TERM LOAN SUPPLEMENT
TERM LOAN SUPPLEMENT
THIS TERM LOAN SUPPLEMENT (this “Supplement”) dated as of September 3, 2015 by and among SUNSTONE HOTEL PARTNERSHIP, LLC, a limited liability company formed under the laws of the State of Delaware (the “Borrower”), SUNSTONE HOTEL INVESTORS, INC., a corporation formed under the laws of the State of Maryland (the “Parent”), each of the Lenders party hereto and XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”).
WHEREAS, the Borrower, the Parent, the Lenders, the Administrative Agent and certain other parties have entered into that certain Credit Agreement dated as of April 2, 2015 (as in effect immediately prior to the effectiveness of this Supplement, the “Credit Agreement”);
WHEREAS, as permitted by Section 2.15. of the Credit Agreement, the Borrower has requested that the Lenders identified on Schedule I attached hereto as having a “Term Loan Commitment Amount” (each a “Term Loan Lender”) make Term Loans to the Borrower in an aggregate principal amount of
$85,000,000; and
WHEREAS, as contemplated by Section 2.15. of the Credit Agreement, the parties hereto are entering into this Supplement (a) to provide for the making of such Term Loans subject to the terms and conditions of this Supplement and the Credit Agreement as supplemented by this Supplement (the Credit Agreement as so supplemented, the “Supplemented Credit Agreement”) and (b) to establish the terms and conditions of such Term Loans;
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto hereby agree as follows:
Section 1. Definitions. All capitalized terms not otherwise defined herein are used herein with the respective definitions given them in the Supplemented Credit Agreement. Except as otherwise provided in this Supplement, references in this Supplement to “Sections” are to sections of the Credit Agreement. The foregoing recitals are incorporated by reference into this Supplement.
Section 2. Establishment of Class of Term Loans. Pursuant to Section 2.15. of the Credit Agreement, there is hereby established under the Credit Agreement a new Class of Term Loans subject to the following terms and conditions:
(a) Certain Definitions. The following terms shall have the following meanings with respect to such Term Loans:
“Notice of Term Loan Borrowing” means a notice substantially in the form of Exhibit A attached hereto (or such other form reasonably acceptable to the Administrative Agent and containing the information required in such Exhibit) to be delivered to the Administrative Agent pursuant to Section 2(b)(ii) of this Supplement evidencing the Borrower’s request for a borrowing of Term Loans.
“Supplement Effective Date” means the later of (a) the date of this Supplement and (b) the date on which all of the conditions precedent set forth in Section 3 of this Supplement shall have been fulfilled or waived by all of the Term Loan Lenders party to this Supplement.
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“Term Loan Applicable Margin” means, with respect to a particular Type of Term Loans made pursuant to this Supplement, the percentage rate set forth below corresponding to the Leverage Ratio as determined in accordance with Section 10.1.(a):
|
Level |
Leverage Ratio |
Term Loan Applicable Margin for Term Loans that are LIBOR Loans |
Term Loan Applicable Margin for Term Loans that are Base Rate Loans |
|
1 |
Less than 4.00 to 1.00 |
1.80% |
0.80% |
|
2 |
Greater than or equal to 4.00 to 1.00 but less than 4.50 to 1.00 |
1.85% |
0.85% |
|
3 |
Greater than or equal to 4.50 to 1.00 but less than 5.00 to 1.00 |
1.90% |
0.90% |
|
4 |
Greater than or equal to 5.00 to 1.00 but less than 6.00 to 1.00 |
2.20% |
1.20% |
|
5 |
Greater than or equal to 6.00 to 1.00 |
2.55% |
1.55% |
The Term Loan Applicable Margins shall be determined by the Administrative Agent from time to time, based on the Leverage Ratio as set forth in the Compliance Certificate most recently delivered by the Borrower pursuant to Section 9.3. Any adjustment to the Term Loan Applicable Margins shall be effective as of the first day of the calendar month immediately following the month during which the Borrower delivers to the Administrative Agent the applicable Compliance Certificate pursuant to Section 9.3. If the Borrower fails to deliver a Compliance Certificate pursuant to Section 9.3., the Term Loan Applicable Margins shall equal the percentages corresponding to Level 5 until the first day of the calendar month immediately following the month that the required Compliance Certificate is delivered. Notwithstanding the foregoing, for the period from the Supplement Effective Date through but excluding the date on which the Administrative Agent first determines the Term Loan Applicable Margins as set forth above, the Term Loan Applicable Margins shall be determined based on Level 1. Thereafter, the Term Loan Applicable Margins shall be adjusted from time to time as set forth in this definition. The provisions of this definition shall be subject to Section 2.4.(c). During the Surge Period, any Term Loan Applicable Margin determined as provided above shall be increased by 0.35%.
