EXHIBIT 10.1
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U.S.$510,000,000
AMENDED AND RESTATED
LOAN AND FACILITIES AGREEMENT
among
OPBIZ, L.L.C.,
as the Borrower
and
THE LENDERS PARTY HERETO
and
BNY ASSET SOLUTIONS LLC,
as Administrative Agent and Collateral Agent
dated as of __, 2003
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TABLE OF CONTENTS
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ARTICLE 1 DEFINITIONS.................................................................................... 2
1.1 Specific Definitions........................................................................... 2
1.2 Other Definitional Provisions.................................................................. 41
1.3 Other Terms.................................................................................... 42
1.4 Accounting Terms............................................................................... 42
ARTICLE 2 LOANS.......................................................................................... 43
2.1 Total Facility................................................................................. 43
2.2 Term Loan A.................................................................................... 43
2.3 Term Loan B.................................................................................... 43
2.4 Notes Evidencing Term Loans.................................................................... 44
2.5 Borrowing of Term Loans........................................................................ 44
2.6 Renewals of Term Loans......................................................................... 44
2.7 Term Loan Account.............................................................................. 44
ARTICLE 3 INTEREST AND OTHER CHARGES..................................................................... 44
3.1 Term Loan A Interest........................................................................... 44
3.2 Term Loan B Interest........................................................................... 45
3.3 Default Rate................................................................................... 46
3.4 Maximum Interest Rate.......................................................................... 46
3.5 Computation of Interest........................................................................ 46
3.6 Agency and Collateral Monitoring Fee........................................................... 46
3.7 Taxes.......................................................................................... 47
3.8 Requirements of Law............................................................................ 48
3.9 Capital Adequacy Costs......................................................................... 49
3.10 Inability to Determine Interest Rate........................................................... 50
3.11 Indemnity...................................................................................... 50
3.12 Illegality..................................................................................... 50
3.13 Replacement by the Borrower of a Lender........................................................ 51
ARTICLE 4 PAYMENTS AND PREPAYMENTS....................................................................... 51
4.1 Principal Payments............................................................................. 51
4.2 Optional Prepayments of Term Loans............................................................. 53
4.3 Mandatory Prepayments and Commitment Reductions................................................ 53
4.4 Payments, No Reborrowings...................................................................... 56
4.5 Place and Form of Payments; Extension of Time.................................................. 56
4.6 Sharing of Payments............................................................................ 57
4.7 Indemnity for Returned Payments................................................................ 57
4.8 Regulatory Replacement of Lender............................................................... 57
4.9 Replacement of Lender Due to Gaming Authorities................................................ 58
4.10 Agent's and Lenders' Books and Records......................................................... 59
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4.11 Register....................................................................................... 59
ARTICLE 5 CONDITIONS PRECEDENT........................................................................... 59
5.1 Lender Conditions Precedent.................................................................... 59
5.2 Borrower Condition Precedent................................................................... 65
ARTICLE 6 GENERAL WARRANTIES AND REPRESENTATIONS......................................................... 65
6.1 Authorization, Validity, and Enforceability of this Agreement
and the Loan Documents........................................................................ 65
6.2 Organization and Qualification................................................................. 66
6.3 Subsidiaries................................................................................... 66
6.4 Business Plan.................................................................................. 66
6.5 Capitalization................................................................................. 66
6.6 Solvency....................................................................................... 66
6.7 Restrictive Agreements......................................................................... 66
6.8 Regulations U and X............................................................................ 66
6.9 Broker's Fees.................................................................................. 67
6.10 Disclosure..................................................................................... 67
6.11 Investment and Holding Company Status.......................................................... 67
6.12 Projections. .................................................................................. 67
6.13 Payments with respect to Time Share Premises. ................................................ 67
ARTICLE 7 AFFIRMATIVE COVENANTS.......................................................................... 68
7.1 Books and Records.............................................................................. 68
7.2 Financial and Other Information................................................................ 68
7.3 Notices to the Agent........................................................................... 71
7.4 Taxes and Other Obligations.................................................................... 73
7.5 Existence, Good Standing and Legal Requirements................................................ 74
7.6 Insurance...................................................................................... 75
7.7 Environmental Laws............................................................................. 77
7.8 Maintain Operating and Other Accounts.......................................................... 77
7.9 End of Fiscal Years............................................................................ 78
7.10 Discharge of Liens............................................................................. 78
7.11 Further Assurances............................................................................. 78
7.12 Subsidiary Security Agreement.................................................................. 80
7.13 Use of Additional Capital for Renovation Capital Expenditures.................................. 80
7.14 Intentionally Omitted.......................................................................... 80
7.15 Ownership of Premises and other Collateral; Defense of Title................................... 80
7.16 Management of Premises......................................................................... 81
7.17 Leases......................................................................................... 82
7.18 Maintenance, Operations, Repairs and Alterations............................................... 84
7.19 Application of Insurance Proceeds.............................................................. 86
7.20 Application of Condemnation Proceeds........................................................... 88
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7.21 Appraisals.................................................................................... 89
7.22 ERISA......................................................................................... 89
7.23 Final Certificate of Occupancy................................................................ 90
7.24 Material Operating Agreements................................................................. 90
7.25 Use of Reserve................................................................................ 91
7.26 Easements, Etc., in Favor of Time Share Entity. ............................................ 91
7.27 Consents. .................................................................................... 91
7.28 Employment of Borrower's Chief Executive Officer. ............................................ 92
7.29 Plans and Specifications...................................................................... 92
7.30 Amendments to this Agreement. ............................................................... 92
ARTICLE 8 NEGATIVE COVENANTS............................................................................ 92
8.1 Mergers, Consolidations, Sales or other Disposition;
Disposition of Time Share Premises.......................................................... 93
8.2 Distributions................................................................................. 94
8.3 Guaranties.................................................................................... 94
8.4 Debt.......................................................................................... 94
8.5 Prepayment; Certain Matters Relating to the Mezzanine Loan.................................... 95
8.6 Transactions with Affiliates.................................................................. 95
8.7 Business Conducted............................................................................ 96
8.8 Liens......................................................................................... 96
8.9 Subsidiaries.................................................................................. 96
8.10 Restricted Investments........................................................................ 96
8.11 Capital Expenditures.......................................................................... 96
8.12 Maintenance Capital Expenditures.............................................................. 96
8.13 EBITDA........................................................................................ 97
8.14 Interest Coverage Ratio....................................................................... 98
8.15 Leverage Ratio................................................................................ 99
8.16 Negative Pledge Clauses....................................................................... 100
8.17 Restrictions on Subsidiary Distributions...................................................... 100
8.18 Confirmation Order............................................................................ 100
8.19 Easements..................................................................................... 100
8.20 Changes in Zoning............................................................................. 101
8.21 ERISA......................................................................................... 101
8.22 Organizational Documents...................................................................... 101
8.23 Development Agreement......................................................................... 101
8.25 Adverse Contracts............................................................................. 102
8.26 Management of the Borrower.................................................................... 102
8.27 Maximum Operating Cash Reserve Amount......................................................... 102
8.28 Plan of Reorganization........................................................................ 102
8.29 Maintenance of Operating Cash Reserve Amount. ............................................... 102
8.30 Time Share Entity. ........................................................................... 102
8.31 Payments with respect to Time Share Premises. ................................................ 103
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8.32 Rates for Hotel Usage by the Time Share Entity................................................ 103
ARTICLE 9 DEFAULT; REMEDIES............................................................................. 103
9.1 Events of Default............................................................................. 103
9.2 Remedies...................................................................................... 107
9.3 Application of Proceeds of Collateral and Guaranty Agreements................................. 109
ARTICLE 10 TERMINATION OF AGREEMENT...................................................................... 110
10.1 Termination Date.............................................................................. 110
10.2 Termination by the Borrower................................................................... 110
10.3 Termination by the Required Term Loan A Lenders............................................... 110
10.4 Obligations................................................................................... 110
ARTICLE 11 MISCELLANEOUS................................................................................. 110
11.1 Cumulative Remedies; No Prior Recourse to Collateral.......................................... 110
11.2 No Implied Waivers............................................................................ 111
11.3 Severability.................................................................................. 111
11.4 Governing Law................................................................................. 111
11.5 Consent to Jurisdiction and Venue; Service of Process......................................... 111
11.6 Waiver of Jury Trial.......................................................................... 111
11.7 Survival of Representations and Warranties and Indemnification................................ 112
11.8 Indemnification............................................................................... 112
11.9 Other Security and Guaranties................................................................. 113
11.10 Fees and Expenses............................................................................. 113
11.11 Notices....................................................................................... 114
11.12 Waiver of Notices............................................................................. 115
11.13 Binding Effect; Assignment; Confidentiality................................................... 115
11.14 Modification.................................................................................. 118
11.15 Counterparts.................................................................................. 119
11.16 Captions...................................................................................... 119
11.17 Right of Set-Off; Security Interest in Deposit Accounts....................................... 119
11.18 Limitation of Liability....................................................................... 119
11.19 Time Within Which to Consent to Certain Actions. ............................................. 120
ARTICLE 12 THE AGENT............................................................................................ 120
ARTICLE 13 GUARANTEES........................................................................................... 123
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EXHIBITS
EXHIBIT A Schedule of Commitments and Address for each Lender
EXHIBIT B-1 Description of Energy Premises
EXHIBIT B-2 Description of Time Share Premises
EXHIBIT B-3 Description of Theater
EXHIBIT C Description of Premises
EXHIBIT D Form of Security Agreement
EXHIBIT E-1 Form of Term Loan A Notes
EXHIBIT E-2 Form of Term Loan B Notes
EXHIBIT F Form of U.S. Tax Compliance Certificate
EXHIBIT G Form of Opinion of the Borrower's Counsel
EXHIBIT H Confirmation Order
EXHIBIT I Form of Assignment and Acceptance Agreement
EXHIBIT J Form of Monthly Operating Report
EXHIBIT K Form of Assignment of Leases and Rents
EXHIBIT L Renovation Capital Expenditures
EXHIBIT M Form of Subordination Agreement
EXHIBIT N Form of Holdings Guaranty
EXHIBIT O Form of Representation and Warranty Certificate
EXHIBIT P Form of Assignment of Contract
EXHIBIT Q Form of Environmental Indemnity
SCHEDULES
SCHEDULE 1.1 Other Permitted Liens
SCHEDULE 5.1 Documents to be Delivered
SCHEDULE 6.1 Consents
SCHEDULE 6.3(a) Consolidated Subsidiaries; Other Subsidiaries
SCHEDULE 6.5 Capitalization
SCHEDULE 8.3 Guaranties
SCHEDULE 8.4 Debt
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AMENDED AND RESTATED LOAN AND FACILITIES AGREEMENT, dated as
of ______ __, 2003 among OPBIZ, L.L.C., a Nevada limited liability company (the
"Borrower"), THE FINANCIAL INSTITUTIONS PARTY HERETO AS LENDERS, THE OTHER
FINANCIAL INSTITUTIONS THAT HEREAFTER BECOME PARTIES HERETO AS LENDERS
(individually, a "Lender" and collectively, the "Lenders") and BNY ASSET
SOLUTIONS LLC, as administrative agent and collateral agent for the Lenders (in
such capacity together with any successor thereto in such capacity, the
"Agent").
