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EXHIBIT 10.18
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U.S. $600,000,000
FIFTH AMENDED AND RESTATED CREDIT AGREEMENT
Dated as of August 1, 2000
Among
FELCOR LODGING TRUST INCORPORATED
and FELCOR LODGING LIMITED PARTNERSHIP
as Borrower,
THE LENDERS PARTY HERETO
and
THE CHASE MANHATTAN BANK,
as Administrative Agent
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CHASE SECURITIES INC.,
as Joint Lead Arranger, Joint Book Manager and Syndication Agent
BANKERS TRUST COMPANY,
as Joint Lead Arranger, Joint Book Manager and Documentation Agent
BANK OF AMERICA, N.A.,
as Documentation Agent
and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION,
as Co-Documentation Agent
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TABLE OF CONTENTS
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ARTICLE I DEFINITIONS AND ACCOUNTING TERMS...............................2
1.1. Defined Terms.....................................................2
1.2. Computation of Time Periods......................................33
1.3. Accounting Terms.................................................33
1.4. Certain Terms....................................................33
ARTICLE II AMOUNTS AND TERMS OF THE LOANS AND LETTERS OF CREDIT..........33
2.1. The Revolving Credit Loans.......................................33
2.2. Making the Revolving Credit Loans................................33
2.3. Fees ..........................................................35
2.4. Reduction and Termination of the Commitments.....................36
2.5. Repayment........................................................36
2.6. Prepayments......................................................36
2.7. Conversion/Continuation Option...................................37
2.8. Interest.........................................................38
2.9. Interest Rate Determination and Protection.......................38
2.10. Increased Costs..................................................39
2.11. Illegality.......................................................39
2.12. Capital Adequacy.................................................40
2.13. Payments and Computations........................................40
2.14. Taxes 42
2.15. Sharing of Payments, Etc.........................................43
2.16. Swing Advances...................................................44
2.17. Letters of Credit................................................45
2.18. Letter of Credit Requests........................................46
2.19. Letter of Credit Participations..................................47
2.20. Agreement to Repay Letter of Credit Drawings.....................48
2.21. Additional Revolving Credit Commitments..........................49
2.22. Extension of the Final Maturity Date.............................51
ARTICLE III CONDITIONS TO EFFECTIVENESS
OF THIS AGREEMENT AND OF LENDING
AND OF ISSUANCE OF LETTERS OF CREDIT..........................51
3.1. Conditions Precedent to Effectiveness of this Agreement, to
Initial Revolving Credit Loans and Letters of Credit..........51
3.2. Additional Conditions Precedent to Effectiveness of this
Agreement, to Initial Revolving Credit Loans and Letters of
Credit........................................................53
3.3. Conditions Precedent to Each Revolving Credit Loan and Letter
of Credit.....................................................54
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ARTICLE IV REPRESENTATIONS AND WARRANTIES.................................55
4.1. Existence; Compliance with Law....................................55
4.2. Power: Authorization, Enforceable Obligations.....................56
4.3. Taxes ...........................................................56
4.4. Full Disclosure...................................................57
4.5. Financial Matters.................................................57
4.6. Litigation........................................................58
4.7. Margin Regulations................................................58
4.8. Ownership of Borrower and DJONT; Subsidiaries.....................58
4.9. ERISA 59
4.10. Indebtedness......................................................60
4.11. Restricted Payments...............................................60
4.12. No Burdensome Restrictions; No Defaults...........................60
4.13. Investments.......................................................60
4.14. Government Regulation.............................................60
4.15. Insurance.........................................................61
4.16. Labor Matters.....................................................61
4.17. Force Majeure.....................................................61
4.18. Use of Proceeds...................................................62
4.19. Environmental Protection..........................................62
4.20. Contractual Obligations Concerning Assets.........................63
4.21. Intellectual Property.............................................64
4.22. Title ............................................................64
4.23. Status as REIT....................................................65
4.24. Operator: Compliance with Law.....................................66
4.25. Operating Leases, Licenses and Management Agreement...............66
4.26. FF&E Reserves.....................................................66
ARTICLE V FINANCIAL COVENANTS............................................67
5.1. Unsecured Interest Expense Coverage...............................67
5.2. Fixed Charge Coverage Ratio.......................................67
5.3. Maintenance of Tangible Net Worth.................................67
5.4. Limitations on Total Indebtedness.................................67
5.5. Limitations on Total Secured Indebtedness.........................67
5.6. Adjusted NOI and Hotels...........................................67
5.7. Limitations on Recourse Secured Indebtedness......................67
ARTICLE VI AFFIRMATIVE COVENANTS..........................................68
6.1. Compliance with Laws, Etc.........................................68
6.2. Conduct of Business...............................................68
6.3. Payment of Taxes, Etc.............................................68
6.4. Maintenance of Insurance..........................................68
6.5. Preservation of Existence, Etc....................................69
6.6. Access ...........................................................69
(ii)
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6.7. Keeping of Books..................................................69
6.8. Maintenance of Properties, Etc....................................69
6.9. Performance and Compliance with Other Covenants...................69
6.10. Application of Proceeds...........................................69
6.11. Financial Statements..............................................69
6.12. Reporting Requirements............................................71
6.13. Leases and Operating Leases; Management Agreements and
Licenses........................................................73
6.14. Intentionally Omitted.............................................74
6.15. Employee Plans....................................................74
6.16. Intentionally Omitted.............................................74
6.17. Fiscal Year.......................................................74
6.18. Environmental Matters.............................................74
6.19. REIT Requirements.................................................75
6.20. Maintenance of FF&E Reserves......................................75
6.21. Intentionally deleted.............................................75
6.22. Further Assurances................................................75
6.23. Unencumbered Hotel Properties/Financial Covenant Imbalance........75
6.24. Hotel Documents...................................................76
ARTICLE VII NEGATIVE COVENANTS.............................................76
7.1. Restrictions on Wholly-Owned Subsidiaries.........................76
7.2. Operation/Ownership of Hotels.....................................77
7.3. Lease Obligations.................................................77
7.4. Restricted Payments...............................................77
7.5. Mergers, Stock Issuances, Asset Sales, Etc........................78
7.6. Restrictions on Construction/Budget Hotels........................78
7.7. Change in Nature of Business or in Capital Structure..............79
7.8. Modification of Material Agreements...............................79
7.9. Accounting Changes................................................79
7.10. Transactions with Affiliates......................................79
7.11. Adverse or Speculative Transactions...............................80
7.12. Environmental Matters.............................................80
7.13. Joint Enterprises.................................................80
7.14. Intentionally Omitted.............................................80
7.15. ERISA Plan Assets.................................................80
7.16. Limitation on Liens...............................................80
ARTICLE VIII EVENTS OF DEFAULT..............................................80
8.1. Events of Default.................................................80
8.2. Remedies..........................................................82
8.3. Actions in Respect of Letters of Credit...........................83
ARTICLE IX THE ADMINISTRATIVE AGENT.......................................84
9.1. Authorization and Action..........................................84
(iii)
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9.2. Administrative Agent's Reliance, Etc..............................85
9.3. Chase and Affiliates..............................................85
9.4. Lender Credit Decision............................................85
9.5. Indemnification...................................................86
9.6. Successor Agent...................................................86
9.7. Duties of Other Agents............................................87
ARTICLE X MISCELLANEOUS..................................................87
10.1. Amendments, Etc..................................................87
10.2. Notices, Etc.....................................................88
10.3. No Waiver, Remedies..............................................88
10.4. Costs; Expenses; Indemnities.....................................89
10.5. Right of Set-off.................................................90
10.6. Binding Effect...................................................90
10.7. Assignments and Participations...................................91
10.8. Governing Law; Severability......................................94
10.9. Submission to Jurisdiction: Service of Process...................94
10.10. Section Titles...................................................94
10.11. Execution in Counterparts........................................94
10.12. Entire Agreement.................................................94
10.13. Confidentiality..................................................95
10.14. WAIVER OF JURY TRIAL.............................................95
10.15. Joint and Several Obligations....................................95
(iv)
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SCHEDULES
Schedule I - Commitments
Schedule II - Applicable Lending Offices and Addresses for Notices
Schedule III - Operating Lessees
Schedule IV - Permitted Transferees
Schedule V - Qualified Leases
Schedule 2.17 - Existing Letters of Credit
Schedule 4.8 - Subsidiaries and Unconsolidated Entities
Schedule 4.10 - Existing Indebtedness
Schedule 4.13 - Existing Investments
Schedule 4.19 - Environmental Protection
Schedule 4.22(a) - Owned Real Estate
Schedule 4.22(b) - Leased Real Estate
EXHIBITS
Exhibit A - Form of Revolving Credit Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Notice of Conversion or Continuation
Exhibit D - Form(s) of Opinion(s) of Counsel for the Loan Parties
Exhibit E - Form of Assignment and Acceptance
Exhibit F - Form of Letter of Credit Request
Exhibit G - Form of Compliance Certificate
Exhibit H - Form of Operating Lease
Exhibit I - Form of Subsidiary Guaranty
Exhibit J - Form of Additional Revolving Credit Commitment
Agreement
Exhibit K - Pledge Agreement
Exhibit L - Form of Officers' Certificate
Exhibit M - Form of Solvency Certificate
Exhibit N - Form of Closing Certificate
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FIFTH AMENDED AND RESTATED CREDIT AGREEMENT, dated as of
August 1, 2000, among FELCOR LODGING TRUST INCORPORATED (f/k/a Felcor Suite
Hotels, Inc.), a Maryland corporation ("FelCor") and FELCOR LODGING LIMITED
PARTNERSHIP (f/k/a Felcor Suites Limited Partnership), a Delaware limited
partnership ("FelCor LP" and collectively with FelCor, the "Borrower"), the
financial institutions listed from time to time on the signature pages hereof
(each individually a "Lender" and collectively the "Lenders") and THE CHASE
MANHATTAN BANK ("Chase"), as administrative agent for the Lenders (in such
capacity, the "Administrative Agent").
WITNESSETH:
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WHEREAS, pursuant to that certain Revolving Credit Agreement
dated as of September 30, 1996, among the Borrower, the financial institutions
listed on the signature pages thereof, the Administrative Agent and ▇▇▇▇▇ Fargo
Bank, National Association ("▇▇▇▇▇ Fargo") as documentation agent (as amended,
modified or supplemented to, but not including, the effective date of the
Amended Revolving Credit Agreement referred to below, the "Original Revolving
Credit Agreement"), the lenders party thereto agreed to make to the Borrower
revolving credit advances of up to $250,000,000 in aggregate principal amount
outstanding at any one time, for the purposes and upon the terms and subject to
the conditions set forth therein;
WHEREAS, pursuant to that certain Amended and Restated
Revolving Credit Agreement dated as of October 18, 1996, among the Borrower, the
lenders party thereto, the Administrative Agent and ▇▇▇▇▇ Fargo as documentation
agent (as amended, modified or supplemented to, but not including, the effective
date of the Second Amended Revolving Credit Agreement referred to below, the
"Amended Revolving Credit Agreement") the terms and provisions of the Original
Revolving Credit Agreement were amended and restated as more particularly set
forth therein;
WHEREAS, pursuant to that certain Second Amended and Restated
Revolving Credit Agreement dated as of March 10, 1997, among the Borrower, the
lenders party thereto, the Administrative Agent and ▇▇▇▇▇ Fargo as documentation
agent (as amended, modified or supplemented to, but not including, the effective
date of the Third Amended Revolving Credit Agreement referred to below, the
"Second Amended Revolving Credit Agreement") the terms and provisions of the
Amended Revolving Credit Agreement were amended and restated as more
particularly set forth therein;
WHEREAS, pursuant to that certain Third Amended and Restated
Revolving Credit Agreement dated as of August 14, 1997, among the Borrower, the
lenders party thereto, the Administrative Agent and ▇▇▇▇▇ Fargo as documentation
agent (as amended, modified or supplemented to, but not including, the effective
date of the Fourth Amended Revolving Credit Agreement referred to below, the
"Third Amended Revolving Credit Agreement") the terms and provisions of the
Second Amended Revolving Credit Agreement were amended and restated as more
particularly set forth therein;
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WHEREAS, pursuant to that certain Fourth Amended and Restated
Credit Agreement, dated as of July 1, 1998, among the Borrower, the lenders
party thereto, the Administrative Agent, Bankers Trust Company, Bank of America,
N.A. and ▇▇▇▇▇ Fargo, National Association, as Documentation Agents (as amended,
modified or supplemented to, but not including, the Restatement Effective Date,
the "Fourth Amended Revolving Credit Agreement"), the lenders thereunder agreed
to increase the maximum revolving credit amount to $850,000,000 (the "Previous
Maximum Revolving Credit Amount"), to make $250,000,000 of term loans (the
"Previous Term Loans") and to amend and restate certain terms and provisions of
the Third Amended Revolving Credit Agreement as more particularly set forth
therein; and
WHEREAS, the Previous Term Loans have been repaid in full, the
parties hereto now wish to amend and restate the Fourth Amended Revolving Credit
Agreement (i) to provide Available Credit to the Borrower in the aggregate
principal amount of $600,000,000 (subject to increase as provided herein) and
(ii) to amend and restate the Fourth Amended Revolving Credit Agreement as
hereinafter set forth.
NOW, THEREFORE, in consideration of the premises and the
covenants and agreements contained herein, the parties hereto hereby agree that
the aforementioned recitals are true and correct and hereby incorporated herein
and that the Fourth Amended Revolving Credit Agreement is hereby amended and
restated in its entirety so that all of the terms and conditions contained in
this Agreement shall supersede and control the terms and conditions of the
Fourth Amended Revolving Credit Agreement.
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
1.1. Defined Terms. As used in this Agreement, the following
terms have the following meanings (such meanings to be equally applicable to
both the singular and plural forms of the terms defined):
"Additional Revolving Credit Lender" has the meaning specified
in Section 2.21(b).
"Additional Revolving Credit Commitment" means, for each
Lender, any commitment to make Revolving Credit Loans provided by such Lender
pursuant to Section 2.21, in such amount as agreed to by such Lender in the
respective Additional Revolving Credit Commitment Agreement; provided that on
the Additional Revolving Credit Commitment Date upon which an Additional
Revolving Credit Commitment of any Lender becomes effective, such Additional
Revolving Credit Commitment of such Lender shall be added to (and thereafter
become a part of) the Revolving Credit Commitment of such Lender for all
purposes of this Agreement as contemplated by Section 2.21.
"Additional Revolving Credit Commitment Agreement" means a
Revolving Credit Commitment Agreement substantially in the form of Exhibit J
(appropriately completed).
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"Additional Revolving Credit Commitment Date" means each date
upon which an Additional Revolving Credit Commitment under an Additional
Revolving Credit Commitment Agreement becomes effective as provided in Section
2.21(b)(i).
"Adjusted EBITDA" means, for any Person for any period, EBITDA
of such Person for such period less the FF&E Reserve for such Person.
"Adjusted Funds From Operations" means, for any Person, for
any period, Net Income (Loss) of such Person for such period plus (a) the sum of
the following amounts of such Person and its Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP to the extent
included in the determination of such Net Income (Loss): (i) depreciation
expense, (ii) amortization expense and other non-cash charges with respect to
their real estate assets for such period, (iii) losses from Asset Sales, losses
resulting from restructuring of Indebtedness and other extraordinary losses, and
(iv) minority interests attributable to FelCor LP's partnership units; less (b)
the sum of the following amounts of such Person and its Subsidiaries for such
period determined on a consolidated basis in conformity with GAAP to the extent
included in the determination of such Net Income (Loss): (i) gains from Asset
Sales, gains resulting from restructuring of Indebtedness and other
extraordinary gains, and (ii) the applicable share of Net Income (Loss) of such
Person's Unconsolidated Entities; plus (c) such Person's Pro Rata Share of
Adjusted Funds From Operations of such Person's Unconsolidated Entities.
"Adjusted NOI" means, with respect to any Hotel owned or
leased by the Borrower or any of its Subsidiaries, Eligible Joint Ventures or
Unconsolidated Entities, for any period, the Net Operating Income for such Hotel
for such period less the FF&E Reserve for such Hotel for such period.
"Administrative Agent" has the meaning specified in the
preamble to this Agreement, and shall include any successor to the
Administrative Agent appointed pursuant to Section 9.6.
"Affiliate" means, to any Person, any Subsidiary of such
Person and any other Person which, directly or indirectly, controls, is
controlled by or is under common control with such Person and includes each
executive officer, director, trustee, limited liability company manager or
general partner of such Person, and each Person who is the beneficial owner of
10% or more of any class of voting Stock of such Person. For the purposes of
this definition, "control" means the possession of the power to direct or cause
the direction of management and policies of such Person, whether through the
ownership of voting securities, by contract or otherwise.
"Agreement" means this Fifth Amended and Restated Credit
Agreement, together with all Exhibits and Schedules attached hereto and as the
same may be further amended, supplemented or otherwise modified from time to
time.
"Allerton Hotel" means that certain Hotel located in Chicago
Illinois and commonly known as the Allerton Hotel.
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"Alternative Currency" means any lawful currency of a country
where a Hotel is located, other than Dollars, which is freely transferable and
convertible into Dollars.
"Alternative Currency Contract" means a currency swap
agreement, currency cap agreement, currency collar agreement or forward currency
agreement entered into to provide protection against fluctuations in an
Alternative Currency.
"Amended Revolving Credit Agreement" has the meaning specified
in the recitals to this Agreement.
"Applicable Lending Office" means, with respect to each
Lender, its Domestic Lending Office in the case of a Base Rate Loan and its
Eurodollar Lending Office in the case of a Eurodollar Rate Loan.
"Applicable Margin" means, with respect to each Revolving
Credit Loan, the applicable percentage per annum set forth below based upon (i)
with respect to Level I through IV Status, the Status then in effect and (ii)
with respect to Level V through X Status, the Status in effect on the most
recent Applicable Margin Reset Date, it being understood that the Applicable
Margin for (i) Base Rate Loans and Swing Advances shall be the percentage set
forth under the column "Base Rate Loans", (ii) Eurodollar Rate Loans shall be
the percentage set forth under the column "Eurodollar Rate Loans", and (iii) the
Commitment Fee shall be the percentage set forth under the column "Commitment
Fee":
Base Rate Eurodollar Rate Commitment
Loans Loans Fee
----- ----- ---
Level I Status 0.0% .875% 0.125%
Level II Status 0.0% 1.000% 0.150%
Level III Status 0.0% 1.125% 0.150%
Level IV Status 0.0% 1.250% 0.200%
Level V Status 0.0% 1.375% 0.200%
Level VI Status 0.250% 1.750% 0.250%
Level VII Status 0.375% 1.875% 0.250%
Level VIII Status 0.500% 2.000% 0.300%
Level IX Status 0.625% 2.125% 0.375%
Level X Status 1.000% 2.500% 0.500%
"Applicable Margin Reset Date" means the 45th day following
the end of the most recent Fiscal Quarter.
"Asset Sale" means any sale, conveyance, transfer, assignment,
lease or other disposition (including, without limitation, by merger or
consolidation, and by condemnation, eminent domain, loss, damage, or
destruction, and whether by operation of law or otherwise) by the Borrower or
any of its Subsidiaries to any Person (other than to Borrower or any of its
Subsidiaries) of any Stock of any of its Subsidiaries, any Stock Equivalents of
any of its Subsidiaries or any Hotel, but excluding Operating Leases.
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"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender and an Eligible Assignee, and accepted by the
Administrative Agent, in substantially the form of Exhibit E.
"Available Credit" means, at any time, an amount equal to the
then effective Revolving Credit Commitments of the Lenders less the sum of (x)
the aggregate of the outstanding principal amount of the Revolving Credit Loans
at such time and (y) the Letter of Credit Outstandings.
"Base Rate" means, for any period, a fluctuating interest rate
per annum as shall be in effect from time to time, which rate per annum, shall
be equal at all times to the higher of:
(a) the rate of interest announced publicly by Chase at its
principal office, from time to time, as Chase's base rate; and
(b) the sum (adjusted to the nearest 1/8 of one percent or, if
there is no nearest 1/8 of one percent, to the next higher 1/8 of one
percent) of (i) 1/2 of one percent per annum plus (ii) the Federal Funds
Rate.
"Base Rate Loan" means any outstanding principal amount of the
Revolving Credit Loans of any Lender that bears interest with reference to the
Base Rate, other than Swing Advances.
"Bass" shall mean Bass Hotels and Resorts, a Delaware
corporation, or any Person controlled by Bass Hotels and Resorts which is a
Manager.
"Borrower" has the meaning specified in the preamble to this
Agreement.
"Borrower's Investment" means, with respect to any Hotel, the
Borrower's or any of its Subsidiaries' investment in such Hotel (including all
investments constituting, evidencing or secured by an interest in property,
whether tangible or intangible and whether real, personal or mixed, that is used
or intended for use in, or in any manner connected with or relating to, the
ownership or leasing of such Hotel, specifically including, without limitation,
investments in Subsidiaries and Unconsolidated Entities owning or leasing
Hotels), at cost, on a consolidated basis, provided that in determining the cost
of such investments, there shall be included (i) the amount of all cash paid and
the value (as determined by the Board of Directors of FelCor for purposes of
such investment) of any other property transferred therefor by the Borrower or
its Subsidiary, (ii) the amount of all indebtedness and other obligations
assumed or incurred by the Borrower or its Subsidiary or to which the Borrower
or its Subsidiary takes subject, and (iii) the value (as determined by the Board
of Directors of FelCor for the purposes of such investment) of all equity
securities of which the issuer is an entity that is, or upon such investment
will be, included within the Borrower or its Subsidiary and which are issued
(otherwise than for cash) to, or retained by, any person other than the Borrower
or its Subsidiary in connection with such investment. For purposes of this
definition only "indebtedness" of the Borrower or its Subsidiary shall mean the
consolidated liabilities of the Borrower and its Subsidiaries for borrowed money
(including all notes payable and drafts accepted representing extensions of
credit) and all obliga-
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tions evidenced by bonds, debentures, notes or other similar instruments on
which interest charges are customarily paid, including obligations under
Capitalized Leases.
"Borrowing" means a borrowing consisting of Revolving Credit
Loans made on the same day by the Lenders ratably according to their respective
Revolving Credit Commitments.
"Business Day" means a day of the year on which banks are not
required or authorized to close in New York City and California and, if the
applicable Business Day relates to a Eurodollar Rate Loan, a day on which
dealings are also carried on in the London interbank market.
"Capital Expenditures" means, for any Person for any period,
the aggregate of all expenditures by such Person and its Subsidiaries, except
interest capitalized during construction, during such period for property, plant
or equipment, including, without limitation, renewals, improvements,
replacements and capitalized repairs, that would be reflected as additions to
property, plant or equipment on a consolidated balance sheet of such Person and
its Subsidiaries prepared in conformity with GAAP. For the purpose of this
definition, the purchase price of equipment which is acquired simultaneously
with the trade-in of existing equipment owned by such Person or any of its
Subsidiaries or with insurance proceeds shall be included in Capital
Expenditures only to the extent of the gross amount of such purchase price less
the credit granted by the seller of such equipment being traded in at such time
or the amount of such proceeds, as the case may be.
"Capitalized Lease" means, as to any Person, any lease of
property by such Person as lessee which would be capitalized on a balance sheet
of such Person prepared in conformity with GAAP.
"Capitalized Lease Obligations" means, as to any Person, the.
capitalized amount of all obligations of such Person or any of its Subsidiaries
under Capitalized Leases, as determined on a consolidated basis in conformity
with GAAP.
"Cash" shall mean coin or currency of the United States of
America or immediately available federal funds.
"Cash Equivalents" means (i) securities with maturities of one
year or less from the date of acquisition issued or fully guaranteed or insured
by the United States government or any agency thereof, (ii) certificates of
deposit, eurodollar time deposits, overnight bank deposits and bankers'
acceptances of any commercial bank organized under the laws of the United
States, or any State thereof, and having total assets in excess of
$5,000,000,000 having maturities of one year or less from the date of
acquisition, and (iii) commercial paper of an issuer rated at least "A-I" by S&P
or "P- 1" by ▇▇▇▇▇'▇, or carrying an equivalent rating by a nationally
recognized rating agency if both of the two named rating agencies cease
publishing ratings of investments.
"Chase" has the meaning specified in the preamble to this
Agreement.
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"Code" means the Internal Revenue Code of 1986 (or any
successor legislation thereto), as amended from time to time.
"Commitment Fee" has the meaning specified in Section 2.3(a).
"Compliance Certificate" has the meaning specified in Section
3.1(j) hereof.
"Contingent Obligation" means, as applied to any Person, any
direct or indirect liability, contingent or otherwise, of such Person with
respect to any Indebtedness or Contractual Obligation of another Person, if the
purpose or intent of such Person in incurring the Contingent Obligation is to
provide assurance to the obligee of such Indebtedness or Contractual Obligation
that such Indebtedness or Contractual Obligation will be paid or discharged, or
that any agreement relating thereto will be complied with, or that any holder of
such Indebtedness or Contractual Obligation will be protected (in whole or in
part) against loss in respect thereof. Contingent Obligations of a Person
include, without limitation, (a) the direct or indirect guarantee, endorsement
(other than for collection or deposit in the ordinary course of business),
co-making, discounting with recourse or sale with recourse by such Person of an
obligation of another Person (including, in the case of any Guarantor, its
obligations under its Subsidiary Guaranty), and (b) any liability of such Person
for an obligation of another Person through any agreement (contingent or
otherwise) (i) to purchase, repurchase or otherwise acquire such obligation or
any security therefor, or to provide funds for the payment or discharge of such
obligation (whether in the form of a loan, advance, stock purchase, capital
contribution or otherwise), (ii) to maintain the solvency or any balance sheet
item, level of income or financial condition of another Person, (iii) to make
take-or-pay or similar payments, if required, regardless of non-performance by
any other party or parties to an agreement, (iv) to purchase, sell or lease (as
lessor or lessee) property, or to purchase or sell services, primarily for the
purpose of enabling the debtor to make payment of such obligation or to assure
the holder of such obligation against loss, or (v) to supply funds to or in any
other manner invest in such other Person (including, without limitation, to pay
for property or services irrespective of whether such property is received or
such services are rendered), if in the case of any agreement described under
subclause (i), (ii), (iii), (iv) or (v) of this sentence the primary purpose or
intent thereof is as described in the preceding sentence. Anything herein to the
contrary notwithstanding, no agreement entered into by the Borrower or any of
its Subsidiaries or Unconsolidated Entities with respect to its acquisition of
any direct or indirect, interest in any Hotel shall, prior to the satisfaction
in full of all conditions precedent to the obligations of such Person pursuant
to the agreement, be deemed or construed to constitute a "Contingent Obligation"
or "Indebtedness" of such Person hereunder, provided that pursuant to any such
agreement, the Borrower or its Subsidiary or Unconsolidated Entity is not liable
or responsible for, and does not assume any, development or construction risks.
The amount of any Contingent Obligation shall be equal to the amount of the
obligation so guaranteed or otherwise supported.
"Continuing Lender" means each Existing Lender with a
Revolving Credit Commitment under the Agreement.
"Contractual Obligation" of any Person means any obligation,
agreement, undertaking or similar provision of any security issued by such
Person or of any agreement (including, without limitation, any management or
franchise agreement), undertaking, contract, lease,
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indenture, mortgage, deed of trust or other instrument (excluding a Loan
Document) to which such Person is a party or by which it or any of its property
is bound or to which any of its properties is subject.
"Default" means any event which with the passing of time or
the giving of notice or both would become an Event of Default.
"Disqualified Stock" shall mean any class or series of Stock
of any Person that by its terms or otherwise is (i) required to be redeemed
prior to the Final Maturity Date of the Revolving Credit Loans (other than in
exchange for other equity securities which do not constitute Disqualified
Stock), (ii) redeemable at the option of the holder of such class or series of
Stock at any time prior to the Final Maturity Date of the Revolving Credit Loans
(other than in exchange for other securities which do not constitute
Disqualified Stock), or (iii) convertible into or exchangeable for Stock
referred to in clause (i) or (ii) above or Indebtedness having a scheduled
maturity prior to the Final Maturity Date of the Revolving Credit Loans.
"DJONT" means DJONT Operations, L.L.C., a Delaware limited
liability company.
"DOL" means the United States Department of Labor, or any
successor thereto.
"Dollars" and the sign "$" each mean the lawful money of the
United States of America.
"Domestic Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Domestic Lending Office" opposite
its name on Schedule II or such other office of such Lender as such Lender may
from time to time specify to the Borrower and the Administrative Agent.
"Drawing" shall have the meaning provided in Section 2.20(a).
"EBITDA" means, for any Person for any period, the Net Income
(Loss) of such Person for such period taken as a single accounting period, plus
(a) the sum of the following amounts of such Person and its Subsidiaries for
such period determined on a consolidated basis in conformity with GAAP to the
extent included in the determination of such Net Income (Loss): (i) depreciation
expense, (ii) amortization expense and other non-cash charges, (iii) interest
expense, (iv) income tax expense, (v) extraordinary losses (and other losses on
Asset Sales not otherwise included in extraordinary losses determined on a
consolidated basis in conformity with GAAP), and (vi) minority interests
attributable to FelCor LP's partnership units, less (b) the sum of the following
amounts of such Person and its Subsidiaries determined on a consolidated basis
in conformity with GAAP to the extent included in the determination of such Net
Income (Loss): (i) extraordinary gains (and in the case of the Borrower, other
gains on Asset Sales not otherwise included in extraordinary gains determined on
a consolidated basis in conformity with GAAP), (ii) the applicable share of Net
Income (Loss) of such Person's Unconsolidated Entities, (iii) cash payments made
with respect to any non-cash charge which was added back to Net Operating
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Income to determine EBITDA for any prior period; plus (c) such Person's Pro Rata
Share of EBITDA of such Person's Unconsolidated Entities.
"Eligible Assignee" means (i) a commercial bank organized
under the laws of the United States, or any State thereof, and having total
assets in excess of $5,000,000,000; (ii) a commercial bank organized under the
laws of any other country which is a member of the OECD, or a political
subdivision of any such country, and having total assets in excess of
$5,000,000,000, provided that such bank is acting through a branch or agency
located in the country in which it is organized or another country which is also
a member of the OECD or the Cayman Islands; (iii) the central bank of any
country which is a member of the OECD; (iv) a mutual fund or an insurance
company organized under the laws of the United States, or any State thereof and
having total assets in excess of $5,000,000,000; (v) any Lender; (vi) any
Affiliate of any Lender; (vii) any person that is engaged in making, purchasing,
holding or otherwise investing in bank loans and similar extensions of credit in
the ordinary course of its business and is administered or managed by a Lender
or an Affiliate of such Lender; (viii) any Person other than an Affiliate of a
Loan Party; and (ix) only with respect to any Lender that is a fund that invests
in bank loans, any other fund or trust entity that invests in bank loans and is
advised by or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor, in each case ((i) through (ix) above)
acceptable (a) to the Administrative Agent, and (b) provided no Default or Event
of Default exists, to the Borrower, which acceptance will not be unreasonably
withheld, conditioned or delayed.
"Eligible Joint Venture" means any joint venture, corporation,
partnership or other business entity in which the Borrower (i) owns directly or
indirectly a JV% of at least 50% and (ii) is (or owns directly or indirectly a
majority of the voting Stock of and controls) the managing general partner or
equivalent thereof for such entity and (iii) Borrower alone controls such
managing general partner or equivalent. For the purposes of this definition,
"control" means the possession of the power to direct or cause the direction of
management and policies of such Person (including without limitation the power
to authorize the sale or encumbrance of the assets of such Person), whether
through the ownership of voting securities, by contract or otherwise.
"Environmental Claim" means any accusation, allegation, notice
of violation, action, claim, Environmental Lien, demand, abatement or other
Order or direction (conditional or otherwise) by any Governmental Authority or
any other Person for personal injury (including sickness, disease or death),
tangible or intangible property damage, damage to the environment, nuisance,
pollution, contamination or other adverse effects on the environment, or for
fines, penalties or restriction, resulting from or based upon (i) the existence,
or the continuation of the existence, of a Release (including, without
limitation, sudden or non-sudden accidental or non- accidental Releases) of, or
exposure to, any Hazardous Material or other nuisance (to the extent the same
relates to any Hazardous Materials), or other Release in, into or onto the
environment (including, without limitation, the air, soil, surface water or
groundwater) at, in, by, from or related to any property owned or leased by the
Borrower or any of its Subsidiaries or Eligible Joint Ventures or any activities
or operations thereof; (ii) the environmental aspects of the transportation,
storage, treatment or disposal of Hazardous Materials in connection with any
property owned or leased by the Borrower or any of its Subsidiaries or Eligible
Joint Ventures or their operations or facilities; or (iii) the violation. or
alleged violation, of any Environmental Laws,
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Orders or Environmental Permits of or from any Governmental Authority relating
to environmental matters connected with any property owned or leased by the
Borrower or any of its Subsidiaries or Eligible Joint Ventures.
"Environmental Laws" means any applicable federal, state,
local or foreign law (including common law), statute, code, ordinance, rule,
regulation or other requirement having the force or effect of law relating to
the environment, natural resources, or public or employee health and safety and
includes, without limitation, the Comprehensive Environmental Response,
Compensation, and Liability Act ("CERCLA"), 42 U.S.C. Section 9601 et seq., the
Hazardous Materials Transportation Act, 49 U.S.C. Section 1801 et seq., the
Federal Insecticide, Fungicide, and Rodenticide Act, 7 U.S.C. Section 136 et
seq., the Resource Conservation and Recovery Act ("RCRA"), 42 U.S.C. Section
6901 et seq., the Toxic* Substances Control Act, 15 U.S.C. Section 2601 et seq.,
the Clean Air Act, 42 U.S.C. 7401 et seq., the Clean Water Act, 33 U.S.C.
Section 1251 et seq., the Occupational Safety and Health Act, 29 U.S.C. Section
651 et seq. (to the extent the same relates to any Hazardous Materials), and the
Oil Pollution Act of 1990, 33 U.S.C. Section 2701 et seq., as such laws have
been amended or supplemented, and the regulations promulgated pursuant thereto,
and all analogous state and local statutes.