“Term Loan Availability Period” means the period from and including the Supplement Effective
Date to but excluding the Term Loan Availability Termination Date.
“Term Loan Availability Termination Date” means the first to occur of: (a) March 3, 2016 and (b) the date on which the Term Loan Commitments are terminated or reduced to zero in accordance with this Supplement and the Supplemented Credit Agreement.
“Term Loan Commitment” means, as to each Term Loan Lender, such Lender’s obligation to make Term Loans pursuant to Section 2(b)(i) of this Supplement in an amount up to, but not exceeding, the amount set forth for such Lender on Schedule I attached hereto as such Lender’s “Term Loan Commitment Amount”, as the same may be increased or reduced as appropriate to reflect any assignments to or by such Lender effected in accordance with Section 13.5. or increased as appropriate to reflect any increase effected in accordance with Section 2.15.
“Term Loan Maturity Date” means September 3, 2022.
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(b)Making of Term Loans.
(i) Generally. Subject to the terms and conditions of this Supplement and of the Supplemented Credit Agreement, each Term Loan Lender severally and not jointly agrees to make Term Loans to the Borrower during the Term Loan Availability Period, in an aggregate principal amount up to, but not exceeding, such Lender’s Term Loan Commitment. There shall be no more than 4 separate borrowings of Term Loans and each borrowing of Term Loans shall be in an aggregate minimum amount of $10,000,000 and integral multiples of $10,000,000 in excess thereof; provided, that a borrowing of Term Loans may be in the aggregate amount of the remaining Term Loan Commitments. Upon a Term Loan Lender’s funding of a Term Loan, such Lender’s Term Loan Commitment shall be permanently reduced by the principal amount of such Term Loan. All Term Loan Commitments shall terminate on the Term Loan Availability Termination Date if not previously terminated pursuant to this Supplement or the Supplemented Credit Agreement. Once repaid, the principal amount of a Term Loan (or portion thereof) may not be reborrowed.
(ii)Requests for Term Loans. Not later than 11:00 a.m. Central time at least 1
Business Day prior to a borrowing of Term Loans that are to be Base Rate Loans and not later than
11:00 a.m. Central time at least 3 Business Days prior to a borrowing of Term Loans that are to be
LIBOR Loans, the Borrower shall deliver to the Administrative Agent a Notice of Term Loan
Borrowing. Each Notice of Term Loan Borrowing shall specify the aggregate principal amount of Term Loans to be borrowed, the Type of the Term Loans, the date such Term Loans are to be borrowed (which must be a Business Day) and if such Term Loans are to be LIBOR Loans, the initial Interest Period for such Term Loans. Prior to delivering a Notice of Term Loan Borrowing, the Borrower may (without specifying whether a Term Loan will be a Base Rate Loan or a LIBOR Loan) request that the Administrative Agent provide the Borrower with the most recent LIBOR available to the Administrative Agent. The Administrative Agent shall provide such quoted rate to the Borrower on the date of such request or as soon as possible thereafter. Each Notice of Term Loan Borrowing shall be irrevocable once given and binding on the Borrower. Upon receipt of a Notice of Term Loan Borrowing, the Administrative Agent shall promptly notify each Term Loan Lender.