W I T N E S S E T H:
WHEREAS, Aladdin Gaming, LLC, a Nevada limited liability
company ("Aladdin") entered into a (i) Credit Agreement dated as of February 26,
1998, as amended to date (the "Pre-Petition Credit Agreement") with the Lenders
party thereto, BNY Asset Solutions LLC (as successor to The Bank of Nova
Scotia), as administrative agent for such Lenders, and ▇▇▇▇▇▇▇ ▇▇▇▇▇ Capital
Corporation, as syndication agent, and CIBC ▇▇▇▇▇▇▇▇▇▇▇ Corp., as documentation
agent, and (ii) Facilities Agreement dated July 26, 1998 with General Electric
Capital Corporation, individually and as agent for certain participants, as
amended to date (the "GECC Facilities Agreement");
WHEREAS, on September 28, 2001, Aladdin filed in the United
States Bankruptcy Court for the District of Nevada, Southern Division (the
"Bankruptcy Court") a voluntary petition for relief under Chapter 11 of the
Bankruptcy Code (as hereinafter defined);
WHEREAS, in connection with the implementation of Aladdin's
Plan of Reorganization (as hereinafter defined), the Borrower shall enter into
the Purchase and Sale Agreement (as hereinafter defined) pursuant to which the
Borrower shall purchase certain assets from Aladdin including without limitation
the Premises (as hereinafter defined);
WHEREAS, in connection with the implementation of Aladdin's
Plan of Reorganization and pursuant to the Purchase and Sale Agreement, the
Borrower will assume certain liabilities of Aladdin arising under, inter alia,
the (i) Pre-Petition Credit Agreement and the Pre-Petition Loan Documents (as
hereinafter defined) and (ii) GECC Facilities Agreement and the GECC Facilities
Loan Documents (as hereinafter defined) in the aggregate principal amount of
$510,000,000, such assumption to be evidenced by this Loan Agreement and the
other Loan Documents, and the Borrower shall be obligated to repay such amount
to the Lenders in accordance with the terms and provisions set forth in this
Agreement;
WHEREAS, the Lenders have agreed to make available to the
Borrower credit upon the terms and conditions set forth in this Agreement.
NOW, THEREFORE, in consideration of the mutual covenants and
agreements set forth in this Agreement, and for good and valuable consideration,
the receipt and sufficiency of which is hereby acknowledged, the Borrower, the
Lenders and the Agent hereby agree the Pre-Petition Credit Agreement and the
GECC Facilities Agreement shall be amended, restated and superseded as follows:
ARTICLE 1
DEFINITIONS
1.1 Specific Definitions. In addition to certain terms defined
elsewhere in this Agreement, the following terms shall have the meanings
specified below:
"Accounts" means, collectively, all bank and other deposit
accounts of the Borrower, any Subsidiary thereof and all bank and other deposit
accounts of any Manager or any other Person, held on behalf of or for the
benefit of the Borrower or any Subsidiary thereof, including those bank and
other deposit accounts described in Section P of the Disclosure Schedule.
"Affiliate" of a specified Person means any other Person
which, directly or indirectly, controls, is controlled by or is under common
control with, the specified Person, including, without limitation, any Person:
(a) which beneficially owns or holds, directly or indirectly, ten percent (10%)
or more of (i) any class of voting stock of the specified Person, or (ii) the
Equity Interests (with voting capacity) of a Person whose Equity Interests are
not represented by certificates, or (b) who (i) is a director or executive
officer (or individual with similar responsibilities) of the specified Person or
(ii) if the Person does not have directors or executive officers, has similar
responsibilities to a director or executive officer. The term "control"
(including, with correlative meanings, the terms "controlled by" and "under
common control with") means the possession, directly or indirectly, of the power
to direct or cause the direction of the management and policies of the specified
Person. The term "beneficial ownership" shall have the meaning set forth in Rule
13d-3 promulgated by the Securities and Exchange Commission under the Securities
Exchange Act of 1934. For the purpose of this definition, any Manager and each
Member and any other Person who becomes a Member after the Closing Date if
permitted under this Agreement and any Affiliates of the foregoing shall be
deemed Affiliates of the Borrower.
"Agency and Collateral Monitoring Fee" has the meaning given
to such term in Section 3.6.
"Agent" has the meaning given to such term in the recitals to
this Agreement.
"Agreement" means this Amended and Restated Loan and
Facilities Agreement, as amended, supplemented or otherwise modified from time
to time.
"Aladdin" has the meaning given to such term in the recitals
to this Agreement.
"Aladdin Bazaar" means Aladdin Bazaar, LLC, a Delaware limited
liability company.
"A&M" has the meaning given to such term in Section 6.12 of
this Agreement.
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"Anniversary Date" means each one year anniversary of the
Closing Date.
"Annual Actual Amount of Interest" has the meaning given to
such term in Section 3.1(a)(ii) of this Agreement.
"Annual Estimated Amount of Interest" has the meaning given to
such term in Section 3.1(a)(ii) of this Agreement.
"Appraisal" means a written appraisal report of the Premises,
as the term "appraisal" is defined in the Code of Professional Ethics of the
American Institute of Appraisers, meeting the requirements of the Federal
Institutions Reform, Recovery and Enforcement Act of 1989, as amended, prepared
by a professional appraiser retained at the Borrower's expense, who is a member
of the American Institute of Appraisers, addressed to the Agent, the Borrower
and the Lenders, setting forth such appraiser's determination of the fair market
value of the Premises on the date of the Appraisal and which shall in form and
scope be satisfactory to the Agent in its reasonable discretion.
"Approved Fund" means, relative to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
advised or managed by the same investment advisor as such Lender or by an
Affiliate of such investment advisor.
"Approved Officer" means, as to the Borrower, the president,
the chief executive, chief operating or chief financial officer, treasurer (or
assistant treasurer), controller or any vice president of the Borrower, whose
signatures and incumbency have been certified to the Agent and the Lenders in a
certificate of the Borrower delivered to the Agent.
"Asset Transfer" means any Disposition of any Property of the
Borrower or a Subsidiary (including, without limitation, any Equity Interests of
any Subsidiary, but excluding Casualty Events), without regard to the
consideration, if any, received therefor, including, without limitation, any
Disposition effected through a merger or consolidation.
"Assignment Agreement" has the meaning given to such term in
Section 11.13(b) of this Agreement.
"Assignment of Agreements" means that certain Assignment of
Agreements dated as of the Closing Date made by the Borrower to the Agent.
"Assignment of Contract" means that certain Assignment of
Contract, dated as of the Closing Date to be executed and delivered by the
Borrower and the Agent, for its own benefit and the benefit of the Lenders, in
substantially the form of Exhibit P.
"Assignment of Leases" means that certain Assignment of Leases
and Rents dated as of the Closing Date made by the Borrower to the Agent, in
substantially the form of Exhibit K.
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"Auction Date" means "Alternative Offer Deadline" as defined
in the Purchase and Sale Agreement.
"Average Daily Outstanding Principal Amount" means the average
daily outstanding aggregate principal amount of Term Loan A or Term Loan B, as
applicable, calculated by taking the sum of the outstanding aggregate principal
amount of Term Loan A or Term Loan B, as applicable, as of 10:00 a.m. (New York
City time) for each calendar day in a Fiscal Quarter and dividing such number by
the number of calendar days in such Fiscal Quarter.
"Bankruptcy Code" means the United States Bankruptcy Code (11
U.S.C. Section 101 et seq.), as amended, and any successor statute applicable to
the Chapter 11 Case.
"Bankruptcy Court" has the meaning given to such term in the
recitals to this Agreement.
"Bay Harbour Investor" has the meaning given to such term in
the definition of "Investor Group".
"Bazaar Note" means that certain Subordinated Non-Negotiable
Promissory Note dated as of November 20, 2000 by Aladdin Bazaar, in favor of
Aladdin and purchased by the Borrower pursuant to the Purchase and Sale
Agreement.
"Board" means the Board of Governors of the Federal Reserve
System of the United States (or any successor).
"Borrower" has the meaning given to such term in the recitals
to this Agreement.
"Borrower Certificate" means that certain certificate dated as
of the Closing Date in favor of the Agent.
"Borrower's Plan" has the meaning given to such term in
Section 5.1(cc).
"Business" means collectively, (i) the rental of guest,
conference or banquet rooms at the Premises; (ii) the operation of the casino at
the Premises; (iii) the operation of restaurant, bar or banquet services at the
Premises; (iv) the rental of commercial, entertainment or retail space to
tenants at the Premises; and (v) the operation of the Theater.
"Business Day" means any day excluding Saturday, Sunday and
any day which shall be in Nevada, Texas or the City of New York a legal holiday
or a day on which banking institutions are authorized by law or other
governmental actions to close.
"Capital Expenditures" means all expenditures by the Borrower
or a Subsidiary for the acquisition or leasing (pursuant to a Capital Lease) of
assets or additions to equipment (including replacements, capitalized repairs
and improvements) which are required to be capitalized under GAAP, and in any
event shall include Maintenance Capital Expenditures and
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Renovation Capital Expenditures (it being agreed that up to $9,000,000 of such
Renovation Capital Expenditures are not required to be capitalized under GAAP).
"Capital Lease" means any lease of Property by the Borrower or
a Subsidiary that, in accordance with GAAP, is required to be reflected as a
liability on the balance sheet of the Borrower or such Subsidiary.
"Capital Lease Obligations" means as to any Person, the
obligations of such Person to pay rent or other amounts under any lease of (or
other arrangement conveying the right to use) real or personal property, or a
combination thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person under GAAP,
and, for the purposes of this Agreement, (i) the amount of such obligations at
any time shall be the capitalized amount thereof at such time determined in
accordance with GAAP and (ii) shall exclude obligations of the Borrower or any
Subsidiary to Northwind under the Energy Service Agreement.
"Carry-Over Cash Flow Amount" means at any time after the
Initial Excess Cash Flow Principal Payment Date, the Excess Cash Flow for the
immediately prior period of two Fiscal Quarters that was not distributed to the
Term Loan A Lenders or spent or distributed by the Borrower for purposes
permitted by this Agreement, and shall specifically exclude the Reserve Amount
and the Operating Cash Reserve Amount.
"Carry-Over Reserve Amount" means for any Fiscal Quarter, the
Reserve Amount for all prior Fiscal Quarters.
"Cash Interest Expense" means, with respect to the Borrower
for any period, Interest Expense for such period less all non-cash items
constituting Interest Expense during such period (including, without limitation,
amortization of debt discounts, Closing Date fees and expenses and payments of
interest on Debt by issuance of Debt) determined in accordance with GAAP.
"Casino" means the portion of the Premises operated as a
casino, including entertainment and music areas, but excluding the Hotel
Premises.
"Casualty Event" means the damage, destruction or Taking, as
the case may be, of Property, or any part thereof, of the Borrower or any
Subsidiary.
"Change of Control" means (i) if at any time the Persons
designated by the Bay Harbour Investor, any Hotel Investor, the ▇▇▇▇ Investor
and the Lenders as managers or directors of the Borrower cease for any reason to
constitute a majority of the directors or, managers of the Borrower then in
office (if any), (ii) the Investor Group shall cease to directly or indirectly
own and control beneficially and of record, free and clear of all Liens, other
encumbrances or, unless otherwise (A) set forth in the Organizational Documents
of the Borrower or any Guarantor provided to the Agent in accordance with
Section 5.1(q) or any entity (x) formed by the Investor Group, (y) that directly
or indirectly holds any Equity Interest in any Guarantor or the Borrower
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and (z) whose Organizational Documents have been approved in writing by the
Agent (acting at the reasonable direction of the Required Lenders) prior to the
Closing Date or (B) approved in writing by the Agent (acting at the reasonable
direction of the Required Lenders), voting agreements, restrictions or trusts of
any kind, Equity Interests of the Borrower entitling it, at the time a
determination is made hereunder, to manage and control the operations (either
through control of a board of directors or otherwise) of the Borrower, (iii)
either (x) the Bay Harbour Investor and the ▇▇▇▇ Investor shall cease to
directly or indirectly own and control at least 50% of all Equity Interests with
voting rights of the Borrower, free and clear of all Liens, other encumbrances,
or, unless otherwise (A) set forth in the Organizational Documents of the
Borrower or any Guarantor provided to the Agent in accordance with Section
5.1(q) or any entity (x) formed by the Investor Group, (y) that directly or
indirectly holds any Equity Interest in any Guarantor or the Borrower and (z)
whose Organizational Documents have been approved in writing by the Agent
(acting at the reasonable direction of the Required Lenders) prior to the
Closing Date or (B) approved in writing by the Agent (acting at the reasonable
direction of the Required Lenders), voting agreements, restrictions or trusts of
any kind or (y) the Bay Harbour Investor, the ▇▇▇▇ Investor and any Hotel
Investor or any Person that replaces such Hotel Investor with the prior written
consent of the Agent (acting upon the reasonable direction of the Required
Lenders) pursuant to the terms of this Agreement shall cease to directly or
indirectly own and control at least 50% of all Equity Interests with voting
rights of the Borrower, free and clear of all Liens, other encumbrances, or
unless otherwise set forth in the Organizational Documents of the Borrower or
approved in writing by the Agent (acting at the reasonable direction of the
Required Lenders), voting agreements, restrictions or trusts of any kind, or
(iv) the Borrower shall cease to directly own 100% of all Equity Interests of
its Subsidiaries.