"Environmental Liabilities and Costs" means, as to any Person,
all liabilities, obligations, responsibilities, Remedial Actions, losses,
damages, punitive damages, consequential damages, treble damages, costs and
expenses (including, without limitation, all reasonable fees, disbursements and
expenses of counsel, experts and consultants and costs of investigation and
feasibility studies), fines, penalties, sanctions and interest incurred as a
result of any claim or demand by any other Person, whether based in contract,
tort, implied or express warranty, strict liability, criminal or civil statute,
including, without limitation, any thereof arising under any Environmental Law,
Environmental Permit, order or agreement with any Governmental Authority or
other Person, and which relate to any environmental, health or safety condition,
or a Release or threatened Release, and result from the past, present or future
operations of, or ownership of property by, such Person or any of its
Subsidiaries or Eligible Joint Ventures.
"Environmental Lien" means any Lien in favor of any
Governmental Authority arising under any Environmental Law.
"Environmental Permit" means any Permit required under any
applicable Environmental Laws or Order and all supporting documents associated
therewith.
"ERISA" means the Employee Retirement Income Security Act of
1974 (or any successor legislation thereto), as amended from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) under common control or treated as a single employer with any Loan
Party within the meaning of Section 414 (b), (c), (m) or (o) of the Code.
"ERISA Event" means (i) an event described in Sections
4043(c)(1), (2), (3), (5), (6), (8) or (9) of ERISA with respect to a Pension
Plan; (ii) the withdrawal of any Loan Party or any ERISA Affiliate from a
Pension Plan subject to Section 4063 of ERISA during a plan year in
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which it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(iii) the complete or partial withdrawal of any Loan Party or any ERISA
Affiliate from any Multiemployer Plan or the insolvency of any Multiemployer
Plan; (iv) the filing of a notice of intent to terminate a Pension Plan or the
treatment of a plan amendment as a termination under Section 4041 of ERISA; (v)
the institution of proceedings by the PBGC to terminate or appoint a trustee to
administer a Pension Plan or Multiemployer Plan; (vi) the failure to make any
required contribution to a Pension Plan; (vii) any other event or condition
which might reasonably be expected to constitute grounds under Section 4042 of
ERISA for the termination of, or the appointment of a trustee to administer, any
Pension Plan or Multiemployer Plan; (viii) the imposition of any liability under
Title IV of ERISA, other than for PBGC premiums due but not delinquent under
Section 4007 of ERISA; (ix) a prohibited transaction (as described in Code
Section 4975 or ERISA Section 406) shall occur with respect to any Plan; or (x)
any Loan Party or ERISA Affiliate shall request a minimum funding waiver from
the IRS with respect to any Pension Plan.
"Eurodollar Lending Office" means, with respect to any Lender,
the office of such Lender specified as its "Eurodollar Lending Office" below its
name on Schedule II (or, if no such office is specified, its Domestic Lending
Office) or such other office of such Lender as such Lender may from time to time
specify to the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period, an interest
rate per annum equal to the rate per annum obtained by multiplying (a) a rate
per annum equal to the rate for U.S. dollar deposits with maturities comparable
to such Interest Period which appears on Telerate Page 3750 as of 11:00 a.m.,
London time, two (2) Business Days prior to the commencement of such Interest
Period, provided, however, that if such rate does not appear on Telerate Page
3750, the "Eurodollar Rate" applicable to a particular Interest Period shall
mean a rate per annum equal to the rate at which U.S. dollar deposits in an
amount approximately equal to the Principal Balance (or the portion thereof
which will bear interest at a rate determined by reference to the Eurodollar
Rate during the Interest Period to which such Eurodollar Rate is applicable in
accordance with the provisions hereof), and with maturities comparable to the
last day of the Interest Period with respect to which such Eurodollar Rate is
applicable, are offered in immediately available funds in the London Interbank
Market to the London office of Chase by leading banks in the Eurodollar market
at 11:00 a.m., London time, two (2) Business Days prior to the commencement of
the Interest Period to which such Eurodollar Rate is applicable, by (b) a
fraction (expressed as a decimal) the numerator of which shall be the number one
and the denominator of which shall be the number one minus the Eurodollar Rate
Reserve Percentage for such Interest Period.
"Eurodollar Rate Loan" means any outstanding principal amount
of the Revolving Credit Loans of any Lender that, for an Interest Period, bears
interest at a rate determined with reference to the Eurodollar Rate.
"Eurodollar Rate Reserve Percentage" for any Interest Period
means the aggregate reserve percentages (expressed as a decimal) from time to
time established by the Board of Governors of the Federal Reserve System of the
United States and any other banking authority to which any of the Lenders are
now or hereafter subject, including, but not limited to any reserve
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on Eurocurrency Liabilities as defined in Regulation D of the Board of Governors
of the Federal Reserve System of the United States at the ratios provided in
such Regulation from time to time, it being agreed that any portion of the
Principal Balance bearing interest at a rate determined by reference to the
Eurodollar Rate shall be deemed to constitute Eurocurrency Liabilities, as
defined by such Regulation, and it being further agreed that such Eurocurrency
Liabilities shall be deemed to be subject to such reserve requirements without
benefit of or credit for prorations, exceptions or offsets that may be available
to any of the Lenders from time to time under such Regulation and irrespective
of whether such Lender actually maintains all or any portion of such reserve.
"Excluded Taxable REIT Subsidiary" means any Taxable REIT
Subsidiary that is not a Specified Taxable REIT Subsidiary.
"Existing Credit Facility" means the credit facilities
provided for in the Fourth Amended Revolving Credit Agreement.
"Existing Guarantors" means (i) FelCor/CSS Hotels, L.L.C., a
Delaware limited liability company, (ii) FelCor/LAX Hotels, L.L.C., a Delaware
limited liability company, (iii) FelCor/CSS Holdings, L.P., a Delaware limited
partnership, (iv) FelCor/St. ▇▇▇▇ Holdings, L.P., a Delaware limited
partnership, (v) FelCor/LAX Holdings, L.P., a Delaware limited partnership, (vi)
FelCor Eight Hotels L.L.C., a Delaware limited liability company, (vii) FelCor
Hotel Asset Company, L.L.C., a Delaware limited liability company, (viii) FelCor
Nevada Holdings, L.L.C., a Nevada limited liability company, (ix) FHAC Nevada
Holdings, L.L.C., a Nevada limited liability company, (x) FHAC Texas Holdings,
L.P., a Texas limited partnership; (xi) FelCor Omaha Hotel Company, L.L.C, (xii)
FelCor Country Villa Hotel, L.L.C., (xiii) FelCor Moline Hotel, L.L.C. and (xiv)
FelCor Canada Co.
"Existing Lender" means each Lender which was a Lender under,
and as defined in, the Existing Credit Facility.
"Existing Letter of Credit" has the meaning specified in
Section 2.17.
"Existing Loans" means all Revolving Credit Loans outstanding
under the Existing Credit Facility.
"Extension Effective Date" has the meaning specified in
Section 2.22.
"Extension Fee" shall have the meaning specified in Section
2.22.
"Event of Default" has the meaning specified in Section 8.1.
"Facing Fee" has the meaning specified in Section 2.3(c).
"Federal Funds Rate" means, for any period, a fluctuating
interest rate per annum equal for each day during such period to the weighted
average of the rates on overnight Federal funds transactions with members of the
Federal Reserve System arranged by Federal funds brokers, as published for such
day (or, if such day is not a Business Day, for the next preceding
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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
for such day on such transactions received by the Administrative Agent from
three Federal funds brokers of recognized standing selected by it.
"FelCor" has the meaning specified in the preamble of this
Agreement.
"FelCor LP" has the meaning specified in the preamble of this
Agreement.
"FF&E Reserve" means, for any Person and its Subsidiaries
determined on a consolidated basis in accordance with GAAP (or with respect to
any Hotel) for any period, a reserve equal to four percent (4%) of Room Revenues
from any Hotel owned by such Person or its Subsidiary (or from such Hotel), for
such Period (unless such Person is contractually obligated to reserve a greater
percentage of Room Revenues, in which case such Person shall be required to
reserve such greater amount with respect to such Hotel), plus, for any Person,
such Person's Pro Rata Share of any FF&E Reserve for any Hotel owned by such
Person's Unconsolidated Entities.
"Final Maturity Date" means August 1, 2003; provided that the
"Final Maturity Date" may be extended to March 31, 2004 pursuant to and in
accordance with the terms of Section 2.22.
"Financial Covenant Imbalance" shall have the meaning set
forth in Section 2.6(c).
"Fiscal Quarter" means each of the three month periods ending
on March 31, June 30, September 30 and December 31.
"Fiscal Year" means the twelve month period ending on December
31.
"Fixed Charges" means, for any Person for any period, (a)
Gross Interest Expense for such period plus (b) the aggregate amount of
scheduled principal payments on the Total Indebtedness of such Person (excluding
optional prepayments and scheduled principal payments in respect of any such
Total Indebtedness which is payable in a single installment at final maturity)
required to be made during such period plus (c) dividends required to be paid by
such Person (and its Subsidiaries determined on a consolidated basis in
conformity with GAAP) in connection with preferred Stock issued by such Person
(including such Person's Pro Rata Share of such dividends required to be paid by
such Person's Unconsolidated Entities, but excluding dividends on Qualified
Preferred Stock).
"Fourth Amended Revolving Credit Agreement" has the meaning
specified in the recitals of this Agreement.
"Free Cash Flow" means, for any Person for any period, the
Adjusted Funds From Operations for such period less (a) the aggregate FF&E
Reserve for such Person and its Subsidiaries for such period, and (b) the
aggregate amount of scheduled principal payments on the Total Indebtedness of
such Person (excluding optional prepayments and scheduled principal
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20
payments in respect of any such Indebtedness which is payable in a single
installment at final maturity) required to be made during such period.
"First Amendment to the Pledge Agreement" means the First
Amendment, dated as of August 1, 2000, to the Pledge Agreement.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time set forth in the
opinions and pronouncements of the Accounting Principles Board and the American
Institute of Certified Public Accountants and the statements and pronouncements
of the Financial Accounting Standards Board, or in such other statements by such
other entity as may be in general use by significant segments of the accounting
profession, which are applicable to the circumstances as of the date of
determination except that, for purposes of Articles V and VII, GAAP shall be
determined on the basis of such principles in effect on the date hereof and
consistent with those used in the preparation of the audited financial
statements referred to in Section 4.5.
"Governmental Authority" means any nation or government, any
state or other political subdivision thereof and any entity duly exercising
executive, legislative, judicial, regulatory or administrative functions of or
pertaining to government.
"Gross Interest Expense" means, for any Person for any period,
the sum of (a) the total interest expense in respect of all Indebtedness
(excluding all Contingent Obligations) of such Person and its Subsidiaries for
such period determined on a consolidated basis in conformity with GAAP, plus
capitalized interest of such Person and its Subsidiaries, plus (b) such Person's
Pro Rata Share of Gross Interest Expense of such Person's Unconsolidated
Entities.
"Guarantor" means the Existing Guarantors and each direct and
indirect wholly owned Subsidiary of the Borrower formed or acquired after the
date hereof, provided, however, a wholly owned Subsidiary of the Borrower which
is formed or acquired after the date hereof shall only be required to be a
Guarantor if such Subsidiary is a Required Guarantor.
"Hazardous Material" means any substance, material or waste
which is regulated by any Governmental Authority of the United States as a
"hazardous waste," "hazardous material," "hazardous substance," "extremely
hazardous waste," "restricted hazardous waste," "contaminant," "toxic waste,"
"toxic substance" or words of similar meaning or import under any provision of
Environmental Law, which includes, but is not limited to, petroleum, petroleum
products, asbestos, urea formaldehyde and polychlorinated biphenyls.
"Hilton" means Hilton Hotels Corporation, a Delaware
corporation, or any Person controlled by Hilton Hotels Corporation that is a
Manager.
"Hotel" means any Real Estate or Lease comprising an operating
facility offering hotel or other lodging services, or offering food and beverage
or associated retail services (so long as (i) such facility was acquired
together with and is operated in conjunction with, an
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21
operating facility which offers hotel or other lodging services and (ii) such
facility is in immediate proximity with an operating facility which offers hotel
or other lodging services).
"Hotel Documents" means, with respect to any Hotel, the
following documents:
(i) A description of such Hotel, such description to include the
age, location and number of rooms or suites of such Hotel;
(ii) Details of the Borrower's Investment in such Hotel and, if
available (or able to be reasonably obtained), details of the Adjusted
NOI of such Hotel for the prior four (4) Fiscal Quarters;
(iii) A copy of the most recent ALTA Owner's Policy of Title
Insurance (or commitment to issue such a policy to the Person owning or
to own such Hotel) relating to such Hotel showing the identity of the
fee titleholder thereto and all matters of record as of its date;
(iv) Copies of each of the Operating Lease, Management Agreement
and License relating to such Hotel;
(v) Copies of all engineering, mechanical, structural and
maintenance studies performed by third party consultants with respect
to such Hotel;
(vi) A "Phase I" environmental assessment of such Hotel prepared
by an environmental engineering firm acceptable to the Administrative
Agent, and any additional environmental studies or assessments
available to the Borrower performed with respect to such Hotel;
(vii) If such Hotel is owned pursuant to a Qualified Lease, a
copy of such Lease together with all and any amendments thereto or
modifications thereof; and
(viii) Such other information as the Administrative Agent may
reasonably request in order to evaluate the Hotel.
"Improvements" has the meaning specified in Section 4.22(c).
"Indebtedness" of any Person means, without duplication, the
principal amount of (i) all indebtedness of such Person for borrowed money
(including, without limitation, reimbursement and all other obligations with
respect to surety bonds, letters of credit and bankers' acceptances, whether or
not matured) or for the deferred purchase price of property or services, (ii)
all obligations of such Person evidenced by notes, bonds, debentures or similar
instruments (including, in the case of the Borrower, the Revolving Credit Loans
outstanding), (iii) all indebtedness of such Person created or arising under any
conditional sale or other title retention agreement with respect to property
acquired by such Person (even though the rights and remedies of the seller or
lender under such agreement in the event of default are limited to repossession
or sale of such property), (iv) all Capitalized Lease Obligations of such
Person, (v) all Contingent Obligations of such Person, (vi) all obligations of
such Person to purchase, redeem, retire,
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22
defease or otherwise acquire for value (other than for other equity securities)
any Stock or Stock Equivalents of such Person, valued, in the case of
mandatorily redeemable preferred stock, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (vii) all
Indebtedness referred to in clause (i), (ii), (iii), (iv), (v) or (vi) above
secured by (or for which the holder of such Indebtedness has an existing right,
contingent or otherwise, to be secured by) any Lien upon or in property
(including, without limitation, accounts and general intangibles) owned by such
Person, even though such Person has not assumed or become liable for the payment
of such Indebtedness, and (viii) all liabilities of such Person under Title IV
of ERISA.
"Indemnified Matters" has the meaning specified in Section
10.4(b).
"Indemnitees" has the meaning specified in Section 10.4.
"Indenture" means that certain Indenture dated as of October
1, 1997, as amended to date and as same may be amended, modified, or
supplemented from time to time, among FelCor Suites Limited Partnership
(predecessor in interest to FelCor LP) as issuer, various Borrower affiliates as
guarantors, and SunTrust Bank, Atlanta, as trustee providing for the initial
issuance of up to $175,000,000 aggregate principal amount of 73/8% senior notes
due 2004 and $125,000,000 aggregate principal amount of 75/8% senior notes due
2007.
"Interest Period" means, in the case of any Eurodollar Rate
Loan, (i) initially, the period commencing on the date such Eurodollar Rate Loan
is made or on the date of conversion of a Base Rate Loan to such Eurodollar Rate
Loan and ending one, two, three, six, nine (to the extent available) or twelve
(to the extent available) months thereafter, as selected by the Borrower in its
Notice of Borrowing or Notice of Conversion or Continuation given to the
Administrative Agent pursuant to Section 2.2 or 2.7, and (ii) thereafter, if
such Eurodollar Rate Loan is continued, in whole or in part, as a Eurodollar
Rate Loan pursuant to Section 2.7, a period commencing on the last day of the
immediately preceding Interest Period therefor and ending one, two, three, six,
nine (to the extent available) or twelve (to the extent available) months
thereafter, as selected by the Borrower in its Notice of Conversion or
Continuation given to the Administrative Agent pursuant to Section 2.7;
provided, however, that:
(A) if any Interest Period would otherwise end on a day which
is not a Business Day, such Interest Period shall be extended to the
next succeeding Business Day, unless the result of such extension would
be to extend such Interest Period into another calendar month, in which
event such Interest Period shall end on the immediately preceding
Business Day;
(B) any Interest Period that begins on the last Business Day
of a calendar month (or on a day for which there is no numerically
corresponding day in the calendar month at the end of such Interest
Period) shall end on the last Business Day of a calendar month;
(C) the Borrower may not select any Interest Period which ends
after the Final Maturity Date;
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(D) Intentionally Omitted.
(E) the Borrower may not select any Interest Period in respect
of Revolving Credit Loans having an aggregate principal amount of less
than $5,000,000; and
(F) there shall be outstanding at any one time no more than
fifteen (15) Interest Periods in the aggregate.
"Interest Rate Contracts" means interest rate swap agreements,
interest rate cap agreements, interest rate collar agreements, interest rate
insurance, and other agreements or arrangements designed to provide protection
against fluctuations in interest rates.
"Investment" means, with respect to any Person, (a) any loan
or advance to any other Person, (b) the ownership, purchase or other acquisition
of, any Stock, Stock Equivalents, other equity interest, obligations or other
securities of, (i) any other Person, (ii) all or substantially all of the assets
of any other Person, or (iii) all or substantially all of the assets
constituting the business of a division, branch or other unit operation of any
other Person, or (c) any joint venture or partnership with, or any capital
contribution to, or other investment in, any other Person.
"IRS" means the Internal Revenue Service, or any successor
thereto.
"Issuing Lender" means Chase.
"Joint Enterprise" means with respect to any Person, any joint
venture, corporation, partnership or other business entity which is not
(directly or indirectly) owned 100% by such Person.
"Joint Venture Hotel" means any Hotel owned by an Eligible
Joint Venture.
"JV%" means, with respect to any Eligible Joint Venture, the
percentage ownership interest of Borrower in such Eligible Joint Venture.
"L/C Cash Collateral Account" has the meaning specified in
Section 8.3 hereof.
"L/C Supportable Obligations" means (i) obligations of the
Borrower, or any of its wholly-owned Subsidiaries incurred in the ordinary
course of business with respect to insurance obligations and workers'
compensation, surety bonds and other similar statutory obligations (ii) ▇▇▇▇▇▇▇
money or performance obligations in respect of acquisitions permitted pursuant
to the terms of this Agreement and (iii) such other obligations of the Borrower,
or any of its wholly-owned Subsidiaries as are permitted to exist pursuant to
the terms of this Agreement.
"Lease" means, with respect to the Borrower or any of its
Subsidiaries or Unconsolidated Entities, any leasehold estate in real property
owned by the Borrower or such Subsidiary or Unconsolidated Entity, as lessee, as
such may be amended, supplemented or otherwise modified from time to time to the
extent permitted by this Agreement.
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"Legal Proceedings" means any judicial, administrative or
arbitral actions, suits, proceedings (public or private) or governmental
proceedings.
"Lender" has the meaning specified in the preamble to this
Agreement.
"Lender Reply Period" has the meaning specified in Section
10.1(d).
"Letter of Credit" has the meaning specified in Section
2.17(a).
"Letter of Credit Fee" has the meaning specified in Section
2.3(b).
"Letter of Credit Outstandings" means, at any time, the sum of
(i) the aggregate Stated Amount of all outstanding Letters of Credit and (ii)
the amount of all Unpaid Drawings.
"Letter of Credit Request" has the meaning specified in
Section 2.18(a).
"Leverage Ratio" means, at any date, a fraction (expressed as
a percentage) the numerator of which is Total Indebtedness, on such date, and
the denominator of which is Total Value, on such date.
"License" means either (x) an agreement in favor of either the
Borrower or the Operating Lessee as licensee, permitting the use of hotel system
trademarks, trade names and any related rights in connection with the ownership
or operation of any Hotel or (y) a Management Agreement, provided the Manager
under such Management Agreement owns the rights to hotel system trademarks,
trade names and any related rights in connection with the ownership or operation
of any Hotel.
"Lien" means any mortgage, deed of trust, pledge,
hypothecation, assignment, deposit arrangement, encumbrance, lien (statutory or
other), security interest or preference, priority or other security agreement or
preferential arrangement of any kind or nature whatsoever intended to assure
payment of any Indebtedness or other obligation, including, without limitation,
any conditional sale or other title retention agreement, the interest of a
lessor under a Capitalized Lease Obligation, any financing lease having
substantially the same economic effect as any of the foregoing, and the filing,
under the Uniform Commercial Code or comparable law of any jurisdiction, of any
financing statement naming the owner of the asset to which such Lien relates as
debtor.
"Loan Agreement" means the Loan Agreement, dated as of April
1, 1999, among the Borrower, the financial institutions party thereto from time
to time, and The Chase Manhattan Bank, as Administrative Agent and Collateral
Agent, as such Loan Agreement may be amended, modified or supplemented from time
to time.
"Loan Documents" means, collectively, this Agreement, the
Revolving Credit Notes, the Subsidiary Guaranty, the Pledge Agreement and each
certificate, agreement or document executed by a Loan Party and delivered to the
Administrative Agent or any Lender in connection with or pursuant to any of the
foregoing.
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"Loan Party" means each of the Borrower and each Subsidiary of
the Borrower that is a party to a Loan Document.
"Majority Lenders" means, at any time, Lenders holding an
amount greater than 50% of the then aggregate unpaid principal amount of
Revolving Credit Loans (excluding Revolving Credit Loans held by Non-Funding
Lenders) or, if no such Revolving Credit Loans are then outstanding, Lenders
having an amount greater than 50% of the Revolving Credit Commitments of all
Lenders (excluding Non-Funding Lenders).
"Management Agreement" means an agreement relating to the
operation and/or management of any Hotel.
"Manager" means Hilton, Bass, Sheraton, Meristar Hospitality
Corporation, Coastal Hotel Group, Inc., or such other manager as shall be
reasonably approved by the Borrower and the Administrative Agent (such consent
not to be unreasonably withheld or delayed) and engaged as manager under the
Management Agreement.
"Material Adverse Change" means a material adverse change in
any of (i) the condition (financial or otherwise), business, performance,
prospects, operations or properties of (A) either entity which comprises the
Borrower or (B) the Borrower and its Subsidiaries taken as one enterprise, (ii)
the legality, validity or enforceability of any Loan Document, or any material
Operating Lease or the Operating Leases taken as a whole, (iii) the ability of
the Borrower or its Significant Subsidiaries to repay the Obligations or to
perform its obligations under any Loan Document, (iv) the ability of (x) any
Operating Lessee to perform its obligations under any material Operating Lease
or (y) DJONT or Bass (so long as neither DJONT nor Bass is a wholly-owned
Subsidiary of the Borrower) to perform its obligations under their respective
Operating Leases taken as a whole, or (v) the rights and remedies of the Lenders
or the Administrative Agent under the Loan Documents.
"Material Adverse Effect" means an effect that results in or
causes, or has a reasonable likelihood of resulting in or causing, a Material
Adverse Change.
"Minimum Tangible Net Worth" means, with respect to the
Borrower, at any time, the sum of (a) $1,500,000,000; plus (b) 50% of the
aggregate net proceeds received by the Borrower or any of its Subsidiaries after
June 30, 2000 in connection with any offering of Stock or Stock Equivalents of
the Borrower and its Subsidiaries taken as a whole.
"Moody's" means ▇▇▇▇▇'▇ Investor Service Inc.
"Multiemployer Plan" means, as of any applicable date, a
multiemployer plan, as defined in Section 4001(a)(3) of ERISA, and to which any
Loan Party, any of its Subsidiaries or any ERISA Affiliate is making, is
obligated to make, or within the six-year period ending at such date, has made
or been obligated to make, contributions on behalf of participants who are or
were employed by any of them.
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"Net Income (Loss)" means, for any Person for any period, the
aggregate of net income (or loss) of such Person and its Subsidiaries for such
period, determined on a consolidated basis in conformity with GAAP.
"Net Operating Income" means, with respect to any Hotel, for
any period, the sum of the following (without duplication) (a) all gross income,
revenues, receipts and all other consideration received by the owner of such
Hotel from the operation thereof, including, without limitation, base rent,
percentage and similar rentals, late charges and interest payments, but
excluding extraordinary income and, until earned, security deposits, prepaid
rents and other refundable receipts, minus (b) all expenses incurred by the
owner of such Hotel during such period in the operation of such Hotel,
including, without limitation, real estate taxes, personal property taxes,
maintenance and repair costs of a non-capital nature for the structural portions
of such Hotel and premiums payable for insurance on or with respect to such
Hotels, but excluding extraordinary expenses.
"Non-Funding Lender" has the meaning specified in Section
2.13(f).
"Non-Recourse Indebtedness" of any Person means all
Indebtedness of such Person with respect to which recourse for payment is
limited to specific assets encumbered by a Lien securing such Indebtedness;
provided, however, that personal recourse of a holder of Indebtedness against
any obligor with respect thereto for fraud, misrepresentation, misapplication of
cash, waste and other circumstances customarily excluded from non-recourse
provisions in non-recourse financing of real estate shall not, by itself,
prevent any Indebtedness from being characterized as Non-Recourse Indebtedness,
provided further that if a personal recourse claim is made in connection
therewith, such claim shall not constitute Non-Recourse Indebtedness for the
purposes of this Agreement.
"Notice of Borrowing" has the meaning specified in Section
2.2(a).
"Notice of Conversion or Continuation" has the meaning
specified in Section 2.7(b) hereof.
"Obligations" means the Revolving Credit Loans, the obligation
to pay Unpaid Drawings and all other advances, debts, liabilities, obligations,
covenants and duties owing by the Borrower to the Administrative Agent, any
Lender, the Issuing Lender, any Affiliate of any of them or any Indemnitee, of
every type and description, present or future, arising under this Agreement or
under any other Loan Document, whether direct or indirect (including, without
limitation, those acquired by assignment), absolute or contingent, due or to
become due, now existing or hereafter arising and however acquired. The term
"Obligations" includes, without limitation, all interest, charges, expenses,
fees, attorneys' fees and disbursements and any other sum then payable by the
Borrower under this Agreement or any other Loan Document.
"OECD" means the Organization for Economic Cooperation and
Development.
"Operating Lease" means a lease or sublease relating to any
Hotel, between the Borrower or any of its Subsidiaries or Eligible Joint
Ventures or Unconsolidated Entities, as
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lessor, and an Operating Lessee, as lessee, substantially in a form as approved
by Administrative Agent.
"Operating Lessee" means either (x) DJONT or its Subsidiary
(provided DJONT owns at least 50% of the voting Stock in such Subsidiary and
maintains voting control over such Subsidiary), or (y) any entity listed on
Schedule III attached hereto, each as lessee under an Operating Lease.
"Operator" means the Operating Lessee and/or the Manager or
both (as the case may be) responsible for the operation and management of any
Hotel.
"Order" means any order, injunction, judgment, decree, ruling,
assessment or arbitration award.
"Original Revolving Credit Agreement" has the meaning
specified in the recitals to this Agreement.
"Other Taxes" has the meaning specified in Section 2.14(b).
"Participant" has the meaning specified in Section 2.19(a).
"PBGC" means the Pension Benefit Guaranty Corporation, or any
successor thereto.
"Pension Plan" means a plan, other than a Multiemployer Plan,
which is covered by Title IV of ERISA or Code Section 412 and which any Loan
Party, any of its Subsidiaries or any ERISA Affiliate maintains, contributes to
or has an obligation to contribute to on behalf of participants who are or were
employed by any of them.
"Permit" means any permit, approval, authorization, license,
variance, registration, permission or consent required from a Governmental
Authority under an applicable Requirement of Law.
"Permitted Covenant" means (i) any periodic reporting
covenant, (ii) any covenant restricting payments by the Borrower with respect to
any securities of the Borrower which are junior to the Qualified Preferred
Stock, (iii) any covenant the default of which can only result in an increase in
the amount of any redemption price, or dividend rate, (iv) any covenant the
default of which gives rise only to rights or remedies which are subject to
subordination terms reasonably acceptable to the Administrative Agent, (v) any
covenant providing board membership or observance rights with respect to the
Borrower's board of directors and (vi) any other covenant that does not
adversely affect the interests of the Lenders (as reasonably determined by the
Administrative Agent).
"Permitted Liens" means, collectively, (a) Liens arising by
operation of law in favor of materialmen, mechanics, warehousemen, carriers,
lessors or other similar Persons incurred by the Borrower or any of its
Subsidiaries or Eligible Joint Ventures in the ordinary course of business which
secure its obligations to such Person; provided, however, that (i) the
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Borrower or such Subsidiary or Eligible Joint Venture is not in default with
respect to such payment obligation to such Person, or (ii) the Borrower or such
Subsidiary or Eligible Joint Venture is in good faith and by appropriate
proceedings diligently contesting such obligation and adequate provision is made
for the payment thereof; (b) Liens (excluding Environmental Liens) securing
taxes, assessments or governmental charges or levies; provided, however, that
neither the Borrower nor any of its Subsidiaries or Eligible Joint Ventures is
in default in respect of any payment obligation with respect thereto unless the
Borrower or such Subsidiary or Eligible Joint Venture is in good faith and by
appropriate proceedings diligently contesting such obligation and adequate
provision is made for the payment thereof; (c) zoning restrictions, subleases,
licenses or concessions for restaurants, bars, gift shops, antennas,
communications equipment and similar agreements entered into in the ordinary
course of such Person's business in connection with the ownership and operation
of a hotel; and easements, licenses, reservations, restrictions on the use of
real property or minor irregularities incident thereto which do not in the
aggregate materially detract from the value or use of the property or assets of
the Borrower or any of its Subsidiaries or Eligible Joint Venture or impair, in
any material manner, the use of such property for the purposes for which such
property is held by the Borrower or any such Subsidiary or Eligible Joint
Venture; and (d) Liens secured by collateral similar in type to the collateral
securing the Pledge Agreement (but not the Collateral, as defined in and pledged
under the Pledge Agreement) and securing on an equal and ratable basis the
Revolving Credit Loans and any other Indebtedness.
"Permitted Transferee" shall be those entities named on
Schedule IV.
"Person" means an individual, partnership, corporation
(including, without limitation, a business trust), limited liability company,
joint stock company, trust, unincorporated association, joint venture or other
entity, or a Governmental Authority.
"Plan" means an employee benefit plan, as defined in Section
3(3) of ERISA, which any Loan Party or any of its Subsidiaries maintains,
contributes to or has an obligation to contribute to on behalf of participants
who are or were employed by any of them.
"Pledge Agreement" means that certain Pledge and Security
Agreement dated as of April 1, 1999 (a copy of which is attached hereto as
Exhibit K), entered into in connection with the Loan Agreement, in which
interests in certain entities of or affiliated with the Borrower are pledged
under certain circumstances as collateral for, inter alia, the Revolving Credit
Loans, as such Pledge Agreement may be amended, modified or supplemented from
time to time (including, without limitation, pursuant to the First Amendment to
the Pledge Agreement).
"Previous Maximum Revolving Credit Amount" has the meaning
specified in the recitals to this Agreement.
"Previous Term Loans" has the meaning specified in the
recitals to this Agreement.
"Principal Balance" means, collectively, the outstanding
principal balances of the Revolving Credit Notes from time to time.
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"Projections" means those financial projections covering the
fiscal years ending in 2000 through 2004, inclusive, delivered to the Lenders by
the Borrower.
"Pro Rata Share" means, for any Person, with respect to such
Person's Unconsolidated Entities (or Subsidiaries), the percentage ownership
interest of such Person in such Unconsolidated Entity (or Subsidiary), provided
that, in the event that such Person is the general partner of such
Unconsolidated Entity (or Subsidiary), such Person's Pro Rata Share with respect
to such Unconsolidated Entity (or Subsidiary) shall be the percentage of the
general partner interests owned by such Person in such Unconsolidated Entity (or
Subsidiary) with respect to any Indebtedness for which recourse may be made
against any general partner of such Unconsolidated Entity (or Subsidiary).
"Purchasing Lender" has the meaning specified in Section 2.15.
"Qualified Lease" means any Lease (a) which is a direct ground
lease granted by the fee owner of real property, (b) which may be transferred
and/or assigned without the consent of the lessor (or as to which the Lease
expressly provides that (i) such Lease may be transferred and/or assigned with
the consent of the lessor and (ii) such consent shall not be unreasonably
withheld or delayed), (c) which has a remaining term (including any renewal
terms exercisable at the sole option of the lessee) of at least 35 years, (d)
under which no material default has occurred and is continuing, (e) with respect
to which a security interest may be granted without the consent of the lessor
(or as to which the Lease expressly provides that (i) a security interest in
such lease may be granted with the consent of the lessor and (ii) such consent
shall not be unreasonably withheld or delayed), and (f) which contains lender
protection provisions reasonably acceptable to the Administrative Agent.
Notwithstanding the foregoing, Qualified Lease shall in any event include each
of the Leases described on Schedule V (which Schedule includes (i) all leases
existing as of the Restatement Effective Date which satisfy the criteria set
forth above and (ii) all leases deemed to be Qualified Leases pursuant to
Section 10.1(a)(x) of this Agreement prior to the Restatement Effective Date).
"Qualified Preferred Stock" means any preferred stock of
either entity comprising the Borrower, so long as the terms of any such
preferred stock (i) do not contain any mandatory put, redemption, repayment,
sinking fund or other similar provision occurring before August 1, 2006, (ii)
expressly provide that (x) dividends on such preferred stock are only payable if
dividends are concurrently paid on the Borrower's common stock and (y) no
remedies are available to the holders of such preferred stock as a result of the
failure to pay dividends other than the election of up to two directors of the
Borrower, (iii) do not contain any covenants other than any Permitted Covenant
and (iv) do not grant the holders thereof any voting rights except for (x)
voting rights required to be granted to such holders under applicable law, (y)
limited customary voting rights on fundamental matters such as mergers,
consolidations, sales of substantial assets, or liquidations involving the
Borrower and (z) limited customary voting rights to elect not more than two
directors during any period when dividends are in arrears.
"Ratable Portion" or "ratably" means, except as otherwise
specifically provided herein, with respect to any Lender, the quotient obtained
by dividing the Revolving Credit Commitment of such Lender by the Revolving
Credit Commitments of all Lenders and that
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payments of principal of the Revolving Credit Loans and interest thereon shall
be made pro rata in accordance with the respective unpaid principal amounts of
the Revolving Credit Loans held by the Lenders.