(iii) Funding of Term Loans. Promptly after receipt of a Notice of Term Loan Borrowing, each Term Loan Lender shall deposit an amount equal to the Term Loan to be made by such Term Loan Lender to the Borrower with the Administrative Agent at the Principal Office, in immediately available funds, not later than 11:00 a.m. Central time on the date of such proposed Term Loans. Subject to fulfillment of all applicable conditions set forth in this Supplement and in the Supplemented Credit Agreement, the Administrative Agent shall make available to the Borrower in the account specified by the Borrower in the Disbursement Instruction Agreement, not later than 2:00 p.m. Central time on the date of such proposed Term Loans, the proceeds of such amounts received by the Administrative Agent.
(iv) Assumptions Regarding Funding by Term Loan Lenders. With respect to Term Loans to be made after the Supplement Effective Date, unless the Administrative Agent shall have been notified by any Term Loan Lender that such Term Loan Lender will not make available to the Administrative Agent a Term Loan to be made by such Term Loan Lender in connection with any borrowing, the Administrative Agent may assume that such Term Loan Lender will make the proceeds of such Term Loan available to the Administrative Agent in accordance with Section
2(b)(iii) of this Supplement, and the Administrative Agent may (but shall not be obligated to), in reliance upon such assumption, make available to the Borrower the amount of such Term Loan to
be provided by such Term Loan Lender. In such event, if such Term Loan Lender does not make
available to the Administrative Agent the proceeds of such Term Loan, then such Term Loan
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Lender and the Borrower severally agree to pay to the Administrative Agent on demand the amount of such Term Loan with interest thereon, for each day from and including the date such Term Loan is made available to the Borrower but excluding the date of payment to the Administrative Agent, at (i) in the case of a payment to be made by such Term Loan Lender, the greater of the Federal Funds Rate and a rate determined by the Administrative Agent in accordance with banking industry rules on interbank compensation and (ii) in the case of a payment to be made by the Borrower, the interest rate applicable to such Term Loans. If the Borrower and such Term Loan Lender shall pay the amount of such interest to the Administrative Agent for the same or overlapping period, the Administrative Agent shall promptly remit to the Borrower the amount of such interest paid by the Borrower for such period. If such Term Loan Lender pays to the Administrative Agent the amount of such Term Loan, the amount so paid shall constitute such Term Loan Lender’s Term Loan included in the borrowing. Any payment by the Borrower shall be without prejudice to any claim the Borrower may have against a Term Loan Lender that shall have failed to make available the proceeds of a Term Loan to be made by such Term Loan Lender.
(c) Interest on Term Loans. The Borrower promises to pay to the Administrative Agent for the account of each Term Loan Lender interest on the unpaid principal amount of each Term Loan made by such Term Loan Lender for the period from and including the date of the making of such Term Loan to but excluding the date such Term Loan shall be paid in full, at the following per annum rates:
(i) during such periods as such Term Loan is a Base Rate Loan, at the Base Rate (as in effect from time to time), plus the Term Loan Applicable Margin for Term Loans that are Base Rate Loans; and
(ii) during such periods as such Term Loan is a LIBOR Loan, at LIBOR for such Term Loan for the Interest Period therefor, plus the Term Loan Applicable Margin for Term Loan that are LIBOR Loans.