"Chapter 11 Case" means Aladdin's case pending in the
Bankruptcy Court under Chapter 11 of the Bankruptcy Code.
"Closing Date" means the date on which the conditions
precedent set forth in Article 5 shall have been satisfied or waived by the
Agent or the Borrower, as applicable.
"Code" means the Internal Revenue Code of 1986, as amended.
"Collateral" means all Property of the Loan Parties, now owned
or hereafter acquired, including, without limitation, the Mortgaged Property,
but excluding any of the contracts, licenses and permits set forth on Schedule
6.1 to the extent any such contracts, licenses or permits are unassignable
without the written consent of another Person.
"Commitment" means, for each Lender, the amount (i) set forth
opposite such Lender's name on Exhibit A of this Agreement with respect to Term
Loans or (ii) pursuant to a written assignment agreement pursuant to Section
11.13(b) or other agreement, under which a Person becomes a Lender, the amount
of Commitment so agreed to by such new Lender and an existing Lender, in each
case as may be reduced from time to time in accordance with the terms hereof.
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"Comparable Standards" means (a) with respect to the Hotel
Premises, the standards of management, operation and maintenance of a
first-class hotel of a like quality to the ▇▇▇▇ Disney World Dolphin located at
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ or in the event
that the Agent (acting upon the reasonable direction of the Required Lenders)
determines that the ▇▇▇▇ Disney World Dolphin is closed or no longer maintains
the same standards as it did on the date of the Purchase and Sale Agreement, a
Sheraton hotel located in a major city of the United States that is a vacation
destination center at a prime location as reasonably determined by the Agent
which is comparable to the Hotel Premises in location, size, facilities, quality
and nature (or in the event that the Borrower has entered into a Management
Agreement with a Manager other than Sheraton, a hotel operated by such Manager
that the Agent (acting upon the reasonable direction of the Required Lenders)
determines is similar to the ▇▇▇▇ Disney World Dolphin, (b) with respect to the
Retail Shops, the standards of management, operation and maintenance of a
first-class retail shopping center which is comparable to the Retail Shops in
location, size, tenant composition, facilities, quality and nature, (c) with
respect to the Casino, the standards of management, operation and maintenance of
a first-class casino which is comparable to the Casino in location, size,
facilities, quality and nature, and (d) with respect to the Theater, the
standards of management, operation and maintenance of a first- class theater
which is comparable to the Theater in location, size, facilities, quality and
nature.
"Condition of the Business" means the financial condition and
results of operations of the Business or the Collateral (taken as a whole).
"Confirmation Order" means an Order of the Bankruptcy Court in
form and substance acceptable to the Borrower, the Agent and the Lenders in
their reasonable discretion confirming the Plan of Reorganization in the Chapter
11 Case in accordance with the provisions of the Bankruptcy Code and
substantially in the form of Exhibit H hereto.
"Consolidated" means, in respect of any Person, as applied to
any financial or accounting term, such term determined on a consolidated basis
in accordance with GAAP (except as otherwise required herein) for the Person and
all consolidated Subsidiaries thereof.
"Debt" means, without duplication, with respect to the
Borrower and its Consolidated Subsidiaries: (a) all obligations of such Person
for borrowed money or for the deferred purchase price of property or services
(other than current accounts payable incurred in the ordinary course of
business, and accrued expenses and liabilities incurred in the ordinary course
of business), all obligations evidenced by bonds, debentures, notes, or similar
instruments, and any other obligations which, in accordance with GAAP, are
required to be shown as a liability on such Person's balance sheet; (b) all
obligations and liabilities of any Person secured by any Lien on the Property of
the Borrower or any Subsidiary, with respect to which obligations and
liabilities neither the Borrower nor any of its Consolidated Subsidiaries shall
have assumed or become liable for the payment thereof; provided, however, that
all such obligations and liabilities which are limited in recourse to such
Property shall be included in Debt only to the extent of the book value of such
Property that would be shown on a Consolidated balance sheet of the Borrower and
its Consolidated Subsidiaries prepared in accordance with GAAP; (c) all
obligations or liabilities created or arising under any Capital Lease or
conditional sale or other
7
title retention agreement with respect to Property used or acquired by the
Borrower or any of its Consolidated Subsidiaries, even if the rights and
remedies of the lessor, seller or lender there under are limited to repossession
of such Property; provided, however, that all such obligations and liabilities
which are limited in recourse to such Property shall be included in Debt only to
the extent of the book value of such Property that would be shown on a
Consolidated balance sheet of the Borrower and its Subsidiaries prepared in
accordance with GAAP; (d) all obligations and liabilities under Guaranties,
indemnities, and for reimbursement in connection with letters of credit and
surety bonds; and (e) all Hedge Obligations. For the purposes of this Agreement,
the Debt of any Person shall include the proportion of Debt of any partnership
in which such Person is a general partner or joint venturer with liability for
the indebtedness of such Person but only to the extent of such Person's interest
in such general partnership or joint venture. For purposes of clarity, the
parties hereto agree that "Debt" shall specifically exclude the obligations of
the Borrower to Northwind pursuant to the Energy Services Agreement.
"Disclosure Schedule" means the disclosure schedule attached
to the Representation and Warranty Certificate.
"Disposition" means with respect to any Property, any sale,
lease, sale and leaseback, assignment, conveyance, transfer (including as a
result of a Taking), contribution or other disposition thereof.
"Distribution" means, in respect of any corporation,
partnership, joint venture, limited liability company or similar business
entity: (a) the payment or making of any dividend (other than a dividend in
stock or in the right to acquire stock), payment, preferred return or other
distribution of Property in respect of or in connection with its Equity
Interests or any other profit participation or economic interests; or (b) the
redemption, repurchase or other acquisition of (i) any of its Equity Interests,
(ii) any of its securities or debt instruments convertible into such Equity
Interests, or (iii) any option, warrant, or other right to acquire such Equity
Interests.
"Dollars" and "$" mean the lawful currency of the United
States of America.
"▇▇▇▇ Investor" has the meaning given to such term in the
definition of "Investor Group" .
"EBITDA" means with respect to the Borrower for any period,
without duplication, (a) the sum of (i) Net Income, (ii) Interest Expense, (iii)
federal, state and local income taxes deducted in determining Net Income, and
(iv) depreciation and amortization and other non-cash items properly deducted in
determining Net Income, in each case on a consolidated basis for the Borrower
and its Subsidiaries for such period, calculated on a consolidated basis in
accordance with GAAP, minus (b) non-cash items properly added in determining Net
Income for such period (calculated on a consolidated basis in accordance with
GAAP); provided that solely for purposes of determining the Borrower's
compliance with the financial covenants contained in Sections 8.13, 8.14 and
8.15, there shall be added back to EBITDA the amount of any increased costs to
the Borrower under the Parking Agreement resulting from any amendment,
modification or reversal of the Parking Garage Order. Any and
8
all payments made by the Borrower to Northwind in cash pursuant to the Energy
Services Agreement shall be deemed to be operating expenses of the Borrower for
the purpose of determining EBITDA.
"EBITDA Cure Amount" has the meaning given to such term in
Section 8.13(b).
"Effective Date" has the meaning given to such term in the
Plan of Reorganization.
"Eligible Assignee" means, with respect to any assignment of
the rights, interests and obligations of a Lender hereunder, a Person that (a)
is at that time of such assignment (i) a commercial bank, a finance company,
insurance company, fund or other financial institution, in each case of the
foregoing cases having a net worth or combined capital and surplus of at least
$750,000,000, (ii) an investment company whose shares are publicly traded and
who has at least $250,000,000 of assets, (iii) a successor (whether by transfer
of all or substantially all of assets, merger, consolidation or otherwise) to
the assigning Lender, (iv) is a Lender as of the date of this Agreement, or (v)
any other entity approved in writing by both the Borrower (so long as no Event
or Event of Default has occurred and is continuing) and the Agent; provided,
however, that no Person shall be an Eligible Assignee if such Person would at
the time of any such assignment subject the Borrower to liability under Section
3.7, 3.8, 3.9 or 3.12 of this Agreement, and (b) so long as no Event or Event of
Default shall have occurred and be continuing, is not, at the time of such
assignment, an entity that operates casinos or is a substantial holder of equity
in an entity that operates casinos, hotels or themed entertainment (any such
entity shall be referred to herein as a "Competitor") (the determination of
whether any assignee or proposed assignee is a Competitor to be made in good
faith by the Borrower or the board of directors or managers of the Borrower, if
any or the relevant member of the Investor Group, as the circumstances require
acting in a reasonable and timely manner); provided, however, that in no event
shall a Person who is a Lender as of the date of this Agreement at any time
constitute a Competitor.
"Energy Premises" means the real property on which the utility
plant owned and operated by Northwind is located and the adjoining optional
improvement site as described on Exhibit B-1 and the Borrower's right, title and
interest in such utility plant.
"Energy Premises Lease" means that certain lease, dated
December 3, 1997, as amended to date, between Northwind and Aladdin as amended
by the Settlement Agreement and assumed by Aladdin pursuant to the order of the
Bankruptcy Court dated December 9, 2002 and assumed by the Borrower under the
Purchase and Sale Agreement.
"Energy Service Agreement" means that certain Energy Service
Agreement dated as of September 24, 1998 by and between Aladdin and Northwind as
amended by the Settlement Agreement and assumed by Aladdin pursuant to the order
of the Bankruptcy Court dated December 9, 2002 and assumed by the Borrower under
the Purchase and Sale Agreement.
"Environmental Claim" means a claim, however asserted, by any
Governmental Authority or other Person alleging potential liability on the part
of the Borrower or any of its
9
Subsidiaries for violation of or liability under any Environmental Law or for
release or injury to the environment or threat to public health, personal injury
(including sickness, disease or death), property damage, natural resources
damage, or otherwise alleging liability for damages, punitive damages, cleanup
costs, removal costs, remedial costs, response costs, restitution, civil or
criminal penalties, injunctive relief, or other type of relief, resulting from
or based upon (a) the presence, placement, discharge, emission or release
(including intentional or unintentional, negligent or non-negligent, sudden or
non-sudden, accidental or non-accidental placement, spill, leak, discharge,
emission or release) of any Hazardous Material at, in or from property, whether
or not owned by the Borrower or any of its Subsidiaries, or (b) any other
circumstances forming the basis of any violation, or alleged violation, of any
Environmental Law.
"Environmental Indemnity" means that certain Environmental
Indemnity dated as of the Closing Date made by the Borrower and the Investor
Group for the benefit of Agent and Lenders substantially in the form attached
hereto as Exhibit Q; provided that, the Investor Group shall not be obligated to
provide such Environmental Indemnity solely in the event that the Borrower
provides environmental insurance with $20,000,000 of coverage (with an exclusion
for offsite subterranean migrating hydrocarbons) for a term of six (6) years
from the Closing Date and with such other terms and conditions reasonably
satisfactory to the Agent (acting at the reasonable direction of the Required
Lenders).
"Environmental Laws" means all federal, state and local laws,
rules, regulations, ordinances, and consent decrees relating to health, safety,
hazardous substances, and environmental matters applicable to the business and
facilities of the Borrower or a Subsidiary (in each case whether or not owned by
it). Such laws and regulations include but are not limited to the Resource
Conservation and Recovery Act, 42 U.S.C. Section 6901 et seq., as amended; the
Comprehensive Environmental Response, Compensation and Liability Act, 42 U.S.C.
Section 9601 et seq., as amended; the Toxic Substances Control Act, 15 U.S.C.