"Real Estate" means all of those plots, pieces or parcels of
land now owned or hereafter acquired by the Borrower or any of its Subsidiaries
or Unconsolidated Entities (the "Land"), including, without limitation, those
listed on Schedule 4.22(a), together with the right, title and interest of the
Borrower or such Subsidiary or Unconsolidated Entity, if any, in and to the
streets, the land lying in the bed of any streets, roads or avenues, opened or
proposed, in front of, adjoining or abutting the Land to the center line
thereof, the air space and development rights pertaining to the Land and the
right to use such air space and development rights, all rights of way,
privileges, liberties, tenements, hereditaments, and appurtenances belonging or
in any way appertaining thereto, all fixtures, all easements now or hereafter
benefiting the Land and all royalties and rights appertaining to the use and
enjoyment of the Land, including, without limitation, all alley, vault,
drainage, mineral, water, oil and gas rights, together with all of the buildings
and other improvements now or hereafter erected on the Land, and any fixtures
appurtenant thereto.
"Recourse Indebtedness" of any Person means the sum of the
following: (A) all Indebtedness of such Person and its Subsidiaries determined
on a consolidated basis in conformity with GAAP as to which recourse for payment
is not limited to the specific assets encumbered by a Lien, provided, however,
that personal recourse of a holder of Indebtedness against (i) any Subsidiary
(or Unconsolidated Entity) of the Borrower formed specifically for the limited
purpose of owning specific assets which secure Indebtedness which does not
exceed 65% of the value of the assets owned by such Subsidiary (or
Unconsolidated Entity) or (ii) any obligor with respect thereto for fraud,
misrepresentation, misapplication of cash, waste and other circumstances
customarily excluded from non-recourse provisions in non-recourse financing of
real estate, shall not, by itself, cause any Indebtedness to be characterized as
Recourse Indebtedness, provided further, that if a personal recourse claim is
made in connection therewith, such claim shall constitute Recourse Indebtedness
for the purposes of this Agreement; plus (B) such Person's Pro Rata Share of
Recourse Indebtedness of such Person's Unconsolidated Entities.
"Recourse Secured Indebtedness" of any Person means the sum of
the following: (A) all Indebtedness of such Person and its Subsidiaries
determined on a consolidated basis in conformity with GAAP (x) which is secured
by a Lien (other than a Permitted Lien or in connection with the Pledge
Agreement) and (y) as to which recourse for payment is not limited to the
specific assets encumbered by such Lien, provided, however, that personal
recourse of a holder of Indebtedness against (i) any Subsidiary (or
Unconsolidated Entity) of Borrower formed specifically for the limited purpose
of owning specific assets which secure Indebtedness which does not exceed 65% of
the value of the assets owned by such Subsidiary (or Unconsolidated Entity) or
(ii) any obligor with respect thereto for fraud, misrepresentation,
misapplication of cash, waste and other circumstances customarily excluded from
non-recourse provisions in non-recourse financing of real estate, shall not, by
itself, cause any Indebtedness to be characterized as Recourse Secured
Indebtedness, provided further, that if a personal recourse claim is made in
connection therewith, such claim shall constitute Recourse Secured Indebtedness
for the
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purposes of this Agreement; plus (B) such Person's Pro Rata Share of Recourse
Secured Indebtedness of such Person's Unconsolidated Entities.
"Refurbishment Hotel" shall mean Hotels, designated by
Borrower, which (i) will experience or are experiencing a disruption in hotel
operations due to refurbishment and (ii) are continuously operating with at
least 65% of its rooms in service at all times. Any given Hotel may only be
characterized as a Refurbishment Hotel for a maximum of six consecutive Fiscal
Quarters provided, however, that the requirement of continuous operation shall
not apply with respect to the Allerton Hotel or any other Hotel approved by the
Administrative Agent (each, a "Specified Refurbishment Hotel").
"Register" has the meaning specified in Section 10.7.
"Release" means any release, spill, emission, leaking,
pumping, pouring, dumping, emptying, injection, deposit, disposal, discharge,
dispersal, leaching or migration on or into the indoor or outdoor environment or
into or out of any property.
"Remedial Action" means all actions, including without
limitation any Capital Expenditures, required or necessary to (i) clean up,
remove, treat or in any other way address any Hazardous Material or other
substance in the indoor or outdoor environment, (ii) prevent the Release or
threat of Release, or minimize the further Release, of any Hazardous Material or
other substance so it does not migrate or endanger or threaten to endanger
public health or welfare or the indoor or outdoor environment, (iii) perform
pre-remedial studies and investigations or post- remedial monitoring and care,
or (iv) bring facilities on any property owned or leased by the Borrower or any
of its Subsidiaries into compliance with all Environmental Laws and
Environmental Permits.
"Reporting Operating Lessee" means any Operating Lessee (other
than a wholly-owned Subsidiary of the Borrower) which is a party to Operating
Leases which in the aggregate provide at least 25% of Borrower's consolidated
Operating Lease revenue.
"Requested Operating Lessee" means each Operating Lessee
(other than a wholly-owned Subsidiary of the Borrower) which is a party to
Operating Leases which in the aggregate provide at least 10% of Borrower's
consolidated Operating Lease revenue provided such Operating Lessee has been
designated by the Administrative Agent as a Requested Operating Lessee.
"Required Guarantor" means any direct or indirect wholly-owned
Subsidiary of the Borrower which is formed after the date hereof, provided, the
value of the assets of such Subsidiary plus the value of the assets of such
Person's Subsidiaries' exceed 2% of Total Value, provided, further, that in the
event the aggregate value of the assets of all wholly-owned Subsidiaries which
are not Guarantors exceed 2% of Total Value then each direct or indirect
wholly-owned Subsidiary formed thereafter shall be deemed a Required Guarantor.
Notwithstanding the above, (a) any direct or indirect wholly-owned Subsidiary of
the Borrower, whether existing on the date hereof or formed after the date
hereof, that is determined at any time to be a Specified Taxable REIT Subsidiary
shall be deemed to be a Required Guarantor, (b) any
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direct or indirect wholly-owned Subsidiary of the Borrower, whether existing on
the date hereof or formed after the date hereof, that is determined at any time
to be an Excluded Taxable REIT Subsidiary shall be deemed not to be a Required
Guarantor and (c) any Special Purpose Subsidiary, whether existing on the date
hereof or formed after the date hereof, shall be deemed not to be a Required
Guarantor, provided that in the event that the aggregate Indebtedness of all
Special Purpose Subsidiaries which are not Guarantors exceeds 25% of Total Value
then each Special Purpose Subsidiary formed thereafter shall be deemed a
Required Guarantor.
"Requirement of Law" means, as to any Person, the certificate
of incorporation and by-laws or other organizational or governing documents of
such Person, and all federal, state and local laws, rules and regulations,
including, without limitation, federal, state or local securities, antitrust and
licensing laws, all food, health and safety laws, and all applicable trade laws
and requirements, including, without limitation, all disclosure requirements of
Environmental Laws, ERISA and all orders, judgments, decrees or other
determinations of any Governmental Authority or arbitrator, applicable to or
binding upon such Person or any of its property or to which such Person or any
of its property is subject.
"Responsible Officer" means, with respect to any Person, any
of the principal executive officers or general partners of such Person.
"Restatement Effective Date" has the meaning specified in
Section 3.1.
"Restricted Payments" has the meaning specified in Section
7.4.
"Revolving Credit Commitment" means, as to each Lender, the
commitment of such Lender to make Revolving Credit Loans to the Borrower
pursuant to Section 2.1 in the aggregate principal amount outstanding not to
exceed the amount set forth opposite such Lender's name on Schedule I under the
caption "Revolving Credit Commitment", as such amount may be reduced or
increased pursuant to this Agreement, and "Revolving Credit Commitments" means
the aggregate Revolving Credit Commitments of all Lenders.
"Revolving Credit Loan" or "Revolving Credit Loans" means the
revolving credit loan or loans made or to be made by a Lender (or Lenders) to
the Borrower pursuant to Article II.
"Revolving Credit Note" means a promissory note of the
Borrower payable to the order of any Lender in a stated principal amount equal
to the amount of such Lender's Revolving Credit Commitment as originally in
effect, in substantially the form of Exhibit A, evidencing the aggregate
Indebtedness of the Borrower to such Lender resulting from the Revolving Credit
Loans made by such Lender and "Revolving Credit Notes" means, collectively the
Revolving Credit Notes.
"Room Revenues" means Net Rooms Department Revenue (as defined
in the Uniform System of Accounts for the Lodging Industry).
"S&P" means Standard & Poor's Ratings Services Group and its
successors.
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33
"Second Amended Revolving Credit Agreement" has the meaning
specified in the recitals to this Agreement.
"Settlement Date" has the meaning specified in Section
2.16(d).
"Sheraton" means Sheraton Operating Corporation or any Person
controlled by Starwood Hotels & Resorts Worldwide, Inc. (or its successors or
assigns) that is a Manager.
"Significant Subsidiary" means, at any date of determination,
(i) any Subsidiary of the Borrower which, or (ii) any group of Subsidiaries of
the Borrower which when aggregated, at such date, directly or indirectly own(s)
or lease(s) one or more Hotels having an aggregate value (calculated on the
basis of the Borrower's Investment therein) in excess of 3% of Total Value at
such time.
"Solvent" means, with respect to any Person, that the value of
the assets of such Person (at fair value) is, on the date of determination,
greater than the total amount of liabilities (including, without limitation,
contingent and unliquidated liabilities) of such Person as of such date and
that, as of such date, such Person is able to pay all liabilities of such Person
as such liabilities mature and does not have unreasonably small capital. In
computing the amount of contingent or unliquidated liabilities at any time, such
liabilities will be computed at the amount which, in light of all the facts and
circumstances existing at such time, represents the amount that can reasonably
be expected to become an actual or matured liability.
"Special Purpose Subsidiary" means any direct or indirect
wholly-owned Subsidiary of the Borrower (i) formed solely in connection with a
securitization or similar financing, (ii) whose assets are subject to Liens
securing Indebtedness incurred in connection with such securitization or similar
financing, and (iii) that is otherwise restricted in its ability to incur any
Indebtedness or engage in any business activities other than with respect to
such securitization or similar financing.
"Specified Refurbishment Hotel" has the meaning specified in
the definition of Refurbishment Hotel.
"Specified Taxable REIT Subsidiary" means any Taxable REIT
Subsidiary that either (i) is an Operating Lessee or (ii) owns or operates one
or more Hotels.
"Stated Amount" of each Letter of Credit means, at any time,
the maximum amount available to be drawn thereunder (in each case determined
without regard to whether any conditions to drawing could then be met).
"Status" means the existence of Level I Status, Level II
Status, Level III Status, Level IV Status, Level V Status, Level VI Status,
Level VII Status, Level VIII Status, Level IX Status or Level X Status, as the
case may be.
As used in this definition:
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"Level I Status" exists on any date if, on such date, either
Borrower has a long-term senior unsecured actual debt rating of A- or
better by S&P and A3 or better by ▇▇▇▇▇'▇ Investor Service, Inc.
("Moody's");
"Level II Status" exists on any date if, on such date, either
Borrower has a long-term senior unsecured actual debt rating of BBB+ by
S&P and Baa1 by Moody's;
"Level III Status" exists on any date if, on such date, either
Borrower has a long-term senior unsecured actual debt rating of BBB by
S&P and Baa2 by Moody's;
"Level IV Status" exists on any date if, on such date, either
Borrower has a long-term senior unsecured debt rating of BBB- by S&P
and Baa3 by Moody's;
"Level V Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is less than 25%;
"Level VI Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is equal to or greater than 25% but less than 35%;
"Level VII Status" exists on any date if, on such date (y)
none of Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 35% but less than 40%
"Level VIII Status" exists on any date if, on such date (y)
none of Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 40% but less than 45%;
"Level IX Status" exists on any date if, on such date (y) none
of the Level I Status through Level IV Status exists and (z) the
Leverage Ratio is equal to or greater than 45% but less than 50%.
"Level X Status" exists on any date if, on such date (y) none
of Level I Status through Level IV Status exists and (z) the Leverage
Ratio is equal to or greater than 50% but less than 55%.
If S&P and/or Moody's shall cease to issue ratings of debt
securities of real estate investment trusts generally, then the
Administrative Agent and the Borrower shall negotiate in good faith to
agree upon a substitute rating agency or agencies (and to correlate the
system of ratings of each substitute rating agency with that of the
rating agency for which it is substituting) and (a) until such
substitute rating agency or agencies are agreed upon, Status shall be
determined on the basis of the rating assigned by the other rating
agency (or, if both S&P and Moody's shall have so ceased to issue such
ratings, on the basis of the Status in effect immediately prior
thereto) and (b) after such substitute rating agency or agencies are
agreed upon, Status shall be determined on the basis of the rating
assigned by the other rating agency and such substitute rating agency
or the two substitute rating agencies, as the case may be. If the long
term senior unsecured
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actual debt ratings of either Borrower by S&P and Moody's are not
equivalent, the higher rating will apply for the purposes of
determining Status. If the long term senior unsecured actual debt
ratings of either Borrower by S&P and Moody's are two or more Levels
apart, the rating one Level below the higher rating will apply for the
purposes of determining Status.
"Stock" means shares of capital stock, beneficial or
partnership interests, participations or other equivalents (regardless of how
designated) of or in a corporation, partnership, limited liability company or
equivalent entity, whether voting or non-voting, and includes, without
limitation, common stock, preferred stock, partnership interests and limited
liability company interests.
"Stock Equivalents" means all securities (other than Stock)
convertible into or exchangeable for Stock and all warrants, options or other
rights to purchase or subscribe for any stock, whether or not presently
convertible, exchangeable or exercisable.
"Subsidiary" means, with respect to any Person (other than
FelCor LP with respect to FelCor), at any date, any corporation, partnership or
other business entity the accounts of which would be consolidated with those of
such Person in its consolidated financial statements in accordance with GAAP, if
such statements were prepared as of such date.
"Subsidiary Guaranty" means a guaranty, in substantially the
form of Exhibit I, executed by each Guarantor, as such guaranty may be amended,
supplemented or otherwise modified from time to time.
"Super Majority Lenders" means, at any time, Lenders holding
at least 66-2/3% of the then aggregate unpaid principal amount of Revolving
Credit Loans (excluding Revolving Credit Loans held by Non-Funding Lenders) or,
if no such Revolving Credit Loans are then outstanding, Lenders having at least
66-2/3 % of the Revolving Credit Commitments of all Lenders (excluding
Non-Funding Lenders).
"Swing Advance" has the meaning set forth in Section 2.16.
"Swing Advance Bank" means Chase.
"Tangible Net Worth" means, with respect to the Borrower at
any date, (a) the sum of (i) the total shareholders' equity of FelCor, and (ii)
the book value of all partnership interests in FelCor LP owned by Persons other
than FelCor; minus (b) the sum of all intangible assets of FelCor, each as shown
on the consolidated balance sheet of FelCor as of such date.
"Tax Affiliate" means, as to any Person, (i) any Subsidiary of
such Person, and (ii) any Affiliate of such Person with which such Person files
or is eligible to file consolidated, combined or unitary tax returns.
"Tax Return" has the meaning specified in Section 4.3.
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"Taxable REIT Subsidiary" means any direct or indirect
wholly-owned Subsidiary of the Borrower that qualifies as a taxable REIT
subsidiary under Section 856(l) of the Code.
"Taxes" has the meaning specified in Section 2.14(a).
"Telerate Page 3750" means the display designated as "Page
3750" on the Associated Press-Dow ▇▇▇▇▇ Telerate Service (or such other page as
may replace Page 3750 on the Associated Press-Dow ▇▇▇▇▇ Telerate Service or such
other service as may be nominated by the British Bankers' Association as the
information vendor for the purpose of displaying British Bankers' Association
interest settlement rates for U.S. Dollar deposits). Any Eurodollar Rate
determined on the basis of the rate displayed on Telerate Page 3750 in
accordance with the provisions hereof shall be subject to corrections, if any,
made in such rate and displayed by the Associated Press-Dow ▇▇▇▇▇ Telerate
Service within one hour of the time when such rate is first displayed by such
Service.
"Term Loans" shall mean all loans outstanding under the Loan
Agreement, dated as of April 1, 1999, among the Borrower, the lenders party
hereto, and the Administrative Agent, as amended, modified or supplemented from
time to time.
"Termination Date" means the earlier of (i) the Final Maturity
Date, and (ii) the date of termination in whole of the Revolving Credit
Commitments pursuant to Section 2.4 or 8.2.
"Third Amended Revolving Credit Agreement" has the meaning
specified in the recitals to this Agreement.
"Total Indebtedness" of any Person means the sum of the
following (without duplication): (a) all Indebtedness of such Person and its
Subsidiaries determined on a consolidated basis in conformity with GAAP, plus
(b) such Person's Pro Rata Share of Indebtedness of such Person's Unconsolidated
Entities, provided, however, Indebtedness of a Person's Subsidiary shall only be
included in the calculation of Total Indebtedness to the extent of the greater
of (x) such Person's Pro Rata Share of such Indebtedness and (y) the amount of
such Indebtedness guaranteed by such Person.
"Total Secured Indebtedness" of any Person means any Total
Indebtedness of such Person for which the obligations thereunder are secured by
a pledge of or other encumbrance (other than a Permitted Lien or in connection
with the Pledge Agreement) on any assets of such Person or its Subsidiaries or
Unconsolidated Entities.
"Total Value" means the sum of:
(A) for Hotels owned or leased pursuant to a Qualified Lease
(including newly acquired Hotels and Hotels to be immediately acquired
using the proceeds of any Revolving Credit Loans), other than Hotels
described in clause (B) below, Adjusted NOI on a consolidated basis
from such Hotels for the preceding four (4) Fiscal Quarters divided by
ten percent (10%); plus
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(B) for Hotels owned or leased pursuant to a Qualified Lease
by Borrower (or any Subsidiary or Unconsolidated Entity of Borrower)
(x) for less than four (4) fiscal Quarters and for which the Borrower
(or any Subsidiary or Unconsolidated Entity of Borrower) does not have,
or is not able to reasonably obtain, trailing four quarter audited
financial information or (y) which the Borrower has designated as a
Refurbishment Hotel, in each such case 95% of the Borrower's Investment
in such Hotels (provided that if the Allerton Hotel is designated as a
Refurbishment Hotel, then such Hotel (together with any other Specified
Refurbishment Hotel) shall be valued at 85% of the Borrower's
Investment in such Hotel); plus
(C) the sum of $15,000,000, being the agreed aggregate sum of
the Borrower's investment at cost in (x) certain vacant land at the
Kingston Plantation Hotel in Myrtle Beach, South Carolina, and (y)
Promus/FCH Condominium Company, L.L.C.; plus
(D) unencumbered Cash or Cash Equivalents held by the Borrower
and its Subsidiaries (determined on a consolidated basis in accordance
with GAAP) plus the Borrower's Pro Rata Share of unencumbered Cash or
Cash Equivalents held by the Borrower's Unconsolidated Entities;
provided, however, that in the case of (A) above, Adjusted NOI with respect to a
Hotel shall only be included in the calculation of Total Value if such Hotel is,
as at the date of such calculation, owned or leased by Borrower, its Subsidiary
or its Unconsolidated Entity but only to the extent (i) in the case of Adjusted
NOI attributable to the Borrower's Subsidiaries, financial statements prepared
in accordance with GAAP would consolidate such Subsidiary with the Borrower and
(ii) in the case of Adjusted NOI attributable to the Borrower's Unconsolidated
Entities, of the Borrower's Pro Rata Share of such Adjusted NOI, and provided
further, in the case of (B) above, the Borrower's Investment with respect to a
Hotel shall only be included in the calculation of Total Value if such Hotel is,
as of the date of such calculation, owned by the Borrower, its Subsidiary or
Unconsolidated Entity. Notwithstanding the foregoing, in no event shall more
than 20% of Total Value be attributable to Refurbishment Hotels which are valued
at 95% (or 85% in the case of the Allerton Hotel or any other Specified
Refurbishment Hotel) of Borrower's Investment.
"Unconsolidated Entity" means, with respect to any Person, at
any date, any other Person in whom such Person holds an Investment, which
Investment is accounted for in the financial statements of such Person on an
equity basis of accounting and whose financial results would not be consolidated
under GAAP with the financial results of such Person on the consolidated
financial statements of such Person, if such statements were prepared as of such
date.
"Unencumbered" means, with respect to any Hotel, at any date
of determination, the circumstance that such Hotel on such date:
(a) is not subject to any Liens (including restrictions on
transferability or assignability) of any kind (including any such Lien
or restriction imposed by (i) any agreement governing Indebtedness, and
(ii) the organizational documents of the Borrower
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or any of its Subsidiaries or Eligible Joint Ventures, but excluding
Permitted Liens and, in the case of any Qualified Lease (to the extent
permitted by the definition thereof), restrictions on transferability
or assignability in respect of such Lease);
(b) is not subject to any agreement (including (i) any
agreement governing Indebtedness, and (ii) if applicable, the
organizational documents of the Borrower or any of its Subsidiaries or
Eligible Joint Ventures) which prohibits or limits the ability of the
Borrower or any of its Subsidiaries or Eligible Joint Ventures to
create, incur, assume or suffer to exist any Lien upon such Hotel,
other than Permitted Liens (excluding any agreement or organizational
document (x) which limits generally the amount of Indebtedness which
may be incurred by the Borrower or its Subsidiaries or Eligible Joint
Ventures or (y) which requires the consent of partners (or the
equivalent) in such Eligible Joint Venture (other than the Borrower or
its wholly owned Subsidiaries) to create, incur, assume or suffer to
exist any Lien upon such Hotel); and
(c) is not subject to any agreement (including any agreement
governing Indebtedness) which entitles any Person to the benefit of any
Lien (other than Permitted Liens) on such Hotel, or would entitle any
Person to the benefit of any such Lien upon the occurrence of any
contingency (other than pursuant to an "equal and ratable" clause
contained in any agreement governing Indebtedness).
For the purposes of this Agreement, any Joint Venture Hotel or
Hotel owned by the Borrower, or a Subsidiary of the Borrower shall not be deemed
to be Unencumbered unless both (i) such Hotel and (ii) all Stock owned directly
or indirectly by either FelCor or FelCor LP in the entity that owns such Hotel
is Unencumbered (other than by a Permitted Lien or in connection with the Pledge
Agreement).
"Unencumbered Hotel Property" means, collectively, (a) such of
the Hotels owned or leased by the Borrower or any of its direct or indirect
wholly-owned Subsidiaries, and (b) such of the Joint Venture Hotels, as in each
case shall meet at any time and from time to time, each of the following minimum
criteria:
(a) such Hotel is Unencumbered;
(b) such Hotel is free of all material structural and title
defects and other material adverse matters;
(c) such Hotel is, as of the date upon which such Hotel is
included as an Unencumbered Hotel Property and as of the end of each
succeeding Fiscal Quarter, (i) in compliance, in all material respects,
with all applicable Environmental Laws, and (ii) not subject to any
material Environmental Liabilities and Costs, in each case as initially
verified by a written report of an environmental consultant reasonably
acceptable to the Administrative Agent;
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(d) such Hotel is (i) owned in fee simple by, or (ii) leased
pursuant to a Qualified Lease in favor of, the Borrower or its direct
or indirect wholly-owned Subsidiary or an Eligible Joint Venture;
provided that, if a Joint Venture Hotel is owned by an Eligible Joint Venture
which owns more than a single Hotel, such Joint Venture Hotel shall only be an
Unencumbered Hotel Property if it satisfies all of the requirements set forth in
subparagraphs (a) through (d) above and all other Hotels owned by such Eligible
Joint Venture satisfy the conditions set forth in subparagraphs (a) and (c)
above, provided further, that the parties acknowledge and agree that the Embassy
Suites Hotel located at Los Angeles Airport, CA is subject to a mortgage in
favor of FelCor LP but the Administrative Agent has agreed, as a one time waiver
only, to accept such Hotel as Unencumbered (for purposes of clause (a) above)
provided that such Hotel shall cease to be Unencumbered (for purposes of clause
(a) above), inter alia, in the event that FelCor LP assigns its mortgage to any
other Person.
"Unencumbered NOI" means Adjusted NOI from each Unencumbered
Hotel Property, provided, that (i) only Borrower's JV% of Adjusted NOI generated
by any Joint Venture Hotel shall be included in Unencumbered NOI and (ii) in no
event shall more than 25% of Unencumbered NOI be attributable to Unencumbered
Hotel Properties leased pursuant to Qualified Leases.
"Unpaid Drawing" has the meaning specified in Section 2.20(a).
"Unsecured Indebtedness" of any Person means any Indebtedness
of such Person not required to be included in the computation of Total Secured
Indebtedness of such Person.
"Unsecured Interest Expense" means, for any Person for any
period, the greater of (I) the sum of (a) the total interest expense in respect
of all Unsecured Indebtedness of such Person (excluding, on an annual basis, up
to $3,000,000 of noncash expense which is attributable to the amortization of
costs and expenses incurred in connection with the incurrence of such
Indebtedness) and its Subsidiaries for such period determined on a consolidated
basis in conformity with GAAP, plus capitalized interest of such Person and its
Subsidiaries in respect of Unsecured Indebtedness, plus (b) such Person's Pro
Rata Share of Unsecured Interest Expense of such Person's Unconsolidated
Entities and (II) 7.5% of the sum of (a) the average outstanding balance of all
Unsecured Indebtedness of such Person and its Subsidiaries for such period
determined on a consolidated basis in conformity with GAAP plus (b) such
Person's Pro Rata Share of Unsecured Indebtedness of such Person's
Unconsolidated Entities for such period.
1.2. Computation of Time Periods. In this Agreement, in the
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
mean "to but excluding" and the word "through" means "to and including".
1.3. Accounting Terms. All accounting terms not specifically
defined herein shall be construed in conformity with GAAP and all accounting
determinations required to be
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made pursuant hereto shall, unless expressly otherwise provided herein, be made
in conformity with GAAP.
1.4. Certain Terms. The words "herein," "hereof" and
"hereunder" and other words of similar import refer to this Agreement as a
whole, and not to any particular Article, Section, subsection or clause in this
Agreement. References herein to an Exhibit, Schedule, Article, Section,
subsection or clause refer to the appropriate Exhibit or Schedule to, or
Article, Section, subsection or clause in this Agreement.
ARTICLE II
AMOUNTS AND TERMS OF THE LOANS AND LETTERS OF CREDIT
2.1. The Revolving Credit Loans. On the terms and subject to
the conditions contained in this Agreement (including, on and after the initial
Additional Revolving Credit Commitment Date, Section 2.21), each Lender
severally agrees to make loans (each a "Revolving Credit Loan") to the Borrower
from time to time on any Business Day during the period from the Restatement
Effective Date until (but not including) the Termination Date in an aggregate
amount not to exceed at any time outstanding such Lender's Revolving Credit
Commitment; provided, however, that at no time shall any Lender be obligated to
make a Revolving Credit Loan in excess of such Lender's Ratable Portion of the
Available Credit. Within the limits of each Lender's Revolving Credit
Commitment, amounts prepaid pursuant to Section 2.6(b) may be reborrowed under
this Section 2.1. The Revolving Credit Loans of each Lender shall be evidenced
by the Revolving Credit Note to the order of such Lender.
2.2. Making the Revolving Credit Loans. (a) Each Borrowing
shall be made on notice, given by the Borrower to the Administrative Agent not
later than (i) 11:00 A.M. (New York City time) on the third (3rd) Business Day
prior to the date of the proposed Borrowing in the case of Eurodollar Rate
Loans, and (ii) 11:00 A.M. (New York City time) on the Business Day prior to the
date of the proposed Borrowing in the case of Base Rate Loans. Each such notice
(a "Notice of Borrowing") shall be in substantially the form of Exhibit B,
specifying therein (i) the date of such proposed Borrowing, (ii) the aggregate
amount of such proposed Borrowing, (iii) the amount thereof, if any, requested
to be Eurodollar Rate Loans, and (iv) the initial Interest Period for any such
Eurodollar Rate Loans. The Revolving Credit Loans shall be made as Base Rate
Loans unless (subject to Section 2.11) the Notice of Borrowing specifies that
all or a pro rata portion thereof shall be Eurodollar Rate Loans; provided,
however, that the aggregate of the Eurodollar Rate Loans for each Interest
Period must be in an amount of not less than $5,000,000 or an integral multiple
of $500,000 in excess thereof.
(b) The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent's receipt of a Notice of Borrowing and, if
Eurodollar Rate Loans are properly requested in such Notice of Borrowing, the
applicable interest rate under Section 2.8, and each Lender's Ratable Portion of
the proposed Borrowing. Each Lender shall, before 12:00 Noon (New York City
time) on the date of the proposed Borrowing, make available for the account of
its Applicable Lending Office to the Administrative Agent at its address
referred to in Section 10.2, in immediately available funds, such Lender's
Ratable Portion of such proposed
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Borrowing. By 12:00 Noon (New York City time) in the case of Eurodollar Rate
Loans and Base Rate Loans, on the date specified by the Borrower in the Notice
of Borrowing, subject to fulfillment of the applicable conditions set forth in
Article III, the Administrative Agent will make such funds available to the
Borrower at the Administrative Agent's aforesaid address; provided that in the
event that the Administrative Agent shall have received notice from a Lender
prior to the date of any proposed Borrowing that such Lender will not make
available to the Administrative Agent such Lender's Ratable Portion of such
Borrowing, the Administrative Agent shall be under no obligation to fund such
Lender's Ratable Portion of such Borrowing amended, supplemented or otherwise
modified from time to time to the extent permitted by this Agreement.
(c) Each Base Rate Loan shall be in an aggregate amount of not
less than $1,000,000 or an integral multiple of $100,000 in excess thereof.
(d) Each Notice of Borrowing shall be irrevocable and binding
on the Borrower. In the case of any proposed Borrowing which the related Notice
of Borrowing specifies is to be comprised of Eurodollar Rate Loans, the Borrower
shall indemnify each Lender against any loss, cost or expense incurred by such
Lender as a result of any failure to fulfill on or before the date specified in
such Notice of Borrowing for such proposed Borrowing the applicable conditions
set forth in Article III, including, without limitation, any loss (including,
without limitation, loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund any Eurodollar Rate Loan to be made by such Lender as part
of such proposed Borrowing when such Eurodollar Rate Loan, as a result of such
failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice
from a Lender prior to the date of any proposed Borrowing that such Lender will
not make available to the Administrative Agent such Lender's Ratable Portion of
such Borrowing, the Administrative Agent may assume that such Lender has made
such Ratable Portion available to the Administrative Agent on the date of such
Borrowing in accordance with this Section 2.2 and the Administrative Agent may,
in reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such Ratable Portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay to the Administrative Agent forthwith on
demand such corresponding amount together with interest thereon, for each day
from the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable at the time to the Revolving Credit Loans
comprising such Borrowing and (ii) in the case of such Lender, the Federal Funds
Rate. If such Lender shall repay to the Administrative Agent such corresponding
amount, such amount so repaid shall constitute such Lender's Revolving Credit
Loan as part of such Borrowing for purposes of this Agreement. If the Borrower
shall repay to the Administrative Agent such corresponding amount, such payment
shall not relieve such Lender of any obligation it may have to the Borrower
hereunder.
(f) The failure of any Lender to make the Revolving Credit
Loan to be made by it as part of any Borrowing shall not relieve any other
Lender of its obligation, if any, hereunder to make its Revolving Credit Loan on
the date of such Borrowing, but no Lender shall
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be responsible for the failure of any other Lender to make the Revolving Credit
Loan to be made by such other Lender on the date of any Borrowing.
2.3. Fees. (a) The Borrower agrees to pay to the
Administrative Agent for the account of each Lender, a commitment fee (the
"Commitment Fee") equal to the Applicable Margin then in effect for the
Commitment Fee times the average daily unused portion of such Lender's Revolving
Credit Commitment, from the date hereof until the Termination Date. The
Commitment Fee shall be payable in arrears with respect to each full and partial
calendar quarter on (i) the last Business Day of each calendar quarter during
the term of such Lender's Revolving Credit Commitment, commencing September 30,
2000, (ii) the date of any reduction of the Revolving Credit Commitments
pursuant to Section 2.4 and (iii) the Termination Date. For purposes of this
Section 2.3, Swing Advances shall be included as part of the unused portion of
the Revolving Credit Commitments.
(b) The Borrower agrees to pay to the Administrative Agent for
distribution to each Lender (based on its respective Ratable Portion) a fee in
respect of each Letter of Credit issued hereunder (the "Letter of Credit Fee"),
for the period from and including the date of issuance of such Letter of Credit
to and including the termination of such Letter of Credit, computed at a rate
per annum equal to the Applicable Margin then in effect for Revolving Credit
Loans maintained as Eurodollar Rate Loans on the daily average Stated Amount of
such Letter of Credit. Accrued Letter of Credit Fees shall be payable in arrears
with respect to each calendar quarter on (i) the last Business Day of each
calendar quarter in which any Letter of Credit is outstanding, (ii) the date on
which no Letters of Credit remain outstanding and (iii) the Termination Date.
(c) The Borrower agrees to pay to the Issuing Lender, for its
own account, a facing fee in respect of each Letter of Credit issued by it
hereunder (the "Facing Fee") for the period from and including the date of
issuance of such Letter of Credit to and including the termination of such
Letter of Credit, computed at a rate per annum equal to 0.125 % of the daily
average Stated Amount of such Letter of Credit. Accrued Facing Fees shall be
payable in arrears with respect to each calendar quarter on (i) the last
Business Day of each calendar quarter in which such Letter of Credit is
outstanding, (ii) the date upon which such Letter of Credit has been terminated
in accordance with its terms and (iii) the Termination Date.
(d) The Borrower shall pay, upon each Drawing under, issuance
of, or amendment to, any Letter of Credit, such amount as shall at the time of
such event be the administrative charge which the Issuing Lender is generally
imposing in connection with such occurrence with respect to letters of credit.
(e) The Borrower has agreed to pay to Chase additional fees,
the amount and dates of payment of which are embodied in a separate agreement
between the Borrower and Chase.