(d) Interest Periods. There may be no more than 4 different Interest Periods for Term Loans that are LIBOR Loans outstanding at the same time
(e) Prepayment. Notwithstanding anything in Section 2.7. to the contrary, during the periods set forth below, the Borrower may only prepay the Term Loans, in whole or in part, at the prices (expressed as percentages of the principal amount of the Term Loan to be prepaid) set forth below, plus accrued and unpaid interest, if any, to the date of prepayment:
|
Period |
Percentage |
|
Supplement Effective Date to and including September 3, 2016 |
102.0% |
|
September 4, 2016 to and including September 3, 2017 |
101.0% |
|
All times after September 3, 2017 |
100.0% |
The Borrower acknowledges and agrees that the amounts payable by it under this subsection in connection with the prepayment of the Term Loans is a reasonable calculation of the lost profits of the Term Loan Lenders in view of the difficulties and impracticality of determining actual damages resulting from the prepayment of the Term Loans. Notwithstanding anything to the contrary contained in this Supplement or in the Supplemented Credit Agreement, if (i) the Parent or the Borrower is a party to a merger with a Public REIT (as defined below) or a Subsidiary of a Public REIT and is not the survivor of such merger, (ii) the Parent or the Borrower is a party to a merger with a Public REIT or a Subsidiary of a Public REIT and is the survivor of such merger and as a result of such merger an Event of Default under Section 11.1.(l) shall occur, or (iii) a Public REIT or a Subsidiary of a Public REIT shall acquire more than 50.0% of the total voting power of the then outstanding voting stock of the Parent (each of the transactions described in the
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preceding clauses (i) through (iii) an “Exempt Transaction”), then so long as no Event of Default shall exist (other than an Event of Default resulting solely from the occurrence of the Exempt Transaction), any prepayment of the Term Loans made in connection with such Exempt Transaction shall be at the price of
100% of the outstanding principal amount of the Term Loans rather than the amount set forth in the table above in this subsection (e). For purposes of this subsection, the term “Public REIT” means a REIT having
at least one class of common shares having trading privileges on the New York Stock Exchange or NYSE
Amex Equities or which is subject to price quotations on The NASDAQ Stock Market’s National Market
System.
(f) Term Loan Facility Fees. During the period from the Supplement Effective Date to and including the Term Loan Availability Termination Date, the Borrower agrees to pay to the Administrative Agent for the account of the Term Loan Lenders an unused facility fee equal to the sum of the daily amount of the Term Loan Commitments available multiplied by a per annum rate equal to 0.25%. Such fee shall be computed on a daily basis and payable quarterly in arrears on the first day of each January, April, July and October that occurs during the Term Loan Availability Period and on the Term Loan Availability Termination Date.
(g) Certain Amendments. No amendment, waiver or consent shall modify the definition of “Term Loan Availability Termination Date” as set forth in this Supplement without the written consent of the Borrower and each Term Loan Lender directly affected thereby.
(f)Term Loan Lenders. Each Term Loan Lender shall constitute a “Lender” for all purposes
under the Supplemented Credit Agreement.
(g) Titled Agents. On the Supplement Effective Date, PNC Bank, National Association shall be awarded the title of “Syndication Agent” with respect to the Class of Term Loans established hereunder and U.S. Bank National Association shall be awarded the title of “Documentation Agent” with respect to the Class of Term Loans established hereunder. Such titles shall be subject to the terms of Section 12.9. of the Credit Agreement and shall be in addition to all titles awarded on the Effective Date.