Section 2601 et seq., as amended; the Oil Pollution Act, 33 U.S.C. Section 2701
et seq., as amended; the Clean Air Act, 42 U.S.C. Section 7401 et seq., as
amended; the Hazardous Material Transportation Act, 49 U.S.C. Section 1801 et
seq.; the Federal Water Pollution Control Act, 33 U.S.C. Section 1251 et seq.;
the Occupational Safety and Health Act, 29 U.S.C. Section 651 et seq.; the
Nevada Hazardous Materials law (NRS Chapter 459); the Nevada Solid
Waste/Disposal of Garbage or Sewage law (NRS 444.440 to 444.650, inclusive); the
Nevada Water Controls/Pollution law (NRS Chapter 445A); the Nevada Air Pollution
law (NRS Chapter 445B); the Nevada Cleanup of Discharged Petroleum law (NRS
590.700 to 590.920, inclusive); the Nevada Control of Asbestos law (NRS 618.750
to 618.850, inclusive); the Nevada Appropriation of Public Waters law (NRS
533.324 to 533.4385, inclusive); and the Nevada Artificial Water Body
Development Permit law (NRS 502.390).
"Equipment" means, with respect to the Borrower or any
Subsidiary thereof, all of such Person's now owned and hereafter acquired
machinery, equipment, furniture, furnishings, fixtures, and other tangible
personal property, including, without limitation, Gaming Equipment, data
processing hardware and software, computers, motor vehicles, trailers, aircraft,
tools, office equipment, store fixtures, and leasehold improvements, as well as
all of such Person's rights and interests with respect thereto under such leases
of such types of personal property (including, without limitation, options to
purchase); together with all component and auxiliary parts and
10
supplies owned by such Person and used or to be used in connection therewith,
and all substitutes for any of the foregoing, all manuals, drawings,
instructions, warranties and rights with respect thereto owned by such Person,
and all proceeds and general intangibles relating to all of the foregoing,
including without limitation any claims against third parties for loss or
damage.
"Equity Interests" means shares of capital stock, partnership
interests, membership interests in a limited liability company, beneficial
interests in a trust or other equity ownership interests in a Person, and any
warrants, options or other rights entitling the holder thereof to purchase or
acquire any such equity interest.
"ERISA" means the Employee Retirement Income Security Act of
1974, as amended, and the rules and regulations promulgated thereunder, as in
effect from time to time.
"ERISA Affiliate" means any trade or business (whether or not
incorporated) which together with the Borrower or any of its Subsidiaries would
be treated as a single employer under the provisions of Title I or Title IV of
ERISA.
"Eurodollar Business Day" means any Business Day on which
dealings in Dollar deposits in the interbank Eurodollar market may be carried on
in London, England, Nevada and New York, New York.
"Eurodollar Loans" means Loans bearing interest at the Term
Loan A Eurodollar Rate or the Term Loan B Eurodollar Rate, as the case may be.
"Event" means any event or condition which, with notice, the
passage of time, or any combination thereof, would constitute an Event of
Default.
"Event of Default" has the meaning given to such term in
Section 9.1 of this Agreement.
"Excess Cash Flow" means, with respect to the Borrower for any
Fiscal Quarter:
(i) EBITDA for such Fiscal Quarter,
plus
(ii) the EBITDA Cure Amount, if any, paid during such
Fiscal Quarter,
plus
(iii) the Tolling EBITDA Cure Amount, if any, paid during
such Fiscal Quarter,
plus
(iv) the Carry-Over Cash Flow Amount, if any,
11
less
(v) the Cash Interest Expense of the Borrower and its
Subsidiaries paid during such Fiscal Quarter,
less
(vi) the aggregate amount of any Maintenance Capital
Expenditures paid in cash during such Fiscal Quarter
(subject to the limitations set forth in Section 8.12
and expressly excluding the additional $3,000,000 of
Capital Expenditures permitted to be made in the
second paragraph of Section 8.12),
less
(vii) all payments of principal on the Term Loan A pursuant
to (A) Section 4.1(b) (x) made by the Borrower during
such Fiscal Quarter solely to the extent any such
payments were not previously deducted in determining
the Excess Cash Flow in a prior period and (y) to be
made by the Borrower in the immediately following
consecutive Fiscal Quarter, (B) Section 4.2 made by
the Borrower during such Fiscal Quarter, and (C)
Section 4.3(a) made by the Borrower during such
Fiscal Quarter solely to the extent that any amounts
received by the Borrower pursuant to Section 4.3(a)
were included in EBITDA for such Fiscal Quarter,
less
(viii) the amount of any Taxes paid in cash by the Borrower
and its Subsidiaries during such Fiscal Quarter or if
the Borrower is treated as a pass-through entity or
is not treated as a separate entity for United States
federal income tax purposes, the amount of
Distributions made in cash by the Borrower in
accordance with Section 8.2(c) (Distributions) during
such Fiscal Quarter,
less
(ix) the amount of any additions to the Operating Cash
Reserve Amount permitted under Section 8.27 of this
Agreement, and
less
(x) the amount of any cash Distributions made by the
Borrower to its Members pursuant to Section 8.2(d)
during such Fiscal Quarter (up to an aggregate
maximum amount of $1,500,000 for such Fiscal
Quarter).
12
Excess Cash Flow shall be computed to avoid duplication of additions and
subtractions made in calculating EBITDA so as to prevent the double counting of
any such additions and subtractions in a Fiscal Quarter. In addition, any
amounts subtracted from EBITDA in determining Excess Cash Flow shall not be
subtracted in any calculation of Excess Cash Flow for any subsequent Fiscal
Quarter.
"Excess Interest Amount" has the meaning given to such term in
Section 3.1(a)(ii) of this Agreement.
"Exchange Act" means the Securities and Exchange Act of 1934,
as amended, including all rules and regulations issued thereunder.
"FF&E Lender" means General Electric Capital Corporation (for
both its Term Loan A Loan and its Term Loan B Loan), GMAC Commercial Mortgage
Corporation (for both its Term Loan A Loan and its Term Loan B Loan), and OCM
Real Estate Opportunities Fund II, L.P. (for its Term Loan A in the initial
amount of $13,750,000 and its Term Loan B).
"FF&E Lender Appraisal" means a written appraisal report of
the Time Share Premises, as the term "appraisal" is defined in the Code of
Professional Ethics of the American Institute of Appraisers, meeting the
requirements of the Federal Institutions Reform, Recovery and Enforcement Act of
1989, as amended, prepared by a professional appraiser retained at the joint and
equal expense of the FF&E Lender (50%) and the Term Loan A Lenders (other than
the FF&E Lender) (50%), who is a member of the American Institute of Appraisers,
addressed to the Term Loan A Lenders, setting forth such appraiser's
determination of the fair market value of the Time Share Premises as of the
Closing Date and based upon the highest and best use of the Time Share Premises
as developed (without regard to any contractual restrictions on development of
such Property, including, without limitation, the REA).
"Facility" means the Term Loan Commitments and the Term Loans
deemed to be made thereunder.
"Fair Market Value" means the price at which a willing buyer
under no compulsion to buy would purchase Property from a willing seller under
no compulsion to sell in a transaction under customary terms and conditions for
the time and location, as determined in good faith by the Agent (acting upon the
direction of the Required Term Loan A Lenders) and in the context of the Time
Share Premises shall be based upon a transaction meeting the above criteria and
shall also assume the highest and best use of the Time Share Premises (without
regard to any contractual restrictions on development of the Time Share
Premises, including, without limitation, the REA).
"Fifth Measurement Period" has the meaning set forth in
Section 8.13(a) of this Agreement.
"Filing Date" means September 28, 2001.
13
"Final Order" means an order of the Bankruptcy Court or other
court having jurisdiction over the Chapter 11 Case (a) as to which the time to
appeal, petition for certiorari or move for reargument or rehearing has expired
and as to which no appeal, petition for certiorari or other proceedings for
reargument or rehearing shall then be pending, or (b) if an appeal, writ of
certiorari, reargument or rehearing thereof has been filed or sought, such order
of the Bankruptcy Court shall have been affirmed by the highest court to which
such order was appealed, or certiorari shall have been denied or reargument or
rehearing shall have been denied or resulted in no modification of such order,
and the time to take any further appeal, petition for certiorari or move for
reargument or rehearing shall have expired; provided, however, that the
possibility that a motion under Rule 59 or Rule 60 of the Federal Rules of Civil
Procedure, or any analogous rule under the Federal Rules of Bankruptcy
Procedure, may be filed with respect to such order shall not cause such order
not to be a Final Order.
"Financing Statements" means financing statements in
accordance with the applicable uniform commercial code to be filed with the
appropriate state and/or county offices for the perfection of a security
interest in the Collateral.
"First Measurement Period" has the meaning given to such term
in Section 8.13(a) of this Agreement.
"First Renovation Capital Expenditure Measurement Date" means
the second Anniversary Date unless there is Tolling (i.e. the Resolution Date
occurs after the Closing Date). In the event there is Tolling, the First
Renovation Capital Expenditure Measurement Date means 24 months after the
Resolution Date.
[note the following definition is included below as well as in its appropriate
alphabetical order solely for ease of review]
"Resolution Date" means the earliest of (i) the last day of
the calendar month in which Aladdin Bazaar consents to the Borrower
making all Renovation Capital Expenditures set forth in the Borrower's
Plan, (ii) the last day of the calendar month in which a Proceeding has
been resolved by an arbitrator or a court of competent jurisdiction,
(iii) twelve (12) months after the Closing Date, (iv) the last day of
the calendar month in which the Borrower commences making any
Renovation Capital Expenditures identified in the Borrower's Plan, and
(v) the last day of the first calendar month in which there is a
Tolling EBITDA Default.
The following examples are provided for the purposes of clarity:
Example 1. If the Resolution Date is the 6th month after the Closing
Date, then the First Renovation Capital Expenditure Measurement Date is the 30th
month after the Closing Date.
Example 2. If the Resolution Date is the 12th month after the Closing
Date, the First Renovation Capital Expenditure Measurement Date is the 36th
month after the Closing Date.
14
For purposes of simplicity, the foregoing formula results in an extension of the
time period in which a Renovation Capital Expenditure (or the ability of the
Agent to first draw on the Letter of Credit as set forth in Section 4.3(b)) is
required to be made. Such extension shall be subject to a maximum extension of
twelve (12) months. Thus, the latest date in which a Renovation Capital
Expenditure may be made is 36 months after the Closing Date.
"Fiscal Quarter" means any of the quarterly accounting periods
of the Borrower, ending on March 31, June 30, September 30 and December 31 of
each year; references to FQ with a following number (e.g., FQ1) refer to the
number of Fiscal Quarters then to have elapsed in whole or in part since (i) in
the event there is no Tolling, the Closing Date or (ii) in the event there is
Tolling and solely in the cases of Sections 8.14 and 8.15 of this Agreement, the
earlier of (x) the Resolution Date or (y) twelve (12) months following the
Closing Date.
"Fiscal Year" means the Borrower's Fiscal Year for financial
accounting purposes, which ends on December 31 of each year. Any reference in
this Agreement to "Fiscal Year" immediately followed by a specific year (e.g.,
Fiscal Year 2003) means the Fiscal Year ending on December 31 of such year.
"Fourth Measurement Period" has the meaning set forth in
Section 8.13(a) of this Agreement.
"Funded Debt" means, as to any Person, all Debt described in
the definition of "Debt" (other than clauses (d) and (e) of such definition)
with respect to such Person that matures more than one year from the date of its
creation or matures within one year from such date but is renewable or
extendible, at the option of such Person, to a date more than one year from such
date or arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year from
such date, including, without limitation, all current maturities and current
sinking fund payments in respect of such Debt whether or not required to be paid
within one year from the date of its creation and, in the case of the Borrower,
such Debt in respect of the Loans.
"GAAP" means generally accepted accounting principles in the
United States of America as in effect from time to time and consistently
applied.
"Gaming Authority" means any of the Nevada Gaming Commission,
the Nevada State Gaming Control Board, the ▇▇▇▇▇ County Liquor and Gaming
Licensing Board and any other gaming regulatory body or any agency which has, or
may at any time after the Closing Date have, jurisdiction over the gaming
activities of the Premises or any successor to such authority.