2.4. Reduction and Termination of the Commitments. The
Borrower may, upon at least three Business Days' prior notice to the
Administrative Agent, terminate in whole or reduce ratably in part the unused
portions of the respective Revolving Credit Commitments of
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the Lenders; provided, however, that each partial reduction shall be in the
aggregate amount of not less than $5,000,000 or an integral multiple of
$1,000,000 in excess thereof.
2.5. Repayment. The Borrower shall repay the entire unpaid
principal amount of the Revolving Credit Loans on the Termination Date.
2.6. Prepayments. (a) The Borrower shall have no right to
prepay the principal amount of any Revolving Credit Loan other than as provided
in this Section 2.6.
(b) The Borrower may, upon at least two (2) Business Days'
prior notice to the Administrative Agent, stating the proposed date and
aggregate principal amount of the prepayment, prepay the outstanding principal
amount of the Revolving Credit Loans in whole or ratably in part, together with
accrued interest to the date of such prepayment on the principal amount prepaid;
provided, however, that any prepayment of any Eurodollar Rate Loan made other
than on the last day of an Interest Period for such Revolving Credit Loan shall
be subject to payment by the Borrower to the Administrative Agent of any costs,
fees or expenses incurred by any Lender in connection with such prepayment
including, without limitation, any costs to unwind any Eurodollar Rate
contracts; and, provided further, that each partial prepayment shall be in an
aggregate principal amount not less than $3,000,000 or integral multiples of
$100,000 in excess thereof. Upon the giving of such notice of prepayment, the
principal amount of the Revolving Credit Loans specified to be prepaid shall
become due and payable on the date specified for such prepayment.
(c) If at any time the Borrower shall not be in compliance
with the covenant contained in Section 5.1 hereof, (a "Financial Covenant
Imbalance"), the Borrower shall prepay the Revolving Credit Loans then
outstanding in an amount necessary to cure such Financial Covenant Imbalance,
together with accrued interest as follows:
(i) in the event that the Financial Covenant Imbalance is due
to (A) any sale, conveyance, transfer, assignment or other disposition
of an Unencumbered Hotel Property, (B) a financing secured by a Hotel
or (C) a Drawing, the prepayment shall be made within one (1) Business
Day of such event occurring;
(ii) in the event that the Financial Covenant Imbalance is due
to any (A) condemnation or taking by eminent domain of an Unencumbered
Hotel Property, or (B) loss, damage or destruction by casualty to any
Hotel, the prepayment shall be made within one (1) Business Day after
receipt by the Borrower or its Subsidiary or Eligible Joint Venture of
the condemnation award or insurance proceeds relating to such event;
(iii) INTENTIONALLY DELETED; or
(iv) in the event that the Financial Covenant Imbalance is due
to a determination by the Administrative Agent, after review of the
applicable Hotel Documents, that an Unencumbered Hotel Property,
represented by Borrower in a Compliance Certificate to be an
Unencumbered Hotel Property, fails to meet (and never actually met) the
requirements for Unencumbered Hotel Properties set forth herein, the
prepayment shall be
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made within 5 Business Days of the Administrative Agent notifying
Borrower of such Hotel's failure to meet the Unencumbered Hotel
Property requirements.
(d) If at any time the aggregate principal amount of Revolving
Credit Loans outstanding at such time exceeds the Revolving Credit Commitments
at such time, the Borrower shall forthwith prepay the Revolving Credit Loans
then outstanding in an amount equal to such excess, together with accrued
interest.
2.7. Conversion/Continuation Option. (a) Swing Advances shall
be automatically converted to Base Rate Loans on the Business Day following the
date of borrowing thereof.
(b) The Borrower may elect (i) at any time to convert Base
Rate Loans or any portion thereof to Eurodollar Rate Loans, (ii) at any time to
convert Swing Advances or any portion thereof to Base Rate Loans or Eurodollar
Rate Loans, or (iii) at the end of any Interest Period with respect thereto, to
convert Eurodollar Rate Loans or any portion thereof into Base Rate Loans, or to
continue such Eurodollar Rate Loans or any portion thereof for an additional
Interest Period; provided, however, that the aggregate of the Eurodollar Rate
Loans for each Interest Period therefor must be in the amount of $5,000,000 or
an integral multiple of $500,000 in excess thereof. Each conversion or
continuation shall be allocated among the Revolving Credit Loans of all Lenders
in accordance with their Ratable Portion. Each such election shall be in
substantially the form of Exhibit C hereto (a "Notice of Conversion or
Continuation") and shall be made by giving the Administrative Agent at least
three (3) Business Days' prior written notice thereof specifying (A) the amount
and type of conversion or continuation, (B) in the case of a conversion to or a
continuation of Eurodollar Rate Loans, the Interest Period therefor, and (C) in
the case of a conversion, the date of conversion (which date shall be a Business
Day and, if a conversion from Eurodollar Rate Loans, shall also be the last day
of the Interest Period therefor). The Administrative Agent shall promptly notify
each Lender of its receipt of a Notice of Conversion or Continuation and of the
contents thereof and such Lender's Ratable Portion of the Revolving Credit Loans
to be converted. Notwithstanding the foregoing, no conversion in whole or in
part of Base Rate Loans or Swing Advances to Eurodollar Rate Loans, and no
continuation in whole or in part of Eurodollar Rate Loans upon the expiration of
any Interest Period therefor, shall be permitted at any time at which a Default
or an Event of Default shall have occurred and be continuing. If, within the
time period required under the terms of this Section 2.7, the Administrative
Agent does not receive a Notice of Conversion or Continuation from the Borrower
containing a permitted election to continue any Eurodollar Rate Loans for an
additional Interest Period or to convert any such Revolving Credit Loans, then,
upon the expiration of the Interest Period therefor, such Revolving Credit Loans
will be automatically converted to Base Rate Loans. Each Notice of Conversion or
Continuation shall be irrevocable.
2.8. Interest. (a) The Borrower shall pay interest on the
unpaid principal amount of each Revolving Credit Loan from the date thereof
until the principal amount thereof shall be paid in full, at the following rates
per annum:
(i) For Base Rate Loans and Swing Advances, at a rate per annum
equal at all times to the Base Rate in effect from time to time plus
the Applicable Margin, payable
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monthly on the first day of each month, on the Termination Date and on
the date any Base Rate Loan is converted or paid in full.
(ii) For Eurodollar Rate Loans, at a rate per annum equal at all
times during the applicable Interest Period for each Eurodollar Rate
Loan to the sum of the Eurodollar Rate for such Interest Period plus
the Applicable Margin in effect on the most recent Applicable Margin
Reset Date, payable on the last day of such Interest Period, on the
Termination Date and, if such Interest Period has a duration of more
than three months, on the last day of each calendar quarter during such
Interest Period commencing on September 30, 2000.
(b) If the principal indebtedness of the Revolving Credit
Loans is declared immediately due and payable by the Administrative Agent
pursuant to the provisions of this Agreement or any other Loan Document, or if
the Revolving Credit Loans are not paid in full on the Termination Date, the
Borrower shall thereafter, unless and until such date, if any, as the Super
Majority Lenders may elect, in their sole and absolute discretion, to waive, in
writing, all or any portion of such default rate interest, pay interest on the
principal sum then remaining unpaid from the date of such declaration or the
Termination Date, as the case may be, until the date on which the principal sum
then outstanding is paid in full (whether before or after judgment), at a rate
per annum (calculated for the actual number of days elapsed on the basis of a
360-day year) equal to the greater, on a daily basis, of (x) 13% or (y) 4% plus
the Base Rate, provided, however, that such interest rate shall in no event
exceed the maximum interest rate which the Borrower may by law pay.
2.9. Interest Rate Determination and Protection. (a) The
Eurodollar Rate for each Interest Period for Eurodollar Rate Loans shall be
determined by the Administrative Agent two (2) Business Days before the first
day of such Interest Period.
(b) The Administrative Agent shall give prompt notice to the
Borrower and the Lenders of the applicable interest rate determined by the
Administrative Agent for purposes of Section 2.8(a) or (b).
(c) If, with respect to Eurodollar Rate Loans, the Majority
Lenders in good faith notify the Administrative Agent that the Eurodollar Rate
for any Interest Period therefor will not adequately reflect the cost to such
Majority Lenders of making such Revolving Credit Loans or funding or maintaining
their respective Eurodollar Rate Loans for such Interest Period, the
Administrative Agent shall forthwith so notify the Borrower and the Lenders,
whereupon
(i) each Eurodollar Rate Loan will automatically, on the last
day of the then existing Interest Period therefor, convert into a Base
Rate Loan; and
(ii) the obligations of the Lenders to make Eurodollar Rate
Loans or to convert Base Rate Loans into Eurodollar Rate Loans shall be
suspended until the Administrative Agent shall notify the Borrower that
such Lenders have determined that the circumstances causing such
suspension no longer exist.
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2.10. Increased Costs. If, due to either (i) the introduction
of or any change in or in the interpretation of any law or regulation (other
than any change by way of imposition or increase of reserve requirements
included in determining the Eurodollar Rate Reserve Percentage) or (ii)
compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law), there shall be
any increase in the cost to any Lender of agreeing to make or making, funding or
maintaining any Eurodollar Rate Loans, then the Borrower shall from time to
time, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender additional amounts sufficient to compensate such Lender for such
increased cost. A certificate as to the amount of such increased cost, submitted
to the Borrower and the Administrative Agent by such Lender, shall be conclusive
and binding for all purposes, absent manifest error. If the Borrower so notifies
the Administrative Agent within five Business Days after any Lender notifies the
Borrower of any increased cost pursuant to the foregoing provisions of this
Section 2.10, the Borrower may either (A) prepay in full all Eurodollar Rate
Loans of such Lender then outstanding in accordance with Section 2.6(b) and,
additionally, reimburse such Lender for such increased cost in accordance with
this Section 2.10 or (B) convert all Eurodollar Rate Loans of all Lenders then
outstanding into Base Rate Loans in accordance with Section 2.7 and,
additionally, reimburse such Lender for such increased cost in accordance with
this Section 2.10.
2.11. Illegality. Notwithstanding any other provision of this
Agreement, if the introduction of or any change in or in the interpretation of
any law or regulation shall make it unlawful, or any central bank or other
Governmental Authority shall assert that it is unlawful, for any Lender or its
Eurodollar Lending Office to make Eurodollar Rate Loans or to continue to fund
or maintain Eurodollar Rate Loans, then, on notice thereof and demand therefor
by such Lender to the Borrower through the Administrative Agent, (i) the
obligation of such Lender to make or to continue Eurodollar Rate Loans and to
convert Base Rate Loans into Eurodollar Rate Loans shall terminate and (ii) the
Borrower shall forthwith prepay in full all Eurodollar Rate Loans of such Lender
then outstanding, together with interest accrued thereon, unless the Borrower,
within five Business Days of such notice and demand, converts all Eurodollar
Rate Loans of all Lenders then outstanding into Base Rate Loans.
2.12. Capital Adequacy. If (i) the introduction of or any
change in or in the interpretation of any law or regulation, (ii) compliance
with any law or regulation, or (iii) compliance with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law) affects or would affect the amount of capital required or expected
to be maintained by any Lender or any corporation controlling any Lender and
such Lender reasonably determines that such amount is based upon the existence
of such Lender's Revolving Credit Commitments, Letters of Credit or Revolving
Credit Loans and its other commitments, letters of credit or loans of this type,
then, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), the Borrower shall pay to the Administrative Agent for
the account of such Lender, from time to time as specified by such Lender,
additional amounts sufficient to compensate such Lender in the light of such
circumstances, to the extent that such Lender reasonably determines such
increase in capital to be allocable to the existence of such Lender's Revolving
Credit Commitments, Revolving Credit Loans, Letter of Credit Outstandings or
commitments to issue Letters of Credit. A certificate as to such amounts
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submitted to the Borrower and the Administrative Agent by such Lender shall be
conclusive and binding for all purposes absent manifest error.
2.13. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Revolving Credit Notes not later than 11:00
A.M. (New York City time) on the day when due, in Dollars, to the Administrative
Agent at its address referred to in Section 10.2 in immediately available funds
without set-off or counterclaim. The Administrative Agent will promptly
thereafter cause to be distributed immediately available funds relating to the
payment of principal or interest or fees (other than amounts payable pursuant to
Section 2.10, 2.11, 2.12, 2.14 or 2.16) to the Lenders, in accordance with their
respective Ratable Portions, for the account of their respective Applicable
Lending Offices, and like funds relating to the payment of any other amount
payable to any Lender to such Lender for the account of its Applicable Lending
Office, in each case to be applied in accordance with the terms of this
Agreement. To the extent the foregoing payments are received by the
Administrative Agent prior to 11:00 A.M. (New York City time) and are not
distributed to the Lenders on the same day, the Administrative Agent shall pay
to each Lender in addition to the amount distributed to such Lender, interest
thereon, for each day from the date such amount is received by the
Administrative Agent until the date such amount is distributed to such Lender,
at the Federal Funds Rate. Payment received by the Administrative Agent after
11:00 A.M. (New York City time) shall be deemed to be received on the next
Business Day.
(b) The Borrower hereby authorizes each Lender, if and to the
extent payment owed to such Lender is not made when due hereunder or under any
Revolving Credit Loan held by such Lender, to charge from time to time against
any or all of the Borrower's accounts with such Lender any amount so due.
(c) All computations of interest based on the Base Rate, the
Eurodollar Rate or the Federal Funds Rate and of fees shall be made by the
Administrative Agent on the basis of a year of 360 days, in each case for the
actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest and fees are payable. Each
determination by the Administrative Agent of an interest rate hereunder shall be
conclusive and binding for all purposes, absent manifest error.
(d) Whenever any payment hereunder or under the Revolving
Credit Notes shall be stated to be due on a day other than a Business Day, such
payment shall be made on the next succeeding Business Day, and such extension of
time shall in such case be included in the computation of payment of interest or
fee, as the case may be; provided, however, that if such extension would cause
payment of interest on or principal of any Eurodollar Rate Loan to be made in
the next calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice
from the Borrower prior to the date on which any payment is due hereunder to the
Lenders that the Borrower will not make such payment in full, the Administrative
Agent may assume that the Borrower has made such payment in full to the
Administrative Agent on such date and the Administrative Agent may, in reliance
upon such assumption, cause to be distributed to each Lender on such due
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date an amount equal to the amount then due such Lender. If and to the extent
the Borrower shall not have so made such payment in full to the Administrative
Agent, each Lender shall repay to the Administrative Agent forthwith on demand
such amount distributed to such Lender together with interest thereon, for each
day from the date such amount is distributed to such Lender until the date such
Lender repays such amount to the Administrative Agent, at the Federal Funds
Rate.
(f) If any Lender (a "Non-Funding Lender") has (x) failed to
make a Revolving Credit Loan required to be made by it hereunder, and the
Administrative Agent has determined that such Lender is not likely to make such
Revolving Credit Loan, (y) given notice to the Borrower or the Administrative
Agent that it will not make, or that it has disaffirmed or repudiated any
obligation to make, Revolving Credit Loans, in each case by reason of the
provisions of the Financial Institutions Reform, Recovery and Enforcement Act of
1989 or otherwise or (z) failed to comply with its obligations pursuant to
Section 2.19(c), (i) such Non-Funding Lender shall lose any and all voting
rights hereunder, and (ii) any payment made on account of the principal of the
Revolving Credit Loans outstanding or Unpaid Drawings shall be made as follows:
(A) in the case of any such payment made on any date when and
to the extent that, in the determination of the Administrative Agent,
the Borrower would be able, under the terms and conditions hereof, to
reborrow the amount of such payment under the Revolving Loan
Commitments and to satisfy any applicable conditions precedent set
forth in Article III to such reborrowing, such payment shall be made on
account of the outstanding Revolving Credit Loans or Unpaid Drawings
held by the Lenders other than the Non-Funding Lender pro rata
according to the respective outstanding principal amounts of the
Revolving Credit Loans or Unpaid Drawings of such Lenders;
(B) otherwise, such payment shall be made on account of the
outstanding Revolving Credit Loans or Unpaid Drawings held by the
Lenders pro rata according to the respective outstanding principal
amounts of such Revolving Credit Loans or Unpaid Drawings; and
(C) any payment made on account of interest on the Revolving
Credit Loans or Unpaid Drawings shall be made pro rata according to the
respective amounts of accrued and unpaid interest due and payable on
the Revolving Credit Loans or Unpaid Drawings with respect to which
such payment is being made.
2.14. Taxes. (a) Any and all payments by the Borrower under
each Loan Document shall be made free and clear of and without deduction for any
and all present or future taxes, levies, imposts, deductions, charges or
withholdings, and all liabilities with respect thereto, excluding, in the case
of each Lender and the Administrative Agent, taxes measured by its net income,
and franchise taxes imposed on it, by the jurisdiction under the laws of which
such Lender or the Administrative Agent (as the case may be) is organized or any
political subdivision thereof and, in the case of each Lender, taxes measured by
its net income, and franchise taxes imposed on it, by the jurisdiction of such
Lender's Applicable Lending Office or any political subdivision thereof (all
such non-excluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities (excluding, in the case of such Lender or the Administrative Agent,
taxes
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imposed by reason of any failure of such Lender or the Administrative Agent, if
such Lender or the Administrative Agent is entitled at such time to a total or
partial exemption from withholding that is required to be evidenced by a United
States Internal Revenue Service Form W-8BEN (with respect to an income tax
treaty) or W-8ECI or any successor or additional form (including but not limited
to Form W-8BEN (with respect to the portfolio interest exemption), to deliver to
the Administrative Agent or the Borrower, from time to time as required pursuant
to Section 2.14(f), such Form W-8BEN (with respect to an income tax treaty) or
W-8ECI (as applicable) or any successor or additional form (including but not
limited to Form W-8BEN (with respect to the portfolio interest exemption),
pursuant to Section 2.14(f) being hereinafter referred to as "Taxes"). If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable hereunder to any Lender or the Administrative Agent (i) the sum
payable shall be increased as may be necessary so that after making all required
deductions (including, without limitation, deductions applicable to additional
sums payable under this Section 2.14) 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, (ii) the Borrower shall make such deductions,
(iii) the Borrower shall pay the full amount deducted to the relevant taxing
authority or other authority in accordance with applicable law, and (iv) the
Borrower shall deliver to the Administrative Agent evidence of such payment to
the relevant taxation or other authority.
(b) In addition, the Borrower agrees to pay any present or
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies of the United States or any political subdivision thereof or
any applicable foreign jurisdiction which arise from any payment made under any
Loan Document or from the execution, delivery or registration of, or otherwise
with respect to, any Loan Document (collectively, "Other Taxes").
(c) The Borrower will indemnify each Lender and the
Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any jurisdiction on
amounts payable under this Section 2.14) paid by such Lender or the
Administrative Agent (as the case may be) and any liability (including, without
limitation, for penalties, interest and expenses) arising therefrom or with
respect thereto, whether or not such Taxes or Other Taxes were correctly or
legally asserted. This indemnification shall be made within 30 days from the
date such Lender or the Administrative Agent (as the case may be) makes written
demand therefor.
(d) Within 30 days after the date of any payment of Taxes or
Other Taxes, the Borrower will furnish to the Administrative Agent, at its
address referred to in Section 10.2, the original or a certified copy of a
receipt evidencing payment thereof.
(e) Without prejudice to the survival of any other agreement
of the Borrower hereunder, the agreements and obligations of the Borrower
contained in this Section 2.14 shall survive the payment in full of the
Obligations.
(f) Prior to the Restatement Effective Date in the case of
each Lender that is a signatory hereto, and on the date of the Assignment and
Acceptance pursuant to which it becomes a Lender in the case of each other
Lender and from time to time thereafter, when a lapse in time or change in
circumstances renders the previous certification obsolete or inaccurate in any
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material respect, each Lender organized under the laws of a jurisdiction outside
the United States that is entitled to an exemption from United States
withholding tax, or that is subject to such tax at a reduced rate under an
applicable tax treaty, shall provide the Administrative Agent and the Borrower
with two accurate and complete original signed copies of IRS Form W-8ECI or Form
W-8BEN (with respect to an income tax treaty) or other applicable form
(including but not limited to Form W-8BEN (with respect to the portfolio
exemption), certificate or document prescribed by the IRS certifying as to such
Lender's entitlement to such exemption or reduced rate with respect to all
payments to be made to such Lender hereunder and under the Revolving Credit
Notes. Unless the Borrower and the Administrative Agent have received forms or
other documents pursuant to this Section 2.14(f) indicating that payments
hereunder or under any Revolving Credit Note are not subject to United States
withholding tax or are subject to such tax at a rate reduced by an applicable
tax treaty, the Borrower or the Administrative Agent shall withhold taxes from
such payments at the applicable statutory rate in the case of payments to or for
any Lender organized under the laws of a jurisdiction outside the United States.
(g) Any Lender claiming any additional amounts payable
pursuant to this Section 2.14 shall use its best efforts (consistent with its
internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Applicable Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
which may thereafter accrue and would not, in the reasonable judgment of such
Lender, be otherwise disadvantageous to such Lender.
2.15. Sharing of Payments, Etc. If any Lender (other than the
Swing Advance Bank or the Issuing Lender) shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set off or
otherwise) on account of Revolving Credit Loans made by it (other than pursuant
to Section 2.12 or 2.14), and there is either (x) any Swing Advance outstanding
in respect of which the Swing Advance Bank has not received payment in full from
the Lenders pursuant to Section 2.16(d) or (e) or (y) any Unpaid Drawing in
respect of which the Issuing Lender has not received payment in full from the
Lenders pursuant to Section 2.19 or 2.20, such Lender (a "Purchasing Lender")
shall purchase a participation in all such Swing Advances or Unpaid Drawings, as
applicable, in an amount equal to the lesser of such payment and the amount of
such Swing Advances or Unpaid Drawings, as applicable, for which the Swing
Advance Bank or Issuing Lender has not so received payment in full. If, after
giving effect to the foregoing, any Lender shall obtain any payment (whether
voluntary, involuntary, through the exercise of any right of set-off, or
otherwise) on account of the Revolving Credit Loans made by it (other than
pursuant to Sections 2.12 or 2.14) in excess of its Ratable Portion of payments
on account of the Revolving Credit Loans obtained by all the Lenders, such
Purchasing Lender shall forthwith purchase from the other Lenders such
participations in their Revolving Credit Loans as shall be necessary to cause
such purchasing Lender to share the excess payment ratably with each of them.
2.16. Swing Advances. (a) The Swing Advance Bank, on the terms
and subject to the conditions contained in this Agreement, shall make advances
(each a "Swing Advance") to the Borrower from time to time on any Business Day
during the period from the date hereof until the day preceding the Termination
Date in an aggregate amount not to exceed at any time outstanding the lesser of
(i) $15,000,000, and (ii) the Available Credit; provided that the Swing
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Advance Bank shall not be requested to make a Swing Advance to refinance an
outstanding Swing Advance. Within the limits set forth above, Swing Advances
repaid may be reborrowed under this Section 2.16.
(b) Each Swing Advance shall be made upon a Notice of
Borrowing for a Swing Advance being given by the Borrower to the Swing Advance
Bank by no later than 11:00 A.M. (New York City time) on the Business Day of the
proposed Swing Advance. Upon fulfillment of the applicable conditions set forth
in Article III, the Swing Advance Bank will make each Swing Advance available to
the Borrower at the Administrative Agent's address no later than 2:00 P.M. (New
York City time) on the date notice is received as aforesaid. All Swing Advances
shall bear interest at the same rate, and be payable on the same basis, as Base
Rate Loans and shall be converted to Base Rate Loans pursuant to Section 2.7(a).
(c) Each Swing Advance shall be in an aggregate amount of not
less than $1,000,000 or an integral multiple of $100,000 in excess thereof.
(d) The Administrative Agent shall give to each Lender prompt
notice of the Administrative Agent's receipt of a Notice of Borrowing for a
Swing Advance and each Lender's Ratable Portion thereof. Each Lender shall
before 12:00 Noon (New York City time) on the next Business Day (the "Settlement
Date") make available to the Administrative Agent, in immediately available
funds, the amount of its Ratable Portion of the principal amount of such Swing
Advance. Upon such payment by a Lender, such Lender shall be deemed to have made
a Revolving Credit Loan to the Borrower in the amount of such payment. The
Administrative Agent shall use such funds to repay the Swing Advance to the
Swing Advance Bank. To the extent that any Lender fails to make such payment to
the Swing Advance Bank, the Borrower shall repay such Swing Advance, on demand
and, in any event, on the Termination Date.
(e) During the continuance of a Default under Section 8.1(e),
each Lender shall acquire, without recourse or warranty, an undivided
participation in each Swing Advance otherwise required to be repaid by such
Lender pursuant to the preceding paragraph, which participation shall be in a
principal amount equal to such Lender's Ratable Portion of such Swing Advance,
by paying to the Swing Advance Bank on the date on which such Lender would
otherwise have been required to make a payment in respect of such Swing Advance
pursuant to the preceding paragraph, in immediately available funds, an amount
equal to such Lender's Ratable Portion of such Swing Advance. If such amount is
not in fact made available to the Swing Advance Bank on the date when the Swing
Advance would otherwise be required to be made pursuant to the preceding
paragraph, the Swing Advance Bank shall be entitled to recover such amount on
demand from that Lender together with interest accrued from such date at the
Federal Funds Rate. From and after the date on which any Lender purchases an
undivided participation interest in a Swing Advance pursuant to this paragraph
(e), the Swing Advance Bank shall promptly distribute to such Lender such
Lender's Ratable Portion of all payments of principal and of interest on such
Swing Advance, other than those received from a Lender pursuant to this Section
2.16. If any payment made by or on behalf of the Borrower and received by the
Swing Advance Bank with respect to any Swing Advance is rescinded or must
otherwise be returned by the Swing Advance Bank for any reason and the Swing
Advance Bank has made a payment to the Administrative Agent, on account thereof,
each Lender shall, upon notice to the
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Swing Advance Bank, forthwith pay over to the Swing Advance Bank an amount equal
to such Lender's pro rata share of the payment so rescinded or returned based on
the respective amounts paid in respect thereof to the Lenders pursuant to the
preceding paragraph (d).
2.17. Letters of Credit. (a) Subject to and upon the terms and
conditions herein set forth, the Borrower may request that the Issuing Lender
issue, at any time and from time to time on and after the Restatement Effective
Date and prior to the Termination Date, for the account of the Borrower and for
the benefit of any holder (or any trustee, agent or other similar representative
for any such holders) of L/C Supportable Obligations of the Borrower, an
irrevocable standby letter of credit, in a form customarily used by the Issuing
Lender or in such other form as has been approved by the Issuing Lender in its
discretion (each such standby letter of credit, a "Letter of Credit") in support
of such L/C Supportable Obligations. Schedule 2.17 contains a description of all
letters of credit issued by the Issuing Lender pursuant to the Existing Credit
Facility and which remain outstanding on the Restatement Effective Date. Each
such letter of credit, including any extension thereof (each an "Existing Letter
of Credit") shall constitute a "Letter of Credit" for all purposes of this
Agreement and shall be deemed issued for the account of the Borrower for
purposes of Sections 2.3(b), 2.3(c) and 2.19(a) on the Restatement Effective
Date.
(b) Subject to the terms and conditions contained herein, the
Issuing Lender hereby agrees that it will, at any time and from time to time on
or after the Restatement Effective Date and prior to the Termination Date,
following its receipt of the respective Letter of Credit Request, issue for the
account of the Borrower one or more Letters of Credit in support of such L/C
Supportable Obligations of the Borrower as are permitted to remain outstanding
without giving rise to a Default or Event of Default hereunder, provided that
the Issuing Lender shall be under no obligation to issue any Letter of Credit if
at the time of such issuance:
(i) any order, judgment or decree of any governmental authority
or arbitrator shall purport by its terms to enjoin or restrain the
Issuing Lender from issuing such Letter of Credit or any requirement of
law applicable to the Issuing Lender or any request or directive
(whether or not having the force of law) from any governmental
authority with jurisdiction over the Issuing Lender shall prohibit, or
request that the Issuing Lender refrain from, the issuance of letters
of credit generally or such Letter of Credit in particular or shall
impose upon the Issuing Lender with respect to such Letter of Credit
any restriction or reserve or capital requirement (for which the
Issuing Lender is not otherwise compensated) not in effect on the date
hereof, or any unreimbursed loss, cost or expense which was not
applicable, or known to the Issuing Lender as of the date hereof and
which the Issuing Lender in good ▇▇▇▇▇ ▇▇▇▇▇ material to it; or
(ii) the Issuing Lender shall have received notice from any
Lender prior to the issuance of such Letter of Credit of the type
described in the second sentence of Section 2.18(b).
(c) Notwithstanding the foregoing, (i) no Letter of Credit
shall be issued the Stated Amount of which, when added to the Letter of Credit
Outstandings (exclusive of Unpaid Drawings which are repaid on the date of, and
prior to the issuance of, the respective Letter of
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Credit), would exceed $75,000,000, (ii) no Letter of Credit shall be issued the
Stated Amount of which, when added to the Letter of Credit Outstandings
(exclusive of Unpaid Drawings which are repaid on the date of, and prior to the
issuance of, the respective Letter of Credit) and the aggregate principal amount
of all Revolving Credit Loans then outstanding, would exceed the Revolving
Credit Commitments at such time, (iii) each Letter of Credit shall be
denominated in Dollars, (iv) each Letter of Credit shall by its terms terminate
on or before the earlier of (A) the date which occurs 12 months after the date
of the issuance thereof (although any such Letter of Credit may be automatically
extendable for successive periods of up to 12 months, but not beyond the tenth
Business Day prior to the Termination Date, on terms acceptable to the Issuing
Lender) and (B) the tenth Business Day prior to the Termination Date, (v) the
Stated Amount of each Letter of Credit upon issuance shall be not less than
$100,000 or such lesser amount as is acceptable to the Issuing Lender.
2.18. Letter of Credit Requests. (a) Whenever the Borrower
desires that a Letter of Credit be issued for its account, the Borrower shall
give the Administrative Agent and the Issuing Lender at least five Business
Days' (or such shorter period as is acceptable to the Issuing Lender) written
notice thereof. Each notice shall be in the form of Exhibit F (each a "Letter of
Credit Request").
(b) The making of each Letter of Credit Request shall be
deemed to be a representation and warranty by the Borrower that such Letter of
Credit may be issued in accordance with, and will not violate the requirements
of, Section 2.17(c). Unless the Issuing Lender has received notice from any
Lender before it issues a Letter of Credit that one or more of the conditions
specified in Article III, are not then satisfied, or that the issuance of such
Letter of Credit would violate Section 2.17(c), then the Issuing Lender may
issue the requested Letter of Credit for the account of the Borrower in
accordance with the Issuing Lender's usual and customary practices. Upon the
issuance of any Letter of Credit, the Issuing Lender shall promptly notify each
Lender of such issuance and such notice shall be accompanied by a copy of the
issued Letter of Credit.
2.19. Letter of Credit Participations. (a) Immediately upon
the issuance by the Issuing Lender of any Letter of Credit, the Issuing Lender
shall be deemed to have sold and transferred to each Lender, other than the
Issuing Lender (each such Lender, in its capacity under Section 2.19, a
"Participant"), and each such Participant shall be deemed irrevocably and
unconditionally to have purchased and received from the Issuing Lender, without
recourse or warranty, an undivided interest and participation, to the extent of
such Participant's Ratable Portion, in such Letter of Credit, each drawing made
thereunder and the obligations of the Borrower under this Agreement with respect
thereto (excluding the Facing Fee), and any security therefor or guaranty
pertaining thereto. Upon any change in the Revolving Credit Commitments of the
Lenders, it is hereby agreed that, with respect to any outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations pursuant to this Section 2.19 to reflect the new Ratable Portions
of the Lenders.
(b) In determining whether to pay under any Letter of Credit,
the Issuing Lender shall have no obligation relative to the other Lenders other
than to confirm that any documents required to be delivered under such Letter of
Credit appear to have been delivered and that
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they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Issuing Lender under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for the Issuing Lender
any resulting liability to the Borrower or any Lender.
(c) In the event that the Issuing Lender makes any payment
under any Letter of Credit and the Borrower shall not have reimbursed such
amount in full to the Issuing Lender pursuant to Section 2.20(a), the Issuing
Lender shall promptly notify the Administrative Agent, which shall promptly
notify each Participant, of such failure, and each Participant shall promptly
and unconditionally pay to the Issuing Lender the amount of such Participant's
Ratable Portion of such unreimbursed payment in Dollars and same day funds. If
the Administrative Agent so notifies any Participant prior to 11: 00 A.M. (New
York time) on any Business Day, such Participant shall make available such funds
to the Issuing Lender on such Business Day. If and to the extent such
Participant shall not have so made its Ratable Portion of the amount of such
payment available to the Issuing Lender, such Participant agrees to pay to the
Issuing Lender, forthwith on demand such amount, together with interest thereon,
for each day from such date until the date such amount is paid to the Issuing
Lender at the overnight Federal Funds Rate. The failure of any Participant to
make available to the Issuing Lender its Ratable Portion of any payment under
any Letter of Credit shall not relieve any other Participant of its obligation
hereunder to make available to the Issuing Lender its Ratable Portion of any
payment under such Letter of Credit on the date required, as specified above,
but no Participant shall be responsible for the failure of any other Participant
to make available to the Issuing Lender such other Participant's Ratable Portion
of any such payment.
(d) Whenever the Issuing Lender receives a payment of a
reimbursement obligation as to which it has received any payments from the
Participants pursuant to clause (c) above, the Issuing Lender shall forward such
payment to the Administrative Agent, which in turn shall distribute such funds
to each Participant in accordance with the terms of Section 2.13.
(e) Upon the request of any Participant, the Issuing Lender
shall furnish to such Participant copies of any Letter of Credit issued by it
and such other documentation as may reasonably be requested by such Participant.
(f) The obligations of the Participants to make payments to
the Issuing Lender with respect to Letters of Credit issued by it shall be
irrevocable and not subject to any qualification or exception whatsoever and
shall be made in accordance with the terms and conditions of this Agreement
under all circumstances, including, without limitation, any of the following
circumstances:
(i) any lack of validity or enforceability of this Agreement
or any of the other Loan Documents;
(ii) the existence of any claim, setoff, defense or other right
which the Borrower or any of its Subsidiaries may have at any time
against a beneficiary named in a Letter of Credit, any transferee of
any Letter of Credit (or any Person for whom any such transferee may be
acting), the Administrative Agent, the Issuing Lender, any Participant,
or any
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other Person, whether in connection with this Agreement, any Letter of
Credit, the transactions contemplated herein or any unrelated
transactions (including any underlying transaction between the Borrower
and the beneficiary named in any such Letter of Credit);
(iii) any draft, certificate or any other document presented
under any Letter of Credit proving to be forged, fraudulent, invalid or
insufficient in any respect or any statement therein being untrue or
inaccurate in any respect;
(iv) the surrender or impairment of any security for the
performance or observance of any of the terms of any of the Loan
Documents; or
(v) the occurrence of any Default or Event of Default.
