurisdiction or the operation, enforceability, or validity of that provision in
any other jurisdiction, and to this end the provisions of all Loan Documents are
declared to be severable.
9.10 Nonliability of Lenders. The relationship between the Borrower and
Co-Borrower on the one hand and the Lenders and the Administrative Agent on the
other hand shall be solely that of borrower and lender. None of the
Administrative Agent, any Initial Lender Affiliate, or any Lender shall have any
fiduciary responsibilities to the Borrower Co-Borrower or any Subsidiary
Guarantor. None of the Administrative Agent, any Initial Lender Affiliate, or
any Lender undertakes any responsibility to the Borrower, Co-Borrower or any
Subsidiary Guarantor to review or inform the Borrower, Co-Borrower or any
Subsidiary Guarantor of any matter in connection with any phase of the
Borrower's or Co-Borrower's business or operations. Borrower and Co-Borrower
agree that none of the Administrative Agent, any Initial Lender Affiliate, or
any Lender shall have liability to Borrower or Co-Borrower (whether sounding in
tort, contract or otherwise) for losses suffered by Borrower or Co-Borrower in
connection with, arising out of, or in any way related to, the transactions
contemplated and the relationship established by the Loan Documents, or any act,
omission or event occurring in connection therewith, unless it is determined in
a final non-appealable judgment by a court of competent jurisdiction that such
losses resulted from the gross negligence or willful misconduct of the party
from which recovery is sought. None of the Administrative Agent, any Initial
Lender Affiliate, or any Lender shall have any liability with respect to, and
the Borrower and Co-Borrower hereby waive, release and agree not to xxx for, any
special, indirect or consequential damages suffered by Borrower, Co-Borrower or
any Subsidiary Guarantor in connection with, arising out of, or in any way
related to the Loan Documents or the transactions contemplated thereby.
9.11 Confidentiality. Each Lender agrees to hold any confidential
information which it may receive from the Borrower or Co-Borrower or any of
their Subsidiaries or Affiliates pursuant to this Agreement in confidence,
except for disclosure (i) to its Affiliates and to other Lenders and their
respective Affiliates, (ii) to legal counsel, accountants, and other
professional advisors to such Lender or to a Transferee or prospective
Transferee, (iii) to regulatory officials, (iv) to any Person as requested
pursuant to or as required by law, regulation, or legal process, (v) to any
Person in connection with any legal proceeding to which such Lender is a party,
(vi) to such Lender's direct or indirect contractual counterparties in swap or
similar agreements or to legal counsel, accountants and other professional
advisors to such counterparties, and (vii) permitted by Section 12.4.
9.12 Nonreliance. Each Lender hereby represents that it is not relying on
or looking to any margin stock (as defined in Regulation U of the Board of
Governors of the Federal Reserve System) for the repayment of the Advances
provided for herein.
9.13 Disclosure. Borrower and Co-Borrower and each Lender hereby (i)
acknowledge and agree that Bankers Trust Company, Deutsche Banc Alex. Xxxxx Inc.
and/or their respective Affiliates from time to time may hold investments in,
make other loans to or have other relationships with Borrower, Co-Borrower and
any of their Affiliates, and (ii) waive any liability of Bankers Trust Company,
Deutsche Banc Alex. Xxxxx Inc. and/or their respective Affiliates to the
Borrower, Co-Borrower or any Lender, respectively, arising out of or resulting
from such investments, loans or relationships.
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9.14 Marshalling; Payments Set Aside. Neither the Administrative Agent nor
any Lender shall be under any obligation to marshal any assets in favor of the
Borrower, Co-Borrower or any other party or against or in payment of any or all
of the Secured Obligations. To the extent that the Borrower or Co-Borrower makes
a payment or payments to the Administrative Agent or the Lenders or any such
Person receives payment from the proceeds of the Collateral or exercises its
rights of setoff, and such payment or payments or the proceeds of such
enforcement or setoff or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside or required to be repaid to a
trustee, receiver or any other party, then to the extent of such recovery, the
obligation or part thereof originally intended to be satisfied, and all Liens,
right and remedies therefor, shall be revived and continued in full force and
effect as if such payment had not been made or such enforcement or setoff had
not occurred.
9.15 Successors and Assigns. This Agreement and the other Loan Documents
shall be binding upon the parties hereto and their respective successors and
assigns and shall inure to the benefit of the parties hereto and the successors
and permitted assigns of the Lenders. The rights hereunder of the Borrower and
Co-Borrower and any interest therein, may not be assigned without the written
consent of all Lenders, which may be granted or withheld in the sole discretion
of each.
9.16 Inconsistencies. This Agreement and each of the other Loan Documents
shall be construed to the extent reasonable to be consistent one with the other,
but to the extent that the terms and conditions of this Agreement are actually
inconsistent with the terms and conditions of any other Loan Document, this
Agreement shall govern. Notwithstanding anything to the contrary contained
herein, the existence of (and the Lenders' review of), the Organizational
Documents or any Project Agreements shall not be deemed to be an approval by the
Administrative Agent or the Lenders of any of the actions that may be permitted
to be taken by Borrower, Co-Borrower or any other Person thereunder to the
extent such actions violate the terms hereof. In addition to the foregoing, none
of the terms or provisions hereof shall be deemed to be waived or modified by
virtue of the fact that such terms and provisions conflict with, or contradict,
any of the terms and provisions of the Organizational Documents or any Project
Agreements.
9.17 Disclaimer by Lender. Neither the Administrative Agent nor the
Lenders nor any Initial Lender Affiliate shall be liable to any contractor,
subcontractor, supplier, laborer, architect, engineer, tenant or other party for
services performed or materials supplied in connection with any work performed
at the Project or any other Property. Neither the Administrative Agent nor the
Lenders nor any Initial Lender Affiliate shall be liable for any debts or claims
accruing in favor of any such parties against Borrower, Co-Borrower or others or
against any Property. Neither Borrower nor Co-Borrower shall be an agent of
either the Administrative Agent or the Lenders or any Initial Lender Affiliate
for any purposes and neither the Lenders nor the Administrative Agent nor any
Initial Lender Affiliate shall be deemed partners or joint venturers with
Borrower, Co-Borrower or any other Person. Neither the Administrative Agent nor
the Lenders nor any Initial Lender Affiliate shall be deemed to be in privity of
contract with any contractor or provider of services to the Project, nor shall
any payment of funds directly to a contractor or subcontractor or provider of
services be deemed to create any third party beneficiary status or recognition
of same by either the Administrative Agent or the Lenders or any Initial Lender
Affiliate, and Borrower and Co-Borrower each agrees
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to hold the Administrative Agent, the Lenders and the Initial Lender Affiliates
harmless from any of the damages and expenses resulting from such a construction
of the relationship of the parties or any assertion thereof.
9.18 Time is of the Essence. Time is of the essence of each and every term
and provision of this Agreement and the other Loan Documents.
9.19 Protective Advances. The Administrative Agent may from time to time,
before or after the occurrence and during the continuance of a Default, subject
to the prior written approval of the Required Lenders, make such disbursements
and advances pursuant to the Loan Documents (which disbursements and advances
shall be deemed to be "Loans" made hereunder) which the Administrative Agent, in
its reasonable discretion, deems necessary or desirable to preserve or protect
the Collateral or any portion thereof or to enhance the likelihood or maximize
the amount of repayment of the Secured Obligations ("Protective Advances"). The
Administrative Agent shall notify the Borrower and each Lender in writing of
each such Protective Advance, which notice (each a "Protective Advance Notice")
shall include a description of the purpose of such Protective Advance, the
aggregate amount of such Protective Advance, each Lender's Pro Rata Share
thereof and the date each Lender shall be required to pay its Pro Rata Share of
the Protective Advance (the "Protective Advance Date"), which Protective Advance
Date shall be not less than two (2) Business Days after delivery of the
Protective Advance Notice. Each Lender agrees to pay to the Administrative Agent
its Pro Rata Share of any Protective Advance on the Protective Advance Date in
the manner set forth herein for a funding of an Advance. Borrower agrees to pay
the Administrative Agent, upon demand, the principal amount of all outstanding
Protective Advances, together with interest thereon at the rate set forth in
Section 2.11 applicable in the event of a Default. If Borrower fails to make
payment in respect of any Protective Advance within three (3) Business Days
after the date Borrower receives written demand therefor from the Administrative
Agent, such failure shall constitute a Default. All outstanding principal of,
and interest on, Protective Advances shall constitute Secured Obligations
secured by the Collateral until paid in full by Borrower. Upon the making of a
Protective Advance, the Administrative Agent shall be subrogated to any and all
rights, equal or superior titles, liens and equities, owned or claimed by any
owner or holder of said outstanding liens, charges and indebtedness, however
remote, regardless of whether said liens, charges and indebtedness are acquired
by assignment or have been released of record by the holder thereof upon
payment.