"Gaming Equipment" means the gaming equipment and gaming
devices which are regulated gaming devices under any Gaming Laws (including but
not limited to slot machines, gaming tables, cards, dice, cashless wagering
systems and tangible associated equipment (as defined in NRS 463.0136) together
with all improvements and/or additions thereto.
15
"Gaming Laws" means the provisions of the Nevada Gaming
Control Act, as amended from time to time, all regulations of the Nevada Gaming
Commission promulgated thereunder, as amended from time to time, the provisions
of the ▇▇▇▇▇ County Code, as amended from time to time, and all other laws,
statutes, rules, rulings, orders, ordinances, regulations and other legal
requirements of any Gaming Authority.
"Gaming License" means any license, qualification, franchise,
accreditation, approval, registration, permit, finding of suitability or other
authorization relating to gaming, the gaming business or the operation of a
casino under the Gaming Laws or required by the Gaming Authorities or otherwise
necessary for the operation of gaming, the gaming business or a resort casino.
"GECC Facilities Loan Documents" means the GECC Facilities
Agreement and all agreements, documents and instruments executed and/or
delivered by Aladdin and/or its Affiliates in connection therewith.
"Governmental Authority" means any national, state or local
government (whether domestic or foreign), any political subdivision thereof or
any other governmental or judicial, authority, body, agency, bureau or entity
(including the Gaming Authorities, any zoning authority, the Federal Deposit
Insurance Corporation, the Comptroller of the Currency or the Board, any central
bank or any comparable authority) or any arbitrator with authority to bind the
party at law.
"Guaranty" by any Person means all obligations of such Person
which in any manner directly or indirectly guarantee the payment or performance
of any indebtedness, dividend or other obligation of any other Person (the
"guaranteed obligations"), or assure or in effect assure the holder of the
guaranteed obligations against the payment or performance of all or any part of
such guaranteed obligations, including, without limitation, the Holdings
Guarantee and any such obligations incurred through an agreement: (a) to
purchase the guaranteed obligations or any Property constituting security
therefor; or (b) to advance or supply funds for the purchase or payment of the
guaranteed obligations or to maintain a working capital or other balance sheet
condition.
"Guarantor" means each Subsidiary of the Borrower existing on
the date hereof and each Subsidiary of the Borrower which becomes a guarantor of
the Obligations after the date hereof.
"Hazardous Material" means any of those substances which are
regulated by, or which may form the basis of liability under, any Environmental
Law, including, without limitation, all substances identified under any
Environmental Law as a pollutant, contaminant, waste, solid waste, hazardous
waste, hazardous constituent, special waste, hazardous substance, hazardous
material, or toxic substance, or petroleum or petroleum-derived substance or
waste, and including, without limitation, any petrochemical or petroleum
products, radioactive materials, asbestos in any form which is friable, UREA
formaldehyde foam insulation, transformers or other equipment that contains
dielectric fluid containing levels of polychlorinated
16
biphenyls, and radon gas.
"Hedge Obligations" means all indebtedness and obligations of
the Borrower set forth on any balance sheet of the Borrower furnished to the
Agent pursuant to Section 7.2 of this Agreement in connection with interest rate
swaps, caps or collar agreements or similar agreements entered into by the
Borrower with any Lender (or an Affiliate of any Lender) in connection with this
Agreement, providing for protection against fluctuations in interest rates or
currency exchange rates or the exchange of nominal interest obligations, either
generally or under specific contingencies. "Hedge Obligations" expressly
excludes any and all of the foregoing Hedge Obligations related to, or arising
out of, or in connection with the Pre-Petition Credit Agreement (except to the
extent amended and restated hereunder) or the GECC Facilities Agreement (except
to the extent amended and restated hereunder).
"Hedging Agreements" means any and all agreements or documents
evidencing any Hedge Obligations.
"Holdings" means MezzCo, L.L.C., a Nevada limited liability
company.
"Holdings Guarantee" means the Guarantee by Holdings of the
Obligations substantially in the form of Exhibit N hereto, as amended, modified
or supplemented from time to time.
"Hotel Investor" means any Person (other than the ▇▇▇▇
Investor and the Bay Harbour Investor) approved in writing by the Agent (acting
at the reasonable direction of the Required Lenders) to hold Equity Interests,
directly or indirectly of Holdings and/or the Borrower and in any event shall
include Starwood if Sheraton becomes the Manager.
"Hotel Premises" means the portion of the Premises operated as
a hotel, including all rooms and suites, amenities, restaurants, conference
centers, meeting, banquet and other public rooms, spa, parking spaces and other
facilities of the hotel portion of the Premises, but excluding the Casino.
"Identified Hotel Manager" means any of Sheraton, Hilton
Hotels Corporation, Hyatt Corporation, Marriott Hotel's International Inc. or
▇▇▇▇'▇ Hotels Holding Corporation (or any Affiliate of any of the foregoing
primarily engaged in the management of hotels of at least a like quality to a
Sheraton), or any replacement of comparable standing in the hotel management
industry that is (i) acceptable to the Agent acting at the reasonable direction
of the Required Lenders and (ii) identified on a list delivered to the Agent by
the Borrower no more frequently than once every two years, commencing on the
second Anniversary Date.
"Indemnified Loss" has the meaning given to such term in
Section 11.8 of this Agreement.
"Indemnitee" has the meaning given to such term in Section
11.8 of this Agreement.
17
"Initial Default Rate" has the meaning given to such term in
Section 3.3 of this Agreement.
"Initial Excess Cash Flow Principal Payment Date" has the
meaning set forth in Section 4.1(a) of this Agreement.
"Initial Interest Period" means the period commencing on the
Closing Date and ending on the third Anniversary Date.
"Initial Operating Cash Reserve Amount" means an amount not to
exceed $10,000,000.
"Initial Time Share Premises Payment" has the meaning set
forth in Section 4.3(d) of this Agreement.
"Insolvency" means, with respect to any Multiemployer Plan,
the condition that such Plan is insolvent within the meaning of Section 4245 of
ERISA.
"Insolvent" means pertaining to a condition of Insolvency.
"Insurance Policies" means, in addition to any insurance
required to be maintained by the Borrower or any Subsidiary under any Operating
Agreement, Lease or other Loan Document, the insurance policies described in
Section U of the Disclosure Schedule.
"Intercreditor Agreement"means that certain Intercreditor
Agreement dated as of the Closing Date by and among the Term Loan A Lenders,
Term Loan B Lenders and the Agent.
"Interest Coverage Ratio" means, with respect to the Borrower
and its Subsidiaries on a consolidated basis for any period, the ratio of (i)
EBITDA for such period to (ii) the Cash Interest Expense for such period.
"Interest Expense" means, with respect to the Borrower for any
period, the aggregate interest expense of the Borrower and its Consolidated
Subsidiaries during such period determined on a consolidated basis in accordance
with GAAP, and shall in any event include, without limitation, (i) the
amortization of debt discounts, (ii) the amortization of all fees payable in
connection with the incurrence of Debt to the extent included in interest
expense and (iii) the portion of any Capital Lease Obligation allocable to
interest expense (recognizing that, in any event, no portion of "Debt Service"
or "Return on Equity" under the Energy Service Agreement shall be treated as
interest expense on Capital Lease Obligations, regardless of GAAP, but instead
shall be treated as a component of EBITDA as set forth in the definition of
EBITDA)
"Interest Payment Date" means with respect to any Loan, the
last day of each Fiscal Quarter.
"Interest Period" means, with respect to each Eurodollar Loan:
18
(i) initially, the period commencing on the date such
Eurodollar Loan is made and ending on the numerically corresponding date three
months thereafter; and
(ii) thereafter for each renewal of such Loan, the period
commencing on the last day of the next preceding Interest Period for such Loan
and ending three months thereafter;
provided that: (A) any such Interest Period which would otherwise end on a day
which is not a Eurodollar Business Day shall be extended to the next succeeding
Eurodollar Business Day (and interest shall accrue and be payable for the period
of such extension) unless such next succeeding Eurodollar Business Day falls in
another calendar month, in which case such Interest Period shall end on the next
preceding Eurodollar Business Day; and (B) any such Interest Period which begins
on the last Eurodollar Business Day of any 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 Eurodollar Business Day of a
calendar month.
"Investor Group" means, collectively, ▇▇▇▇▇▇ ▇▇▇▇, an
individual resident in the State of Florida, or one or more Affiliates of such
individual (the "▇▇▇▇ Investor"), Bay Harbour Management, LC, a Florida company,
or an Affiliate thereof (the "Bay Harbour Investor"), and, at the option of the
▇▇▇▇ Investor and the Bay Harbour Investor, a Hotel Investor or any successor to
any of such Persons that the Agent has approved in writing (upon the reasonable
direction of the Required Lenders) pursuant to the terms of this Agreement.
"IP" has the meaning given to such term in Section 5.01(t) of
this Agreement.
"IRS" means the Internal Revenue Service or any successor.
"Knowledge" means the actual knowledge of an Approved Officer
or director of the Borrower.
"Last Ended Fiscal Quarter" has the meaning given to such term
in Section 7.2(f) of this Agreement.
"Leases" means, collectively, all space leases, occupancy
agreements, subleases, licenses, permits, concessions or other agreements or
arrangements, whether written or oral, and all agreements for the use or
occupancy of all or any portion of the Premises, entered into by the Borrower or
by any Person on behalf of the Borrower or assumed by Aladdin and assigned to
the Borrower in connection with the Purchase and Sale Agreement or the
Confirmation Order, together with any and all extensions or renewals thereof,
excluding room rentals.
"Leasing Manager" means any leasing manager designated by the
Borrower pursuant to a Leasing Services Agreement and approved in writing by the
Agent (acting at the reasonable direction of the Required Term Loan A Lenders)
prior to the retention thereof.
"Leasing Manager Subordination Agreement" means a Leasing
Manager Subordination and Cooperation Agreement entered into between the Agent
and the Leasing
19
Manager and consented to by the Borrower which consent shall not be unreasonably
withheld or delayed, and in form and substance reasonably satisfactory to the
Agent (acting at the direction of the Required Lenders).
"Leasing Services Agreement" means any contract or agreement
pursuant to which any Person other than the Borrower or an employee of the
Borrower is granted authority to manage the leasing of the Retail Shops or any
other portion of the Premises.
"Legal Requirements" means all laws, ordinances, rules,
regulations, codes, statutes, orders, permits, licenses, authorizations,
directives and requirements of any Governmental Authority applicable to the
Borrower, any Manager, any casino operator, the Lenders or the Premises or any
portion thereof, including all applicable licenses, building codes, rent
stabilization laws, zoning, planning, use and subdivision ordinances, flood
disaster, health, safety and environmental laws and regulations, and the
Americans with Disabilities Act of 1990, Pub. L. No. 89-670, 104 Stat. 327
(1990), as amended, and all regulations promulgated pursuant thereto.
"Lender" has the meaning given to such term in the recitals to
this Agreement.
"Lending Office" means, with respect to a Lender, the office
of such Lender in the United States designated as its "Lending Office" opposite
its name on the signature pages of this Agreement, or such other office in the
United States as such Lender may from time to time specify to the Borrower and
the Agent.
"Letter of Credit" has the meaning given to such term in
Section 5.1(z).
"Leverage Ratio" with respect to the Borrower means the ratio
of (i) Funded Debt as at such date to (ii) EBITDA for the period of four Fiscal
Quarters (or if a lesser number of periods has elapsed from the Closing Date,
EBITDA annualized based on the number of Fiscal Quarters that have elapsed from
the Closing Date) most recently ended on or prior to such date.