2.20. Agreement to Repay Letter of Credit Drawings. (a) The
Borrower hereby agrees to reimburse the Issuing Lender, by making payment to the
Administrative Agent in accordance with the terms of the first sentence of
Section 2.13, for any drawing (each, a "Drawing") made by it under any Letter of
Credit (each such Drawing until reimbursed, an "Unpaid Drawing"), no later than
three (3) Business Days after the date of such Drawing, with interest on the
amount of such Drawing, to the extent not reimbursed prior to 11: 00 A.M. (New
York time) on the date of such Drawing, from and including the date of such
Drawing to but excluding the date the Issuing Lender was reimbursed by the
Borrower therefor at a rate per annum which shall be the Base Rate in effect
from time to time plus the Applicable Margin for Revolving Credit Loans
maintained as Base Rate Loans, provided, however, to the extent such amounts are
not reimbursed prior to 11:00 A.M. (New York time) on the third Business Day
following such Drawing, interest shall thereafter accrue on the amount (and
until reimbursed by the Borrower) at a rate per annum which shall be the Base
Rate in effect from time to time plus 4%, in each such case, with interest to be
payable on demand. The Issuing Lender shall give the Borrower prompt written
notice of each Drawing under any Letter of Credit, provided that the failure to
give any such notice shall in no way affect, impair or diminish the Borrower's
obligations hereunder.
(b) The obligations of the Borrower under this Section 2.20 to
reimburse the Issuing Lender with respect to Drawings (including interest
thereon) shall be absolute and unconditional under any and all circumstances and
irrespective of any setoff, counterclaim or defense to payment which the
Borrower may have or have had against any Lender (including in its capacity as
the Issuing Lender or as a Participant), or any nonapplication or misapplication
by the beneficiary of the proceeds of such Drawing, the Issuing Lender's only
obligation to the Borrower being to confirm that any documents required to be
delivered under such Letter of Credit appear to have been delivered and that
they appear to comply on their face with the requirements of such Letter of
Credit. Any action taken or omitted to be taken by the Issuing Lender under or
in connection with any Letter of Credit if taken or omitted in the absence of
gross negligence or willful misconduct, shall not create for the Issuing Lender
any resulting liability to the Borrower.
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2.21. Additional Revolving Credit Commitments. (a) The
Borrower shall have the right, at any time and from time to time and upon at
least 30 days prior written notice to the Administrative Agent, to request on
one or more occasions that one or more Lenders (and/or one or more other Persons
which will become Lenders as provided below) provide Additional Revolving Credit
Commitments and, subject to the applicable terms and conditions contained in
this Agreement and the relevant Additional Revolving Loan Commitment Agreement,
make Revolving Credit Loans pursuant to Section 2.1, it being understood and
agreed, however, that (i) no Lender shall be obligated to provide an Additional
Revolving Credit Commitment as a result of any request by the Borrower, (ii)
until such time, if any, as (x) such Lender has agreed in its sole discretion to
provide an Additional Revolving Credit Commitment and executed and delivered to
the Administrative Agent an Additional Revolving Credit Commitment Agreement in
respect thereof as provided in Section 2.21(b) and (y) such other conditions set
forth in Section 2.21(b) shall have been satisfied, such Lender shall not be
obligated to fund any Revolving Credit Loans, or participate in any Letters of
Credit, in excess of the amounts provided for in Section 2.1 or 2.19, as the
case may be, before giving effect to such Additional Revolving Loan Commitments
provided pursuant to this Section 2.21, (iii) any Lender (or, in the
circumstances contemplated by clause (vii) below, any other Person which will
qualify as an Eligible Assignee) may so provide an Additional Revolving Credit
Commitment without the consent of any other Lender (it being understood and
agreed that the consent of the Administrative Agent and the Issuing Lender (such
consent not to be unreasonably withheld or delayed) shall be required if any
such Additional Revolving Credit Commitments are to be provided by a Person
which is not already a Lender), (iv) each provision of Additional Revolving
Credit Commitments on a given date pursuant to this Section 2.21 shall be in a
minimum aggregate amount (for all Lenders (including, in the circumstances
contemplated by clause (vii) below, Eligible Assignees who will become Lenders))
of at least $25,000,000, (v) the aggregate amount of all Additional Revolving
Credit Commitments permitted to be provided pursuant to this Section 2.21 shall
not exceed $250,000,000, (vi) the up-front fees payable to any Lender providing
an Additional Revolving Credit Commitment shall be as set forth in the relevant
Additional Revolving Loan Commitment Agreement, (vii) if, after the Borrower has
requested the then existing Lenders to provide Additional Revolving Credit
Commitments pursuant to this Section 2.21 on the terms to be applicable thereto,
the Borrower has not received Additional Revolving Credit Commitments in an
aggregate amount equal to that amount of the Additional Revolving Credit
Commitments which the Borrower desires to obtain pursuant to such request (as
set forth in the notice provided by the Borrower to the Administrative Agent as
provided above), then the Borrower may request Additional Revolving Credit
Commitments from Persons which would qualify as Eligible Assignees hereunder in
aggregate amount equal to such deficiency on terms which are no more favorable
to such Eligible Assignee in any respect than the terms offered to the Lenders,
provided that any such Additional Revolving Credit Commitments provided by any
such Eligible Assignee which is not already a Lender shall be in a minimum
amount (for such Eligible Assignee) of at least $10,000,000, and (viii) all
actions taken by the Borrower pursuant to this Section 2.21(a) shall be done in
coordination with the Administrative Agent.
(b) At the time of any provision of Additional Revolving
Credit Commitments pursuant to this Section 2.21, (i) the Borrower, the
Administrative Agent and each such Lender or other Eligible Assignee which
agrees to provide an Additional Revolving Credit Commitment
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(each, an "Additional Revolving Credit Lender") shall execute and deliver to the
Administrative Agent an Additional Revolving Credit Commitment Agreement
substantially in the form of Exhibit J, subject to such modifications in form
and substance reasonably satisfactory to the Administrative Agent as may be
necessary or appropriate (with the effectiveness of such Additional Revolving
Credit Lender's Additional Revolving Credit Commitment to occur upon delivery of
such Additional Revolving Credit Commitment Agreement to the Administrative
Agent, the payment of any fees required in connection therewith and the
satisfaction of the other conditions in this Section 2.21(b) to the reasonable
satisfaction of the Administrative Agent), and (ii) the Borrower shall, in
coordination with the Administrative Agent, repay all outstanding Revolving
Credit Loans of the Lenders, and incur additional Revolving Credit Loans from
other Lenders in each case so that the Lenders participate in each Borrowing of
Revolving Credit Loans pro rata on the basis of their respective Revolving
Credit Commitments (after giving effect to any increase in the Revolving Credit
Commitments pursuant to this Section 2.21) and with the Borrower being obligated
to pay the respective Lenders the costs (if any) of the type referred to in
Section 10.4(c) in connection with any such repayment and/or Borrowing and (iv)
the Borrower shall deliver to the Administrative Agent an opinion, in form and
substance reasonably satisfactory to the Administrative Agent, from counsel to
the Borrower reasonably satisfactory to the Administrative Agent and dated such
date, covering such matters similar to those set forth in the opinion of counsel
delivered to the Administrative Agent on the Restatement Effective Date pursuant
to Section 3.1 and such other matters as the Administrative Agent may reasonably
request. The Administrative Agent shall promptly notify each Lender as to the
occurrence of each Additional Revolving Credit Commitment Date, and (w) on each
such date, the Revolving Credit Commitments under, and for all purposes of, this
Agreement shall be increased by the aggregate amount of such Additional
Revolving Credit Commitments, (x) on each such date Schedule I shall be deemed
modified to reflect the revised Revolving Credit Commitments of the affected
Lenders, (y) upon surrender of any old Revolving Credit Notes by the respective
Additional Revolving Credit Lender (or, if lost, a standard lost note indemnity
in form and substance reasonably satisfactory to the Borrower), to the extent
requested by any Additional Revolving Credit Lender, a new Revolving Credit Note
will be issued, at the Borrower's expense, to such Additional Revolving Credit
Lender to the extent needed to reflect the revised Revolving Credit Commitment
of such Lender and (z) on such date with respect to all outstanding Letters of
Credit and Unpaid Drawings, there shall be an automatic adjustment to the
participations by the Lenders in such Letters of Credit and Unpaid Drawings to
reflect the new Ratable Portions of the Lenders.
2.22. Extension of the Final Maturity Date. The Borrower may
at any time prior to May 31, 2003 extend the Final Maturity Date from July 31,
2003 to March 31, 2004, subject to the following terms and conditions: (i) the
Borrower shall send a written notice indicating its intention to extend the
Final Maturity Date to the Administrative Agent and each Lender, which notice
(a) must be so delivered no later than May 20, 2003 and (b) shall specify the
date of effectiveness of such extension (the "Extension Effective Date") (which
Extension Effective Date shall be no earlier than 10 days following the delivery
of the notice referred to above, but no later than May 31, 2003), (ii) the
Borrower shall deliver to the Administrative Agent a certificate signed by a
Responsible Officer of the Borrower stating that no Default or Event of Default
has occurred and is continuing as of the Extension Effective Date, and (iii) the
Borrower shall pay to
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each Lender on the Extension Effective Date an extension fee (the "Extension
Fee") equal to 0.1875% of such Lender's Revolving Credit Commitment as of the
Extension Effective Date. If the Borrower complies with the provisions of
clauses (i), (ii) and (iii) of the immediately preceding sentence, then as of
the Extension Effective Date the Final Maturity Date shall automatically be
extended to March 31, 2004. No more than one extension of the Final Maturity
Date shall be made pursuant to this Section 2.21.
ARTICLE III
CONDITIONS TO EFFECTIVENESS
OF THIS AGREEMENT AND OF LENDING
AND OF ISSUANCE OF LETTERS OF CREDIT
3.1. Conditions Precedent to Effectiveness of this Agreement,
to Initial Revolving Credit Loans and Letters of Credit. The effectiveness of
this Agreement and the obligation of each Lender to make its initial Revolving
Credit Loan hereunder and the obligation of the Issuing Lender to issue a Letter
of Credit hereunder is subject to satisfaction of the conditions precedent that
the Administrative Agent shall have received counterparts of this Agreement duly
executed by each Borrower, each Lender and the Administrative Agent, together
with the following, each dated the Restatement Effective Date (hereinafter
defined) unless otherwise indicated, in form and substance satisfactory to the
Administrative Agent and (except for the Revolving Credit Notes) in sufficient
copies for each Lender (the date of satisfaction of the conditions precedent set
forth in this Section 3.1 and in Section 3.2 being the "Restatement Effective
Date"):
(a) The Revolving Credit Notes to the order of the Lenders,
respectively.
(b) A certificate of the Secretary or an Assistant Secretary
of each Loan Party (or, as applicable, of such Loan Party's partners),
in substantially the form of Exhibit L, certifying (i) the resolutions
of its Board of Trustees or Directors, as appropriate, approving each
Loan Document to which it is a party, (ii) all documents evidencing
other necessary trust, partnership or corporate action, as appropriate,
and required governmental and third party approvals, licenses and
consents with respect to each Loan Document to which it is a party and
the transactions contemplated thereby and (iii) the names and true
signatures of each of its officers who has been authorized to execute
and deliver any Loan Document or other document required hereunder to
be executed and delivered by or on behalf of such Person.
(c) A copy of the declaration of trust or articles or
certificate of incorporation or partnership agreement or certificate of
partnership, as appropriate, of each Loan Party certified as of a
recent date by the Secretary of State of the state of formation of such
Loan Party, together with certificates of such official attesting to
the good standing of each such Loan Party.
(d) Favorable opinion(s) of counsel to the Loan Parties, in
substantially the form(s) of Exhibit D, and as to such other matters as
any Lender through the Administrative Agent may reasonably request.
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(e) A certificate of the chief financial officer or treasurer
of the Borrower in substantially the form of Exhibit M, stating that
the Borrower is Solvent after giving effect to the initial Revolving
Credit Loans, the application of the proceeds thereof in accordance
with Section 6.10 and the payment of all estimated legal, accounting
and other fees related hereto and thereto.
(f) Evidence that the insurance required by Section 6.4 is in
full force and effect.
(g) Such additional documents, information and materials as
any Lender, through the Administrative Agent, may reasonably request.
(h) A closing certificate, in substantially the form of
Exhibit N, signed by a Responsible Officer of the Borrower, stating
that the following statements are true and correct on the Restatement
Effective Date:
(i) The statements set forth in Section 3.3 are true after
giving effect to the Revolving Credit Loans being made on the
Restatement Effective Date.
(ii) All costs and accrued and unpaid fees and expenses
(including, without limitation, legal fees and expenses) required to be
paid to the Lenders on or before the Restatement Effective Date,
including, without limitation, those referred to in Sections 2.3 and
10.4, to the extent then due and payable, have been paid.
(iii) All necessary governmental and third party approvals
required to be obtained by any Loan Party in connection with the
transactions contemplated hereby have been obtained and remain in
effect, and all applicable waiting periods have expired without any
action being taken by any competent authority which restrains,
prevents, impedes, delays or imposes materially adverse conditions upon
any of the transactions contemplated hereby.
(iv) There exists no judgment, order, injunction or other
restraint prohibiting or imposing materially adverse conditions upon
any of the transactions contemplated hereby.
(v) There exists no claim, action, suit, investigation or
proceeding (including, without limitation, shareholder or derivative
litigation) pending or, to the knowledge of the Borrower, threatened in
any court or before any arbitrator or Governmental Authority which
relates to the Loan Documents or the financing hereunder or which, if
adversely determined, would have a Material Adverse Effect.
(vi) There has been no Material Adverse Change since December
31, 1999 in the corporate, capital or legal structure of the Borrower
or any of its Subsidiaries without the consent of the Administrative
Agent.
(vii) The Borrower's Tangible Net Worth is not less than the
Minimum Tangible Net Worth.
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(i) The Administrative Agent's reasonable satisfaction with
the form and substance of each Operating Lease.
(j) A Compliance Certificate, executed by the Chief Financial
Officer or Treasurer of the Borrower substantially in the form attached as
Exhibit G hereto (a "Compliance Certificate"), and if requested by the
Administrative Agent, together with copies (to the extent not already delivered)
of the Hotel Documents in respect of each Hotel indicated by Administrative
Agent.
(k) The Subsidiary Guaranty, duly executed by the Guarantors
party thereto, which Subsidiary Guaranty shall be in full force and effect.
(l) The Pledge Agreement, duly executed by the parties
thereto, which Pledge Agreement shall be in full force and effect.
(m) The First Amendment to the Pledge Agreement, duly executed
by the parties thereto, which First Amendment to the Pledge Agreement shall be
in full force and effect.
3.2. Additional Conditions Precedent to Effectiveness of this
Agreement, to Initial Revolving Credit Loans and Letters of Credit. The
effectiveness of this Agreement, the obligation of each Lender to make its
initial Revolving Credit Loan hereunder and the obligation of the Issuing Lender
to issue Letters of Credit hereunder is subject to the further conditions
precedent that:
(a) No Lender or the Issuing Lender in its sole judgment
exercised reasonably shall have determined (i) that there has been any
Material Adverse Change since December 31, 1999 or (ii) that there has
occurred any adverse change which such Lender deems material in the
financial markets generally, since December 31, 1999 or (iii) that
there is any claim, action, suit, investigation, litigation or
proceeding (including, without limitation, shareholder or derivative
litigation) pending or threatened in any court or before any arbitrator
or Governmental Authority which, if adversely determined, would have a
Material Adverse Effect; and nothing shall have occurred since December
31, 1999 which, in the judgment of any Lender, has had a Material
Adverse Effect.
(b) Each Lender and the Issuing Lender shall be satisfied, in
its sole judgment, exercised reasonably, with the corporate, capital,
legal and management structure of the Borrower and its Subsidiaries,
and shall be satisfied, in its sole judgment exercised reasonably, with
the nature and status of all Contractual Obligations, securities,
labor, tax, ERISA, employee benefit, environmental, health and safety
matters, in each case, involving or affecting the Borrower or any of
its Subsidiaries.
(c) On the Restatement Effective Date and concurrently with
the initial incurrence of Revolving Credit Loans and issuance of
Letters of Credit hereunder, (i) all Existing Loans shall have been
repaid in full in cash, together with accrued but unpaid interest
thereon and (ii) there shall have been paid in cash in full all accrued
but unpaid fees under, and as defined in, the Existing Credit Facility
(including, without limitation,
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commitment fees, letter of credit fees and facing fees) accrued but
unpaid prior to but excluding the Restatement Effective Date and all
other amounts, costs and expenses (including, without limitation,
breakage costs, if any, with respect to outstanding Eurodollar Rate
Loans under and as defined in the Existing Credit Facility) then owing
to any of the Existing Lenders and/or the Administrative Agent, as
administrative agent under the Existing Credit Facility, in each case
to the satisfaction of the Administrative Agent or the Original
Lenders, as the case may be, regardless of whether or not such amounts
would otherwise be due and payable at such time pursuant to the terms
of the Existing Credit Facility and (iii) all outstanding Notes (as
defined in the Existing Credit Facility) issued by the Borrower to the
Original Lenders under the Existing Credit Facility shall be deemed
canceled.
3.3. Conditions Precedent to Each Revolving Credit Loan and
Letter of Credit. The obligation of each Lender to make any Revolving Credit
Loan (including any Revolving Credit Loan being made by such Lender on the
Restatement Effective Date) and the obligation of the Issuing Lender to issue a
Letter of Credit shall be subject to the further conditions precedent that:
(a) The following statements shall be true on the date of such
Revolving Credit Loan or issuance, before and after giving effect
thereto and to the application of the proceeds therefrom (and the
acceptance by the Borrower of the proceeds of such Revolving Credit
Loan or such Letter of Credit shall constitute a representation and
warranty by the Borrower that on the date of such Revolving Credit Loan
or issuance such statements are true):
(i) The representations and warranties of the Borrower
contained in Article IV and of each Loan Party in the other
Loan Documents are correct on and as of such date as though
made on and as of such date (it being understood and agreed
that any representation or warranty which by its terms is made
on a specified date shall be required to be true and correct
only as of such specified date); and
(ii) No Default or Event of Default exists or will
result from the Revolving Credit Loans being made or the
Letters of Credit being issued on such date.
(b) The making of the Revolving Credit Loans or the issuance
of the Letters of Credit on such date does not violate any Requirement
of Law and is not enjoined, temporarily, preliminarily or permanently.
(c) The Administrative Agent shall have received a Compliance
Certificate, executed by a Responsible Officer of the Borrower,
satisfactory to the Administrative Agent, and if requested by the
Administrative Agent, together with copies (to the extent not already
delivered) of the Hotel Documents in respect of each Hotel indicated by
Administrative Agent.
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(d) The Administrative Agent shall have received such
additional documents, information and materials as any Lender, through
the Administrative Agent, may reasonably request.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
To induce the Lenders and the Administrative Agent to enter
into this Agreement, the Borrower represents and warrants to the Lenders and the
Administrative Agent that on and after the Restatement Effective Date:
4.1. Existence; Compliance with Law. Each Loan Party and each
of its Subsidiaries and Eligible Joint Ventures (i) is a real estate investment
trust or a corporation, limited liability company or limited partnership, as
specified herein, duly organized, validly existing and in good standing under
the laws of the jurisdiction of its formation; (ii) is duly qualified as a
foreign corporation, limited liability company or limited partnership and in
good standing under the laws of each jurisdiction where such qualification is
necessary, except for failures which in the aggregate have no Material Adverse
Effect; (iii) has all requisite corporate, limited liability company or
partnership power and authority and the legal right to own, pledge and mortgage
its properties, to lease (as lessee) the properties that it leases as lessee, to
lease or sublease (as lessor) the properties it owns and/or leases (as lessee)
and to conduct its business as now or currently proposed to be conducted; (iv)
is in compliance with its declaration of trust or certificate of or formation
and by-laws, regulations or partnership agreement, as appropriate; (v) is in
compliance with all other applicable Requirements of Law except for such
non-compliances as in the aggregate have no Material Adverse Effect; and (vi)
has all necessary licenses, permits, consents or approvals from or by, has made
all necessary filings with, and has given all necessary notices to, each
Governmental Authority having jurisdiction, to the extent required for such
ownership, leasing and conduct, except for licenses, permits, consents or
approvals which can be obtained by the taking of ministerial action to secure
the grant or transfer thereof or failures which in the aggregate have no
Material Adverse Effect.
4.2. Power: Authorization, Enforceable Obligations. (a) The
execution, delivery and performance by each Loan Party of the Loan Documents to
which it is a party and the consummation of the transactions related to the
financing contemplated hereby:
(i) are within such Loan Party's corporate, partnership or trust
powers, as appropriate;
(ii) have been duly authorized by all necessary corporate,
partnership or trust action, as appropriate, including, without
limitation, the consent of stockholders and general and/or limited
partners where required;
(iii) do not and will not (A) contravene any Loan Party's or any
of its Subsidiaries' or Eligible Joint Ventures' respective declaration
of trust, certificate of incorporation or formation or by-laws,
regulations, partnership agreement or other comparable
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governing documents, (B) violate any other applicable Requirement of
Law (including, without limitation, Regulations T, U and X of the
Board of Governors of the Federal Reserve System), or any order or
decree of any Governmental Authority or arbitrator, (C) conflict with
or result in the breach of, or constitute a default under, or result
in or permit the termination or acceleration of, any material
Contractual Obligation of any Loan Party or any of its Subsidiaries or
Eligible Joint Ventures, or (D) result in the creation or imposition
of any Lien upon any of the property of any Loan Party or any of its
Subsidiaries or Eligible Joint Ventures; and
(iv) do not require the consent of, authorization by, approval
of, notice to, or filing or registration with, any Governmental
Authority or any other Person, other than those which have been
obtained or made and copies of which have been or will be delivered to
the Administrative Agent pursuant to Section 3. 1, and each of which on
the Restatement Effective Date will be in full force and effect.
(b) This Agreement has been, and each of the other Loan
Documents has been, or will have been upon delivery thereof pursuant to Section
3.1, duly executed and delivered by each Loan Party thereto. This Agreement is,
and the other Loan Documents are or will be, when delivered hereunder, the
legal, valid and binding obligation of each Loan Party thereto, enforceable
against it in accordance with its terms except to the extent that enforceability
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance,
reorganization, moratorium and similar laws affecting the enforcement of
creditor's rights and remedies generally.
4.3. Taxes. All federal, state, local and foreign tax returns,
reports and statements (collectively, the "Tax Returns") required to be filed by
the Borrower or any of its Tax Affiliates have been filed, except in the case of
any such state, local or foreign tax return where such failure to file will not
have a Material Adverse Effect, with the appropriate governmental agencies in
all jurisdictions in which such Tax Returns, are required to be filed, all such
Tax Returns are true and correct in all material respects, and all taxes,
charges and other impositions due and payable have been timely paid prior to the
date on which any fine, penalty, interest, late charge or loss may be added
thereto for nonpayment thereof, except where contested in good faith and by
appropriate proceedings if (i) adequate reserves therefor have been established
on the books of the Borrower or such Tax Affiliate in conformity with GAAP and
(ii) all such non-payments in the aggregate have no Material Adverse Effect.
Proper and accurate amounts have been withheld by the Borrower and each of its
respective Tax Affiliates from their respective employees for all periods in
full and complete compliance with the tax, social security and unemployment
withholding provisions of applicable federal, state, local and foreign law and
such withholdings have been timely paid to the respective Governmental
Authorities. None of the Borrower or any of its Tax Affiliates has (i) executed
or filed with the IRS any agreement or other document extending, or having the
effect of extending, the period for assessment or collection of any charges;
(ii) agreed or been requested to make any adjustment under Section 481(a) of the
Code by reason of a change in accounting method or otherwise; or (iii) any
obligation under any written tax sharing agreement.
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4.4. Full Disclosure. No written statement prepared or
furnished by or on behalf of any Loan Party or any of its Affiliates in
connection with any of the Loan Documents or the consummation of the
transactions contemplated thereby, and no financial statement delivered pursuant
hereto or thereto, contains any untrue statement of a material fact or omits to
state a material fact necessary to make the statements contained herein or
therein not misleading.
4.5. Financial Matters. (a) The consolidated balance sheet of
the Borrower and its Subsidiaries as at December 31, 1999, and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the fiscal year then ended, audited by
PricewaterhouseCoopers, L.L.P. and the consolidated balance sheets of the
Borrower and its Subsidiaries as at December 31, 1999, and the related
consolidated statements of income, retained earnings and cash flows of the
Borrower and its Subsidiaries for the twelve months then ended, certified by the
chief financial officer or treasurer of the Borrower, copies of which have been
furnished to each Lender, fairly present, subject, in the case of said balance
sheets as at December 31, 1999, and said statements of income, retained earnings
and cash flows for the twelve months then ended, to year-end audit adjustments,
the consolidated financial condition of the Borrower and its Subsidiaries as at
such dates and the consolidated results of the operations of the Borrower and
its Subsidiaries for the period ended on such dates, all in conformity with
GAAP.
(b) Since December 31, 1999, there has been no Material
Adverse Change and there have been no events or developments that in the
aggregate have had a Material Adverse Effect.
(c) Neither the Borrower nor any of its Subsidiaries had at
December 31, 1999 any material obligation, contingent liability or liability for
taxes, long-term leases or unusual forward or long-term commitment which is not
reflected in the balance sheet at such date referred to in subsection (a) above
or in the notes thereto.
(d) The Projections that have been delivered to each Lender,
were prepared on the basis of the assumptions expressed therein, which
assumptions the Borrower believed to be reasonable based on the information
available to the Borrower at the time so furnished and on the Restatement
Effective Date.
(e) The Borrower is, and on a consolidated basis the Borrower
and its Subsidiaries are, Solvent.
4.6. Litigation. There are no pending or, to the knowledge of
the Borrower, threatened actions, investigations or proceedings affecting the
Borrower, any of its Subsidiaries or Eligible Joint Ventures, or (to the best
knowledge of the Borrower) any Operating Lessee or any of their respective
properties or revenues before any court, Governmental Authority or arbitrator,
other than those that in the aggregate, if adversely determined, would have no
Material Adverse Effect. The performance of any action by (a) any Loan Party
required or contemplated by any of the Loan Documents or (b) any Operator
required or contemplated by any Operating Lease or Management Agreement is not,
to the best knowledge of the Borrower, restrained or enjoined (either
temporarily, preliminarily or permanently), and, to the best knowledge of the
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Borrower, no material adverse condition has been imposed by any Governmental
Authority or arbitrator upon any of the foregoing transactions contemplated by
the aforementioned documents.
4.7. Margin Regulations. The Borrower is not engaged in the
business of extending credit for the purpose of purchasing or carrying margin
stock (within the meaning of Regulation U issued by the Board of Governors of
the Federal Reserve System), and no proceeds of any Borrowing will be used to
purchase or carry any margin stock or to extend credit to others for the purpose
of purchasing or carrying any margin stock.
4.8. Ownership of Borrower and DJONT; Subsidiaries. (a) The
authorized capital stock of FelCor consists of (i) as of the date hereof
200,000,000 shares of common stock, $.01 par value per share, of which
54,789,452 shares are issued and outstanding as of May 31, 2000, and (ii) as of
the date hereof 20,000,000 shares of preferred stock, $.01 par value per share,
of which 6,050,000 shares, designated as $1.95 Series A Cumulative Convertible
Preferred Stock, $25.00 per share liquidation preference, and 57,500 shares
designated as 9% Series B Cumulative Redeemable Preferred Stock, $2,500.00 per
share liquidation preference (and represented by 5,750,000 Depository Shares,
each representing a 1/100 interest such preferred stock) are outstanding as of
May 31, 2000. All of the outstanding capital stock of FelCor has been validly
issued, is fully paid and non-assessable.
(b) FelCor is the sole general partner of FelCor LP and, as of
the date hereof, owns directly or indirectly at least 88% of the partnership
interests of FelCor LP free and clear of all Liens.
(c) There are no outstanding classes of voting membership
interests of DJONT other than the Class A membership interests. As of the date
hereof ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ and ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. own, beneficially, all of
the voting Class A membership interests in DJONT, free and clear of all Liens.
(d) Set forth on Schedule 4.8 hereto is a complete and
accurate list showing, as of the Restatement Effective Date, all Subsidiaries
and Unconsolidated Entities of the Borrower and, as to each such Subsidiary and
Unconsolidated Entity, the jurisdiction of its formation and the percentage of
the outstanding Stock of each class owned (directly or indirectly) by the
Borrower. No Stock of any Subsidiary or Unconsolidated Entity of the Borrower is
subject to any outstanding option, warrant, right of conversion or purchase or
any similar right other than certain rights of first refusal contained in
partnership agreements to which the Borrower or a Subsidiary is a party. All of
the outstanding capital Stock of each such Subsidiary and Unconsolidated Entity
owned by the Borrower has been validly issued, is fully paid and (except for
partnership interests) non- assessable, and all outstanding capital Stock of its
Subsidiaries and Unconsolidated Entities owned by the Borrower is free and clear
of all Liens, other than Liens created under the Pledge Agreement. Neither the
Borrower nor any such Subsidiary or Unconsolidated Entity is a party to, or has
knowledge of, any agreement restricting the transfer or hypothecation of any
shares of Stock of any such Subsidiary or Unconsolidated Entity, other than
those imposed by Requirements of Law, or the Loan Documents; provided that
mortgage loan agreements executed by certain Subsidiaries or Eligible Joint
Ventures may contain such restrictions.
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4.9. ERISA. (a) There are no Multiemployer Plans.
(b) Each Plan and any related trust intended to qualify under
Code Section 401 or 501 has been determined by the IRS to be so qualified and to
the best knowledge of the Borrower nothing has occurred which would cause the
loss of such qualification.
(c) None of the Borrower, any of its Subsidiaries or any ERISA
Affiliate, with respect to any Pension Plan, has failed to make any contribution
or pay any amount due as required by Section 412 of the Code or Section 302 of
ERISA or the terms of any such plan, and all required contributions and benefits
have been paid in accordance with the provisions of each such plan.
(d) There are no pending or, to the knowledge of the Borrower,
threatened claims, actions or proceedings (other than claims for benefits in the
normal course), relating to any Plan other than those that in the aggregate, if
adversely determined, would have no Material Adverse Effect.
(e) No Pension Plan has any unfunded accrued benefit
liabilities, as determined by using reasonable actuarial assumptions utilized by
such plan's actuary for funding purposes. Within the last five years none of the
Borrower, any of its Subsidiaries or any ERISA Affiliate has caused a Pension
Plan with any such liabilities to be transferred outside of its "controlled
group" (within the meaning of Section 4001(a)(14) of ERISA).
(f) No Plan provides for continuing health, disability,
accident or death benefits or coverage for any participant or his or her
beneficiary after such participant's termination of employment (except as may be
required by Section 4980B of the Code and at the sole expense of the participant
or the beneficiary) which would result in the aggregate under all Plans in a
liability in an amount which would have a Material Adverse Effect.
(g) None of the assets of any of the Loan Parties are subject
to Title I of ERISA because they consist of "plan assets" within the meaning of
DOL Regulation Section 2510.3-101 by reason of an equity investment in any of
the Loan Parties.
4.10. Indebtedness. Except as disclosed on Schedule 4.10, as
of the date hereof, none of the Borrower or any of its Subsidiaries or
Unconsolidated Entities has any Indebtedness.
4.11. Restricted Payments. From and after the Restatement
Effective Date, the Borrower has not declared or made any Restricted Payments
(other than those permitted pursuant to Section 7.4).
4.12. No Burdensome Restrictions; No Defaults. (a) No Loan
Party nor any of its Subsidiaries or Eligible Joint Ventures (i) is a party to
any Contractual Obligation the compliance with which would have a Material
Adverse Effect or the performance of which by any thereof, either
unconditionally or upon the happening of an event, will result in the creation
of a Lien on the property or assets of any such Loan Party or its Subsidiaries,
or (ii) is subject to any charter or corporate restriction which has a Material
Adverse Effect.
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(b) No Loan Party or Subsidiary or Eligible Joint Venture of
any Loan Party is in default under or with respect to any Contractual Obligation
owed by it and, to the knowledge of the Borrower, no other party is in default
under or with respect to any Contractual Obligation owed to any Loan Party or to
any Subsidiary or Eligible Joint Venture of a Loan Party, other than (i) those
defaults which in the aggregate have no Material Adverse Effect and (ii) those
defaults arising as a result of the Borrower's failure to comply with Section
7.1(c) of the Loan Agreement.
(c) No Event of Default or Default has occurred and is
continuing, other than pursuant to Section 8.1(d) arising as a result of the
Borrower's failure to comply with Section 7.1(c) of the Loan Agreement.
(d) There is no Requirement of Law the compliance with which
by any Loan Party would have a Material Adverse Effect.
(e) As of the date hereof, no Subsidiary or Eligible Joint
Venture of the Borrower is subject to any Contractual Obligation (other than as
set forth in the governing documents thereof) restricting or limiting its
ability to transfer its assets to the Borrower or to declare or make any
dividend payment or other distribution on account of any shares of any class of
its Stock or its ability to purchase, redeem, or otherwise acquire for value or
make any payment in respect of any such shares or any shareholder rights;
provided that mortgage loan agreements executed by certain subsidiaries or
Eligible Joint Ventures may contain such restrictions.
4.13. Investments. Except as disclosed on Schedule 4.8 or
4.13, the Borrower and its Subsidiaries considered as a single enterprise, is
not engaged in any joint venture or partnership with any other Person nor does
it maintain any Investment, as of the date hereof.