ARTICLE X
THE ADMINISTRATIVE AGENT AND THE LENDERS
10.1 Appointment. The Lenders hereby designate Bankers Trust Company as
Administrative Agent to act as specified herein and in the other Loan Documents.
Each Lender hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, the
Administrative Agent to take such action on its behalf under the provisions of
this Agreement, the other Loan Documents and any other instruments and
agreements referred to herein or therein and to exercise such powers and to
perform such duties hereunder and thereunder as are specifically delegated to or
required of the Administrative Agent by the terms hereof and thereof and such
other powers as are reasonably incidental
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thereto. The Administrative Agent may perform any of its duties hereunder by or
through its respective officers, directors, agents, employees or affiliates.
10.2 Nature of Duties. The Administrative Agent shall not have any duties
or responsibilities except those expressly set forth in this Agreement and in
the other Loan Documents. Neither the Administrative Agent nor any of its
respective officers, directors, agents, employees or affiliates shall be liable
for any action taken or omitted by it or them hereunder or under any other Loan
Documents or in connection herewith or therewith, unless caused by its or their
gross negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision). The duties of the
Administrative Agent shall be mechanical and administrative in nature; the
Administrative Agent shall not have by reason of this Agreement or any other
Loan Document a fiduciary relationship in respect of any Lender or the holder of
any Note; and nothing in this Agreement or any other Loan Document, expressed or
implied, is intended to or shall be so construed as to impose upon the
Administrative Agent any obligations in respect of this Agreement or any other
Loan Document except as expressly set forth herein or therein.
10.3 Lack of Reliance on the Administrative Agent. (a) Independently and
without reliance upon the Administrative Agent, each Lender and the holder of
each Note, to the extent it deems appropriate, has made and shall continue to
make (i) its own independent investigation of the financial condition and
affairs of the Borrower, Co-Borrower and the Subsidiary Guarantors in connection
with the making and the continuance of the Loans and the taking or not taking of
any action in connection herewith and (ii) its own appraisal of the
creditworthiness of such Persons and, except as expressly provided in this
Agreement, the Administrative Agent shall not have any duty or responsibility,
either initially or on a continuing basis, to provide any Lender or the holder
of any Note with any credit or other information with respect thereto, whether
coming into its possession before the making of the Loans or at any time or
times thereafter. The Administrative Agent shall not be responsible to any
Lender or the holder of any Note for any recitals, statements, information,
representations or warranties herein or in any other Loan Document or in any
document, certificate or other writing delivered in connection herewith or
therewith or for the execution, effectiveness, genuineness, validity,
enforceability, perfection, collectibility, priority or sufficiency of this
Agreement or any other Loan Document or the financial condition of Borrower,
Co-Borrower, or the Subsidiary Guarantors , or be required to make any inquiry
concerning either the performance or observance of any of the terms, provisions
or conditions of this Agreement or any other Loan Document, or the financial
condition of the Credit Parties or the existence or possible existence of any
Default or Unmatured Default.
(b) The Administrative Agent does not represent, warrant or guaranty
to the Lenders the performance of the Borrower, Co-Borrower, any Subsidiary
Guarantor, any architect, any project managers, any contractor, subcontractor or
provider of materials or services in connection with the construction of the
Project and Borrower and Co-Borrower shall remain solely responsible for all
aspects of the Projects, including but not limited to the quality and
suitability of the Plans and Specifications, the supervision of the work of
construction, the qualifications, financial condition and performance of all
architects, engineers, contractors, subcontractors, suppliers, consultants and
property managers, the accuracy of all applications for payment, and the proper
application of all Loans.
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10.4 Certain Rights of the Administrative Agent. If the Administrative
Agent shall request instructions from the Required Lenders with respect to any
act or action (including failure to act) in connection with this Agreement or
any other Loan Document, the Administrative Agent shall be entitled to refrain
from such act or taking such action unless and until the Administrative Agent
shall have received instructions from the Required Lenders; and the
Administrative Agent shall not incur liability to any Person by reason of so
refraining. Without limiting the foregoing, no Lender or holder of any Note
shall have any right of action whatsoever against the Administrative Agent as a
result of the Administrative Agent acting or refraining from acting hereunder or
under any other Loan Document in accordance with the instructions of the
Required Lenders.
10.5 Reliance. The Administrative Agent shall be entitled to rely, and
shall be fully protected in relying, upon any note, writing, resolution, notice,
statement, certificate, telex, teletype or telecopier message, cablegram,
radiogram, order or other document or telephone message signed, sent or made by
any Person that the Administrative Agent in good faith believed to be the proper
Person, and, with respect to all legal matters pertaining to this Agreement and
any other Loan Document and its duties hereunder and thereunder, upon advice of
counsel selected by the Administrative Agent (which may be counsel for Borrower
or Co-Borrower).
10.6 Indemnification. To the extent the Administrative Agent is not
reimbursed and indemnified by Borrower, the Lenders will reimburse and indemnify
the Administrative Agent, in proportion to their respective "percentages" as
used in determining the Required Lenders, for and against any and all
liabilities, obligations, losses, damages, penalties, claims, actions,
judgments, costs, expenses or disbursements of whatsoever kind or nature which
may be imposed on, asserted against or incurred by the Administrative Agent in
performing its respective duties hereunder or under any other Loan Document, in
any way relating to or arising out of this Agreement or any other Loan Document;
provided that no Lender shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from the Administrative Agent's gross
negligence or willful misconduct (as determined by a court of competent
jurisdiction in a final and non-appealable decision).
10.7 The Administrative Agent in its Individual Capacity. With respect to
its obligation to make Loans under this Agreement, the Administrative Agent
shall have the rights and powers specified herein for a "Lender" and may
exercise the same rights and powers as though it were not performing the duties
specified herein; and the term "Lenders," "Required Lenders," "holders of Notes"
or any similar terms shall, unless the context clearly otherwise indicates,
include the Administrative Agent in its individual capacity. The Administrative
Agent may accept deposits from, lend money to, and generally engage in any kind
of Lendering, investment Lendering, trust or other business with Borrower,
Co-Borrower, any Subsidiary Guarantor or any Affiliate of any such Person as if
it were not performing the duties specified herein, and may accept fees and
other consideration from any such Person for services in connection with this
Agreement or any other Loan Document and otherwise without having to account for
the same to the Lenders.
10.8 Holders. The Administrative Agent may deem and treat the payee of any
Note as the owner thereof for all purposes hereof unless and until a written
notice of the assignment,
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transfer or endorsement thereof, as the case may be, shall have been filed with
the Administrative Agent. Any request, authority or consent of any Person who,
at the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or endorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
10.9 Resignation by the Administrative Agent. (a) The Administrative Agent
may resign from the performance of all its functions and duties hereunder and/or
under the other Loan Documents at any time by giving 15 Business Days' prior
written notice to Borrower and the Lenders. Such resignation shall take effect
upon the appointment of a successor Administrative Agent pursuant to clauses (b)
and (c) below or as otherwise provided below.