Section 3. Conditions Precedent. The effectiveness of this Supplement, including without limitation, the obligation of the Term Loan Lenders to make Term Loans pursuant to Section 2(b) of this Supplement, is subject to the condition precedent that the Administrative Agent receive each of the following, each in form and substance satisfactory to the Administrative Agent:
(a)a counterpart of this Supplement duly executed by each of the parties hereto;
(b) Term Notes substantially in the form of Exhibit B attached hereto executed by the Borrower, payable to each Term Loan Lender that has requested that it receive a Term Note in the initial principal amount of such Lender’s Term Loan Commitment and otherwise duly completed;
(c) a Guarantor Acknowledgement substantially in the form of Exhibit C attached hereto, executed by each Guarantor;
(d)a Disbursement Instruction Agreement executed by the Borrower effective as of the
Supplement Effective Date;
(e) a certificate from a Responsible Officer of the Borrower certifying as of the date hereof, and immediately after the occurrence of the Supplement Effective Date and the making of any Term Loans on such date, that (i) no Default or Event of Default shall exist as of the Supplement Effective Date and (ii) the representations and warranties made or deemed made by the Borrower and any other Loan Party in
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any Loan Document to which such Loan Party is a party shall be true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of the Supplement Effective Date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties shall have been true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty shall be true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Credit Agreement;
(f) copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of the applicable Loan Party of (i) all limited liability company or other necessary action taken by the Borrower to authorize the borrowing of the Term Loans, (ii) all corporate, partnership, member or other necessary action taken by each Guarantor authorizing the guaranty of such Term Loans and (iii) stating that there have been no amendments, supplements or other modifications to the articles of organization (or equivalent) or the bylaws of such Loan Party since the date last certified to the Administrative Agent (or attaching copies of any such modifications, if applicable);
(g) an opinion of counsel to the Borrower and the Guarantors, and addressed to the Administrative Agent and the Lenders, covering such matters as reasonably requested by the Administrative Agent;
(h) evidence that all fees, expenses and reimbursement amounts due and payable to the Administrative Agent, the Lead Arrangers and any of the other Lenders in connection with this Supplement, including without limitation, the fees and expenses of counsel to the Administrative Agent, have been paid; and
(i) such other documents, instruments and agreements as the Administrative Agent may reasonably request.
Section 4. Representations. Each of the Borrower and the Parent represents and warrants to the
Administrative Agent and the Lenders that:
(a) Authorization. The Borrower has the right and power, and has taken all necessary action to authorize it, to borrow the Term Loans. Each of the Parent, the Borrower and each other Loan Party has the right and power, and has taken all necessary action to authorize it, (i) to execute and deliver this Supplement, the Term Notes and the other Loan Documents, in each case, to which it is a party, being executed and delivered by the Parent, the Borrower or any of the other Loan Parties in connection with this Supplement (collectively, the “Supplement Documents”) and (ii) to perform its obligations hereunder, under the other Supplement Documents and under the Supplemented Credit Agreement, in each case, in accordance with their respective terms. Each of this Supplement and the other Supplement Documents has been duly executed and delivered by a duly authorized officer of the Parent, the Borrower and the other Loan Parties, in each case, party hereto or thereto, and each of this Supplement, the other Supplement Documents and the Supplemented Credit Agreement is a legal, valid and binding obligation of each such Person a party hereto or thereto enforceable against such Person in accordance with its respective terms, except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained herein or therein and as may be limited by equitable principles generally.
(b) Compliance with Laws, etc. The execution and delivery by the Parent, the Borrower and the other Loan Parties of this Supplement and the other Supplement Documents, in each case, to which
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such Loan Party is a party, and the performance by the Borrower of this Supplement, the other Supplement Documents and the Supplemented Credit Agreement in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or both: (i) require any Governmental Approval or violate any Applicable Law (including all Environmental Laws) relating to the Parent, the Borrower or any other Loan Party; (ii) conflict with, result in a breach of or constitute a default under the organizational documents of any Loan Party, or any material indenture, material agreement or other material instrument to which the Parent, the Borrower or any other Loan Party is a party or by which it or any of its respective properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by any Loan Party other than in favor of the Administrative Agent for its benefit and the benefit of the other Lender Parties.
(c) No Default. No Default or Event of Default exists as of the date hereof nor will exist immediately after giving effect to this Supplement.
Section 5. Certain References. Each reference to the Credit Agreement in any of the Loan
Documents shall be deemed to be a reference to the Supplemented Credit Agreement.
Section 6. Expenses. The Borrowers shall reimburse the Administrative Agent for all reasonable and documented out-of-pocket costs and expenses (including reasonable fees and disbursements of counsel) incurred by the Administrative Agent in connection with the preparation, negotiation and execution of this Supplement, the Supplement Documents and any other agreements and documents executed and delivered in connection herewith, in accordance with the provisions of Section 13.2 of the Credit Agreement.