4.14. Government Regulation. Neither the Borrower nor any of
its Subsidiaries or Eligible Joint Ventures is an "investment company" or an
"affiliated person" of, or "promoter" or "principal underwriter" for, an
"investment ", as such terms are defined in the Investment Company Act of 1940,
as amended, or subject to regulation under the Public Utility Holding Company
Act of 1935, the Federal Power Act, the Interstate Commerce Act, or any other
federal or state statute or regulation such that its ability to incur
Indebtedness is limited, or its ability to consummate the transactions
contemplated hereby or by any other Loan Document, or the exercise by the
Administrative Agent or any Lender of rights and remedies hereunder or
thereunder, is impaired. The making of the Revolving Credit Loans by the
Lenders, the application of the proceeds and repayment thereof by the Borrower
and the consummation of the transactions contemplated by the Loan Documents will
not cause the Borrower or any of its Subsidiaries or Eligible Joint Ventures to
violate any provision of any of the foregoing or any rule, regulation or order
issued by the Securities and Exchange Commission thereunder.
4.15. Insurance. All policies of insurance of any kind or
nature owned by or issued to or for the benefit of any Loan Party or any of its
Subsidiaries or Eligible Joint Ventures, or issued in respect of any real
property owned or leased by the Borrower or any of its Subsidiaries or Eligible
Joint Ventures including, without limitation, policies of life, fire, theft,
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product liability, public liability, property damage, other casualty, employee
fidelity, workers' compensation and employee health and welfare insurance, are
in full force and effect and are of a nature and provide such coverage as is
sufficient and as is customarily carried by companies of the size and character
of such Person. No Loan Party or any of its Subsidiaries or Eligible Joint
Ventures has been refused insurance for which it applied or had any policy of
insurance terminated (other than at its request).
4.16. Labor Matters. (a) There are no strikes, work stoppages,
slowdowns or lockouts pending or threatened against or involving the Borrower or
its Subsidiaries or their respective Hotels, other than those which in the
aggregate have no Material Adverse Effect.
(b) There are no unfair labor practice charges, arbitrations
or grievances pending against or involving, or to the knowledge of the Borrower
threatened against or involving the Borrower or its Subsidiaries or Eligible
Joint Ventures, other than those which, in the aggregate, if resolved adversely
to the Borrower or such Subsidiary or Eligible Joint Venture, would have no
Material Adverse Effect.
(c) As of the Restatement Effective Date, neither the Borrower
nor any of its Subsidiaries or Eligible Joint Ventures are parties to, or have
any obligations under, any collective bargaining agreement.
(d) There is no organizing activity involving the Borrower or
any of its Subsidiaries or Eligible Joint Ventures pending or, to the Borrower's
knowledge, threatened by any labor union or group of employees, other than those
which in the aggregate have no Material Adverse Effect. There are no
representation proceedings pending or, to the Borrower's knowledge, threatened
with the National Labor Relations Board, and no labor organization or group of
employees of the Borrower or any of its Subsidiaries or Eligible Joint Ventures
have made a pending demand for recognition, other than those which in the
aggregate have no Material Adverse Effect.
4.17. Force Majeure. Neither the business nor the properties
of any Loan Party or any of their respective Subsidiaries or Eligible Joint
Ventures are currently suffering from the effects of any fire, explosion,
accident, strike, lockout or other labor dispute, drought, storm, hail,
earthquake, embargo, act of God or of the public enemy or other casualty
(whether or not covered by insurance), other than those which in the aggregate
have no Material Adverse Effect.
4.18. Use of Proceeds. The proceeds of the Revolving Credit
Loans will be used by the Borrower solely as follows: (a) subject to the
limitations set forth herein, to fund any direct or indirect investment in
existing Hotels, in Hotels and/or interests in Hotels which are to be acquired
by the Borrower or any of its Subsidiaries, and for the payment of related
transaction costs, fees and expenses and (b) for general corporate or working
capital purposes or for Letters of Credit.
4.19. Environmental Protection. Except as disclosed on
Schedule 4.19 (and the Borrower represents and warrants to the Lenders and the
Administrative Agent that the matters
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disclosed in the reports identified on Schedule 4.19 would not reasonably be
expected to have a Material Adverse Effect):
(a) to the best knowledge of Borrower and its Subsidiaries,
all real property leased or owned by the Borrower or any of its Subsidiaries or
Eligible Joint Ventures is free from contamination by any Hazardous Material
which could reasonably be expected to subject the Borrower or any of its
Subsidiaries to Environmental Liabilities and Costs of $5,000,000 or more;
(b) the operations of the Borrower and each of its
Subsidiaries or Eligible Joint Ventures, and the operations at any real property
leased or owned by the Borrower or any of its Subsidiaries or Eligible Joint
Ventures are in material compliance in all respects with all applicable
Environmental Laws;
(c) neither the Borrower nor any of its Subsidiaries or
Eligible Joint Ventures have liabilities with respect to Hazardous Materials
and, to the best knowledge of the Borrower and its Subsidiaries, no facts or
circumstances exist which could give rise to liabilities with respect to
Hazardous Materials which could reasonably be expected to subject the Borrower
or any of its Subsidiaries to Environmental Liabilities and Costs of $5,000,000
or more;
(d) (i) the Borrower and its Subsidiaries and Eligible Joint
Ventures and all real property owned or leased by the Borrower or its
Subsidiaries and Eligible Joint Ventures have all Environmental Permits
necessary for the operations at such real property and are in material
compliance with such Environmental Permits, (ii) there are no Legal Proceedings
pending nor, to the best knowledge of the Borrower and its Subsidiaries,
threatened to revoke, or alleging the violation of, such Environmental Permits,
and (iii) neither the Borrower nor any of its Subsidiaries or Eligible Joint
Ventures or to the best knowledge of the Borrower and its Subsidiaries the
Operators have received any notice from any source to the effect that there is
lacking any Environmental Permit required in connection with the current use or
operation of any property leased or owned by the Borrower or any of its
Subsidiaries or Eligible Joint Ventures;
(e) neither the Borrower's nor any of its Subsidiaries' or
Eligible Joint Ventures' current facilities and operations, nor, to the best
knowledge of the Borrower and its Subsidiaries, any Operator, any predecessor of
the Borrower or any of its Subsidiaries or Eligible Joint Ventures, nor any of
the Borrower's or its Subsidiaries' or Eligible Joint Ventures' past facilities
and operations, nor to the best knowledge of the Borrower and its Subsidiaries,
any owner of premises leased or operated by the Borrower and its Subsidiaries
and Eligible Joint Ventures, are subject to any outstanding written Order or
Contractual Obligation, including Environmental Liens, with any Governmental
Authority or other Person, or to any federal, state, local, foreign or
territorial investigation respecting (i) Environmental Laws, (ii) Remedial
Action, (iii) any Environmental Claim, or (iv) the Release or threatened Release
of any Hazardous Material;
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(f) neither the Borrower nor any of its Subsidiaries or
Eligible Joint Ventures or, to the best knowledge of the Borrower and its
Subsidiaries, Operators are subject to any pending Legal Proceeding alleging the
violation of any Environmental Law with respect to a Hotel nor, to the best
knowledge of the Borrower and its Subsidiaries, are any such proceedings
threatened;
(g) neither the Borrower nor any of its Subsidiaries or
Eligible Joint Ventures nor, to the best knowledge of the Borrower and its
Subsidiaries, any Operators or predecessor of the Borrower or any of its
Subsidiaries or Eligible Joint Ventures, nor to the best knowledge of the
Borrower and its Subsidiaries any owner of premises leased by the Borrower or
any of its Subsidiaries or Eligible Joint Ventures, have filed any notice under
federal, state or local, territorial or foreign law indicating past or present
treatment, storage, or disposal of or reporting a Release of Hazardous Material
into the environment;
(h) none of the operations of the Borrower or any of its
Subsidiaries or Eligible Joint Ventures or, to the best knowledge of the
Borrower and its Subsidiaries, of any Operators or predecessor of the Borrower
or any of its Subsidiaries or Eligible Joint Ventures, or, to the best knowledge
of the Borrower and its Subsidiaries, of any owner of premises leased by the
Borrower or any of its Subsidiaries or Eligible Joint Ventures, involve or
previously involved the generation, transportation, treatment, storage or
disposal of hazardous waste, as defined under 40 C.F.R. Part 261.3 (in effect as
of the date of this Agreement) or any state, local, territorial or foreign
equivalent; and
(i) there is not now, nor to the best knowledge of the
Borrower and its Subsidiaries, has there been in the past, on, in or under any
real property leased or owned by the Borrower or any of its Subsidiaries or
Eligible Joint Ventures, to the best knowledge of the Borrower and its
Subsidiaries or any of their predecessors (i) any underground storage tanks or
surface tanks, dikes or impoundments (other than for surface water), (ii) any
friable asbestos-containing materials, (iii) any polychlorinated biphenyls, or
(iv) any radioactive substances other than naturally occurring radioactive
material.
4.20. Contractual Obligations Concerning Assets. As of the
date hereof, neither the Borrower nor any of its Subsidiaries owns or holds, or
is obligated under or a party to, any option, right of first refusal, or other
contractual right to purchase or acquire, or any Contractual Obligation to
effect an Asset Sale of, any Hotel owned or leased by the Borrower or any of its
Subsidiaries, except those that in the aggregate would not have a Material
Adverse Effect whether or not exercised.
4.21. Intellectual Property. The Loan Parties and its
Subsidiaries and Eligible Joint Ventures or the Operating Lessee own or license
or otherwise have the right to use all material licenses, permits, patents,
patent applications, trademarks, trademark applications, service marks, trade
names, copyrights, copyright applications, franchises, authorizations and other
intellectual property rights that are necessary for the operations of their
respective businesses, without infringement upon or conflict with the rights of
any other Person with respect thereto, including, without limitation, the
Licenses and all trade names associated with any private label brands of any
Loan Party or any of its Subsidiaries or Eligible Joint Ventures. To
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the best knowledge of the Borrower, no material slogan or other advertising
device, product, process, method, substance, part or component, or other
material now employed, or now contemplated to be employed, by any Loan Party or
any of their respective Subsidiaries or Eligible Joint Ventures or the Operating
Lessee infringes upon or conflicts with any rights owned by any other Person,
and no claim or litigation regarding any of the foregoing is pending or
threatened.
4.22. Title. (a) Each Loan Party and their respective
Subsidiaries and Eligible Joint Ventures own good and marketable fee simple
absolute title to all of the Real Estate purported to be owned by them, which
Real Estate is at the date hereof described in Schedule 4.22(a), and good and
marketable title to, or valid leasehold interests in, all other properties and
assets purported to be leased by any Loan Party or any of their respective
Subsidiaries or Eligible Joint Ventures, including, without limitation, valid
leasehold interests pursuant to the Leases and all property reflected in the
balance sheet referred to in Section 4.5(a). Each Loan Party and its respective
Subsidiaries or Eligible Joint Ventures received all deeds, assignments,
waivers, consents, non-disturbance and recognition or similar agreements, bills
of sale and other documents, and have duly effected all recordings, filings and
other actions necessary to establish, protect and perfect such Loan Party's and
their respective Subsidiaries' or Eligible Joint Ventures' right, title and
interest in and to all such property except for such documents or actions the
failure to obtain or accomplish which would not have a Material Adverse Effect.
(b) All material real property leased at the date hereof by
the Borrower or any of their respective Subsidiaries or Eligible Joint Ventures
is listed on Schedule 4.22(b). Each of such leases is valid and enforceable in
accordance with its terms and is in full force and effect. The Borrower has
delivered to the Administrative Agent true and complete copies of each of such
leases and all documents affecting the rights or obligations of the Borrower or
any of its Subsidiaries or Eligible Joint Ventures which is a party thereto,
including, without limitation, any non-disturbance and recognition agreements,
subordination agreements, attornment agreements and agreements regarding the
term or rental of any of the leases. None of the Borrower or any of its
respective Subsidiaries or Eligible Joint Ventures nor, to the knowledge of the
Borrower, any other party to any such lease is in default of its obligations
thereunder or has delivered or received any notice of default under any such
lease, nor has any event occurred which, with the giving of notice, the passage
of time or both, would constitute a default under any such lease, except for
defaults which in the aggregate have no Material Adverse Effect.
(c) All components of all improvements included within the
Hotels owned or leased, as lessee, by any Loan Party or Eligible Joint Venture
(collectively, "Improvements"), including, without limitation, the roofs and
structural elements thereof and the heating, ventilation, air conditioning,
plumbing, electrical, mechanical, sewer, waste water, storm water, paving and
parking equipment, systems and facilities included therein, are in good working
order and repair, subject to such exceptions which are not reasonably likely to
have, in the aggregate, a Material Adverse Effect. All water, gas, electrical,
steam, compressed air, telecommunication, sanitary and storm sewage lines and
systems and other similar systems serving the Hotels owned or leased by any Loan
Party or any of their respective Subsidiaries or Eligible Joint Ventures are
installed and operating and are sufficient to enable the real property owned or
leased by any Loan Party and their respective Subsidiaries or Eligible Joint
Ventures to continue to be used and oper
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-ated in the manner currently being used and operated, and no Loan Party or any
of its Subsidiaries or Eligible Joint Ventures has any knowledge of any factor
or condition that reasonably could be expected to result in the termination or
material impairment of the furnishing thereof. No Improvement or portion thereof
is dependent for its access, operation or utility on any land, building or other
Improvement not included in the real property owned or leased by any Loan Party
or any of its Subsidiaries or Eligible Joint Ventures other than for access
provided pursuant to a recorded easement or other right of way establishing the
right of such access.
(d) All Permits required to have been issued or appropriate to
enable all real property owned or leased by any Loan Party or any of its
Subsidiaries or Eligible Joint Ventures to be lawfully occupied and used for all
of the purposes for which they are currently occupied and used have been
lawfully issued and are in full force and effect, other than those which in the
aggregate have no Material Adverse Effect.
(e) No Loan Party or any of its Subsidiaries or Eligible Joint
Ventures has received any notice, or has any knowledge, of any pending,
threatened or contemplated condemnation proceeding affecting any real property
owned or leased by any Loan Party or any of its Subsidiaries or Eligible Joint
Ventures or any part thereof, or any proposed termination or impairment of any
parking at any such owned or leased real property or of any sale or other
disposition of any real property owned or leased by any Loan Party or any of its
Subsidiaries or Eligible Joint Ventures or any part thereof in lieu of
condemnation, which in the aggregate, are reasonably likely to have a Material
Adverse Effect.
(f) Except for events or conditions not reasonably likely to
have, in the aggregate, a Material Adverse Effect, (i) no portion of any real
property owned or leased by any Loan Party or any of its Subsidiaries or
Eligible Joint Ventures has suffered any material damage by fire or other
casualty loss which has not heretofore been completely repaired and restored to
its condition prior to such casualty, and (ii) no portion of any real property
owned or leased by any Loan Party or any of its Subsidiaries or Eligible Joint
Ventures is located in a special flood hazard area as designated by any Federal
Governmental Authorities.
4.23. Status as REIT. The Borrower is organized in conformity
with the requirements for qualification as an equity-oriented real estate
investment trust under the Code. Borrower has met all of the requirements for
qualification as an equity-oriented real estate investment trust under the Code
for its Fiscal Year ended December 31, 1999. The Borrower is in a position to
qualify for its current Fiscal Year as a real estate investment trust under the
Code and its proposed methods of operation will enable it to so qualify.
4.24. Operator: Compliance with Law. To the best knowledge of
the Borrower and its Subsidiaries, each Operator (i) has full power and
authority and the legal right to own, lease (or sublease), manage and operate
(as applicable) the properties it operates and to conduct the business in which
it is currently engaged with respect to any real property owned or leased by the
Borrower or any of its Subsidiaries or Eligible Joint Ventures, (ii) is duly
qualified or licensed and is in good standing under the laws of each
jurisdiction where its ownership, lease (or sublease), management or operation
of any real property owned or leased by the Borrower or any of its Subsidiaries
or Eligible Joint Ventures requires such qualification, and (iii) is in
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compliance with all Requirements of Law applicable to the real property owned or
leased by the Borrower or any of its Subsidiaries or Eligible Joint Ventures, or
applicable to the operation or management thereof except to the extent that the
failure to comply therewith is not reasonably likely to have, in the aggregate,
a Material Adverse Effect.
4.25. Operating Leases, Licenses and Management Agreement. (a)
Each of the Hotels (i) is leased to an Operating Lessee under an Operating
Lease, (ii) is the subject of a License, and (iii) is managed and operated for
the Operating Lessee pursuant to a Management Agreement, except to the extent
that the aggregate value of any Hotels owned or leased by the Borrower (directly
or indirectly) which are not leased to an Operating Lessee, managed by a
Manager, and operated pursuant to and with the benefit of a License does not
exceed 10% of Total Value.
(b) Each of the Operating Leases, Licenses and Management
Agreements in respect of the Hotels (i) is in full force and effect, (ii) is a
legally valid and binding obligation of each of the parties thereto, subject to
such exceptions which are not reasonably likely to have, in the aggregate, a
Material Adverse Effect, and (iii) has not been modified, amended or
supplemented in any material or adverse way. Neither the Borrower nor any of its
Subsidiaries or Eligible Joint Ventures has collected any rents becoming due
under any Operating Lease more than 30 days in advance. All rent and other sums
and charges payable by any Operating Lessee under each Operating Lease to which
it is a party are current, no notice of default or termination under any such
Operating Lease is outstanding, no termination event or condition or uncured
default on the part of the Operating Lessee exists under any Operating Lease,
and no event of default has occurred which, with the giving of notice or the
lapse of time or both, would constitute such a default or termination event or
condition or uncured default on the part of the Borrower or its Subsidiaries or
Eligible Joint Ventures or the Operators (as the case may be), subject to such
exceptions which are not reasonably likely to have, in the aggregate, a Material
Adverse Effect. As to all of the Leases, Borrower and each of its Subsidiaries
or Eligible Joint Ventures has performed all of its repair and maintenance
obligations (if any) and, to the best knowledge and belief of Borrower, each
Operating Lessee under each Operating Lease to which it is a party has performed
all of its repair and maintenance obligations, subject to such exceptions which
are not reasonably likely to have, in the aggregate, a Material Adverse Effect.
4.26. FF&E Reserves. An FF&E Reserve has been established in
respect of each of the Hotels and the Borrower or its Subsidiaries or Eligible
Joint Ventures have made any contributions to such FF&E Reserve as required by
the terms of the Operating Lease and/or the Management Agreement relating
thereto.
ARTICLE V
FINANCIAL COVENANTS
As long as any of the Obligations or Revolving Credit
Commitments remain outstanding, unless the requisite Lenders specified in
Section 10.1 otherwise consent in writing, the Borrower agrees with the Lenders
and the Administrative Agent that:
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5.1. Unsecured Interest Expense Coverage. The Borrower shall
maintain at the end of each Fiscal Quarter, commencing with the Fiscal Quarter
ending on June 30, 2000, a ratio of (a) Unencumbered NOI to (b) Unsecured
Interest Expense, in each case determined on the basis of the four (4) Fiscal
Quarters ending on the date of determination, of not less than 2.25:1.0.
5.2. Fixed Charge Coverage Ratio. The Borrower shall maintain
at the end of each Fiscal Quarter commencing with the Fiscal Quarter ending on
June 30, 2000, a ratio of (a) Adjusted EBITDA to (b) Fixed Charges, in each case
determined on the basis of the four (4) Fiscal Quarters ending on the date of
determination, of not less than 1.75:1.0.
5.3. Maintenance of Tangible Net Worth. The Borrower shall
maintain during each Fiscal Quarter a Tangible Net Worth of not less than the
Minimum Tangible Net Worth.
5.4. Limitations on Total Indebtedness. The Borrower shall
not, during each Fiscal Quarter on a consolidated basis, permit the Total
Indebtedness (including, without limitation, the Obligations and all Capitalized
Lease Obligations) of the Borrower for borrowed money to exceed 55% of Total
Value.
5.5. Limitations on Total Secured Indebtedness. The Borrower
shall not, during each Fiscal Quarter on a consolidated basis, permit the Total
Secured Indebtedness (including, without limitation, secured Obligations and
Capitalized Lease Obligations) of the Borrower, to exceed 25% of Total Value.
5.6. Adjusted NOI and Hotels. The Borrower shall ensure that
at the end of each Fiscal Quarter commencing with the Fiscal Quarter ending on
June 30, 2000 at least 50% of the aggregate Adjusted NOI generated by all Hotels
during the preceding four (4) Fiscal Quarters shall be generated by Hotels
wholly owned or leased by the Borrower or its wholly owned Subsidiaries,
provided that, for Hotels owned or leased for less than four (4) Fiscal Quarters
only the Adjusted NOI generated by such Hotels since the date of acquisition of
such Hotel shall be included in calculating such aggregate Adjusted NOI.
5.7. Limitations on Recourse Secured Indebtedness. The
Borrower shall not, during each Fiscal Quarter on a consolidated basis, permit
the Recourse Secured Indebtedness (including, without limitation, secured
Obligations and Capitalized Lease Obligations) of the Borrower, to exceed the
lesser of (x) 7.5% of Total Value and (y) $200,000,000.
ARTICLE VI
AFFIRMATIVE COVENANTS
As long as any of the Obligations or the Revolving Loan
Commitments remain outstanding, unless the Majority Lenders otherwise consent in
writing, the Borrower agrees with the Lenders and the Administrative Agent that:
6.1. Compliance with Laws, Etc. The Borrower shall comply, and
shall cause each of its Subsidiaries and Eligible Joint Ventures to comply, in
all material respects with all
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Requirements of Law, Contractual Obligations, commitments, instruments,
licenses, permits and franchises, including, without limitation, all Permits;
provided, however, that the Borrower shall not be deemed in default of this
Section 6.1 if all such non-compliances in the aggregate have no Material
Adverse Effect.
6.2. Conduct of Business. The Borrower shall (a) conduct, and
shall cause each of its Subsidiaries and Eligible Joint Ventures to conduct, its
business in the ordinary course and consistent with past practice; (b) use, and
cause each of its Subsidiaries and Eligible Joint Ventures to use, its
reasonable efforts, in the ordinary course and consistent with past practice, to
(i) preserve its business and the goodwill and business of the customers,
advertisers, suppliers and others having business relations with the Borrower or
any of its Subsidiaries or Eligible Joint Ventures, and (ii) keep available the
services and goodwill of its present employees; (c) preserve, and cause each of
its Subsidiaries and Eligible Joint Ventures to preserve, all registered
patents, trademarks, trade names, copyrights and service marks with respect to
its business; and (d) perform and observe, and cause each of its Subsidiaries
and Eligible Joint Ventures to perform and observe, all the terms, covenants and
conditions required to be performed and observed by it under its Contractual
Obligations (including, without limitation, to pay all rent and other charges
payable under any lease and all debts and other obligations as the same become
due), and do, and cause its Subsidiaries and Eligible Joint Ventures to do, all
things necessary to preserve and to keep unimpaired its rights under such
Contractual Obligations; provided, however, that, in the case of each of clauses
(a) through (d), the Borrower shall not be deemed in default of this Section 6.2
if all such failures in the aggregate have no Material Adverse Effect.
6.3. Payment of Taxes, Etc. The Borrower shall pay and
discharge, and shall cause each of its Subsidiaries and Eligible Joint Ventures,
as appropriate, to pay and discharge, before the same shall become delinquent,
all lawful governmental claims, taxes, assessments, charges and levies, except
where contested in good faith, by proper proceedings, if adequate reserves
therefor have been established on the books of the Borrower or the appropriate
Subsidiary or Eligible Joint Venture in conformity with GAAP; provided, however,
that the Borrower shall not be deemed in default of this Section 6.3 if all such
non-payments in the aggregate have no Material Adverse Effect.
6.4. Maintenance of Insurance. The Borrower shall maintain,
and shall cause each of its Subsidiaries and Eligible Joint Ventures to
maintain, insurance with responsible and reputable insurance companies or
associations in such amounts and covering such risks (including, without
limitation, fire, extended coverage, vandalism, malicious mischief, public
liability, product liability, and business interruption) as is usually carried
by companies engaged in similar businesses and owning similar properties in the
same general areas in which the Borrower or such Subsidiary or Eligible Joint
Venture engages in business or owns properties. The Borrower will furnish to the
Lenders from time to time such information as may be requested as to such
insurance.
6.5. Preservation of Existence, Etc. The Borrower shall
preserve and maintain, and shall cause each of its Subsidiaries and Eligible
Joint Ventures to preserve and maintain, its corporate or partnership existence,
rights (charter and statutory) and franchises, except as permitted under Section
7.5.
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6.6. Access. The Borrower shall, at any reasonable time and
from time to time, permit the Administrative Agent or any of the Lenders, or any
agents or representatives thereof, at the expense of the Lenders (but such
expense to be reimbursed by the Borrower in the event that any of the following
reveal a material Default by the Borrower), to (a) examine and make copies of
and abstracts from the records and books of account of the Borrower and each of
its Subsidiaries and Eligible Joint Ventures, (b) visit the properties of the
Borrower and each of its Subsidiaries and Eligible Joint Ventures, (c) discuss
the affairs, finances and accounts of the Borrower and each of its Subsidiaries
and Eligible Joint Ventures with any of their respective officers or directors,
and (d) communicate directly with the Borrower's independent certified public
accountants.
6.7. Keeping of Books. The Borrower shall keep, and shall
cause each of its Subsidiaries and Eligible Joint Ventures to keep, proper books
of record and account, in which proper entries shall be made of all financial
transactions and the assets and business of the Borrower and each such
Subsidiary or Eligible Joint Venture.
6.8. Maintenance of Properties, Etc. The Borrower shall
maintain and preserve, and shall cause each of its Subsidiaries and Eligible
Joint Ventures to maintain and preserve, (i) all of its properties which are
used or useful or necessary in the conduct of its business in good working order
and condition, and (ii) all rights, permits, licenses, approvals and privileges
(including, without limitation, all Permits) which are used or useful or
necessary in the conduct of its business; provided, however, that the Borrower
shall not be deemed in default of this Section 6.8 if all such failures in the
aggregate have no Material Adverse Effect.
6.9. Performance and Compliance with Other Covenants. The
Borrower shall perform and comply with, and shall cause each of its Subsidiaries
and Eligible Joint Ventures to perform and comply with, each of the covenants
and agreements set forth in each Contractual Obligation to which it or any of
its Subsidiaries or Eligible Joint Ventures is a party; provided, however, that
the Borrower shall not be deemed in default of this Section 6.9 if all such
failures in the aggregate have no Material Adverse Effect.
6.10. Application of Proceeds. The Borrower shall use the
entire amount of the proceeds of the Revolving Credit Loans as provided in
Section 4.18.
6.11. Financial Statements. The Borrower shall furnish to the
Lenders:
(a) as soon as available and in any event within 45 days after
the end of each of the first three Fiscal Quarters of each Fiscal Year,
consolidated balance sheets of the Borrower and its Subsidiaries and the
Reporting Operating Lessees and any Requested Operating Lessee as of the end of
such quarter and consolidated statements of income, retained earnings and cash
flow of the Borrower and its Subsidiaries and the Reporting Operating Lessees
and any Requested Operating Lessee for the period commencing at the end of the
previous Fiscal Year and ending with the end of such Fiscal Quarter, all
prepared in conformity with GAAP and certified by the chief financial officer or
the treasurer of the Borrower or the chief financial officer of the Reporting
Operating Lessees or a Requested Operating Lessee, as appropriate, as fairly
presenting the financial condition and results of operations of the Borrower and
its
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Subsidiaries and the Reporting Operating Lessees and any Requested Operating
Lessee at such date and for such period, together with (i) a certificate of said
officer stating that no Default or Event of Default has occurred and is
continuing or, if a Default or an Event of Default has occurred and is
continuing, a statement as to the nature thereof and the action which the
Borrower, any Reporting Operating Lessees or any Requested Operating Lessee, as
appropriate, proposes to take with-respect thereto, (ii) a schedule in form
satisfactory to the Administrative Agent of the computations used by the
Borrower or any Reporting Operating Lessee or any Requested Operating Lessee, as
appropriate, in determining compliance with all financial covenants contained
herein, and (iii) a written discussion and analysis by the management of the
Borrower or any Reporting Operating Lessee or any Requested Operating Lessee, as
appropriate, of the financial statements furnished in respect of such Fiscal
Quarter, provided, however, that for purposes of this subparagraph (a) of this
paragraph 6.11 only, "Reporting Operating Lessees" and "Requested Operating
Lessee" shall not include Bass;
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year, consolidated balance sheets of the Borrower and its
Subsidiaries and the Reporting Operating Lessees as of the end of such year and
consolidated statements of income, retained earnings and cash flow of the
Borrower and its Subsidiaries and the Reporting Operating Lessees for such
Fiscal Year, all prepared in conformity with GAAP and certified, in the case of
such consolidated financial statements, in a manner reasonably acceptable to the
Administrative Agent without qualification as to the scope of the audit by
PricewaterhouseCoopers L.L.P. or other independent public accountants of
recognized national standing together with (i) a schedule in form satisfactory
to the Administrative Agent of the computations used by the Borrower in
determining, as of the end of such Fiscal Year, the Borrower's or a Reporting
Operating Lessee's, as appropriate, compliance with all financial covenants
contained herein, and (ii) a written discussion and analysis by the management
of the Borrower or any Reporting Operating Lessee, as appropriate, of the
financial statements furnished in respect of such Fiscal Year, provided,
however, that for purposes of this subparagraph (b) of this paragraph 6.11 only,
"Reporting Operating Lessees" shall not include Bass; and
(c) promptly after the same are received by the Borrower, a
copy of each management letter provided to the Borrower by its independent
certified public accountants which refers in whole or in part to any inadequacy,
defect, problem, qualification or other lack of fully satisfactory accounting
controls utilized by the Borrower or any of its Subsidiaries.
(d) within 45 days after the end of each Fiscal Quarter, a
Compliance Certificate as of the end of such Fiscal Quarter, executed by the
Chief Financial Officer or Treasurer of the Borrower and if requested by the
Administrative Agent, together with copies (to the extent not already delivered)
of the Hotel Documents in respect of each Hotel indicated by Administrative
Agent.
6.12. Reporting Requirements. The Borrower shall furnish to
the Lenders:
(a) prior to any Asset Sale generating proceeds in excess of
10% of the Total Value of the Borrower, a notice (i) describing the assets being
sold, (ii) stating the estimated Asset Sale proceeds in respect of such Asset
Sale and (iii) accompanied by a Compliance
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Certificate and a certificate of the Chief Financial Officer or the Treasurer of
the Borrower stating that before and after giving effect to such Asset Sale, the
Borrower shall be in compliance with all of its covenants set forth in the Loan
Documents and that no Default or Event of Default will result from such Asset
Sale.
(b) as soon as available and in any event within 90 days after
the end of each Fiscal Year (or earlier if approved earlier by the Board of
Directors of the Borrower), an annual budget of the Borrower and its
Subsidiaries for the succeeding Fiscal Year, displaying on a quarterly basis
anticipated balance sheets, forecasted Capital Expenditures, working capital
requirements, revenues, net income, cash flow and EBITDA, all on a consolidated
basis;
(c) promptly and in any event within 30 days after the
Borrower, any of its Subsidiaries or any ERISA Affiliate knows or has reason to
know that any ERISA Event has occurred, a written statement of the Chief
Financial Officer or Treasurer or other appropriate officer of the Borrower
describing such ERISA Event or waiver request and the action, if any, which the
Borrower, its Subsidiaries and ERISA Affiliates propose to take with respect
thereto and a copy of any notice filed by or with the PBGC or the IRS pertaining
thereto;
(d) promptly and in any event within 10 days after receipt
thereof, a copy of any adverse notice, determination letter, ruling or opinion
the Borrower, any of its Subsidiaries or any ERISA Affiliate receives from the
PBGC, DOL or IRS with respect to any Plan, other than those which, in the
aggregate, do not have any reasonable likelihood of resulting in a Material
Adverse Change;
(e) promptly after the commencement thereof, notice of all
actions, suits and proceedings before any domestic or foreign Governmental
Authority or arbitrator, affecting the Borrower or any of its Subsidiaries,
except those which in the aggregate, if adversely determined, would have no
Material Adverse Effect;
(f) promptly and in any event within two Business Days after
the Borrower becomes aware of the existence of (i) any Default or Event of
Default, (ii) any breach or non-performance of, or any default under, any
Operating Lease, Management Agreement or any Contractual Obligation which is
material to the business, prospects, operations or financial condition of the
Borrower and its Subsidiaries taken as one enterprise, or (iii) any Material
Adverse Change or any event, development or other circumstance which has any
reasonable likelihood of causing or resulting in a Material Adverse Change,
telephonic or telecopied notice in reasonable detail specifying the nature of
the Default, Event of Default, breach, non-performance, default, event,
development or circumstance, including, without limitation, the anticipated
effect thereof, which notice shall be promptly confirmed in writing within five
days;
(g) promptly after the sending or filing thereof, copies of
all reports which the Borrower sends to its security holders generally, and
copies of all reports and registration statements which the Borrower or any of
its Subsidiaries files with the Securities and Exchange Commission or any
national securities exchange or the National Association of Securities Dealers,
Inc.;
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(h) promptly upon the request of any Lender, through the
Administrative Agent, copies of all federal tax returns and reports filed by the
Borrower or any of its Subsidiaries in respect of taxes measured by income
(excluding sales, use and like taxes);
(i) promptly and in any event within ten days of the Borrower
or any Subsidiary learning of any of the following, written notice to the
Administrative Agent of any of the following:
(i) the Release or threatened Release of any Hazardous
Material on or from any property owned or leased by the Borrower of any
of its Subsidiaries or Eligible Joint Ventures and any written order,
notice, permit, application or other written communication or report
received by the Borrower, any of its Subsidiaries or Eligible Joint
Ventures in connection with or relating to any such Release or
threatened Release, unless such Release or threatened Release is not
reasonably likely to subject the Borrower or any of its Subsidiaries to
Environmental Liabilities and Costs of $5,000,000 or more;
(ii) any notice or claim to the effect that the Borrower, any
of its Subsidiaries or any Eligible Joint Ventures is or may be liable
to any Person as a result of the Release or threatened Release of any
Hazardous Material into the environment;
(iii) receipt by the Borrower, any of its Subsidiaries or
Eligible Joint Ventures or any Operator of notification that any real
or personal property of the Borrower or any of its Subsidiaries is
subject to an Environmental Lien;
(iv) any Remedial Action taken by the Borrower or any of its
Subsidiaries or Eligible Joint Ventures or any other Person on their
behalf in response to any Hazardous Material on, under or about any
real property owned or leased by the Borrower or any of its
Subsidiaries or Eligible Joint Ventures, unless such Remedial Action is
not reasonably likely to subject the Borrower or any of its
Subsidiaries or Eligible Joint Ventures to Environmental Liabilities
and Costs of $5,000,000 or more;
(v) receipt by the Borrower or any of its Subsidiaries or
Eligible Joint Ventures of any notice of violation of, or knowledge by
the Borrower or any of its Subsidiaries or any Eligible Joint Ventures
that there exists a condition which may result in a violation by the
Borrower or any of its Subsidiaries or Eligible Joint Ventures of, any
Environmental Law, unless such violation is not reasonably likely to
subject the Borrower or any of its Subsidiaries to Environmental
Liabilities and Costs of $5,000,000 or more;
(vi) any proposed Capital Expenditure by the Borrower or any
of its Subsidiaries or Eligible Joint Ventures intended or designed to
implement any existing or additional Remedial Action, unless such
expenditures are not reasonably likely to exceed $5,000,000;
(vii) the commencement of any judicial or administrative
proceeding or investigation alleging a material violation of any
Environmental Law; or
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(viii) any proposed acquisition of stock, assets or real
property, or any proposed leasing of property by the Borrower, or any
of its Subsidiaries or Eligible Joint Ventures, unless such action is
not reasonably likely to subject the Borrower and its Subsidiaries to
Environmental Liabilities and Costs to the Borrower in excess of
$5,000,000;
(j) promptly, such additional financial and other information
respecting the financial or other condition of the Borrower or any of its
Subsidiaries or Eligible Joint Ventures or the Operating Lessee or the status or
condition of any real property owned or leased by the Borrower or its
Subsidiaries or Eligible Joint Ventures, or the operation thereof which the
Borrower is entitled to or can otherwise reasonably obtain, as the
Administrative Agent from time to time reasonably requests; and
(k) upon written request by any Lender through the
Administrative Agent, a report providing an update of the status of any
Environmental Claim, Remedial Action or any other issue identified in any notice
or report required pursuant to this Section 6.12.