(b) Upon any such notice of resignation by the Administrative Agent,
the Borrower shall appoint a successor Administrative Agent hereunder or
thereunder who shall be a commercial Lender or trust company reasonably
acceptable to the Required Lenders (it being understood and agreed that any
Lender is deemed to be acceptable to the Required Lenders), provided that, if a
Default or an Unmatured Default exists at the time of such resignation, the
Required Lenders shall appoint such successor Administrative Agent.
(c) If a successor Administrative Agent shall not have been so
appointed within such 15 Business Day period, the Administrative Agent, with the
consent of the Borrower (which consent shall not be unreasonably withheld),
shall then appoint a successor Administrative Agent who shall serve as
Administrative Agent hereunder or thereunder until such time, if any, as the
Borrower or the Required Lenders, as the case may be, appoint a successor
Administrative Agent as provided above.
(d) If no successor Administrative Agent has been appointed pursuant
to clause (b) or (c) above by the 30th Business Day after the date such notice
of resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Required Lenders shall thereafter
perform all the duties of the Administrative Agent hereunder and/or under any
other Loan Document until such time, if any, as the Borrower or the Required
Lenders, as the case may be, appoint a successor Administrative Agent as
provided above.
10.10 Other Agents. None of the Co-Lead Arrangers nor the Joint Book
Running Managers nor the Syndication Agent nor the Documentation Agent shall
have any liabilities or obligations hereunder in their respective capacities as
such.
10.11 Lender Default. If any Lender (a "Defaulting Lender") fails to fund
its Pro Rata Share of any Advance on or before the time required pursuant to
this Agreement, or fails to fund its Pro Rata Share of any amount due under
Section 10.14(d) or the last sentence of Section 10.12 on or before the time
required thereunder or fails to pay the Administrative Agent, within twenty (20)
days of demand (which demand shall be accompanied by invoices or other
reasonable back up information demonstrating the amount owed), such Lender's Pro
Rata Share of any out-of-pocket costs, expenses or disbursements incurred or
made by the Administrative Agent pursuant to the terms of this Agreement (the
aggregate amount which the Defaulting
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Lender fails to pay or fund is referred to as the "Default Amount"), then, in
addition to the rights and remedies that may be available to the Non-Defaulting
Lenders at law and in equity:
(a) The Defaulting Lender's right to participate in the
administration of the Obligations and the Loan Documents, including without
limitation, any rights to vote upon, consent to or direct any action of the
Administrative Agent or the Lenders shall be suspended and such rights shall not
be reinstated unless and until such default is cured, provided, however, that if
the Administrative Agent is a Defaulting Lender, the Administrative Agent shall
continue to have all rights provided for in this Agreement and the Loan
Agreement with respect to the administration of the Loan, unless the Required
Lenders vote to remove and replace the Administrative Agent, in which event the
Required Lenders shall notify the Administrative Agent, Borrower and the other
Lenders of the identity of the successor Administrative Agent so chosen by the
Required Lenders and such successor Administrative Agent shall assume all the
rights and duties of Administrative Agent hereunder as of the date such notice
is given;
(b) If and to the extent the Default Amount includes an amount
which, if advanced by the Defaulting Lender, would be applied to interest, fees
or other amounts due to the Lenders under the Loan Documents (such portion of
the Default Amount is herein referred to as the "Lender Payment Portion"), the
Administrative Agent may, and shall upon the direction of the Required Lenders,
treat as advanced by the Defaulting Lender to itself (with a corresponding
automatic increase in the Defaulting Lender's Loan balance, and without
necessity for executing any further documents) the Lender Payment Portion,
whereupon a corresponding offset shall be made against the Default Amount;
(c) If and to the extent any Default Amount remains (after taking
into account the deemed advance and application made under Section 10.11(b)
above), any or all of the Non-Defaulting Lenders shall be entitled (but shall
not be obligated) to fund all or part of the remaining Default Amount (the
"Funded Default Amount"), and collect from the Defaulting Lender or from amounts
otherwise payable to the Defaulting Lender interest at the Default Rate on the
Funded Default Amount for the period from the date on which the payment was due
until the date on which payment is made (less any interest actually paid by the
Borrower on the Funded Default Amount from time to time, which payments shall be
applied by the Administrative Agent pari passu to the Non-Defaulting Lenders
which shall have so funded the Funded Default Amount);
(d) So long as any Default Amount remains outstanding, the
Defaulting Lender's interest in the Obligations and the Loan Documents and
proceeds thereof shall be subordinated to the interest of the Non-Defaulting
Lenders in the Obligations and the Loan Documents in the manner set forth in
Section 10.11(e) below, without necessity for executing any further documents,
provided that such Defaulting Lender's interest in the Obligations and the Loan
Documents and the proceeds thereof shall no longer be so subordinated if the
Default Amount (and all interest which has accrued pursuant to Section 10.11(c)
above) shall be repaid (or, if not funded by the Non-Defaulting Lenders,
advanced to the Administrative Agent for disbursement in accordance with this
Agreement) in full;
(e) To achieve such subordination, that portion of all amounts
received by the Administrative Agent on account of the Obligations which would
otherwise be payable to the
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Defaulting Lender on account of its interest in the Obligations shall be applied
by the Administrative Agent as follows:
(i) first to pay pari passu to the Non-Defaulting Lenders the
Funded Default Amount, together with interest thereon payable under Section
10.11(c) above, until the Funded Default Amount and all interest thereon has
been repaid in full (with collections from the Borrower being deemed earned by
the Defaulting Lender to the extent of its Pro Rata Share thereof and paid over
to the Non-Defaulting Lenders for application first to interest (in accordance
with Section 10-13(c) above and then to principal upon the Funded Default
Amount); then
(ii) second, the remainder, if any, shall be deemed earned by
the Defaulting Lender to the extent of its Pro Rata Share thereof and held in
escrow by the Administrative Agent for distribution as follows:
(A) upon payment in full of all the Secured Obligations,
without foreclosure, deed-in-lieu of foreclosure (or other similar disposition
of the Collateral) or other enforcement proceedings with respect to the Secured
Obligations, the funds held in escrow shall be promptly disbursed to the
Defaulting Lender; and
(B) upon completion of any foreclosure, deed-in-lieu of
foreclosure (or other similar disposition of the Collateral) or other
enforcement proceedings with respect to the Secured Obligations the funds held
in trust shall be promptly disbursed as follows:
(1) first, to the Non-Defaulting Lenders and their
Affiliates which are Holders of Secured
Obligations pari passu in the amount of all
Secured Obligations which have not been paid and
satisfied by the foreclosure, deed-in-lieu of
foreclosure (or other similar disposition of the
Collateral) or other enforcement proceedings with
respect to the Secured Obligations in order to
compensate the Non-Defaulting Lenders for any
failure to recover the full amount of the Secured
Obligations upon completion of any such
disposition of the Collateral or other enforcement
action; and
(2) second, any remaining funds shall be disbursed to
the Defaulting Lender.