"LIBOR" means, with respect to each day during each Interest
Period, the rate per annum determined on the basis of the rate for deposits in
Dollars for a period equal to such Interest Period commencing on the first day
of such Interest Period appearing on Page 3750 of the Dow ▇▇▇▇▇ Markets screen
as of 11:00 A.M., London time, two Eurodollar Business Days prior to the first
day of such Interest Period. In the event that such rate does not appear on Page
3750 of the Dow ▇▇▇▇▇ Markets screen (or otherwise on such screen), LIBOR for
purposes of this definition shall be determined by reference to such other
comparable publicly available service for displaying Eurodollar rates as may be
reasonably selected by the Agent or, in the absence of such availability, by
reference to the rate at which The Bank of New York is offered Dollar deposits
at or about 11:00 A.M., New York City time, two Eurodollar Business Days prior
to the first day of such Interest Period in the interbank Eurodollar market
where its Eurodollar and foreign currency and exchange operations are then being
conducted for delivery on the first day of such Interest Period for the number
of days comprised therein.
20
"License Agreement" means that certain Planet Hollywood Hotel
& Casino Licensing Agreement dated as of [ , 2003] and entered into among the
Borrower, Planet Hollywood International, Inc. and Planet Hollywood Memorabilia,
Inc.
"License Subordination Agreement" means that certain License
Subordination Agreement dated as of the Closing Date and entered into among the
Agent, Planet Hollywood International, Inc. and Planet Hollywood Memorabilia,
Inc. and consented to by the Borrower, which consent shall not be unreasonably
withheld or delayed.
"Lien" means any interest in Property securing an obligation
owed to, or a claim by, a Person other than the owner of the Property, whether
such interest is based on the common law, statute, or contract, and including,
without limitation, (a) a security interest, charge, claim, or lien arising from
a mortgage, deed of trust, encumbrance, pledge, hypothecation, assignment,
deposit arrangement, agreement, or conditional sale or a lease, consignment or
bailment for security purposes, or (b) any reservation, exception, encroachment,
easement, right-of-way, condition, restriction or other title exception or
encumbrance affecting Property.
"Loan" means any loan made by any Lender pursuant to this
Agreement.
"Loan Documents" means, collectively, this Agreement, the Term
Loan Notes, the Financing Statements, any Security Document, the Environmental
Indemnity (if any), the Subordination Agreements, the Borrower Certificate, any
Hedging Agreement, the Intercreditor Agreement (if there is a Mezzanine Loan),
the Holdings Guarantee, the Mezzanine Intercreditor Agreement, any blocked
account/ control agreement and such other documents, agreements and instruments
evidencing, securing or pertaining to the Obligations, or any part thereof
executed on or about the Closing Date by the Borrower, any Manager or any other
Person or, as shall, from time to time thereafter be executed and delivered by
the Borrower, any Manager or any other Person, in each case pursuant to or in
connection with the Loan or any other Loan Document. "Loan Documents" shall
expressly exclude any and all of the Pre-Petition Credit Agreement, the GECC
Facilities Agreement and any documents and agreements executed in connection
therewith or contemplated thereby, except to the extent any of the foregoing
agreements or instruments have been amended and restated and signed by the
Borrower pursuant to this Agreement or any other Loan Document.
"Loan Parties" means the Borrower and each of its Subsidiaries
which is a party to a Loan Document.
"Maintenance Capital Expenditures" means any Capital
Expenditures by the Borrower or any of its Subsidiaries (subject to the granting
of a Lien in favor of the Agent on the assets of any such Subsidiary) that are
made to maintain, restore, replace or refurbish the condition or usefulness of
Property of the Borrower or any of its Subsidiaries, or otherwise to support the
continuation of such Person's day-to-day operations as then conducted, but that
are not properly chargeable to repairs and maintenance in accordance with GAAP.
The amount of Maintenance Capital Expenditures permitted to be made by the
Borrower and its Subsidiaries is subject to Section 8.12 of this Agreement.
Maintenance Capital Expenditures shall for all
21
purposes exclude Renovation Capital Expenditures.
"Management Agreement" means a management agreement relating
to the Hotel Premises entered into by the Borrower and a Manager which has been
approved in writing by Agent (acting upon the written direction of the Term Loan
A Lenders in their reasonable discretion) and any amendment or modification
thereto made in accordance with Section 7.16 hereof or any other management
agreement entered into in substitution, amendment or modification of the
foregoing which has been approved in writing by Agent (acting upon the written
direction of the Required Lenders in their reasonable discretion) pursuant to
Section 7.16 hereof prior to the effectiveness thereof.
"Manager" means (a) any Identified Hotel Manager or any other
Person approved in writing by the Agent (acting at the reasonable direction of
the Required Term Loan A Lenders) or (b) any replacement manager designated by
the Borrower and approved in writing by the Agent (acting at the reasonable
direction of the Required Term Loan A Lenders) prior to the retention thereof;
provided, that the consent of the Agent and the Required Lenders shall not be
required in the event that the Borrower replaces any Manager with an Identified
Hotel Manager so long as any such Identified Hotel Manager or other replacement
manager approved by the Agent executes a Manager Subordination Agreement.
"Manager Subordination Agreement" means a Manager
Subordination and Cooperation Agreement entered into between the Agent and the
Manager and consented to by the Borrower which consent shall not be unreasonably
withheld or delayed, and in form and substance reasonably satisfactory to the
Agent (acting at the direction of the Required Lenders)
"Material Adverse Effect" means an event has occurred or
condition exists that has or would reasonably be expected to have a material
adverse effect on the (i) Condition of the Business, (ii) gaming business (taken
as a whole) conducted by casinos located on the portion of Las Vegas Boulevard
in ▇▇▇▇▇ County, Nevada bounded by Blue Diamond Road at the south end and Oakey
Boulevard at the north end, or (iii) on the validity or enforceability of this
Agreement, the Term Loan Notes, the Security Agreement, the Mortgage, the other
Loan Documents or the rights or remedies of the Agent or the Lenders hereunder
or thereunder; provided, that the material adverse effect was not the direct or
indirect result of (x) any action or inaction of the Borrower or any Subsidiary
of Affiliate of the Borrower taken at the written request of the Agent (acting
upon the reasonable direction of Required Lenders) or (y) the lack of consent by
Aladdin Bazaar to the proposed Renovation Capital Expenditures set forth in the
Borrower's Plan.
"Material Operating Agreements" means (a) the Operating
Agreements set forth on the Disclosure Schedule (which shall include the
following agreements: the Management Agreement (if any), the Leasing Services
Agreement (if any), the Energy Premises Lease, the Energy Services Agreement,
the Parking Agreement, the REA, the License Agreement and any casino operating
agreement entered into in accordance with Section 8.24 of this Agreement) and
any contracts or agreements entered into in replacement thereof or substitution
therefor, and (b) any other Operating Agreements entered into after the Closing
Date by the Borrower or any Manager or any other Person on their behalf with
respect to the Premises or other Property,
22
which (i) has a noncancellable term which exceeds one (1) year in length and
requires in excess of an aggregate of $1,500,000 per annum in payments by or on
behalf of the Borrower or any Manager or (ii) requires in excess of an aggregate
of $1,500,000 per annum in payments by or on behalf of the Borrower or any
Manager regardless of the term of such Operating Agreement; provided, that
contracts or agreements entered into in respect of events or performances at the
Theater or the Premises will be excluded from Material Operating Agreements so
long as any such contracts or agreements (x) are entered into by the Borrower or
any Manager with a headline performing artist of international repute and
standing and the average ticket price for any such performance or event shall be
at least $100 per ticket or (y) have a term or duration of less than sixty (60)
days and are entered into by the Borrower or any Manager with a Person who is
not covered by clause (x) above.
"Maturity Date" means the sixth anniversary of the Closing
Date.
"Maximum Term Loan A Rate" means, for the Initial Interest
Period for a Term Loan A, a rate per annum equal to the sum of: (a) 3.00% and
(b) LIBOR.
"Member" means any current or future member of the Borrower.
"Mezzanine Intercreditor Agreement" means that certain
intercreditor and subordination agreement by and among the Agent and the
Mezzanine Lender, and acknowledged by the Borrower and Holdings (such
acknowledgment not to be unreasonably withheld or delayed) as the same may be
amended, restated, modified or supplemented in accordance with its terms.
"Mezzanine Lender" means one or more Persons making the
Mezzanine Loan.
"Mezzanine Loan" means any subordinated loan made by the
Mezzanine Lender to Holdings and based on the terms and conditions previously
disclosed to the Lenders as required by Section 5.1(bb) of this Agreement.
"Mezzanine Loan Documents" means the Mezzanine Intercreditor
Agreement and any other agreements, certificates, instruments and other
documents evidencing or pertaining to the Mezzanine Loan.
"Minimum Bankroll Regulation" shall mean Regulation 6.150 of
the State of Nevada Regulations of the Nevada Gaming Commission and State Gaming
Control Board.
"Minimum Term Loan A Applicable Margin" means (i) 1.00% per
annum during the period commencing on the Closing Date and ending on the first
Anniversary Date, (ii) 1.25% per annum during the period commencing on the day
after the first Anniversary Date and ending on the second Anniversary Date and
(iii) 1.50% per annum during the period commencing on the day after the second
Anniversary Date and ending on the third Anniversary Date.
"Minimum Term Loan A Rate" means, for the Initial Interest
Period for a Term
23
Loan A, a rate per annum equal to the sum of (a) the Minimum Term Loan A
Applicable Margin and (b) LIBOR.
"Mortgage" means that certain Amended and Restated Deed of
Trust, Security Agreement, Financing Statement, Fixture Filing and Assignment of
Leases and Rents, dated as of the Closing Date, and executed by the Borrower in
favor of the Agent.
"Mortgaged Property" has the meaning set forth in the
Mortgage.
"Multiemployer Plan" means as to any Person, a "multiemployer
plan" as defined in Section 4001(a)(3) of ERISA and to which such Person is
making, or is obligated to make (or made or was obligated to make in the
preceding five-year period) contributions.
"Net Cash Proceeds" means the cash portion of Net Proceeds,
when received.
"Net Income" means with respect to the Borrower for any
period, the consolidated net income (or net loss) of the Borrower and its
Subsidiaries for such period but excluding any extraordinary gains or losses or
any gains or losses from the sale or disposition of assets other than in the
ordinary course of business, all computed and calculated in accordance with
GAAP. For the avoidance of doubt, Net Income will include the Distributions
received by the Borrower in respect of its interest in the Time Share Entity but
will not include any net income or net loss of the Time Share Entity.
"Net Proceeds" means, with respect to an Asset Transfer or
Casualty Event: (a) the gross amount of all cash and the Fair Market Value of
all other Property, received directly or indirectly by the Borrower or a
Subsidiary (or an Affiliate in the case of Net Proceeds received from a
Disposition of the Time Share Premises other than the land release fees
described in clause (ii)(y) of the definition of Time Share Plan and the other
amounts not required to be distributed to the Borrower under clause (i)(x) or
(ii)(x) of the definition of Time Share Plan), or for its account, in connection
with the Asset Transfer or Casualty Event, whether at the time of such Asset
Transfer or Casualty Event or thereafter, including, without limitation, upon
receipt of all payments of principal of or interest on any note or other debt
instrument issued as part of the consideration for such Asset Transfer or
Casualty Event; minus (b) the sum of: (i) all reasonable commissions, legal
fees, and other costs and expenses incurred by the Borrower or Subsidiary in
connection with such Asset Transfer or Casualty Event; (ii) payments on account
of Debt (other than the Obligations) secured by the Property disposed of in such
Asset Transfer or Casualty Event, the payment of which Debt was required in
order to consummate such Asset Transfer or necessary as a result of such
Casualty Event; (iii) the Tax Liability of the Borrower (or of such Subsidiary,
determined as if such Subsidiary was the Borrower) attributable to such Asset
Transfer or Casualty Event; and (iv) appropriate amounts to be set aside by the
Borrower or Subsidiary as a reserve, in accordance with GAAP, against
liabilities associated with the assets that are the subject of the Asset
Transfer or Casualty Event and which liabilities are retained by the Borrower or
Subsidiary after the Asset Transfer or Casualty Event (including, without
limitation, liabilities arising from indemnifications provided in connection
with such Asset Transfer or Casualty Event).
24
"Non-Excluded Taxes" has the meaning given to such term in
Section 3.7 of this Agreement.
"Northwind" means Northwind Aladdin, LLC, a Nevada limited
liability company.