Section 7. Benefits. This Supplement shall be binding upon and shall inure to the benefit of the parties hereto and their respective successors and assigns.
Section 8. GOVERNING LAW. THIS SUPPLEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 9. Effect. Except as expressly supplemented hereby, the terms and conditions of the Credit Agreement and the other Loan Documents remain in full force and effect. This Supplement constitutes a Loan Document.
Section 10. Counterparts. This Supplement may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns. This Supplement may be executed by any electronic means, including “pdf”.
[Signatures Begin on Next Page]
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IN WITNESS WHEREOF, the parties hereto have caused this Term Loan Supplement to be executed as of the date first above written.
SUNSTONE HOTEL PARTNERSHIP, LLC
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
SUNSTONE HOTEL INVESTORS, INC.
By: /s/ Xxxxx X. Xxxxxx
Name: Xxxxx X. Xxxxxx
Title: Chief Financial Officer
[Signatures Continued on Next Page]
[Signature Page to Term Loan Supplement with
Sunstone Hotel Partnership, LLC]
XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent and a Term Loan Lender
By: /s/ Xxxx X. Xxxxxxx
Name: Xxxx X. Xxxxxxx
Title: Senior Vice President
[Signatures Continued on Next Page]
[Signature Page to Term Loan Supplement with
Sunstone Hotel Partnership, LLC]
PNC BANK, NATIONAL ASSOCIATION,
as a Term Loan Lender
By: /s/ Xxxxxxx Xxxxxxx
Name: Xxxxxxx Xxxxxxx
Title: Senior Vice President
[Signatures Continued on Next Page]
[Signature Page to Term Loan Supplement with
Sunstone Hotel Partnership, LLC]
U.S. BANK NATIONAL ASSOCIATION,
as a Term Loan Lender
By: /s/ Xxxxx X. Xxxxxxxxx
Name: Xxxxx X. Xxxxxxxxx
Title: Vice President
[End Signatures]
[Signature Page to Term Loan Supplement with
Sunstone Hotel Partnership, LLC]
BRANCH BANKING AND TRUST COMPANY,
as a Term Loan Lender
By: /s/ Ahaz X. Xxxxxxxxx
Name: Ahaz X. Xxxxxxxxx
Title: Vice President
[End Signatures]
SCHEDULE I
Term Loan Commitments
|
Term Loan Lender |
Term Loan Commitment Amount |
|
Xxxxx Fargo Bank, National Association |
$30,000,000 |
|
PNC Bank, National Association |
$25,000,000 |
|
U.S. Bank National Association |
$15,000,000 |
|
Branch Banking and Trust Company |
$15,000,000 |
|
TOTAL |
$85,000,000 |
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EXHIBIT A
to Term Loan Supplement
FORM OF NOTICE OF TERM LOAN BORROWING
, 20
Xxxxx Fargo Bank, National Association, as
Administrative Agent
0000 X Xxxxxx, XX, #000
Xxxxxxxxxx, X.X. 00000
Attention: Xxxx X. Xxxxxxx
Telecopier: (000) 000-0000
Ladies and Gentlemen:
Reference is made to (a) the Credit Agreement dated as of April 2, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among Sunstone Hotel Partnership, LLC, a Delaware limited liability company (the “Borrower”), Sunstone Hotel Investors, Inc., a Maryland corporation, as “Parent,” the financial institutions party thereto and their assignees under Section 13.5. thereof (the “Lenders”), Xxxxx Fargo Bank, National Association, as Administrative Agent (the “Administrative Agent”), and the other parties thereto and (b) the Term Loan Supplement (as amended or otherwise modified from time to time, the “Term Loan Supplement”; the Credit Agreement as supplemented by the Term Loan Supplement; the “Supplemented Credit Agreement”) dated as of September 3, 2015, among the Borrower, Parent, the Lenders party thereto and the Administrative Agent. Capitalized terms used herein, and not otherwise defined herein, have their respective meanings given them in the Supplemented Credit Agreement.