(f) Each Non-Defaulting Lender shall have the right, but not the
obligation, in its sole discretion, to acquire such Defaulting Lender's Pro Rata
Share of the Advances and the Obligations, together with the Funded Default
Amount, in which case the following provisions shall apply:
(i) If more than one Non-Defaulting Lender exercises such
right, each such Non-Defaulting Lender shall have the right to acquire (in
accordance with such acquiring Lender's Pro Rata Share (or upon agreement
thereof, any other proportion) of the Defaulting Lender's Pro Rata Share in the
Advances and the Obligations, together with all of the Funded
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Default Amount (being deemed a portion of the Obligations advanced by the
Non-Defaulting Lenders which funded the Funded Default Amount). Such right to
purchase shall be exercised by written notice from the applicable Non-Defaulting
Lender(s) electing to exercise such right to the Defaulting Lender and the
Administrative Agent (an "Exercise Notice"), copies of which shall also be sent
concurrently to the other Lenders. The Exercise Notice shall specify (A) the
Purchase Price for the Pro Rata Share of the Defaulting Lender, determined in
accordance with Section 10.11(f)(ii) below, and (B) the date on which such
purchase is to occur, which shall be any Business Day which is not less than
fifteen (15) days after the date on which the Exercise Notice is given, provided
that if such Defaulting Lender shall have cured its default in full (including
all interest and other amounts due in connection therewith) to the satisfaction
of the Administrative Agent within said fifteen (15) day period, then the
Exercise Notice shall be of no further effect and the applicable Non-Defaulting
Lenders shall no longer have a right to purchase such Defaulting Lender's Pro
Rate Share or the Funded Default Amount. Upon any such purchase of the Pro Rata
Share of a Defaulting Lender and as of the date of such purchase (the "Purchase
Date"), (X) the Non-Defaulting Lenders purchasing the Defaulting Lender's Pro
Rata Share shall also purchase the Funded Default Amount in equivalent
proportions from the Non-Defaulting Lenders which funded the same, for a
purchase price equal to par plus interest accrued and unpaid thereon under the
provisions of Section 10.11(c) ("Default Amount Accrued Interest"), (Y) the
Non-Defaulting Lenders purchasing the Defaulting Lender's Pro Rata Share shall
promptly advance to the Administrative Agent their proportionate shares of any
unfunded portion of the Default Amount, and (Z) the Defaulting Lender's interest
in the Loans and the Obligations, and its rights hereunder as a Lender arising
from and after the Purchase Date (but not its rights and liabilities in respect
thereof or under the Loan Documents or this Agreement for obligations,
indemnities and other matters arising or matters occurring before the Purchase
Date) shall terminate on the Purchase Date, and the Defaulting Lender shall
promptly execute all documents reasonably requested to surrender and transfer
such interest. Without in any manner limiting the remedies of the Lenders, the
obligations of a Defaulting Lender to sell and assign its Pro Rata Share under
this Section 10.11(f) shall be specifically enforceable by the Administrative
Agent and/or the other Lenders, by an action brought in any court of competent
jurisdiction for such purpose, it being acknowledged and agreed that, in light
of the disruption in the administration of the Advances and the other terms of
the Loan Documents that a Defaulting Lender may cause, damages and other
remedies at law are not adequate.
(ii) The purchase price for the Pro Rata Share in the Advances
and the Obligations of a Defaulting Lender (the "Purchase Price") shall be equal
to one hundred percent (100%) of the sum of all of the Defaulting Lender's
advances (including advances for Protective Advances) under the Loans
outstanding as of the Purchase Date, less the Default Amount Accrued Interest
and costs and expenses incurred by the Administrative Agent and the Lenders
directly as a result of the Defaulting Lender's default hereunder, court costs
and the fees and expenses of attorneys, paralegals, accountants and other
similar advisors, and if such amounts are not then known, there shall be
deducted from the Purchase Price and placed into escrow with the Administrative
Agent an amount equal to 200% of the Administrative Agent's reasonable estimate
of such costs, to be held for disbursement to pay such costs as incurred, with
any remainder being returned to the Defaulting Lender upon payment in full of
all the Secured Obligations. The Lenders hereby acknowledge that the Lenders
purchasing the Defaulting Lender's Pro Rata Share are entitled to do so at the
price set forth in this Section 10.11(f)(ii) due
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to the risk that the Obligations and Collateral may further decline in value
after such purchase as a result of the Defaulting Lender's default.
Nothing herein contained shall be deemed or construed to waive, diminish or
limit, or prevent or stop any Lender from exercising or enforcing, any rights or
remedies which may be available at law or in equity as a result of or in
connection with any default under this Agreement by a Lender. In addition, no
Lender shall be deemed to be a Defaulting Lender if such Lender refuses to fund
its Pro Rata Share of any Advance being made after any bankruptcy-related
Default under Section 7.6 or Section 7.7 of this Agreement due to the lack of
bankruptcy court approval for such Advance.
10.12 Authority. The Administrative Agent, as described herein, shall have
all rights with respect to collection and administration of the Obligations, the
security therefor and the exercise of remedies with respect thereto, except to
the extent otherwise expressly set forth herein. The Lenders agree that the
Administrative Agent shall make all determinations as to whether to grant or
withhold approvals under the Loan Documents and as to compliance with the terms
and conditions of the Loan Documents, except to the extent otherwise expressly
set forth therein or herein. The Administrative Agent will simultaneously
deliver to the Lenders copies of any default notices sent to Borrower,
Co-Borrower or any Subsidiary Guarantor under the terms of the Loan Documents
and will promptly provide to the Lenders copies of any material notices received
from Borrower, Co-Borrower or any Subsidiary Guarantor, including without
limitation notices received under Section 6.17(d) and notices received under
Section 6.18 (and copies of the documents received by the Administrative Agent
thereunder). The Administrative Agent shall not, however, take the following
actions without first obtaining the consent of requisite Lenders, as set forth
below:
(a) The Administrative Agent shall not, without first obtaining the
consent of the Unanimous Lenders, take any of the following actions:
(i) amend the interest rate or Maturity Date set forth in the
Loan Documents;
(ii) release any collateral for the Secured Obligations, or
release any guaranty, indemnity agreement or any Person (including, without
limitation, any Subsidiary Guarantor) with respect to any such guaranty or
indemnity agreement (except for the release of any Subsidiary Guarantor from the
Guaranty upon consummation of an Asset Sale with respect to such Subsidiary
Guarantor or substantially all of its assets and except for releases otherwise
expressly permitted pursuant to the Loan Documents upon satisfaction of all
applicable conditions specified therein), or waive or release any indemnity
obligations of Borrower, Co-Borrower or any guarantor (including, without
limitation, any Subsidiary Guarantor) to the Lenders under the Loan Documents;
(iii) increase the amount of any Commitment;
(iv) forgive or reduce any principal, interest or fees due
under the Obligations or extend the time for payment of any such principal,
interest or fees;
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(v) consent to the further encumbrance or hypothecation of all
or any portion of the Project or any other Collateral except to the extent
expressly permitted under the Loan Documents;
(vi) modify, waive or consent to any assignment in violation
of Section 12.1(i);
(vii) change the Pro Rata Share of any Lender, except in
connection with a transfer of a Lender's interest permitted under the Loan
Agreement;
(viii) modify or amend this Section 10.12; or
(ix) modify or amend the definition of "Unanimous Lenders" or
"Required Lenders" herein.
(b) The Administrative Agent shall not, without first obtaining the
consent of the Required Lenders, take any of the following actions:
(i) exercise (or refrain from exercising) rights or remedies
with respect to any Default, including any action with respect to the exercise
of remedies or the realization, operation or disposition of any Collateral,
provided, however, that the Administrative Agent may deliver consents
contemplated by the Loan Documents and waivers of provisions (other than
material provisions) of the Loan Documents;
(ii) consent to any material change in Project Scope of Work
which reflects a material reduction in the revenue generating capacity of the
Project or a material reduction in the Project quality, in each case to the
extent that any such changes require the Administrative Agent's consent pursuant
to the terms of the Loan Documents;
(iii) amend, supplement or otherwise modify in any material
respect any of the Loan Documents or execute a written waiver of any material
provision of the Loan Documents, provided that such amendment, supplement,
modification or waiver does not require the consent of all the Lenders under
Section 10.14(a) above;
(iv) consent to the transfer by Borrower or Co-Borrower of all
or any part of its direct or indirect interest in the Project or any other
Collateral, except to the extent expressly permitted under the Loan Documents;
(v) consent to any Change of Control; or
(vi) agree to cause an additional or updated Appraisal to be
ordered at the Lenders' expense.