"Notified Reinvestment Amount" has the meaning given to such
term in Section 4.3(c) of this Agreement.
"Obligations" means any and all present and future loans,
advances, liabilities, obligations, covenants, duties, and Debts owing by the
Borrower to the Agent, or any Lender, arising under or pursuant to this
Agreement or any other Loan Document, whether arising from an extension of
credit, opening of a letter of credit, acceptance, loan, guaranty,
indemnification or otherwise, whether direct or indirect, absolute or
contingent, due or to become due, primary or secondary, as principal or
guarantor, and including, without limitation, all interest, charges, expenses,
fees, attorneys' fees, filing fees and any other sums chargeable to the Borrower
hereunder or under another Loan Document (including, without limitation,
interest accruing after the maturity of the Loans and interest accruing after
the filing of any petition in bankruptcy, or the commencement of any insolvency,
reorganization or like proceeding, relating to the Borrower, whether or not a
claim for post-filing or post-petition interest is allowed in such proceeding).
"Obligations" includes, without limitation, all debts, liabilities, and
obligations now or hereafter owing from the Borrower in connection with Hedge
Obligations. "Obligations" expressly exclude any and all of the foregoing
Obligations related to, or arising out of, or in connection with, the
Pre-Petition Credit Agreement or the GECC Facilities Agreement, except to the
extent such Obligations are expressly assumed by the Borrower under (i) the
Purchase and Sale Agreement or (ii) this Agreement or any other Loan Document
executed by the Borrower.
"Operating Accounts" means, collectively, Accounts in which
the receipts from the operation and management of the Premises are deposited and
from which disbursements on account of related expenditures are made, including
the operating Accounts listed in Section P of the Disclosure Schedule.
"Operating Agreements" means, collectively, all agreements
entered into by the Borrower, any Subsidiary thereof or by any other Person on
behalf of the Borrower or any Subsidiary thereof or assumed by the Borrower
under the Purchase and Sale Agreement, relating to the ownership, operation or
maintenance of the Premises or any other Property.
"Operating Cash Reserve Amount" means as of the Closing Date,
an amount equal to the Initial Operating Cash Reserve Amount, which amount may
be increased thereafter only as set forth in the second sentence of Section 8.27
of this Agreement. Funds constituting the Operating Cash Reserve Amount if
expended may be replenished solely from collections in cash of accounts
receivable to the extent income from any such account receivable was included in
EBITDA in a previous Fiscal Quarter.
"Organizational Documents" means, (a) for any corporation, the
Articles of
25
Incorporation and by-laws of such and all amendments thereto, (b) for any
partnership, collectively, the general or limited partnership agreement, as the
case may be, with all amendments thereto, together with if appropriate, a
certificate of limited partnership and all amendments thereto, and (c) for any
limited liability company, the operating agreement and any other similar
agreements governing the organization of the limited liability company and the
management of its business and affairs, and all amendments thereto.
"Other Taxes" means any and all present or future stamp or
documentary taxes or any other excise or property taxes, charges or similar
levies arising from any payment made hereunder or from the execution, delivery
or enforcement of, or otherwise with respect to, this Agreement or any other
Loan Document.
"Parking Agreement" means that certain Common Parking Area Use
Agreement, dated as of February 26, 1998, by and between Aladdin and Aladdin
Bazaar, as amended and modified by the terms of the Order of the Bankruptcy
Court (the "Parking Garage Order"), entered October 7, 2002 and as assumed by
Aladdin pursuant to an Order upon Motion to Assume Executory Contract or
Unexpired Lease of Non-Residential Real Property entered by the Bankruptcy Court
on December 10, 2002 and others and assumed by the Borrower under the Purchase
and Sale Agreement.
"Parking Garage Order" has the meaning given to such term in
the definition of "Parking Agreement".
"Participating Lender" has the meaning given to such term in
Section 11.13(c) of this Agreement.
"PBGC" means the Pension Benefit Guaranty Corporation or any
successor.
"Pension Plan" means any Plan which is subject to the
provisions of Title IV of ERISA.
"Permits" means all licenses, permits, franchises,
authorizations, certificates, approvals and consents, including, without
limitation, all certificates of occupancy, all environmental, liquor, health and
safety licenses of all Governmental Authorities which are material to the
conduct of the Borrower's and each of its Subsidiaries' business and the
ownership, use, occupation and operation of the Premises.
"Permitted Investments" means (a) direct obligations issued
by, or guaranteed by, the United States government or issued by any agency
thereof, in each case maturing within one year from the date of acquisition; (b)
certificates of deposit, time deposits, Eurodollar time deposits, or overnight
bank deposits bankers' acceptance and other interest bearing deposits or
accounts having maturities of one year or less from the date of acquisition
issued by any Lender or by any bank or trust company organized under the laws of
the United States of America or any state thereof having combined capital and
surplus of not less than $100,000,000; (c) commercial paper of an issuer rated
at least A-2 by Standard & Poor's Ratings Services ("S&P") or P-2 by
26
▇▇▇▇▇'▇ Investors Service, Inc. ("Moody's"), or carrying an equivalent rating by
a nationally recognized rating agency, and maturing within 270 days from the
date of acquisition; (d) repurchase obligations of any Lender or of any
commercial bank satisfying the requirements of clause (b) of this definition,
having a term of not more than 30 days with respect to securities issued or
fully guaranteed or insured by the United States government; (e) securities with
maturities of one year or less from the date of acquisition issued or fully
guaranteed by any state, commonwealth or territory of the United States, by any
political subdivision or taxing authority of any such state, commonwealth or
territory or by any foreign government, the securities of which state,
commonwealth, territory, political subdivision, taxing authority or foreign
government (as the case may be) are rated at least A by S&P or A by Moody's, or
carry an equivalent rating by a nationally recognized rating agency; (f)
securities with maturities of six months or less from the date of acquisition
backed by standby letters of credit issued by any Lender or any commercial bank
satisfying the requirements of clause (b) of this definition; (g) shares of
money market mutual or similar funds which invest exclusively in assets
satisfying the requirements of clauses (a) through (f) of this definition; or
(h) all or a portion of any Term Loan.
"Permitted Liens" means: (a) Liens for taxes, assessments,
governmental charges, levies or claims (i) not yet payable or (ii) being
contested in good faith and by proper proceedings diligently pursued, provided
that an adequate reserve shall have been made therefor by the Borrower; (b)
Liens in favor of the Agent to secure the Obligations; (c) purchase money Liens
upon Equipment granted in connection with the acquisition of such Equipment by
the Borrower or any Subsidiary after the date hereof, including, but not limited
to, pursuant to Capital Leases and including any renewals or refinancings
thereof, provided that (i) the cost of each such acquisition constitutes a
Capital Expenditure permitted by Section 8.11 (Capital Expenditures), (ii) the
Debt incurred to finance each such acquisition is permitted by Section 8.4
(Debt), and (iii) each such Lien attaches only to the Equipment acquired with
the Debt secured thereby; (d) deposits or pledges under workmen's compensation,
unemployment insurance, pensions, social security and other similar laws (other
than ERISA); (e) carriers', warehousemen's, mechanics', materialmen's,
repairmen's, landlord's and laborers' or other like Liens arising in the
ordinary course of business securing sums which are not overdue or which are
being contested in good faith through appropriate proceedings and for which the
Borrower has posted a bond as required by the Agent or applicable law; (f)
deposits or pledges to secure performance in connection with bids, tenders,
contracts (other than contracts for the payment of money) or leases made in the
ordinary course of business by the Borrower or any Subsidiary; (g) deposits to
secure public or statutory obligations of the Borrower or any Subsidiary; (h)
deposits to secure surety, appeal or customs bonds in proceedings to which the
Borrower or any Subsidiary is a party; (i) Liens arising out of judgments or
awards in respect of which the Borrower or any Subsidiary shall in good faith be
prosecuting an appeal or proceedings for review and in respect of which the
Borrower or any Subsidiary shall have secured a subsisting stay of execution
pending such appeal or proceedings for review, provided that adequate reserves
as shall be required by GAAP shall have been made therefor on the applicable
financial statements of the Borrower or as required by applicable law; (j) a
lease of personal Property entered into in the ordinary course of business, so
long as the Lien attaches only to such personal Property; (k) Liens listed on
Schedule 1.1 hereto, including any renewals or refinancings thereof, so long as
the Liens do not cover any additional Property, but only to the extent such
Liens continue to secure Debt permitted by Section 8.4
27
(Debt); (l) Liens securing Debt of a newly acquired Person (or assets thereof),
which Person (or the assets thereof) was acquired after the Closing Date as an
Investment permitted under the terms of this Agreement and which Liens were in
existence at the time of acquisition by the Borrower of such Person (or the
assets thereof), and not incurred in contemplation of such acquisition; (m)
Liens existing on the Property at the time the Borrower acquires such Property
from Aladdin under the Purchase and Sale Agreement and listed on Schedule 1.1
hereto; and (n) easements, zoning restrictions, rights-of-way and similar
encumbrances on real property (1) imposed by law or arising in the ordinary
course of business that do not secure any monetary obligations and do not
materially detract from the value of the affected property or interfere with the
ordinary conduct of business of the Borrower or any Subsidiary or (2) in the
case of the Mortgaged Property, encumbrances disclosed in the title insurance
policy based on the Title Commitment and issued to the Agent for the benefit of
the Term Loan A Lenders and Term Loan B Lenders, and approved by, the Required
Term Loan A Lenders.
"Person" means any individual, sole proprietorship,
partnership, joint venture, trust, unincorporated organization, association,
corporation, Governmental Authority, or any other entity.
"Plan" means any pension plan, as defined in Section 3(2) of
ERISA (other than a Multiemployer Plan), which is maintained or contributed to
by (or to which there is an obligation to contribute of) the Borrower or an
ERISA Affiliate and each such plan for the five-year period immediately
following the latest date on which the Borrower or an ERISA Affiliate
maintained, contributed to or had an obligation to contribute to such plan.
"Plan of Reorganization" means the Plan of Reorganization of
Aladdin, dated ________ __, 2003, under Chapter 11 of the Bankruptcy Code, as
the same may be amended, modified or otherwise supplemented from time to time in
accordance therewith.
"Plans and Specifications" has the meaning given to such term
in Section 7.29 of this Agreement.
"Premises" means the premises known as Aladdin Hotel and
Casino and related complexes located at Las Vegas Boulevard and Harmon Avenue in
▇▇▇▇▇ County, Nevada, as more particularly described in Exhibit C hereto, which
Premises includes, without limitation, the Hotel Premises, the Retail Shops, the
Casino, the Time Share Premises, the Theater and the Energy Premises; provided,
however, that upon the receipt by the Agent of $14,000,000 in cash as set forth
in Section 5.1(x), the Premises shall not include the Time Share Premises.
"Pre-Petition Credit Agreement" has the meaning given to such
term in the recitals of this Agreement.
"Pre-Petition Loan Documents" means the Pre-Petition Credit
Agreement and all agreements, documents and instruments executed and/or
delivered by Aladdin and/or its Affiliates in connection therewith.
28
"Pre-Petition Swap Claim" means any and all amounts payable to
the Pre-Petition Swap Lender by Aladdin in connection with that certain ISDA
Master Agreement dated as of February 26, 1998 between the Pre-Petition Swap
Lender and Aladdin.
"Pre-Petition Swap Lender" means The Bank of Nova Scotia, in
its capacity as holder of the Pre-Petition Swap Claim.
"Prime-Based Loan" means a Loan bearing interest at the
Prime-Based Rate.
"Prime-Based Rate" means the Prime Lending Rate, plus 2.5%.
"Prime Lending Rate" means the rate which The Bank of New York
announces from time to time as its prime lending rate, as in effect from time to
time. The Prime Lending Rate is a reference rate and does not necessarily
represent the lowest or best rate actually charged by The Bank of New York or
any Lender to any customer. The Lenders may make commercial loans or other loans
at rates of interest at, above or below the Prime Lending Rate.
"Proceeding" means any action, suit, proceeding or arbitration
filed by Aladdin Bazaar, the Borrower or Aladdin in accordance with the REA
relating to any Renovation Capital Expenditures proposed to be made or made by
the Borrower.