1.Pursuant to Section 2(b) of the Term Loan Supplement, the Borrower hereby requests that the Term Loan Lenders make a Term Loan to the Borrower in an aggregate amount equal to $ .
2.The Borrower requests that such Term Loan be made available to the Borrower on
, 20[15/16].
3.TheproceedsofsuchTermLoanwillbeusedfor
.
4.The Borrower hereby requests that such Term Loan be of the following Type:
[Check one box only]
ž ◻ Base Rate Loan
ž ◻ LIBOR Loan, with an initial Interest Period for a duration of:
[Check one box only]
ž ◻ one month
ž ◻ three months ž ◻ six months
The Borrower hereby certifies to the Administrative Agent and the Lenders that as of the date hereof, as of the date of the making of the requested Term Loan, and immediately after making such Term
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Loan, (a) no Default or Event of Default exists or would exist and none of the criteria specified in Section
2 of the Term Loan Supplement would be violated; and (b) the representations and warranties made or deemed made by the Borrower and each other Loan Party in the Loan Documents to which any of them is
a party are and shall be true and correct in all material respects (except in the case of a representation or
warranty qualified by materiality, in which case such representation or warranty is and shall be true and correct in all respects) with the same force and effect as if made on and as of such date except to the extent that such representations and warranties expressly relate solely to an earlier date (in which case such representations and warranties were true and correct in all material respects (except in the case of a representation or warranty qualified by materiality, in which case such representation or warranty was true and correct in all respects) on and as of such earlier date) and except for changes in factual circumstances specifically and expressly permitted under the Loan Documents. In addition, the Borrower certifies to the Administrative Agent and the Lenders that all conditions to the making of the requested Term Loan contained in Article VI. of the Credit Agreement and in Section 3 of the Term Loan Supplement will have been satisfied or waived in accordance with the applicable provisions of the Loan Documents at the time such Term Loan is made.
[Signature on Following Page]
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IN WITNESS WHEREOF, the undersigned has duly executed and delivered this Notice of Term
Loan Borrowing as of the date first written above.
SUNSTONE HOTEL PARTNERSHIP, LLC
By: Name: Title:
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EXHIBIT B
to Term Loan Supplement
FORM OF TERM NOTE
$
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, 2015
FOR VALUE RECEIVED, the undersigned, SUNSTONE HOTEL PARTNERSHIP, LLC, a Delaware limited liability company (the “Borrower”) hereby unconditionally promises to pay to or registered assigns (the “Term Loan Lender”), in care of Xxxxx Fargo
Bank, National Association, as Administrative Agent (the “Administrative Agent”), to its address at 000
Xxxxxx Xxxxxx S., 00xx Xxxxx, Xxxxxxxxxxx, Xxxxxxxxx 00000-0000, or at such other address as may be
specified by the Administrative Agent to the Borrower, the principal sum of
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AND
/100 DOLLARS ($
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) (or such lesser amount as shall equal the aggregate unpaid principal
amount of the Term Loan made by the Term Loan Lender to the Borrower under the Credit Agreement (defined below)), on the dates and in the principal amounts provided in the Credit Agreement, and to pay interest on the unpaid principal amount owing hereunder, at the rates and on the dates provided in the Credit Agreement.
This Term Note is one of the “Term Notes” referred to in the Credit Agreement dated as of April
2, 2015, as supplemented by the Term Loan Supplement dated as of September 3, 2015 (as further amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”), by and among the Borrower, Sunstone Hotel Investors, Inc., a Maryland corporation, the financial institutions party thereto and their assignees under Section 13.5. thereof, the Administrative Agent, and the other parties thereto, and is subject to, and entitled to, all provisions and benefits thereof. Capitalized terms used herein and not defined herein shall have the respective meanings given to such terms in the Credit Agreement. The Credit Agreement provides for the acceleration of the maturity of this Term Note upon the occurrence of certain events and for prepayments of Term Loans upon the terms and conditions specified therein.