As to any matters which are subject to the consent of any or all of the
Lenders, as set forth above or elsewhere in this Agreement, the Administrative
Agent shall not be permitted or required to exercise any discretion or to take
any action except upon the receipt of the written consent or instruction with
respect to such action by the requisite Lenders, which written consent or
instruction shall be binding upon the Lenders. Notwithstanding anything
contained herein to
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the contrary, it is understood and agreed that the Lenders' right to consent to
or disapprove any particular matter shall be limited to the extent that the
Lenders' or Administrative Agent's rights to consent to or disapprove of such
matter are limited in the Loan Documents.
As to any matter which is subject to a vote of the Lenders hereunder, any
of the Lenders may require the Administrative Agent to initiate such a vote. In
such event, the Administrative Agent shall conduct a vote in accordance with the
provisions of the next paragraph. The Administrative Agent shall be bound by the
results of such vote, so long as the action voted in favor of is permissible
under the Loan Documents and under applicable law, and subject to the obligation
of each Lender to contribute its Pro Rata Share of all expenses and liabilities
incurred in connection therewith as more fully set forth below.
All communications from the Administrative Agent to the Lenders requesting
the Lenders' approval (i) shall be given in the form of a written notice to each
Lender, (ii) shall be accompanied by a description of the matter as to which
such approval is requested and (iii) shall include, if appropriate, the
recommendation of the Administrative Agent, if any.
Subject to the foregoing limitations, each Lender hereby appoints and
constitutes the Administrative Agent as its agent with full power and authority
to exercise on behalf of such Lender any and all rights and remedies which such
Lender may have with respect to, and to the extent necessary under applicable
law for, the enforcement of the Loan Documents, including the right to exercise,
or to refrain from exercising, any and all remedies afforded to such Lender by
the Loan Documents or which such Lender may have as a matter of law.
Subject to the last sentence of this paragraph, each Lender shall be
responsible for its Pro Rata Share of any reasonable out-of-pocket costs,
expenses or liabilities incurred by the Administrative Agent in connection with
the Obligations, the protection of any security for the Secured Obligations, the
enforcement of the Loan Documents or the management or operation of the Project
or any other Collateral after acquisition of title thereto. Each Lender shall,
within twenty (20) days after a written demand therefor accompanied with a
description of the amounts payable, contribute its respective Pro Rata Share of
the out-of-pocket costs and expenses incurred by the Administrative Agent in
accordance with the terms of this Agreement, including, but not limited to, fees
of receivers or trustees, court costs, title company charges, filing and
recording fees, appraisers' fees and expenses of attorneys.
10.13 Borrower Default. Promptly after the Administrative Agent acquires
actual knowledge that a Default has occurred, the Administrative Agent shall
evaluate the circumstances of such Default, its impact on Borrower, Co-Borrower
and Subsidiary Guarantors and the courses of action available to the Lenders,
which may include such responses as entering into a forbearance agreement for a
period of time, establishing certain additional credit or collateral safeguards
in exchange for a waiver of such Default or determining the timing and order of
enforcement of the remedies available to the Lenders. Unless expressly directed
in writing to the contrary by the Required Lenders, the Administrative Agent is
expressly authorized to discuss such Default and possible resolutions with the
Borrower, Co-Borrower and Subsidiary Guarantors and to refrain from exercising
any rights and remedies while conducting such evaluation, provided that the
Administrative Agent shall not enter into any written forbearance agreement with
Borrower or Co-Borrower or any Subsidiary Guarantor without the
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prior consent of the Required Lenders. The foregoing provisions shall not limit
the right, power or authority of the Administrative Agent to take actions
pursuant to and in accordance with Section 8.1 or Section 9.19.
The Administrative Agent shall, upon completing such evaluation and if the
Administrative Agent deems it appropriate, forward to each Lender a written
proposal outlining the course of action that the Administrative Agent
recommends, if any.
If the Required Lenders so approve the Administrative Agent's proposal,
the Administrative Agent shall seek to implement such proposal in due course in
the same manner the Administrative Agent generally implements similar proposals
for loans held for its own account.
The Lenders agree to cooperate in good faith and in a commercially
reasonable manner in connection with the exercise by the Administrative Agent of
the rights granted to the Lenders by law and the Loan Documents, including, but
not limited to, providing necessary information to the Administrative Agent with
respect to the Obligations, preparing and executing necessary affidavits,
certificates, notices, instruments and documents and participating in the
organization of applicable entities to hold title to the Project. Each Lender
agrees that it shall subscribe to and accept its Pro Rata Share of the ownership
interests in any entity organized to hold title to the Project and any other
Collateral. Each Lender agrees that it shall subscribe to and accept its Pro
Rata Share of the ownership interests in any entity organized to hold title to
the Project and each such Lender agrees that the nature of such entity shall be
determined by the Required Lenders. The Administrative Agent is hereby
authorized to act for and on behalf of the Lenders in all day-to-day matters
with respect to the exercise of rights described herein such as the supervision
of attorneys, accountants, appraisers or others acting for the benefit of all of
the Lenders in connection with litigation, foreclosure, realization of all or
any security given as collateral for the Secured Obligations or other similar
actions.
10.14 Acquisition of Project. If the Administrative Agent (or its nominee
or designee), on behalf of the Lenders, acquires the Project or any other
Collateral either by foreclosure or deed in lieu of foreclosure, then the
Lenders agree to negotiate in good faith to reach agreement among themselves in
writing relating to the ownership, operation, maintenance, marketing, and sale
of such Project. The Lenders agree that such agreement shall be consistent with
the following:
(a) The Collateral will not be held as a long term investment but
will be marketed in an attempt to sell the Collateral in a time period
consistent with the regulations applicable to national banks for owning real
estate. Current Appraisals of the Collateral shall be obtained by the
Administrative Agent, such Appraisals shall be furnished to the Lenders from
time to time during the ownership period at the Lenders' expense (without
diminishing or releasing any obligation of Borrower and Co-Borrower to pay for
such costs) and an appraised value shall be established and updated from time to
time based on such Appraisals.
(b) Decision-making with respect to the day to day operations of the
Project will be delegated to management and leasing agents. All agreements with
such management and leasing agents will be subject to the approval of the
Required Lenders. All material decisions
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reserved to the owner in such agreements will also be subject to the approval of
the Required Lenders. The day to day supervision of such agents shall be done by
the Administrative Agent.
(c) Except as provided in the immediately following sentence, all
decisions as to whether to sell the Project and any other Collateral shall be
subject to the approval of all the Lenders. Notwithstanding the foregoing, the
Lenders agree that if the Administrative Agent receives a bona fide "all cash"
(as determined by the Administrative Agent in its discretion) offer for the
purchase of the Project or other Collateral which has been approved in writing
by the Required Lenders and such offer equals or exceeds one hundred percent
(100%) of the most recent appraised value of the Project or such other
Collateral as established by an Appraisal that has been completed within six
months of such offer, then the Administrative Agent is irrevocably authorized to
accept such offer on behalf of all the Lenders.
(d) All expenses incurred by the Administrative Agent and the
Lenders in connection with the Project shall be allocated among the Lenders pro
rata in accordance with their respective Pro Rata Shares. In the event any
Lender does not pay its Pro Rata Share of such expenses, such Lender shall be
subject to the terms of Section 10.13 above.
(e) All proceeds received by the Administrative Agent or any Lender
from the operation, sale or other disposition of Project and any other
Collateral (net of expenses incurred by the Administrative Agent in connection
therewith and any reserves deemed reasonably necessary by the Required Lenders
for potential obligations of the Lenders with respect to the Project and subject
to Section 10.13 above) shall be paid to the Lenders in accordance with each
Lender's Pro Rata Share from time to time upon authorization by the Required
Lenders.
(f) All expenditures and other actions taken with respect to the
Project and any other Collateral shall at all times be subject to the
regulations and requirements pertaining to national banks applicable thereto.
Without limiting the generality of the foregoing, all necessary approvals from
regulatory authorities in connection with any expenditure of funds by the
Lenders shall be a condition to such expenditure.