6.13. Leases and Operating Leases; Management Agreements and
Licenses. (a) If requested by Administrative Agent, the Borrower shall provide
the Administrative Agent, within 30 days of such request, with a copy of each
Qualified Lease and each Operating Lease (to the extent not already delivered).
The Borrower shall, and shall cause each of its Subsidiaries and Eligible Joint
Ventures to, (i) comply in all material respects with all of their respective
obligations under all of their respective Leases and Operating Leases now or
hereafter held respectively by them with respect to real property, including,
without limitation, the Leases set forth in Schedule 4.22(b); (ii) not modify,
amend, cancel, extend or otherwise change in any materially adverse manner any
of the terms, covenants or conditions of any such Leases or Operating Leases;
(iii) not assign any Leases or sublet any portion of the premises if such
assignment or sublet would have a Material Adverse Effect; (iv) provide the
Administrative Agent with a copy of each notice of default under any Lease or
Operating Lease received by the Borrower or any Subsidiary or Eligible Joint
Venture of the Borrower immediately upon receipt thereof and deliver to the
Administrative Agent a copy of each notice of default sent by the Borrower or
any Subsidiary or Eligible Joint Venture of the Borrower under any Lease or
Operating Lease simultaneously with its delivery of such notice under such Lease
or Operating Lease except to the extent that such defaults, in the aggregate,
would not have a Material Adverse Effect; (v) notify the Administrative Agent,
not later than 30 days prior to the date of the expiration of the term of any
Qualified Lease, of the Borrower's or any Subsidiary or Eligible Joint Venture
of the Borrower's intention either to renew or to not renew any such Qualified
Lease, and, if the Borrower or any Subsidiary or Eligible Joint Venture of the
Borrower intends to renew such Qualified Lease, the terms and conditions of such
renewal; and (vi) maintain each Operating Lease in full force and effect and
enforce the obligations of the Operating Lessee thereunder, in a timely manner
except to the extent that the failure to do so, in the aggregate, would not have
a Material Adverse Effect. Notwithstanding the foregoing, this Section 6.13
shall not apply to (i) Operating Leases with wholly-owned Subsidiaries of the
Borrower and (ii) Operating Lessees that are wholly-owned Subsidiaries of the
Borrower.
(b) The Borrower shall take all actions and do all things
within its power or control necessary or required to cause each Operating Lessee
to (i) keep, observe, comply with
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and perform all of the terms, provisions, covenants and undertakings on its part
required by each Operating Lease, each License, each sublease and Management
Agreement relating to any Hotel, and (ii) to enforce the provisions of each
License and each Management Agreement, if the failure to comply or enforce such
agreements would be reasonably likely, in the aggregate, to have a Material
Adverse Effect; provided that this Section 6.13 shall not apply to (i) Operating
Leases with wholly-owned Subsidiaries of the Borrower and (ii) Operating Lessees
that are wholly-owned Subsidiaries.
6.14. Intentionally Omitted.
6.15. Employee Plans. For each Plan and any related trust
hereafter adopted or maintained by a Loan Party or any of its ERISA Affiliates
intended to qualify under Code Section 125, 401 or 501, the Borrower shall (i)
seek, and cause such of its ERISA Affiliates to seek, and receive determination
letters from the IRS to the effect that such plan is so qualified; and (ii)
cause such plan to be so qualified.
6.16. Intentionally Omitted.
6.17. Fiscal Year. The Borrower shall maintain as its Fiscal
Year the twelve month period ending on December 31 of each year.
6.18. Environmental Matters. (a) The Borrower shall comply and
shall cause each of its Subsidiaries and Eligible Joint Ventures and each
property owned or leased by such parties to comply in all material respects with
all applicable Environmental Laws currently or hereafter in effect.
(b) If the Administrative Agent or Lenders at any time have a
reasonable basis to believe that there may be a material violation of any
Environmental Law by the Borrower or any of its Subsidiaries and Eligible Joint
Ventures or any Operator related to any real property owned or leased by the
Borrower or any of its Subsidiaries and Eligible Joint Ventures, or real
property adjacent to such real property, then the Borrower agrees, upon request
from the Administrative Agent, to provide the Administrative Agent, at the
Borrower's expense, with such reports, certificates, engineering studies or
other written material or data as the Administrative Agent or Lenders may
reasonably require so as to reasonably satisfy the Administrative Agent and
Lenders that the Borrower or such Subsidiary, Eligible Joint Venture or real
property owned or leased by them is in material compliance with all applicable
Environmental Laws. Furthermore, Administrative Agent shall have the right to
inspect during normal business hours any real property owned or leased by the
Borrower or any of its Subsidiaries or Eligible Joint Ventures if at any time
Administrative Agent or Lenders have a reasonable basis to believe that there
may be such a material violation of Environmental Law.
(c) The Borrower shall, and shall cause each of its
Subsidiaries and Eligible Joint Ventures and each Operating Lessee to, take such
Remedial Action or other action as required by Environmental Laws, as any
Governmental Authority requires, except to the extent contested in good faith
and by proper proceedings, or as is appropriate and consistent with good
business practice.
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6.19. REIT Requirements. The Borrower shall operate its
business at all times so as to satisfy all requirements necessary to qualify as
an equity-oriented real estate investment trust under Sections 856 through 860
of the Code. The Borrower will maintain adequate records so as to comply with
all record-keeping requirements relating to the qualification of the Borrower as
an equity-oriented real estate investment trust as required by the Code and
applicable regulations of the Department of the Treasury promulgated thereunder
and will properly prepare and timely file with the IRS all returns and reports
required thereby. The Borrower will request from its shareholders all
shareholder information required by the Code and applicable regulations of the
Department of Treasury promulgated thereunder.
6.20. Maintenance of FF&E Reserves. The Borrower shall cause
to be maintained the FF&E Reserves pursuant to the terms of the Operating
Leases.
6.21. Intentionally deleted.
6.22. Further Assurances. At any time upon the request of the
Administrative Agent, the Borrower will, promptly and at its expense, execute,
acknowledge and deliver such further documents and do such other acts and things
as the Administrative Agent may reasonably request to evidence the Revolving
Credit Loans made hereunder and interest thereon in accordance with the terms of
this Agreement.
6.23. Unencumbered Hotel Properties/Financial Covenant
Imbalance. (a) The Borrower shall promptly notify the Administrative Agent in
writing in the event that at any time the Borrower or any of its Subsidiaries
receives or otherwise gains knowledge that (i) any Hotel included in the
calculation of a prior Compliance Certificate as an Unencumbered Hotel Property,
ceases, for any reason whatsoever, to be an Unencumbered Hotel Property or (ii)
a Financial Covenant Imbalance exists, and the amount of the Revolving Credit
Loans which must be repaid to cure such Financial Covenant Imbalance.
(b) The Administrative Agent, at the expense of the Lenders,
which expense shall not exceed $10,000 without the consent of the Majority
Lenders (but such expense to be reimbursed by the Borrower in the event that a
Hotel fails to meet requirements for an Unencumbered Hotel Property in any
material respect) may make physical and other verifications of any Hotels
included as Unencumbered Hotel Properties in any reasonable manner and through
any medium that the Administrative Agent considers advisable, and the Borrower
shall furnish all such assistance and information as the Administrative Agent
may require in connection therewith.
6.24. Hotel Documents. Within 30 days of the Administrative
Agent's request, Borrower shall deliver to the Administrative Agent Hotel
Documents (to the extent not already delivered) for any Hotel indicated by
Administrative Agent.
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ARTICLE VII
NEGATIVE COVENANTS
As long as any of the Obligations or any of the Revolving
Credit Commitments remain outstanding, without the written consent of the
Administrative Agent, the Borrower agrees with the Lenders and the
Administrative Agent that:
7.1. Restrictions on Wholly-Owned Subsidiaries. (a) The
Borrower shall not create or acquire any direct or indirect wholly-owned
Subsidiary after the Restatement Effective Date unless (i) if such Subsidiary is
a Required Guarantor, concurrently with the creation or acquisition thereof,
such Subsidiary executes and delivers to the Administrative Agent a Subsidiary
Guaranty or (ii) if such Subsidiary is not a Required Guarantor, the
organizational documents and agreement of limited partnership (or equivalent) of
such Subsidiary provide that such Subsidiary shall not incur any Indebtedness
(other than (A) intercompany Indebtedness owed to Borrower and (B) Indebtedness
which is either (x) Non-Recourse Indebtedness or (y) recourse to such Subsidiary
provided such Indebtedness (I) does not exceed 65% of the value of such
Subsidiary's assets which secures such Indebtedness and (II) is secured by all
of the Hotels owned by such Subsidiary).
(b) No wholly-owned Subsidiary which is acquired or created
after the Restatement Effective Date may (i) incur any Indebtedness (other than
(A) intercompany Indebtedness owed to the Borrower and (B) Indebtedness which is
either (x) Non-Recourse Indebtedness or (y) recourse to such Subsidiary provided
such Indebtedness (I) does not exceed 65% of the value of such Subsidiary's
assets which secures such Indebtedness and (II) is secured by all of the Hotels
owned by such Subsidiary) or (ii) be subject to any contractual restriction on
such Subsidiary's ability to declare or pay dividends or distribute cash or
other assets to Borrower or any of its Subsidiaries.
(c) The Borrower shall not permit any direct or indirect
wholly-owned Subsidiary (other than an Excluded Taxable REIT Subsidiary and
Special Purpose Subsidiary) to own assets (including the assets of such Person's
Subsidiaries) the value of which exceed 2% of Total Value unless such Subsidiary
executes and delivers to the Administrative Agent a Subsidiary Guaranty,
provided, that in the event the aggregate value of the assets of all
wholly-owned Subsidiaries (other than Excluded Taxable REIT Subsidiaries and
Special Purpose Subsidiaries) which are not Guarantors exceed 2% of Total Value
then Borrower shall not permit any direct or indirect wholly-owned Subsidiary
formed thereafter (other than an Excluded Taxable REIT Subsidiary and Special
Purpose Subsidiary) to own assets (including the assets of such Person's
Subsidiaries) unless such Subsidiary executes and delivers to the Administrative
Agent a Subsidiary Guaranty; provided further that in the event that the
aggregate Indebtedness of all Special Purpose Subsidiaries which are not
Guarantors exceeds 25% of Total Value then the Borrower shall not permit any
Special Purpose Subsidiary formed thereafter to own assets unless such Special
Purpose Subsidiary executes and delivers to the Administrative Agent a
Subsidiary Guaranty.
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7.2. Operation/Ownership of Hotels. (a) The Borrower shall not
own or lease (directly or indirectly) any Hotels which are not (i) leased to an
Operating Lessee pursuant to an Operating Lease within 90 days of Borrower's (or
a Subsidiary's) acquisition of such Hotel, (ii) managed pursuant to a Management
Agreement and (iii) operated pursuant to and with the benefit of a License,
except to the extent that the aggregate value of any Hotels owned or leased by
the Borrower (directly or indirectly) which are not leased to an Operating
Lessee, managed by a Manager, and operated pursuant to and with the benefit of a
License does not exceed 10% of Total Value.
(b) The aggregate value of any Hotels owned or leased by the
Borrower (directly or indirectly) which are not operated under a nationally
recognized brand may not exceed 10% of Total Value.
7.3. Lease Obligations. (a) The Borrower shall not create or
suffer to exist, or permit any of its Subsidiaries or Eligible Joint Ventures to
create or suffer to exist, any obligations as lessee for the rental or hire of
real or personal property of any kind under other leases or agreements to lease
entered into otherwise than in the ordinary course of business.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries or Eligible Joint Ventures to, become or remain liable as lessee or
guarantor or other surety with respect to any lease, whether an operating lease
or a Capitalized Lease, of any property (whether real or personal or mixed),
whether now owned or hereafter acquired, which (i) the Borrower or any of its
Subsidiaries or Eligible Joint Ventures has sold or transferred or is to sell or
transfer to any other Person, or (ii) the Borrower or any of its Subsidiaries or
Eligible Joint Ventures intends to use for substantially the same purposes as
any other property which has been or is to be sold or transferred by that entity
to any other Person in connection with such lease.
7.4. Restricted Payments. The Borrower, unless otherwise
required in order to maintain FelCor's status as a real estate investment trust
in accordance with the written advice of independent counsel to the Borrower,
shall not, and shall not permit its Subsidiaries to declare or authorize any
dividend payment or other distribution (such dividend or distribution shall be
deemed made when so declared or authorized) of assets, properties, cash, rights,
obligations or securities (other than distributions of Stock or Stock
Equivalents, exclusive of Disqualified Stock) on account or in respect of any of
its Stock or Stock Equivalents or any payment (whether in Disqualified Stock,
Indebtedness, cash or other assets), including any sinking fund or similar
deposit, on account of the purchase, redemption, retirement, defeasance,
acquisition, cancellation or termination of any such Stock or Stock Equivalents
(collectively, "Restricted Payments"); provided, that, notwithstanding the
foregoing, (i) any Subsidiary may make Restricted Payments, directly or
indirectly, to the Borrower or any Guarantor; (ii) any non-wholly owned
Subsidiary of the Borrower may make Restricted Payments to the holders of its
Stock or Stock Equivalents generally, so long as the Borrower or its respective
Subsidiary which owns the Stock or Stock Equivalents in the Subsidiary paying
such Restricted Payments receives at least its proportionate share thereof
(based upon its relative economic holding of equity interest in the Subsidiary
paying such Restricted Payments and taking into account the relative
preferences, if any, of the various classes of equity interests in such
Subsidiary or the terms of any agreements applicable thereto), and (iii) the
Borrower or any Subsidiary may make payments to purchase Stock or Stock
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Equivalents of any non-wholly owned Subsidiary. In addition, in any Fiscal
Quarter the Borrower may make Restricted Payments which, when added to
Restricted Payments made during the immediately preceding three consecutive
Fiscal Quarters, do not exceed an aggregate amount equal to the lesser of 85% of
the consolidated Adjusted Funds From Operations and 100% of the Free Cash Flow
of the Borrower in each case for the immediately preceding four consecutive
Fiscal Quarters; provided, further, that in addition to the Restricted Payments
permitted above, the Borrower may purchase, redeem or acquire Stock or Stock
Equivalents of the Borrower for an aggregate purchase price not to exceed
$275,000,000 from and after August 20, 1999 through the end of the term of the
Revolving Credit Loans (including any extension thereof) plus net proceeds
(including the fair market value of any property received) of any issuance of
Stock or Stock Equivalents (other than Disqualified Stock) of the Borrower
subsequent to June 30, 1999.
7.5. Mergers, Stock Issuances, Asset Sales, Etc. (a) The
Borrower shall not sell, convey, transfer, lease or otherwise dispose of all or
substantially all of its assets or properties, and shall not, and shall not
permit any of its Subsidiaries or Eligible Joint Ventures to, (i) merge with any
Person, or (ii) consolidate with any Person, unless the Borrower or its
Subsidiary or Eligible Joint Venture is the surviving or resulting entity and,
following such merger or consolidation, no Default or Event of Default shall
have occurred.
(b) The Borrower shall not and shall not permit any of its
Subsidiaries or Eligible Joint Ventures to effect, enter into, consummate or
suffer to exist any Asset Sale(s) of any Hotel(s) generating proceeds
aggregating more than 25% of the value of the Hotels owned by the Borrower, its
Subsidiaries and Eligible Joint Ventures as of the Restatement Effective Date.
(c) The Borrower shall not sell or otherwise dispose of, or
factor at maturity or collection, or permit any of its Subsidiaries or Eligible
Joint Ventures to sell or otherwise dispose of, or factor at maturity or
collection, any accounts receivables.
7.6. Restrictions on Construction/Budget Hotels. (a) The
Borrower shall not, and shall not permit any of its Subsidiaries or Eligible
Joint Ventures to (i) engage in the construction of new hotels (provided that
nothing herein shall prohibit expansions to existing Hotels) or (ii) enter into
any commitments or agreements to purchase any Hotels under, or to be under,
original construction (provided that nothing herein shall limit commitments or
agreements for expansions to existing Hotels), pursuant to which (A) such
Persons' obligations, in the aggregate, exceed the lesser of (x) 15% of the
Total Value of the Borrower as of the end of the Fiscal Quarter immediately
preceding the date of any such commitment or agreement and (y) $200,000,000, or
(B) any such Person is or may be liable for, or otherwise assumes, any risks
relating to the development or construction (but not operation) of such Hotel,
whether by way of providing any guaranties of completion, payment of any
construction loans, payment of construction cost overruns, or otherwise.
(b) Other than the Borrower's (or its Subsidiary's or
Unconsolidated Entity's) investments in budget hotels, limited service hotels or
extended stay hotels which are in existence as of the Restatement Effective
Date, the Borrower's investments (direct or indirect) in
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any budget hotels, limited service hotels or extended stay hotels, shall not
exceed, in the aggregate, 10% of Total Value.
7.7. Change in Nature of Business or in Capital Structure. (a)
The Borrower shall not make, and shall not permit any of its Subsidiaries or
Eligible Joint Ventures to make, any material change in the nature or conduct of
its business as carried on at the Restatement Effective Date.
(b) The Borrower shall not make, and shall not permit any of
its Subsidiaries or Eligible Joint Ventures to make, any change in its capital
structure (including, without limitation, in the terms of its outstanding Stock)
or amend its declaration of trust, certificate of incorporation or by-laws or
other equivalent documents other than for changes or amendments which in the
aggregate have no Material Adverse Effect.
7.8. Modification of Material Agreements. The Borrower shall
not, and shall not permit any of its Subsidiaries or Eligible Joint Ventures to,
alter, amend, modify, rescind, terminate, supplement or waive any of their
respective rights under, or fail to comply in all material respects with, any of
its material Contractual Obligations unless approved by the Administrative
Agent, which approval shall not be unreasonably withheld, conditioned or
delayed; provided, however, that, with respect to any such failure to comply
with any Contractual Obligation, the Borrower shall not be deemed in default of
this Section 7.8 if all such failures in the aggregate would have no Material
Adverse Effect; and provided, further, that in the event of any breach or event
of default by a Person other than the Borrower or any of its Subsidiaries or
Eligible Joint Ventures, the Borrower shall promptly notify the Administrative
Agent of any such breach or event of default and take all such action as may be
reasonably necessary in order to endeavor to avoid having such breach or event
of default have a Material Adverse Effect.
7.9. Accounting Changes. The Borrower shall not make, nor
permit any of its Subsidiaries to make, any change in accounting treatment and
reporting practices or tax reporting treatment, except as required by GAAP or
law and disclosed to the Lenders and the Administrative Agent.
7.10. Transactions with Affiliates. The Borrower shall not,
and shall not permit any of its Subsidiaries or Eligible Joint Ventures, to
enter into any transaction or series of related transactions, including, without
limitation, any Asset Sale or the rendering of any service, with any Affiliate
(other than among the Borrower and its wholly-owned Subsidiaries) unless (a) no
Default or Event of Default would occur as a result thereof, and (b) such
transaction is (i) in the ordinary course of the Borrower's or such Subsidiary's
or Eligible Joint Venture's business, and (ii) upon fair and reasonable terms no
less favorable to the Borrower or such Subsidiary or Eligible Joint Venture, as
the case may be, than it would obtain in a comparable arm's length transaction
with a Person which is not an Affiliate.
7.11. Adverse or Speculative Transactions. The Borrower shall
not and shall not permit any of its Subsidiaries or Eligible Joint Ventures to
engage in any transaction involving contracts for commodity options or futures
contracts other than Interest Rate Contracts and Alternative Currency Contracts.
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7.12. Environmental Matters. (a) The Borrower shall not, and
shall not permit any of its Subsidiaries or Eligible Joint Ventures or any
Operating Lessee, or, to the extent reasonably practicable, any other Person to
dispose of any Hazardous Material by placing it in or on the ground or waters of
any property owned or leased by the Borrower or any of its Subsidiaries or
Eligible Joint Ventures.
(b) The Borrower shall not, and shall not permit any of its
Subsidiaries or Eligible Joint Ventures, or, to the extent practicable,
authorize any other Person to, dispose or to arrange for the disposal of any
Hazardous Material on behalf of the Borrower or any of its Subsidiaries or
Eligible Joint Ventures except in material compliance with all applicable
Environmental Laws currently and hereinafter in effect.
7.13. Joint Enterprises. Other than investments in (x) Joint
Enterprises in existence as of the Restatement Effective Date and (y) Eligible
Entities, the Borrower's investments (direct or indirect) in Joint Enterprises
shall not exceed, in the aggregate, 15% of Total Value.
7.14. Intentionally Omitted.
7.15. ERISA Plan Assets. The Borrower shall not and shall not
permit any of its Subsidiaries to have any of their assets become subject to
Title I of ERISA because they constitute "plan assets" within the meaning of the
DOL Regulation Section 2510.3-101 and by reason of an investment in the Borrower
or any Subsidiary.
7.16. Limitation on Liens. The Borrower shall not, and shall
not permit any of its Subsidiaries to secure any Indebtedness by a Lien on Stock
owned by the Borrower or any of its Subsidiaries unless contemporaneously
therewith effective provision is made to secure the Obligations equally and
ratably with such Indebtedness for so long as such Indebtedness is secured by
such Lien.
ARTICLE VIII
EVENTS OF DEFAULT
8.1. Events of Default. Each of the following events shall be
an Event of Default:
(a) The Borrower shall fail to pay any principal (including,
without limitation, mandatory prepayments of principal) of, or interest on, any
Revolving Credit Loan, any Unpaid Drawing, any fee, any other amount due
hereunder or under the other Loan Documents or other of the Obligations when the
same becomes due and payable; or
(b) Any representation or warranty made or deemed made by any
Loan Party in any Loan Document or by any Loan Party (or any of its officers) in
connection with any Revolving Credit Loan Document shall prove to have been
incorrect in any material respect when made or deemed made; or
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(c) Any Loan Party shall fail to perform or observe any other
term, covenant or agreement contained in this Agreement or in any other Loan
Document if such failure shall remain unremedied for thirty days after the
earlier of the date on which (A) a Responsible Officer of the Borrower becomes
aware of such failure or (B) written notice thereof shall have been given to the
Borrower by the Administrative Agent or any Lender; or
(d) Any Loan Party or any of its Subsidiaries shall fail to
pay any principal of or premium or interest on any Recourse Indebtedness of such
Loan Party or Subsidiary having a principal amount of $10,000,000 or more
(excluding Indebtedness evidenced by the Revolving Credit Notes and any
Non-Recourse Indebtedness), when the same becomes due and payable (whether by
scheduled maturity, required prepayment, acceleration, demand or otherwise); or
any other event shall occur or condition shall exist under any agreement or
instrument relating to any such Indebtedness, if the effect of such event or
condition is to accelerate, or to permit the acceleration of, the maturity of
such Indebtedness; or any such Indebtedness shall become or be declared to be
due and payable, or required to be prepaid (other than by a regularly scheduled
required prepayment), or any Loan Party or any of its Subsidiaries shall be
required to repurchase or offer to repurchase such Indebtedness, prior to the
stated maturity thereof; or
(e) The Borrower or any of its Significant Subsidiaries shall
generally not pay its debts as such debts become due, or shall admit in writing
its inability to pay its debts generally, or shall make a general assignment for
the benefit of creditors, or any proceeding shall be instituted by or against
the Borrower or any of its Significant Subsidiaries seeking to adjudicate it
bankrupt or insolvent, or seeking liquidation, winding up, reorganization,
arrangement, adjustment, protection, relief or composition of it or its debts
under any law relating to bankruptcy, insolvency or reorganization or relief of
debtors, or seeking the entry of an order for relief or the appointment of a
custodian, receiver, trustee or other similar official for it or for any
substantial part of its property and, in the case of any such proceedings
instituted against the Borrower or any of its Significant Subsidiaries (but not
instituted by it), either such proceedings shall remain undismissed or unstayed
for a period of 60 days or any of the actions sought in such proceedings shall
occur; or the Borrower or any of its Significant Subsidiaries shall take any
corporate action to authorize any of the actions set forth above in this
subsection (e); or
(f) Any judgment or order for the payment of money in excess
of $10,000,000 to the extent not fully covered by insurance shall be rendered
against any Loan Party or any of its Subsidiaries and either (i) enforcement
proceedings shall have been commenced by any creditor upon such judgment or
order, or (ii) there shall be any period of 10 consecutive days during which a
stay of enforcement of such judgment or order, by reason of a pending appeal or
otherwise, shall not be in effect; or
(g) An ERISA Event shall occur which, in the reasonable
determination of the Majority Lenders, has a reasonable possibility of a
liability, deficiency or waiver request of the Borrower or any ERISA Affiliate,
whether or not assessed, exceeding $5,000,000; or
(h) The Borrower or any of its Subsidiaries shall have entered
into any consent or settlement decree or agreement or similar arrangement with a
Governmental Authority or any judgment, order, decree or similar action shall
have been entered against the Borrower or any of
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its Subsidiaries, in each case based on or arising from the violation of or
pursuant to any Environmental Law, or the generation, storage, transportation,
treatment, disposal or Release of any Hazardous Material and, in connection with
all the foregoing, the Borrower and its Subsidiaries are likely to incur
Environmental Liabilities and Costs in excess of $5,000,000; or
(i) There shall occur a Material Adverse Change or an event
which is reasonably likely to have a Material Adverse Effect; or
(j) FelCor shall cease, for any reason, to maintain its status
as an equity-oriented real estate investment trust under Sections 856 through
860 of the Code; or
(k) FelCor shall cease at any time to be the sole general
partner of FelCor LP; or
(l) INTENTIONALLY DELETED
(m) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ or ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇. shall sell,
transfer or encumber (otherwise than to (i) members of their respective
families, (ii) entities controlled by them, (iii) trusts for the benefit of any
of the foregoing or (iv) a Permitted Transferee) their voting Class A membership
interest in DJONT; or
(n) INTENTIONALLY DELETED
(o) Any provision of any Subsidiary Guaranty shall for any
reason cease to be valid and binding on any Loan Party party thereto, or any
Loan Party shall so state in writing; or
(p) At any time when any Term Loans are outstanding, any
provision of the Pledge Agreement shall for any reason cease to be valid and
binding on any Loan Party thereto, or any Loan Party shall so state in writing.
8.2. Remedies. (a) If there shall occur and be continuing any
Event of Default, the Administrative Agent (i) shall at the request, or may with
the consent, of the Majority Lenders by notice to the Borrower, declare the
obligation of each Lender to make Revolving Credit Loans and the Issuing Lender
to issue a Letter of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Majority Lenders by notice to the Borrower, declare the Revolving Credit Loans,
all interest thereon and all other amounts and Obligations payable under this
Agreement to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts and Obligations shall become and be forthwith due
and payable, without presentment, demand, protest or further notice of any kind,
all of which are hereby expressly waived by the Borrower; provided, however,
that upon the occurrence of the Event of Default specified in subparagraph
8.1(e) above, (A) the obligation of each Lender to make Revolving Credit Loans
and of the Issuing Lender to issue Letters of Credit shall automatically be
terminated and (B) the Revolving Credit Loans, all such interest and all such
amounts and Obligations shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. In addition to the remedies set forth
above, the Administrative Agent may exercise any remedies provided by applicable
law.
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(b) If the Administrative Agent exercises any rights or
remedies pursuant to subparagraph 8.2(a), the Administrative Agent shall not,
without the consent of the Majority Lenders, rescind the exercise of said rights
or remedies.
8.3. Actions in Respect of Letters of Credit. (a) Upon the
Termination Date, the Borrower shall pay to the Administrative Agent in
immediately available funds at the Administrative Agent's office, for deposit in
a special non-interest-bearing cash collateral account (the "L/C Cash Collateral
Account") to be maintained with and in the name of the Administrative Agent on
behalf of the Lenders at such place as shall be designated by the Administrative
Agent, an amount equal to all Letter of Credit Outstandings.
(b) The Borrower hereby pledges, and grants to the
Administrative Agent a Lien on all of its right, title and interest in and to
all funds held in the L/C Cash Collateral Account from time to time, and all
proceeds thereof, as security for the payment of all amounts due and to become
due from the Borrower to the Lenders and the Issuing Lender.
(c) The Administrative Agent may, from time to time after
funds are deposited in the L/C Cash Collateral Account, apply funds then held in
the L/C Cash Collateral Account to the payment of any amounts, in such order as
the Administrative Agent may elect, as shall have become or shall become due and
payable by the Borrower to the Issuing Lender or Lenders in respect of the
Letter of Credit Outstandings.
(d) 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 the L/C Cash Collateral Account. The Borrower agrees that it will not (i)
sell or otherwise dispose of any interest in the L/C Cash Collateral Account or
any funds held therein or (ii) create or permit to exist any Lien upon or with
respect to the L/C Cash Collateral Account or any funds held therein, except as
provided in or contemplated by this Agreement.
(e) The Administrative Agent may also exercise, in its sole
discretion, in respect of the L/C Cash Collateral Account, in addition to the
other rights and remedies provided for herein or otherwise available to it, all
the rights and remedies of a secured party upon default under the Uniform
Commercial Code in effect in the State of New York at that time, and the
Administrative Agent may, without notice except as specified below, sell the L/C
Cash Collateral Account or any part thereof in one or more sales, at public or
private sale, at any of the Administrative Agent's offices or elsewhere, for
cash, or credit or for future delivery, and upon such other terms as the
Administrative Agent may deem commercially reasonable. The Borrower agrees that,
to the extent notice of sale shall be required by law, at least ten days' notice
to the Borrower 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 L/C Cash
Collateral Account, 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.
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(f) Any cash held in the L/C Cash Collateral Account, and all
cash proceeds received by the Administrative Agent in respect of any sale of,
collection from or other realization upon all or any part of the L/C Cash
Collateral Account, may, in the discretion of the Administrative Agent, then or
at any time thereafter be applied (after all payments provided for in Section
8.3(c), the expiration of all outstanding Letters of Credit and the payment of
any amounts payable pursuant to Section 10.4) in whole or in part by the
Administrative Agent against all or any part of the other Obligations in such
order as the Administrative Agent shall elect. Any surplus of such cash or cash
proceeds held by the Administrative Agent and remaining after the indefeasible
cash payment in full of all of the Obligations shall be paid over to the
Borrower or to whomsoever may be lawfully entitled to receive such surplus.
ARTICLE IX
THE ADMINISTRATIVE AGENT
9.1. Authorization and Action. (a) Each Lender hereby appoints
and authorizes the Administrative Agent to take such action as agent on its
behalf and to exercise such powers under this Agreement and the other Loan
Documents as are delegated to the Administrative Agent by the terms hereof and
thereof, together with such powers as are reasonably incidental thereto. Without
limitation of the foregoing, each Lender hereby authorizes the Administrative
Agent to execute and deliver, and to perform its obligations under, each of the
Loan Documents to which the Administrative Agent is a party, and to exercise all
rights, powers and remedies that the Administrative Agent may have under such
Loan Documents.
(b) As to any matters not expressly provided for by this
Agreement and the other Loan Documents (including, without limitation,
enforcement or collection of the Revolving Credit Notes), the Administrative
Agent shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Lenders, and such instructions shall be binding upon all Lenders and all holders
of Revolving Credit Notes; provided, however, that the Administrative Agent
shall not be required to take any action which the Administrative Agent in good
faith believes exposes it to personal liability or is contrary to this Agreement
or applicable law. The Administrative Agent agrees to give to each Lender prompt
notice of (a) each notice and, (b) to the extent the Administrative Agent grants
any consents, approvals, disapprovals or waivers to the Borrower pursuant to the
directions of the Majority Lenders or all of the Lenders as required hereunder,
notice of such consent, approval, disapproval or waiver, given to it by, or by
it to, any Loan Party pursuant to the terms of this Agreement or the other Loan
Documents.