The Borrower hereby waives presentment, demand, protest and notice of any kind. No failure to exercise, and no delay in exercising, any rights hereunder on the part of the holder hereof shall operate as a waiver of such rights.
Time is of the essence for this Term Note.
[This Term Note is given in replacement of the Term Note dated , 20 , in the original principal amount of $ previously delivered to the Term Loan Lender under the Credit Agreement. THIS TERM NOTE IS NOT INTENDED TO BE, AND SHALL NOT BE CONSTRUED TO BE, A NOVATION OF ANY OF THE OBLIGATIONS OWING UNDER OR IN CONNECTION WITH THE OTHER TERM NOTE.]1
THIS TERM NOTE SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
[Signature on Following Page]
1Language to be included in case of an assignment and need to issue a replacement note to an existing Term Loan Lender, either because such Lender’s Term Loan has increased or decreased from what it was initially.
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IN WITNESS WHEREOF, the undersigned has executed and delivered this Term Note under seal as of the date written above.
SUNSTONE HOTEL PARTNERSHIP, LLC
By: Name: Title:
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EXHIBIT C
to Term Loan Supplement
FORM OF GUARANTOR ACKNOWLEDGEMENT
THIS GUARANTOR ACKNOWLEDGEMENT dated as of September 3, 2015 (this “Acknowledgement”) executed by each of the undersigned (the “Guarantors”) in favor of XXXXX FARGO BANK, NATIONAL ASSOCIATION, as Administrative Agent (the “Administrative Agent”) for its benefit and the benefit of the Guarantied Parties (as defined in the Guaranty referred to below).
WHEREAS, Sunstone Hotel Partnership, LLC, a Delaware limited liability company (the “Borrower”), Sunstone Hotel Investors, Inc., a Maryland corporation, the Lenders, the Administrative Agent and certain other parties have entered into that certain Credit Agreement dated as of April 2, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Credit Agreement”);
WHEREAS, each of the Guarantors is a party to that certain Guaranty dated as of April 2, 2015 (as amended, restated, supplemented or otherwise modified from time to time, the “Guaranty”) pursuant to which they guarantied, among other things, the Borrower’s obligations under the Credit Agreement on the terms and conditions contained in the Guaranty;
WHEREAS, the Borrower, the Administrative Agent and the Lenders are to enter into a Term Loan Supplement dated as of the date hereof (the “Supplement”) to provide for, among other things, the establishment of a Class of Term Loans on the terms and conditions contained therein; and
WHEREAS, it is a condition precedent to the effectiveness of the Supplement that the Guarantors execute and deliver this Acknowledgement.
NOW, THEREFORE, for good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged by the parties hereto, the parties hereto agree as follows:
Section 1. Reaffirmation. Each Guarantor hereby reaffirms its continuing obligations to the Administrative Agent and the other Guarantied Parties (as defined in the Guaranty) under the Guaranty and agrees that the transactions contemplated by the Supplement, including without limitation the making of Term Loans, shall not in any way affect the validity and enforceability of the Guaranty, or reduce, impair or discharge the obligations of such Guarantor thereunder (including without limitation its guarantee of the Term Loans pursuant thereto).
Section 2. Governing Law. THIS ACKNOWLEDGEMENT SHALL BE GOVERNED BY, AND CONSTRUED IN ACCORDANCE WITH, THE LAWS OF THE STATE OF NEW YORK APPLICABLE TO CONTRACTS EXECUTED, AND TO BE FULLY PERFORMED, IN SUCH STATE.
Section 3. Counterparts. This Acknowledgement may be executed in any number of counterparts, each of which shall be deemed to be an original and shall be binding upon all parties, their successors and assigns.
[Signatures on Next Page]
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IN WITNESS WHEREOF, each Guarantor has duly executed and delivered this Guarantor
Acknowledgement as of the date and year first written above.
[GUARANTORS] By:
Name: Title:
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