10.15 Documents. Except as otherwise expressly provided herein, it is
acknowledged and agreed that (a) the Administrative Agent has not and shall not
provide to the other Lenders documents, other than Loan Documents delivered as
of the Effective Date, received from Borrower with respect to the satisfaction
of the conditions set forth in Section 4.1 or the conditions precedent to the
initial or any subsequent Advances, but that such documents are or shall be
available for inspection by each Lender, and (b) the determination by each
Lender of whether the conditions precedent set forth in Section 4.1 and 4.2 have
been satisfied shall be for the benefit of each such Lender only, and may not be
relied on by any other party.
10.16 Receipt and Maintenance of Loan Documents. Each Lender acknowledges
that it has received, reviewed and approved the form of the Loan Documents
delivered as of the Effective Date. Borrower shall deliver to the Administrative
Agent and to each of the Lenders party hereto on the Effective Date executed
original counterparts of all of the Loan Documents, other than the originals of
the Notes, each of which shall be delivered to the Lender named therein.
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10.17 No Representations. Each Lender acknowledges and agrees that the
Administrative Agent has not made any representations or warranties, express or
implied, with respect to any aspect of the Loan, including, without limitation
(i) the existing or future solvency or financial condition or responsibility of
Borrower, Co-Borrower and Subsidiary Guarantors, (ii) the payment or
collectibility of the Obligations, (iii) the validity, enforceability or legal
effect of the Loan Documents, or the Mortgage Title Insurance Policy or the
survey furnished by Borrower, or (iv) the validity or effectiveness of the lien
created by the Mortgage or any other liens or security interests required by the
Loan Agreement.
10.18 No Relation. The relationship between the Administrative Agent, the
Co-Lead Arrangers, Joint Book-Running Managers, Syndication Agent, Documentation
Agent and the other Lenders is not intended by the parties to create, and shall
not create, any trust, joint venture or partnership relation between them.
10.19 Standard of Care. The Administrative Agent shall be liable to the
Lenders for any loss or liability sustained in connection with its management
and administration of the Obligations, or in connection with the exercise of any
rights and remedies under the Loan Documents or at law, only if, and to the
extent, such loss or liability results from the gross negligence or willful
misconduct of such Administrative Agent or any of its employees, officers,
agents or directors or a breach of the Administrative Agent's express
obligations under this Agreement.
10.20 No Responsibility for Loans, Etc. Except as otherwise provided in
this Agreement (including Section 10.21), none of the Administrative Agent, the
Initial Lender Affiliates or any of their respective shareholders, directors,
officers, agents or employees shall be responsible for or have any duty to
ascertain, inquire into, or verify (i) any statement, warranty or representation
made in connection with any Loan Document or any Advances hereunder; (ii) the
performance or observance of any of the covenants or agreements of any obligor
under any Loan Document, including, without limitation, any agreement by an
obligor to furnish information directly to each Lender; (iii) the satisfaction
of any condition specified herein; (iv) the validity, effectiveness or
genuineness of any Loan Document or any other instrument or writing furnished in
connection therewith; or (v) the value, sufficiency, creation, perfection or
priority of any interest in any collateral security. Neither the Administrative
Agent nor any of the Initial Lender Affiliates shall have any duty to disclose
to the Lenders information that is not required to be furnished to it by the
Borrower or Co-Borrower.
10.21 Payments After Default. Subject to the provisions of Section 10.13
regarding the subordination of any Defaulting Lender's interest, after the
occurrence of a Default, the Administrative Agent shall apply all payments in
respect of any Obligations and all proceeds of Collateral in the following
order:
(i) first, to pay Obligations in respect of any fees, expense
reimbursements or indemnities then due to the Administrative Agent;
(ii) second, to pay principal of and interest on any
Protective Advance for which the Administrative Agent has not then been paid by
the Borrower or reimbursed by the Lenders;
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(iii) third, to pay Obligations in respect of any fees,
expense reimbursements or indemnities then due to the Lenders (other than Rate
Management Obligations);
(iv) fourth, to the ratable payment, on a pari passu basis, of
(a) principal and interest on the Loans (such application to be made first to
interest and then to principal) and (b) Secured Rate Management Obligations; and
(v) fifth, to the ratable payment of all other Obligations.
The order of priority set forth in this Section 10.23 is set forth solely
to determine the rights and priorities of the Administrative Agent and the
Lenders as among themselves. As between Borrower, Co-Borrower and Subsidiary
Guarantors, on the one hand, and the Administrative Agent and Lenders on the
other, after the occurrence of a Default the Administrative Agent and Lenders
may apply all payments in respect of any Secured Obligations, and all proceeds
of Collateral, to the Secured Obligations in such order and manner as the
Administrative Agent and Lenders may elect in their sole and absolute
discretion. The order of priority set forth in clauses (i) through (iii) of this
Section 10.21 may be changed by the Required Lenders with the prior written
consent of the Administrative Agent.
10.22 Payments Received. All payments received by the Administrative Agent
from the Borrower for the account of the Lenders shall be disbursed to the
applicable Lenders no later than the next Business Day following the day such
payment is received in good funds by the Administrative Agent. If payments
received by the Administrative Agent from the Borrower are not disbursed to the
applicable Lenders the same day as they are received, such funds shall be
invested overnight by the Administrative Agent and each Lender will receive its
Pro Rata Share of any interest so earned. The Lenders acknowledge that the
Administrative Agent does not guarantee any particular level of return on the
overnight funds and that the Administrative Agent will invest such funds as it
deems prudent from time to time.
ARTICLE XI
SETOFF; RATABLE PAYMENTS
11.1 Setoff. In addition to, and without limitation of, any rights of the
Lenders under applicable law, if Borrower, Co-Borrower or any Subsidiary
Guarantor becomes insolvent, however evidenced, or any Default occurs, any and
all deposits (including all account balances, whether provisional or final and
whether or not collected or available) and any other Indebtedness at any time
held or owing by any Lender or any Affiliate of any Lender to or for the credit
or account of Borrower, Co-Borrower or any Subsidiary Guarantor may be offset
and applied toward the payment of the Secured Obligations owing to such Lender,
whether or not the Secured Obligations, or any part thereof, shall then be due.
11.2 Ratable Payments. If any Lender, whether by setoff or otherwise, has
payment made to it upon its Outstanding Credit Exposure (other than payments
received pursuant to Section 3.1, 3.2, 3.4 or 3.5) in a greater proportion than
that received by any other Lender, such Lender agrees, promptly upon demand, to
purchase a portion of the Aggregate Outstanding
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Credit Exposure held by the other Lenders so that after such purchase each
Lender will hold its Pro Rata Share of the Aggregate Outstanding Credit
Exposure. If any Lender, whether in connection with setoff or amounts which
might be subject to setoff or otherwise, receives collateral or other protection
for its Obligations or such amounts which may be subject to setoff, such Lender
agrees, promptly upon demand, to take such action necessary to provide that the
Administrative Agent and all Lenders share in the benefits of such collateral in
accordance with the provisions of Section 2.12(b).
ARTICLE XII
BENEFIT OF AGREEMENT; ASSIGNMENTS; PARTICIPATIONS
12.1 Successors and Assigns. The terms and provisions of the Loan
Documents shall be binding upon and inure to the benefit of Borrower,
Co-Borrower, Subsidiary Guarantors, the Administrative Agent and the Lenders and
their respective successors and assigns, except that (i) Borrower, Co-Borrower
and Subsidiary Guarantors shall not have the right to assign their respective
rights or obligations under the Loan Documents and (ii) any assignment by any
Lender must be made in compliance with Section 12.3. The parties to this
Agreement acknowledge that clause (ii) of this Section 12.1 relates only to
absolute assignments and does not prohibit assignments creating security
interests, including, without limitation, any pledge or assignment by any Lender
of all or any portion of its rights under this Agreement and any Note to a
Federal Reserve Bank; provided, however, that no such pledge or assignment
creating a security interest shall release the transferor Lender from its
obligations hereunder unless and until the parties thereto have complied with
the provisions of Section 12.3. The Administrative Agent may treat the Person
which made any Loan or which holds any Note as the owner thereof for all
purposes hereof unless and until such Person complies with Section 12.3;
provided, however, that the Administrative Agent may in its discretion (but
shall not be required to) follow instructions from the Person which made any
Loan or which holds any Note to direct payments relating to such Loan or Note to
another Person. Any assignee of the rights to any Loan or any Note agrees by
acceptance of such assignment to be bound by all the terms and provisions of the
Loan Documents. Any request, authority or consent of any Person, who at the time
of making such request or giving such authority or consent is the owner of any
Loan (whether or not a Note has been issued in evidence thereof), shall be
conclusive and binding on any subsequent holder or assignee of the rights to
such Loan.