9.2. Administrative Agent's Reliance, Etc. Neither the
Administrative Agent, nor any of its Affiliates or any of the respective
directors, officers, agents or employees of the Administrative Agent or any such
Affiliate shall be liable for any action taken or omitted to be taken by it,
him, her or them under or in connection with this Agreement or the other Loan
Documents, except for its, his, her or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, the
Administrative Agent (i) may treat the payee of
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any Revolving Credit Note as the holder thereof until such note has been
assigned in accordance with Section 10.7; (ii) may rely on the Register to the
extent set forth in Section 10.7(c); (iii) may consult with legal counsel
(including, without limitation, counsel to the Borrower or any other Loan
Party), independent public accountants and other experts selected by it and
shall not be liable for any action taken or omitted to be taken in good faith by
it in accordance with the advice of such counsel, accountants or experts; (iv)
makes no warranty or representation to any Lender and shall not be responsible
to any Lender for any statements, warranties or representations made in or in
connection with this Agreement or any of the other Loan Documents; (v) shall not
have any duty to ascertain or to inquire as to the performance or observance of
any of the terms, covenants or conditions of this Agreement or any of the other
Loan Documents on the part of the Borrower or any other Loan Party or to inspect
the property (including, without limitation, the books and records) of the
Borrower or any other Loan Party; (vi) shall not be responsible to any Lender
for the due execution, legality, validity, enforceability, genuineness,
sufficiency or value of this Agreement or any of the other Loan Documents or any
other instrument or document furnished pursuant hereto or thereto; and (vii)
shall incur no liability under or in respect of this Agreement or any of the
other Loan Documents by acting upon any notice, consent, certificate or other
instrument or writing (which may be by telegram, cable, telex or facsimile
transmission) believed by it to be genuine and signed or sent by the proper
party or parties.
9.3. Chase and Affiliates. With respect to its Revolving
Credit Commitments, the Revolving Credit Loans made by it and each Revolving
Credit Note issued to it, and Letters of Credit issued by it, Chase shall have
the same rights and powers under this Agreement as any other Lender and may
exercise the same as though it were not the Administrative Agent; and the term
"Lender" or "Lenders" shall, unless otherwise expressly indicated, include Chase
in its individual capacity. Chase and its affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower or any other Loan Party or any of their
respective Subsidiaries and any Person who may do business with or own
securities of the Borrower or any other Loan Party or any of their respective
Subsidiaries, all as if Chase were not the Administrative Agent and without any
duty to account therefor to the Lenders.
9.4. Lender Credit Decision. Each Lender acknowledges that it
has, independently and without reliance upon the Administrative Agent or any
other Lender and based on the financial statements referred to in Article IV and
such other documents and information as it has deemed appropriate, made its own
credit analysis and decision to enter into this Agreement. Each Lender also
acknowledges that it will, independently and without reliance upon the
Administrative Agent or any other Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under this Agreement and other
Loan Documents.
9.5. Indemnification. The Lenders agree to indemnify the
Issuing Lender, the Administrative Agent and their Affiliates, and their
respective directors, officers, employees, agents and advisors (to the extent
not reimbursed by the Borrower or other Loan Parties), ratably according to the
respective principal amounts of the Revolving Credit Notes then held by each of
them (or if no Revolving Credit Notes are at the time outstanding, ratably
according to the respective amounts of the aggregate of their Revolving Credit
Commitments), from and against
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any and all liabilities, obligations, losses, damages, penalties, actions,
judgments, suits, costs, expenses and disbursements (including, without
limitation, fees and disbursements of legal counsel) of any kind or nature
whatsoever which may be imposed on, incurred by, or asserted against, the
Administrative Agent in any way relating to or arising out of this Agreement or
the other Loan Documents or any action taken or omitted by the Administrative
Agent under this Agreement or the other Loan Documents; provided, however, 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 or such Affiliate's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Lender agrees to reimburse the Administrative Agent promptly upon demand
for its ratable share of any out-of-pocket expenses (including, without
limitation, fees and disbursements of legal counsel) incurred by the
Administrative Agent in connection with the preparation, execution, delivery,
administration, modification, amendment or enforcement (whether through
negotiations, legal proceedings or otherwise) of, or legal advice in respect of
its rights or responsibilities under, this Agreement or the other Loan
Documents, to the extent that the Administrative Agent is not reimbursed for
such expenses by the Borrower or another Loan Party.
9.6. Successor Agent. The Administrative Agent may resign at
any time by giving written notice thereof to the Lenders and the Borrower and
may be removed by the Super Majority Lenders in the event that the
Administrative Agent commits a willful breach of, or is grossly negligent in the
performance of, its material obligations hereunder. Furthermore, in the event
that at any time the Administrative Agent assigns its entire interest as a
Lender hereunder to an Eligible Assignee as permitted by Section 10.7 hereof,
which Eligible Assignee is not an Affiliate of the Administrative Agent, then
the Administrative Agent shall resign as Administrative Agent. Upon any such
resignation or removal (which shall be effective upon such date as a successor
Agent accepts its appointment), the Majority Lenders shall have the right to
appoint a successor Agent. If no successor Agent shall have been so appointed by
the Majority Lenders, and shall have accepted such appointment, within 30 days
after the retiring Administrative Agent's giving of notice of resignation or the
Super Majority Lenders' removal of the retiring Administrative Agent, then the
retiring Administrative Agent may, on behalf of the Lenders, appoint a successor
Agent, which shall be a commercial bank organized under the laws of the United
States of America or of any State thereof, having a combined capital and surplus
of at least $500,000,000. Upon the acceptance of any appointment as
Administrative Agent hereunder by a successor agent, such successor
Administrative Agent shall thereupon succeed to and become vested with all the
rights, powers, privileges and duties of the retiring Administrative Agent, and
the retiring Administrative Agent shall be discharged from its duties and
obligations under this Agreement and the other Loan Documents. After any
retiring Administrative Agent's resignation or removal hereunder as
Administrative Agent, the provisions of this Article IX shall inure to its
benefit as to any actions taken or omitted to be taken by it while it was
Administrative Agent under this Agreement and the other Loan Documents.
9.7. Duties of Other Agents. None of Chase Securities Inc. in
its capacity as Joint Lead Arranger, Joint Book Manager and Syndication Agent,
Bankers Trust Company in its capacity as Joint Lead Arranger, Joint Book Manager
and Documentation Agent, Bank of America, N.A. in its capacity as Documentation
Agent or ▇▇▇▇▇ Fargo Bank, National
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Association, as Co-Documentation Agent, shall have any duties or
responsibilities hereunder in its representative capacity as such.
ARTICLE X
MISCELLANEOUS
10.1. Amendments, Etc. (a) No amendment or waiver of any
provision of this Agreement nor consent to any departure by the Borrower
therefrom shall in any event be effective unless the same shall be in writing
and signed by the Majority Lenders, and then any such waiver or consent shall be
effective only in the specific instance and for the specific purpose for which
given; provided that, (x) the Administrative Agent shall have the right to waive
or depart from any of the requirements or criteria contained in the definition
of Qualified Lease and (y) subject to Sections 10.1(b) and (c) below, the
Administrative Agent shall have the right to make non-material waivers of
non-economic provisions of this Agreement or consent to non-material departures
therefrom. The parties hereto agree that any non-material waiver of any
provision of this Agreement or any other Loan Document shall be effective upon
the execution by the party so charged of a written agreement to such effect.
(b) Notwithstanding anything set forth in subparagraph (a)
above, no amendment, waiver or consent shall, unless in writing and signed by
all the Lenders do any of the following: (i) waive any of the conditions
specified in Article III except as otherwise provided therein; (ii) increase the
Revolving Credit Commitments of the Lenders or subject the Lenders to any
additional obligations; (iii) reduce the principal of, or interest on, the
Revolving Credit Loans or any fees or other amounts payable hereunder; (iv)
waive or postpone any date fixed for any payment of principal of, or interest
on, the Revolving Credit Loans or any fees or other amounts payable hereunder;
(v) change the percentage of the Revolving Credit Commitments, the aggregate
unpaid principal amount of the Revolving Credit Loans, or the number of Lenders
which shall be required for the Lenders or any of them to take any action
hereunder; (vi) change the definitions of Available Credit, Majority Lenders or
Super Majority Lenders (provided that the foregoing shall not include changes in
any defined terms used in such definitions), (vii) release any Loan Party from
its obligations under any Revolving Credit Note or any Subsidiary Guaranty, or
(viii) amend this Section 10.1; and provided, further, that no amendment, waiver
or consent shall, unless in writing and signed by the Administrative Agent in
addition to the Lenders required above to take such action, affect the rights or
duties of the Administrative Agent under this Agreement or the other Loan
Documents.
(c) Notwithstanding anything set forth in subparagraph (a)
above, no amendment, waiver or consent shall, (x) unless in writing and signed
by the Super Majority Lenders do any of the following: (i) waive or amend any of
the covenants specified in Sections 5.1, 5.2, 5.3, 5.4 or 5.5, (ii) change the
definitions of Unencumbered Hotel Property or Eligible Joint Venture (provided
that the foregoing shall not include changes in any defined terms used in such
definitions), (iii) waive payment of any default rate interest pursuant to
Section 2.8(b), or (iv) remove the Administrative Agent for a willful breach of,
or gross negligence in the performance of, its material obligations hereunder
pursuant to Section 9.6 or (y) unless in writing
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and signed by the Majority Lenders change the definitions of Adjusted NOI or
Unencumbered NOI (provided that the foregoing shall not include changes in any
defined terms used in such definitions).
(d) Each Lender shall reply promptly, but in any event within
ten (10) Business Days of receipt by such Lender of a request for consent,
approval, disapproval or waiver, from the Administrative Agent (the "Lender
Reply Period"). Unless a Lender shall give written notice to the Administrative
Agent that it objects to consenting, approving, disapproving or waiving any
matter as requested by the Administrative Agent (together with a written
explanation of the reasons behind such objection) within the Lender Reply
Period, such Lender shall be deemed to have consented, approved, disapproved or
waived such matters as specified in the Administrative Agent's request.
10.2. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including, without limitation,
telegraphic, telex, telecopy or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered by hand, if to the Borrower, at its
address at ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
(telecopy number: ▇▇▇-▇▇▇-▇▇▇▇) (telephone number: ▇▇▇-▇▇▇-▇▇▇▇), Attention:
Treasurer, with a copy to Attention: General Counsel; if to any Lender, at its
Domestic Lending Office specified opposite its name on Schedule II; and if to
the Administrative Agent, at its address at ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇, ▇▇▇
▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy number: ▇▇▇-▇▇▇-▇▇▇▇) (telephone number:
▇▇▇-▇▇▇-▇▇▇▇), Attention ▇▇▇▇ ▇▇▇▇▇▇▇▇ with a copy to One Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ (telecopy number: ▇▇▇-▇▇▇-▇▇▇▇) (telephone
number: ▇▇▇-▇▇▇-▇▇▇▇), Attention ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇; or, as to the Borrower or the
Administrative Agent, at such other address as shall be designated by such party
in a written notice to the other parties and, as to each other party, at such
other address as shall be designated by such party in a written notice to the
Borrower and the Administrative Agent. All such notices and communications
shall, when mailed, telegraphed, telexed, telecopied, cabled or delivered, be
effective when deposited in the mails, delivered to the telegraph company,
confirmed by telex answerback, telecopied with confirmation of receipt,
delivered to the cable company or delivered by hand to the addressee or its
agent, respectively, except that notices and communications to the
Administrative Agent pursuant to Article II or IX shall not be effective until
received by the Administrative Agent.
10.3. No Waiver, Remedies. No failure on the part of any
Lender or the Administrative Agent to exercise, and no delay in exercising, any
right hereunder or under any Revolving Credit Note shall operate as a waiver
thereof; nor shall any single or partial exercise of any such right preclude any
other or further exercise thereof or the exercise of any other right. The
remedies herein provided are cumulative and not exclusive of any remedies
provided by law.
10.4. Costs; Expenses; Indemnities. (a) The Borrower agrees to
pay on demand (i) all costs and expenses of the Administrative Agent and its
respective Affiliates in connection with the preparation, execution, delivery,
administration, syndication, modification and amendment of this Agreement, each
of the other Loan Documents and each of the other documents to be delivered
hereunder and thereunder, including, without limitation, the reasonable fees and
out-of-pocket expenses of counsel, accountants, appraisers, consultants or
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industry experts retained by the Administrative Agent with respect thereto and,
as to the Administrative Agent, with respect to advising it as to its rights and
responsibilities under this Agreement and the other Loan Documents, and (ii) all
costs and expenses of the Administrative Agent or any of the Lenders (including,
without limitation, the fees and out-of-pocket expenses of counsel, accountants,
appraisers, consultants or industry experts retained by the Administrative Agent
or any Lender) in connection with the restructuring or enforcement (whether
through negotiation, legal proceedings or otherwise) of this Agreement and the
other Loan Documents.
(b) The Borrower agrees to indemnify and hold harmless the
Administrative Agent, each Lender and the Issuing Lender and their respective
Affiliates, and the directors, officers, employees, agents, attorneys,
consultants and advisors of or to any of the foregoing (including, without
limitation, those retained in connection with the satisfaction or attempted
satisfaction of any of the conditions set forth in Article III) (each of the
foregoing being an "Indemnitee") from and against any and all claims, damages,
liabilities, obligations, losses, penalties, actions, judgments, suits, costs,
disbursements and expenses of any kind or nature (including, without limitation,
fees and disbursements of counsel to any such Indemnitee and experts, engineers
and consultants and the costs of investigation and feasibility studies) which
may be imposed on, incurred by or asserted against any such Indemnitee in
connection with or arising out of any investigation, litigation or proceeding,
whether or not any such Indemnitee is a party thereto, whether direct, indirect,
or consequential and whether based on any federal, state or local law or other
statutory regulation, securities or commercial law or regulation, or under
common law or in equity, or on contract, tort or otherwise, in any manner
relating to or arising out of or based upon or attributable to this Agreement,
any other Loan Document, any document delivered hereunder or thereunder, any
Obligation, or any act, event or transaction related or attendant to any
thereof, including, without limitation, (i) arising from any misrepresentation
or breach of warranty under Section 4.18 or any Environmental Claim or any
Environmental Lien or any Remedial Action arising out of or based upon anything
relating to real property owned or leased by the Borrower or any of its
Subsidiaries (collectively, the "Indemnified Matters"); provided, however, that
the Borrower shall not have any obligation under this Section 10.4(b) to an
Indemnitee with respect to any Indemnified Matter caused by or resulting from
the gross negligence or willful misconduct of that Indemnitee, as determined by
a court of competent jurisdiction in a final non-appealable judgment or order.
(c) If any Lender receives any payment of principal of, or is
subject to a conversion of, any Eurodollar Rate Loan other than on the last day
of an Interest Period relating to such Loan, as a result of any payment or
conversion made by the Borrower or acceleration of the maturity of the Revolving
Credit Notes pursuant to Section 8.2 or for any other reason, the Borrower
shall, upon demand by such Lender (with a copy of such demand to the
Administrative Agent), to the extent not previously paid to such Lender pursuant
to any other provision hereof, pay to the Administrative Agent for the account
of such Lender all amounts required to compensate such Lender for any additional
losses, costs or expenses which it may reasonably incur as a result of such
payment or conversion, including, without limitation, any loss (including,
without limitation, loss of anticipated profits), cost or expense incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Lender to fund or maintain such Revolving Credit Loan.
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(d) The Borrower shall indemnify the Administrative Agent, the
Lenders and the Issuing Lender for, and hold the Administrative Agent, the
Lenders and the Issuing Lender harmless from and against, any and all claims for
brokerage commissions, fees and other compensation made against the
Administrative Agent and the Lenders for any broker, finder or consultant with
respect to any agreement, arrangement or understanding made by or on behalf of
any Loan Party or any of its Subsidiaries in connection with the transactions
contemplated by this Agreement.
(e) The Borrower agrees that any indemnification or other
protection provided to any Indemnitee pursuant to this Agreement (including,
without limitation, pursuant to this Section 10.4) or any other Loan Document
shall (i) survive payment of the Obligations and (ii) inure to the benefit of
any Person who was at any time an Indemnitee under this Agreement or any other
Loan Document.
10.5. Right of Set-off. Upon the occurrence and during the
continuance of any Event of Default each Lender and the Issuing Lender is hereby
authorized at any time and from time to time, to the fullest extent permitted by
law, to set off and apply any and all deposits (general or special, time or
demand, provisional or final) at any time held and other indebtedness at any
time owing by such Lender to or for the credit or the account of the Borrower
against any and all of the Obligations now or hereafter existing whether or not
such Lender shall have made any demand under this Agreement or any Note or any
other Loan Document and although such Obligations may be unmatured. Each Lender
agrees promptly to notify the Borrower after any such set-off and application
made by such Lender; provided, however, that the failure to give such notice
shall not affect the validity of such setoff and application. The rights of each
Lender under this Section are in addition to the other rights and remedies
(including, without limitation, other rights of set-off) which such Lender may
have.
10.6. Binding Effect. (a) This Agreement shall become
effective as of the Restatement Effective Date and thereafter shall be binding
upon and inure to the benefit of the Borrower, the Administrative Agent, each
Lender and the Issuing Lender and their respective successors and assigns,
except that the Borrower shall not have the right to assign its rights hereunder
or any interest herein without the prior written consent of the Lenders.
(b) Notwithstanding anything in this Agreement appearing to
the contrary, this Agreement is executed as an amendment and restatement of the
Fourth Amended Revolving Credit Agreement, and is intended by the parties as a
modification, amendment, renewal and extension (but not as a novation) thereof
and of the indebtedness evidenced thereby, in order to renew and extend such
indebtedness pursuant to this Agreement.
10.7. Assignments and Participations. (a) Each Lender and the
Issuing Lender may sell, transfer, negotiate or assign to one or more other
Lenders or Eligible Assignees all or a portion of its Revolving Credit
Commitment, commitment to issue Letters of Credit, the Revolving Credit Loans
and Letter of Credit Outstandings owing to it and the Revolving Credit Notes
held by it and a commensurate portion of its rights and obligations hereunder
and under the other Loan Documents; provided, however, that (i) the aggregate
amount of the Revolving Credit Commitments, Revolving Credit Loans and Letter of
Credit Outstandings being assigned
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pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
the assignor's entire interest, except (x) with the consent of the Borrower and
the Administrative Agent, or (y) during the continuance of an Event of Default,
or (z) a Lender may assign a portion of its Revolving Credit Commitment,
Revolving Credit Loans and Letter of Credit Outstandings to another existing
Lender or Lenders only, provided that the aggregate amount of the Revolving
Credit Commitment, Revolving Credit Loans and Letter of Credit Outstandings
retained by the assignor shall in no event be less than $10,000,000, and (ii)
each assignee hereunder shall also be an Eligible Assignee. The parties to each
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording, an Assignment and Acceptance, together with the
Revolving Credit Notes (or an Affidavit of Loss and Indemnity with respect to
such Revolving Credit Notes satisfactory to the Administrative Agent) subject to
such assignment. Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (A)
the assignee thereunder shall become a party hereto and, to the extent that
rights and obligations under the Loan Documents have been assigned to such
assignee pursuant to such Assignment and Acceptance, have the rights and
obligations of a Lender hereunder and thereunder, and (B) the assignor
thereunder shall, to the extent that rights and obligations under this Agreement
have been assigned by it pursuant to such Assignment and Acceptance, relinquish
its rights (except those which survive the payment in full of the Obligations)
and be released from its obligations under the Loan Documents (and, in the case
of an Assignment and Acceptance covering all or the remaining portion of an
assigning Lender's rights and obligations under the Loan Documents, such Lender
shall cease to be a party hereto).
(b) By executing and delivering an Assignment and Acceptance,
the Lender assignor thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to any of
the statements, warranties or representations made in or in connection with this
Agreement or any other Loan Document furnished pursuant thereto or the
execution, legality, validity, enforceability, genuineness, sufficiency or value
of this Agreement or any other Loan Document or any other instrument or document
furnished pursuant hereto or thereto; (ii) such assigning Lender makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under this Agreement or any other Loan
Document or of any other instrument or document furnished pursuant hereto or
thereto; (iii) such assigning Lender confirms that it has delivered to the
assignee and the assignee confirms that it has received a copy of this Agreement
and each of the Loan Documents together with a copy of the most recent financial
statements delivered by the Borrower to the Lenders pursuant to each of the
clauses of Section 6.11 (or if no such statements have been delivered, the
financial statements referred to in Section 4.5 of this Agreement) and such
other documents and information as it has deemed appropriate to make its own
credit analysis and decision to enter into such Assignment and Acceptance; (iv)
such assignee will, independently and without reliance upon the Administrative
Agent, such assigning Lender or any other Lender, and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not
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taking action under this Agreement; (v) such assignee confirms that it is an
Eligible Assignee; (vi) such assignee appoints and authorizes the Administrative
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement and the other Loan Documents as are delegated to the
Administrative Agent by the terms hereof and thereof, together with such powers
as are reasonably incidental thereto; and (vii) such assignee agrees that it
will perform in accordance with their terms all of the obligations which by the
terms of this Agreement are required to be performed by it as a Lender and if
such assignor was the Issuing Lender, of the Issuing Lender.
(c) The Administrative Agent shall maintain at its address
referred to in Section 10.2 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lenders and the Revolving Credit Commitments of and principal
amount of the Revolving Credit Loans and Letters of Credit Outstandings owing to
each Lender from time to time (the "Register"). The entries in the Register
shall be conclusive and binding for all purposes, absent manifest error, and the
Loan Parties, the Administrative Agent, the Issuing Lender and the Lenders may
treat each Person whose name is recorded in the Register as a Lender for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower, the Administrative Agent, the Issuing Lender or any Lender at any
reasonable time and from time to time upon reasonable prior notice. The
Administrative Agent shall supply to the Borrower promptly after any amendment
thereto, a copy of the amended Register.
(d) Upon its receipt of an Assignment and Acceptance executed
by an assigning Lender or Issuing Lender and an assignee representing that it is
an Eligible Assignee, together with the Revolving Credit Notes subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed, (i) accept such Assignment and Acceptance, (ii) record the
information contained therein in the Register and (iii) give prompt notice
thereof to the Borrower. Within five Business Days after its receipt of such
notice, the Borrower, at its own expense, shall execute and deliver to the
Administrative Agent, in exchange for such surrendered Revolving Credit Notes,
new Revolving Credit Notes to the order of such Eligible Assignee in an amount
equal to the Revolving Credit Commitments assumed by it pursuant to such
Assignment and Acceptance and, if the assigning Lender has retained Revolving
Credit Commitments hereunder, new Revolving Credit Notes to the order of the
assigning Lender in an amount equal to the Commitments retained by it hereunder.
Such new Revolving Credit Notes shall be dated the same date as the surrendered
Revolving Credit Notes and be in substantially the form of Exhibit A hereto.
(e) In addition to the other assignment rights provided in
this Section 10.7, each Lender may assign, as collateral or otherwise, any of
its rights under this Agreement (including, without limitation, rights to
payments of principal or interest on the Revolving Credit Loans) to any Federal
Reserve Bank without notice to or consent of the Borrower or the Administrative
Agent; provided, however, that no such assignment shall release the assigning
Lender from any of its obligations hereunder. The terms and conditions of any
such assignment and the documentation evidencing such assignment shall be in
form and substance satisfactory to the assigning Lender and the assignee Federal
Reserve Bank.
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(f) Each Lender may sell participations to one or more banks
or other Persons in or to all or a portion of its rights and obligations under
the Loan Documents (including, without limitation, all or a portion of its
Revolving Credit Commitment, the Revolving Credit Loans and Letters of Credit
Outstandings owing to it and the Revolving Credit Notes held by it). The terms
of such participation shall not, in any event, require the participant's consent
to any amendments, waivers or other modifications of any provision of any Loan
Documents, the consent to any departure by any Loan Party therefrom, or to the
exercising or refraining from exercising any powers or rights which such Lender
may have under or in respect of the Loan Documents (including, without
limitation, the right to enforce the obligations of the Loan Parties), except if
any such amendment, waiver or other modification or consent would reduce the
amount, or postpone any date fixed for, any amount (whether of principal,
interest or fees) payable to such participant under the Loan Documents, to which
such participant would otherwise be entitled under such participation. In the
event of the sale of any participation by any Lender, (i) such Lender's
obligations under the Loan Documents (including, without limitation, its
Revolving Credit Commitment) shall remain unchanged, (ii) such Lender shall
remain solely responsible to the other parties hereto for the performance of
such obligations, (iii) such Lender shall remain the holder of such Revolving
Credit Notes and Obligations for all purposes of this Agreement, and; (iv) the
Borrower, the Administrative Agent and the other Lenders shall continue to deal
solely and directly with such Lender in connection with such Lender's rights and
obligations under this Agreement.
(g) Each participant shall be entitled to the benefits of
Sections 2.10, 2.12, 2.14 and 10.4 as if it were a Lender; provided, however,
that anything herein to the contrary notwithstanding, the Borrower shall not, at
any time, be obligated to pay to any assignee or participant of any interest of
any Lender, under Section 2.10, 2.12, 2.14 or 10.4, any sum in excess of the sum
which if the Borrower would not at the time of such assignment have been
obligated to pay to such assignor Lender any such amount in respect of such
interest had such assignment not been effected or had such participation not
been sold.
(h) Notwithstanding the foregoing provisions of this Section
10.7, the aggregate Revolving Credit Commitments and Revolving Credit Loans of
(i) Chase shall be at least equal to that of any other Lender, (ii) Bankers
Trust Company shall be at least equal to that of any other Lender (other than
Chase), (iii) Bank of America, N.A. shall be at least equal to that of any other
Lender (other than Chase) and (iv) ▇▇▇▇▇ Fargo Bank, National Association shall
be at least equal to that of any other Lender (other than Chase); provided that,
(i) if an Event of Default exists, Chase, Bankers Trust Company, Bank of
America, N.A. and/or ▇▇▇▇▇ Fargo Bank, National Association may assign all or
any portion of their respective Commitments and Revolving Credit Loans and (ii)
if Chase ceases to be Administrative Agent for any reason, Chase may assign all
or any portion of its respective Revolving Credit Commitment and Revolving
Credit Loans.
10.8. Governing Law; Severability. This Agreement and the
Revolving Credit Notes and the rights and obligations of the parties hereto and
thereto shall be governed by, and construed and interpreted in accordance with,
the law of the State of New York. Wherever possible, each provision of this
Agreement shall be interpreted in such manner as to be effective and valid under
applicable law, but if any provision of this agreement shall be prohibited by or
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invalid under applicable law, such provision shall be ineffective to the extent
of such prohibition or invalidity, without invalidating the remainder of such
provision or the remaining provisions of this Agreement.
10.9. Submission to Jurisdiction: Service of Process. (a) Any
legal action or proceeding with respect to this Agreement or the Revolving
Credit Notes or any document related thereto may be brought in the courts of the
State of New York or of the United States of America for the Southern District
of New York, and, by execution and delivery of this Agreement, the Borrower
hereby accepts for itself and in respect of its property, generally and
unconditionally, the jurisdiction of the aforesaid courts. The parties hereto
hereby irrevocably waive any objection, including, without limitation, any
objection to the laying of venue or based on the grounds of forum non
conveniens, which any of them may now or hereafter have to the bringing of any
such action or proceeding in such respective jurisdictions.
(b) The Borrower irrevocably consents to the service of
process of any of the aforesaid courts in any such action or proceeding by the
mailing of copies thereof by registered or certified mail, postage prepaid, to
the Borrower at its address provided herein.
(c) Nothing contained in this Section 10.9 shall affect the
right of the Administrative Agent, any Lender or any holder of a Revolving
Credit Note to serve process in any other manner permitted by law or commence
legal proceedings or otherwise proceed against the Borrower in any other
jurisdiction.
10.10. Section Titles. The Section titles contained in this
Agreement are and shall be without substantive meaning or content of any kind
whatsoever and are not a part of the agreement between the parties hereto.
10.11. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement.
10.12. Entire Agreement. This Agreement, together with all of
the other Loan Documents and all certificates and documents delivered hereunder
or thereunder, and the agreements referred to in Section 2.3(b) embody the
entire agreement of the parties and supersede all prior agreements and
understandings relating to the subject matter hereof.
10.13. Confidentiality. Each Lender and the Administrative
Agent agrees to keep information obtained by it pursuant hereto and the other
Loan Documents confidential and agrees that it will only use such information in
connection with the transactions contemplated by this Agreement and not disclose
any of such information other than (i) to such Lender's or the Administrative
Agent's, as the case may be, Affiliates, employees, representatives and agents
who are or are expected to be involved in the evaluation of such information in
connection with the transactions contemplated by this Agreement and who are
advised of the confidential nature of such information, (ii) to the extent such
information presently is or hereafter becomes available to such Lender or the
Administrative Agent, as the case may be, on a nonconfidential
-95-
102
basis from a source other than the Borrower, (iii) to the extent disclosure is
required by law, regulation or judicial order or requested or required by bank
regulators or auditors, or (iv) to assignees or participants or potential
assignees or participants who agree to be bound by the provisions of this
sentence.
10.14. WAIVER OF JURY TRIAL. EACH OF THE PARTIES HERETO WAIVES
ANY RIGHT IT MAY HAVE TO TRIAL BY JURY IN RESPECT OF ANY LITIGATION BASED ON, OR
ARISING OUT OF, UNDER OR IN CONNECTION WITH THIS AGREEMENT OR ANY OTHER LOAN
DOCUMENT, OR ANY COURSE OF CONDUCT, COURSE OF DEALING, VERBAL OR WRITTEN
STATEMENT OR ACTION OF ANY PARTY HERETO.
10.15. Joint and Several Obligations. Unless the context
clearly indicates otherwise each covenant, agreement, undertaking, condition or
other matter stated herein as a covenant, agreement, undertaking or matter
involving the Borrower shall be jointly and severally binding upon each of the
parties comprising Borrower.
-96-
103
IN WITNESS WHEREOF, the parties hereto have caused this
Agreement to be executed by their respective officers thereunto duly authorized,
as of the date first above written.
FELCOR LODGING TRUST INCORPORATED
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Treasurer
FELCOR LODGING LIMITED PARTNERSHIP
By: FelCor Lodging Trust Incorporated,
its general partner
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
Title: Vice President & Treasurer
THE CHASE MANHATTAN BANK,
individually and as Administrative
Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇
-------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇▇▇
Title: Managing Director
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
104
BANKERS TRUST COMPANY, individually
and as Documentation Agent
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
---------------------------------
Name: ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
Title: Principal
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
▇▇▇
▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇.▇., individually
and as Documentation Agent
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: ▇▇▇▇ ▇▇▇▇▇▇
Title: Principal
[SIGNATURES CONTINUE ON FOLLOWING PAGE]
106
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, individually and as
Co-Documentation Agent
By: /s/ J. ▇▇▇▇ ▇▇▇▇▇▇
-------------------------------------
Name: J. ▇▇▇▇ ▇▇▇▇▇▇
Title: Senior Vice President
REMAINDER OF SIGNATURE PAGES
INTENTIONALLY OMITTED
107
Schedule I
COMMITMENTS
LENDER REVOLVING CREDIT COMMITMENT
------ ---------------------------
The Chase Manhattan Bank $ 87,500,000
Bankers Trust Company $ 75,000,000
Bank of America, N.A $ 75,000,000
▇▇▇▇▇ Fargo Bank, National Association $ 75,000,000
The Bank of Nova Scotia $ 50,000,000
Banc One, N.A $ 50,000,000
Credit Lyonnais New York Branch $ 50,000,000
Fleet National Bank $ 35,000,000
Bank of Montreal $ 25,000,000
PNC Bank, N.A $ 25,000,000
Erste Bank $ 15,000,000
▇▇▇ ▇▇▇ Commercial Bank Ltd., New York Agency $ 13,500,000
▇▇▇▇▇ ▇▇▇ Commercial Bank Ltd., New York Branch $ 12,000,000
Citizens Bank of Massachusetts $ 12,000,000
$600,000,000
108
Schedule II
APPLICABLE LENDING OFFICES AND
ADDRESSES FOR NOTICES
LENDER DOMESTIC LENDING OFFICE AND ADDRESS EURODOLLAR LENDING OFFICE
FOR NOTICES
------ ----------------------------------- --------------------------
The Chase Manhattan Bank 1 Chase ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Plaza
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
Phone: (▇▇▇) ▇▇▇-▇▇▇▇ Phone: (▇▇▇) ▇▇▇-▇▇▇▇
Bank One, N.A. One Bank ▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
contact: ▇▇▇ ▇▇▇▇▇▇ contact: ▇▇▇ ▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of Montreal ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
contact: ▇▇▇▇▇▇ ▇▇▇▇▇▇ contact: ▇▇▇▇▇▇ ▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
The Bank of Nova Scotia Real Estate Banking ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇.▇.
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bank of America, N.A. ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: ▇▇▇▇ ▇. ▇▇▇▇▇▇ contact: ▇▇▇▇ ▇. ▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇ Commercial One World Trade Center, 32nd Floor One World Trade Center, 32nd Floor
Bank Ltd., New York ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Branch Contact: ▇▇▇▇▇ ▇▇▇▇ Contact: ▇▇▇▇▇ ▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
109
Schedule II
Page 2
LENDER DOMESTIC LENDING OFFICE AND ADDRESS EURODOLLAR LENDING OFFICE
FOR NOTICES
------ ----------------------------------- --------------------------
Citizens Bank of 1 Citizens Plaza ▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
Credit Lyonnais New 1301 Avenue of the Americas 1301 Avenue of the Americas
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: Bruno de Floor contact: Bruno de Floor
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
Bankers Trust Company ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
Mail Stop ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ contact: ▇▇▇▇▇ ▇▇▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: ▇▇▇▇ ▇▇▇▇▇▇▇ contact: ▇▇▇▇ ▇▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
Fleet National Bank ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ contact: ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇ Commercial Bank Two World Trade Center, Suite 2846 Two World Trade Center, Suite 2846
Ltd., New York Agency ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: ▇▇▇▇ ▇▇▇▇ Geeng contact: ▇▇▇▇ ▇▇▇▇ Geeng
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
110
Schedule II
Page 3
LENDER DOMESTIC LENDING OFFICE AND ADDRESS EURODOLLAR LENDING OFFICE
FOR NOTICES
------ ----------------------------------- --------------------------
PNC Bank, N.A. One PNC Plaza One PNC Plaza
Mail Stop: P1-▇▇▇▇-19-2 Mail Stop: P1-▇▇▇▇-19-2
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
contact: ▇▇▇ ▇▇▇▇▇▇▇ contact: ▇▇▇ ▇▇▇▇▇▇▇
phone: (▇▇▇) ▇▇▇-▇▇▇▇ phone: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ Fargo Bank, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
National Association ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
contact: ▇▇▇▇ ▇▇▇▇▇▇ contact: Match Fundings Administrator
phone: (▇▇▇) ▇▇▇-▇▇▇▇ fax: (▇▇▇) ▇▇▇-▇▇▇▇
fax: (▇▇▇) ▇▇▇-▇▇▇▇