12.2 Participations.
12.2.1 Permitted Participants; Effect. Any Lender may, in the ordinary
course of its business and in accordance with applicable law, at any time sell
to one or more banks or other entities ("Participants") participating interests
in any Outstanding Credit Exposure of such Lender, any Note held by such Lender,
any Commitment of such Lender or any other interest of such Lender under the
Loan Documents. In the event of any such sale by a Lender of participating
interests to a Participant, such Lender's obligations under the Loan Documents
shall remain unchanged, such Lender shall remain solely responsible to the other
parties hereto for the performance of such obligations, such Lender shall remain
the owner of its Outstanding Credit Exposure and the holder of any Note issued
to it in evidence thereof for all purposes under the Loan Documents, all amounts
payable by Borrower and Co-Borrower under this Agreement
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shall be determined as if such Lender had not sold such participating interests,
and Borrower and Co-Borrower and the Administrative Agent shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under the Loan Documents.
12.2.2 Voting Rights. Each Lender shall retain the sole right to approve,
without the consent of any Participant, any amendment, modification or waiver of
any provision of the Loan Documents other than any amendment, modification or
waiver with respect to any Advance or Commitment in which such Participant has
an interest which (a) forgives principal, interest, fees or reduces the interest
rate or fees payable with respect to any such Loan or Commitment (except in
connection with a waiver of applicability of any post-Default increase in
interest rates), extends the Maturity Date, postpones any date fixed for any
required payment of principal of, or interest on any Loan in which such
Participant has an interest, or any regularly-scheduled payment of fees on any
such Advance or Commitment, (b) releases any guarantor of any such Advance
(except in connection with an Asset Sale in accordance with the terms hereof) or
all or substantially all of any collateral, if any, securing any such Advance;
(c) increases the amount of the participant's participation over the amount
thereof then in effect (it being understood that a waiver of any Default or
Event of Default shall not constitute a change in the terms of such
participation, and that an increase in any Commitment (or the available portion
thereof) or Loan shall be permitted without the consent of any participant if
the participant's participation therein is not increased as a result thereof) or
(d) consents to the assignment or transfer by Borrower or Co-Borrower of any of
their obligations under this Agreement. Notwithstanding the foregoing, the
Borrower, Co-Borrower and the other Lenders shall be entitled to rely upon any
actions taken by a Lender in its capacity as such, whether or not within the
scope of such Lender's authority under any agreement between the Lender and a
Participant.
12.2.3 Benefit of Setoff. Borrower and Co-Borrower agree that each
Participant shall be deemed to have the right of setoff provided in Section 11.1
in respect of its participating interest in amounts owing under the Loan
Documents to the same extent as if the amount of its participating interest were
owing directly to it as a Lender under the Loan Documents, provided that each
Lender shall retain the right of setoff provided in Section 11.1 with respect to
the amount of participating interests sold to each Participant. The Lenders
agree to share with each Participant, and each Participant, by exercising the
right of setoff provided in Section 11.1, agrees to share with each Lender, any
amount received pursuant to the exercise of its right of setoff, such amounts to
be shared in accordance with Section 11.2 as if each Participant were a Lender.
12.3 Assignments.
12.3.1 Permitted Assignments. Subject to satisfaction of the applicable
requirements and conditions set forth in this Section 12.3, any Lender may, in
the ordinary course of its business and in accordance with applicable law, at
any time assign to one or more banks or other entities ("Purchasers") all or any
part of its rights and obligations under the Loan Documents, subject to the
following:
(i) such assignment shall be substantially in the form of
Exhibit F or in such other form as may be agreed to by the Administrative Agent;
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(ii) the consent of Borrower and the Administrative Agent, not
to be unreasonably withheld or delayed, shall be required prior to an assignment
becoming effective, and, unless each of the Borrower and the Administrative
Agent otherwise consents, each assignment with respect to an Eligible Assignee
which is not a Lender or an Affiliate thereof shall be in an amount not less
than the lesser of (A) $5,000,000 or (B) the remaining amount of the assigning
Lender's Commitment (calculated as at the date of such assignment) or
outstanding Loans (if the applicable Commitment has been terminated); provided,
however, that (1) the consent of Borrower shall not be required for an
assignment from one Lender to another Lender or an Affiliate thereof; (2) the
consent of Borrower shall not be required in connection with any such
assignments occurring in connection with the primary syndication of this
facility and (3) if a Default has occurred and is continuing, no consent of the
Borrower to any assignment shall be required;
(iii) Unless the Administrative Agent otherwise consents, a
Lender shall not be permitted to assign less than the entire remaining amount of
the assigning Lender's Commitment or outstanding Loans if upon completion of
such assignment the remaining amount of the assigning Lender's Commitment
(calculated as at the date of such assignment) or outstanding Loans (if the
applicable Commitment has been terminated) shall be less than $5,000,000; and
(iv) No Lender shall assign all or any part of its rights and
obligations under the Loan Documents (A) prior to December 31, 2001, without the
Administrative Agent's consent, which shall not be unreasonably withheld, or (B)
to any Person other than an Eligible Assignee.
12.3.2 Effect; Effective Date. Upon (a) delivery to the Administrative
Agent of an assignment, together with any consents required by Section 12.3.1,
and (b) payment of a non-refundable assignment fee of $3,500 to the
Administrative Agent for processing such assignment (unless such fee is waived
by the Administrative Agent), such assignment shall become effective on the
effective date specified in such assignment. On and after the effective date of
such assignment, such Purchaser shall for all purposes be a Lender party to this
Agreement and any other Loan Document executed by or on behalf of the Lenders
and shall have all the rights and obligations of a Lender under the Loan
Documents, to the same extent as if it were an original party hereto, and the
transferor Lender shall be discharged and released with respect to the
percentage of the Aggregate Commitment and Outstanding Credit Exposure assigned
to such Purchaser, without any further consent or action by Borrower, the
Lenders or the Administrative Agent. Upon the consummation of any assignment to
a Purchaser pursuant to this Section 12.3.2, the transferor Lender, the
Administrative Agent and Borrower shall make appropriate arrangements so that
new Notes or, as appropriate, replacement Notes are issued to such transferor
Lender and new Notes or, as appropriate, replacement Notes, are issued to such
Purchaser, in each case in principal amounts reflecting their respective
Commitments and Outstanding Credit Exposures, as adjusted pursuant to such
assignment.
12.4 Dissemination of Information. Borrower and Co-Borrower each
authorizes each Lender to disclose to any Participant or Purchaser or any other
Person acquiring an interest in the Loan Documents by operation of law (each a
"Transferee") and any prospective Transferee any and all information in such
Lender's possession concerning the creditworthiness of Borrower,
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Co-Borrower and Subsidiary Guarantors; provided that each Transferee and
prospective Transferee agrees to be bound by Section 9.11 of this Agreement.
12.5 Tax Treatment. If any interest in any Loan Document is transferred to
any Transferee which is organized under the laws of any jurisdiction other than
the United States or any State thereof, the transferor Lender shall cause such
Transferee, concurrently with the effectiveness of such transfer, to comply with
the provisions of Section 3.5(iv).
ARTICLE XIII
NOTICES
13.1 Notices. Except as otherwise permitted by Section 2.14 with respect
to Borrowing Notices, all notices, requests and other communications to any
party hereunder shall be in writing (including electronic transmission,
facsimile transmission or similar writing) and shall be given to such party: (a)
in the case of Borrower, Co-Borrower, the Administrative Agent or any Lender, at
its address or facsimile number set forth on the signature pages hereof, or (b)
in the case of any party, at such other address or facsimile number as such
party may hereafter specify for the purpose by notice to the Administrative
Agent, Borrower and Co-Borrower in accordance with the provisions of this
Section 13.1. Each such notice, request or other communication shall be
effective (i) if given by facsimile transmission, when transmitted to the
facsimile number specified in this Section and confirmation of receipt is
received, (ii) if given by certified mail, return receipt requested, when
delivered at the address specified in this Section, as indicated by the return
receipt, or (iii) if given by any other means, when delivered (or, in the case
of electronic transmission, received) at the address specified in this Section;
provided that notices to the Administrative Agent under Article II shall not be
effective until received.
13.2 Change of Address. Borrower, Co-Borrower, the Administrative Agent
and any Lender may each change the address for service of notice upon it by a
notice in writing to the other parties hereto.
ARTICLE XIV
COUNTERPARTS
This Agreement may be executed in any number of counterparts, all of which
taken together shall constitute one agreement, and any of the parties hereto may
execute this Agreement by signing any such counterpart. This Agreement shall be
effective when it has been executed by Borrower, Co-Borrower, the Administrative
Agent and the Lenders and each party has notified the Administrative Agent by
facsimile transmission or telephone that it has taken such action.
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ARTICLE XV
CHOICE OF LAW; CONSENT TO JURISDICTION; WAIVER OF JURY TRIAL
15.1 CHOICE OF LAW. THE LOAN DOCUMENTS (OTHER THAN THOSE CONTAINING A
CONTRARY EXPRESS CHOICE OF LAW PROVISION) SHALL BE GOVERNED BY AND CONSTRUED IN
ACCORDANCE WITH THE INTERNAL LAWS OF THE STATE OF NEW YORK (EXCLUDING THE NEW
YORK LIEN LAW AND WITHOUT REGARD TO THE CONFLICT OF LAWS PROVISIONS), BUT GIVING
EFFECT TO FEDERAL LAWS APPLICABLE TO NATIONAL BANKS.
15.2 CONSENT TO JURISDICTION. BORROWER AND CO-BORROWER EACH HEREBY
IRREVOCABLY SUBMITS TO THE NON-EXCLUSIVE JURISDICTION OF ANY UNITED STATES
FEDERAL OR NEW YORK STATE COURT SITTING IN NEW YORK OR ANY UNITED STATES FEDERAL
OR FLORIDA STATE COURT SITTING IN FLORIDA IN ANY ACTION OR PROCEEDING ARISING
OUT OF OR RELATING TO ANY LOAN DOCUMENTS AND BORROWER AND CO-BORROWER, EACH
HEREBY IRREVOCABLY AGREES THAT ALL CLAIMS IN RESPECT OF SUCH ACTION OR
PROCEEDING MAY BE HEARD AND DETERMINED IN ANY SUCH COURT AND IRREVOCABLY WAIVES
ANY OBJECTION IT MAY NOW OR HEREAFTER HAVE AS TO THE VENUE OF ANY SUCH SUIT,
ACTION OR PROCEEDING BROUGHT IN SUCH A COURT OR THAT SUCH COURT IS AN
INCONVENIENT FORUM. NOTHING HEREIN SHALL LIMIT THE RIGHT OF THE ADMINISTRATIVE
AGENT OR ANY LENDER TO BRING PROCEEDINGS AGAINST BORROWER, CO-BORROWER OR ANY
SUBSIDIARY GUARANTOR IN THE COURTS OF ANY OTHER JURISDICTION. ANY JUDICIAL
PROCEEDING BY BORROWER OR CO-BORROWER AGAINST THE ADMINISTRATIVE AGENT OR ANY
LENDER OR ANY AFFILIATE OF THE ADMINISTRATIVE AGENT OR ANY LENDER INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER IN ANY WAY ARISING OUT OF, RELATED TO, OR
CONNECTED WITH ANY LOAN DOCUMENT SHALL BE BROUGHT ONLY IN A COURT IN NEW YORK.
15.3 WAIVER OF JURY TRIAL. BORROWER, CO-BORROWER, THE ADMINISTRATIVE AGENT
AND EACH LENDER HEREBY WAIVE TRIAL BY JURY IN ANY JUDICIAL PROCEEDING INVOLVING,
DIRECTLY OR INDIRECTLY, ANY MATTER (WHETHER SOUNDING IN TORT, CONTRACT OR
OTHERWISE) IN ANY WAY ARISING OUT OF, RELATED TO, OR CONNECTED WITH ANY LOAN
DOCUMENT OR THE RELATIONSHIPS ESTABLISHED THEREUNDER.
* * *
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IN WITNESS WHEREOF, Borrower, Co-Borrower, the Lenders and the
Administrative Agent have executed this Agreement as of the date first above
written.
ADDRESSES: BORROWER:
One Xxxxxxx Drive XXXXXXX ENTERTAINMENT COMPANY
Xxxxxxxxx, Xxxxxxxxx 00000
Attention: Chief Financial Officer
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
CO-BORROWER:
One Gaylord Drive OPRYLAND HOTEL - FLORIDA LIMITED
Xxxxxxxxx, Xxxxxxxxx 00000 PARTNERSHIP, a Florida limited
Attention: Chief Financial Officer partnership
By: Opryland Hospitality, LLC, its
general partner
By: Gaylord Entertainment
Company, its sole member
By: /s/ Xxxx Xxxxxxxx
-------------------------------
Name: Xxxx Xxxxxxxx
Title: Executive Vice President
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LENDERS:
00 Xxxxxxxxxxx Xxxx BANKERS TRUST COMPANY, Individually
Mail Stop PIS01-217A and as Administrative Agent
Xxxxxxxxxx, Xxx Xxxxxx 00000
Tel.: (000) 000-0000
Fax: (000) 000-0000 By: /s/ Xxxxx Xxxx
Attention: Xxxxxx X. Xxxxxxxx --------------------------------
Name: Xxxxx Xxxx
Title: Vice President
000 Xxxxxxxxx Xxxxxx, 00xx Floor, Zone 10 CITICORP REAL ESTATE, INC.
Xxx Xxxx, Xxx Xxxx 00000
Attention: Xxxxx Xxxxx By: /s/ Xxxxx X. Xxxxx
--------------------------------
Name: Xxxxx X. Xxxxx
Title: Vice President
c/o CIBC World Markets CIBC INC.
000 Xxxxx Xxxxx Xxxxxx, Xxxxx 0000
Xxx Xxxxxxx, Xxxxxxxxxx 00000 By: /s/ Xxxx X. Xxxxxxx
Attention: Xxxx Xxxxxxx --------------------------------
Name: Xxxx X.Xxxxxxx
Title: Managing Director
CIBC World Markets Corp.,
AS AGENT
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SCHEDULES
Schedule 1 Approved Construction Budget
Schedule 2 Commitments
Schedule 3 Environmental Reports
Schedule 4 Initial Subsidiary Guarantors
Schedule 5.1 Ownership Chart
Schedule 5.7 Litigation Pending or Threatened
Schedule 5.9 Affiliate Contracts with Respect to Project
Schedule 5.13 Violations of Law
Schedule 5.14 Defective Property
Schedule 5.16 Environmental Matters
Schedule 5.20 Permits not Obtained as of Effective Date
Schedule 5.22 Leasehold Matters
Schedule 6.14 Existing Indebtedness as of Effective Date
Schedule 6.18 Existing Loans to Subsidiaries other than Subsidiary
Guarantors and Not Expected to be Paid
Schedule 6.20 Non-Arms Length Transactions
Schedule 6.38 Items to be Produced by Co-Borrower to Construction
Consultant
Schedule 6.39 Certain Project Accounts