"Proceeds" means all "proceeds" as such term is defined in the
UCC and all proceeds and products of any Collateral, and all proceeds of such
proceeds and products, including, without limitation, all cash and credit
balances, all payments under any indemnity, warranty, or guaranty payable with
respect to any Collateral, all awards for taking by eminent domain, all proceeds
of fire or other insurance, and all money and other Property obtained as a
result of any claims against third parties or any legal action or proceeding
with respect to Collateral and all dividends or other income from any Equity
Interests pledged to the Agent, collections thereon or distributions or payments
with respect thereto.
"Property" means any right or interest in or to property of
any kind whatsoever of the Borrower or any Subsidiary, whether real, personal or
mixed and whether tangible or intangible, including, without limitation, the
Premises and Equity Interests held by the Borrower or any Subsidiary.
"Proprietary Rights" means, with respect to the Borrower, all
of the Borrower's now owned and hereafter arising or acquired: licenses,
franchises, permits, patents, patent rights, copyrights, works which are the
subject matter of registered copyrights, registered trademarks, trade names,
patent and trademark applications, and licenses and rights thereunder,
including, without limitation, those patents, trademarks and copyrights set
forth on Section C of the Disclosure Schedule, and all other rights under any of
the foregoing, all extensions, renewals, reissues, divisions, continuations, and
continuations-in-part of any of the foregoing, and all rights to ▇▇▇ for past,
present, and future infringement of any of the foregoing; inventions, trade
secrets, formulae, processes, compounds, drawings, designs, blueprints, plans,
specifications, warranties, surveys, reports, manuals, and operating standards;
goodwill; customer and other lists in
29
whatever form maintained; and trade secret rights, copyright rights, rights in
works of authorship, and contract rights relating to computer software programs,
in whatever form created or maintained; internet web sites, domain names and
applications and registrations pertaining thereto, and all intellectual property
in connection with or contained in all versions of such internet web sites.
"Purchase and Sale Agreement" means that certain Purchase and
Sale Agreement dated as of April 23, 2003 between the Borrower, as purchaser and
Aladdin, as seller.
"REA" means that certain Construction, Operation and
Reciprocal Easement Agreement dated as of February 26, 1998 among Aladdin,
Aladdin Bazaar and Aladdin Music Holdings, LLC, as amended by that certain (i)
Amendment and Ratification of Construction, Operation and Reciprocal Easement
Agreement dated as of November 20, 2000 between Aladdin and Aladdin Bazaar which
was recorded in the Official Records of ▇▇▇▇▇ County in Book 20001120, Document
No.: 00858 and (ii) Second Amendment of Construction, Operation and Reciprocal
Easement Agreement between Aladdin and Aladdin Bazaar which was recorded in the
Official Records of ▇▇▇▇▇ County in Book 20030331, Document No.: 04875 on March
31, 2003.
"Register" has the meaning given to such term in Section 4.11
of this Agreement.
"Regulation U" means Regulation U of the Board as in effect
from time to time.
"Regulatory Replacement" has the meaning given to such term in
Section 4.8 of this Agreement.
"Reinvestment Amount" has the meaning given to such term in
Section 4.3(c) of this Agreement.
"Reinvestment Assets" means any capital assets to be employed
in the business of the Borrower or any of its Subsidiaries, which, in the case
of a Casualty Event, shall include, at the option of the Borrower, the
replacement, refurbishing, or reconstruction of the assets subject to such
Casualty Event.
"Reinvestment Election" has the meaning given to such term in
Section 4.3(c) of this Agreement.
"Reinvestment Notice" means a written notice signed by an
Approved Officer of the Borrower stating that (i) no Event or Event of Default
has occurred and is continuing and (ii) the Borrower or any of its Subsidiaries
in good faith, intends and expects to use all or a specified portion of the Net
Cash Proceeds of an Asset Transfer or Casualty Event to purchase, construct or
otherwise acquire Reinvestment Assets within eighteen (18) months of the end of
month to which the notice relates.
"Reinvestment Prepayment Amount" means with respect to any
Reinvestment
30
Election, the amount, if any, on the Reinvestment Prepayment Date relating
thereto by which (i) the Notified Reinvestment Amount in respect of such
Reinvestment Election exceeds (ii) the aggregate amount thereof expended to
construct or acquire Reinvestment Assets.
"Reinvestment Prepayment Date" means, with respect to any
Reinvestment Election, the earliest of (i) the date, if any, upon which the
Agent, on behalf of the Required Term Loan A Lenders, shall have delivered a
written termination notice to the Borrower with respect to the Reinvestment
Election, provided that such notice may only be given while an Event of Default
exists, and shall only be effective for so long as such Event of Default
continues, (ii) the date occurring eighteen (18) months after such Reinvestment
Election and (iii) the date on which the Borrower (for itself or on behalf of
its Subsidiary) shall have determined not to, or shall have otherwise ceased to,
proceed with the purchase, construction or other acquisition of Reinvestment
Assets with the related Reinvestment Amount.
"Renovation Capital Expenditures" means those Capital
Expenditures made by the Borrower or any of its Subsidiaries for the purposes
and in the amounts set forth on Exhibit L (such Exhibit may be updated by the
Borrower so long as the additional Renovation Capital Expenditures are of the
same scope as those originally set forth in such Exhibit) or other Capital
Expenditures approved by the Agent in its reasonable discretion to constitute
Renovation Capital Expenditures, acting upon the reasonable direction of the
Required Term Loan A Lenders, in the aggregate minimum amount of $90,000,000. No
more than $9,000,000 of such $90,000,000 may constitute expenditures not
required to be capitalized under GAAP. The Renovation Capital Expenditures shall
for all purposes exclude Maintenance Capital Expenditures. No more than $150,000
of closing costs and fees may be reimbursed to the Borrower from the $90,000,000
constituting Renovation Capital Expenditures.
"Rent Roll" has the meaning set forth in paragraph S of the
Representation and Warranty Certificate.
"Rents" has the meaning set forth in the Mortgage.
"Reorganization" means, with respect to any Multiemployer
Plan, the condition that such plan is in reorganization within the meaning of
Section 4241 of ERISA.
"Reportable Event" means a Reportable Event as defined in
Section 4043(b) of ERISA.
"Representation and Warranty Certificate" means a certificate
of the Borrower, signed by an Approved Officer, in form and substance
substantially similar to Exhibit O.
"Required Lenders" means, at any time, the holders of more
than 50% of (a) until the Closing Date, the Commitments and (b) thereafter, the
aggregate unpaid principal amount of the Term Loans then outstanding (without
taking into account any accrued but unpaid interest on the Term Loan B that is
added to the principal of the Term Loan B pursuant to Section 3.2 of this
Agreement).
31
"Required Term Loan A Lenders" means, at any time, the holders
of more than 50% of (a) until the Closing Date, the Term Loan A Commitment and
(b) thereafter, the aggregate unpaid principal amount of the Term Loan A then
outstanding.
"Required Term Loan B Lenders" means, at any time, the holders
of more than 50% of (a) until the Closing Date, the Term Loan B Commitment and
(b) thereafter, the aggregate unpaid principal amount of the Term Loan B then
outstanding.
"Reserve Amount" means any cash of the Borrower and its
Subsidiaries which does not exceed $25,000,000 plus the aggregate of all amounts
described in clause (x) of the definition of Excess Cash Flow and which is
calculated as follows for any Fiscal Quarter:
(i) EBITDA for such Fiscal Quarter,
plus
(ii) the Carry-Over Reserve Amount,
less
(iii) the Cash Interest Expense of the Borrower and its
Subsidiaries paid during such Fiscal Quarter,
less
(iv) the aggregate amount of any Maintenance Capital
Expenditures paid in cash during such Fiscal Quarter
(subject to the limitations set forth in Section 8.12
and expressly excluding the additional $3,000,000 of
Capital Expenditures permitted to be made in the
second paragraph of Section 8.12),
less
(v) all payments of principal on the Term Loan A made
pursuant to Section 4.1(b), 4.2 or Section 4.3(a)
(solely to the extent that any amounts received by
the Borrower pursuant to Section 4.3(a) are included
in EBITDA for such Fiscal Quarter) by the Borrower
during such Fiscal Quarter,
less
(vi) the amount of any Taxes paid in cash by the Borrower
and its Subsidiaries during such Fiscal Quarter or if
the Borrower is treated as a pass-through entity or
is not treated as a separate entity for United States
federal income tax purposes, the amount of
Distributions made in cash by the Borrower in
accordance with Section 8.2(c) (Distributions) during
such Fiscal Quarter,
32
and
less
(vii) the amount of any additions to the Operating Cash
Reserve Amount permitted under Section 8.27 of this
Agreement.
The Reserve Amount shall not include the Operating Cash
Reserve Amount.
"Resolution Date" means the earliest of (i) the last day of
the calendar month in which Aladdin Bazaar consents to the Borrower making all
Renovation Capital Expenditures set forth in the Borrower's Plan, (ii) the last
day of the calendar month in which a Proceeding has been resolved by an
arbitrator or a court of competent jurisdiction, (iii) twelve (12) months after
the Closing Date, (iv) the last day of the calendar month in which the Borrower
commences making any Renovation Capital Expenditures identified in the
Borrower's Plan, and (v) the last day of the first calendar month in which there
is a Tolling EBITDA Default (which has not been cured as permitted in the
definition of Tolling EBITDA Default).
"Restricted Investment" means any investment by the Borrower
or a Subsidiary in any other Person for cash or other Property, including,
without limitation, in the form of an acquisition of capital stock, indebtedness
or other obligation, or by loan, advance or capital contribution, except the
following: (a) Property acquired in the ordinary course of the business of the
Borrower or a Subsidiary to be used in the ordinary course of such business,
subject to a valid, first priority, Security Interest (subject to Permitted
Liens) in favor of the Agent for the benefit of the Secured Parties or a
purchase money Security Interest permitted under clause (c) of the definition of
Permitted Liens; (b) current assets arising from the sale or lease of goods or
rendition of services in the ordinary course of business of the Borrower or a
Subsidiary; (c) investments existing on the Closing Date including in the Equity
Interests of Subsidiaries and Affiliates; (d) Permitted Investments, so long as
such are subject to a valid, first priority, Security Interest (subject to
Permitted Liens) in favor of the Agent for the benefit of the Secured Parties;
(e) investments consisting of Hedging Agreements; (f) investments in non-cash
consideration received in connection with a permitted sale of assets (subject to
the granting of a Lien as required by the Security Documents); (g) the
Borrower's investment, if any, in the Time Share Entity pursuant to the Time
Share Plan; (h) investments in any Subsidiary existing on the Closing Date or
organized or acquired after the Closing Date in compliance with Section 8.9 of
this Agreement; (i) loans or advances to officers, directors and employees of
the Borrower or any of its Subsidiaries made in the ordinary course of business
provided that the aggregate amount of such loans or advances does not exceed
$400,000 at any one time outstanding; (j) investments arising from transactions
by the Borrower or any of its Subsidiaries with customers or suppliers in the
ordinary course of business, including, without limitation, endorsements of
negotiable instruments and debt obligations and other investments received in
connection with the bankruptcy or reorganization of customers and suppliers or
in settlement of delinquent obligations of, or other disputes with, customers or
suppliers, arising in the ordinary course of business (subject to the granting
of a Lien as required by the Security Documents); and (k) other investments not
to exceed a net amount equal to $200,000 in the aggregate outstanding at any
33
time.
"Retail Shops" means, collectively, the portion of the Hotel
or Casino Premises where retail shops are located.
"Second Measurement Period" has the meaning given to such term
in Section 8.13(a) of this Agreement.
"Second Renovation Capital Expenditure Measurement Date" means
the last day of the thirtieth (30th) month following the Closing Date unless
there is Tolling. In the event there is Tolling, the Second Renovation Capital
Expenditure Measurement Date means X months after the Resolution Date, where X
equals (A) thirty (30) months minus (B) the Non-Tolling Months.
"Secured Parties" means the Lenders, the Agent and all other
obligees with respect to the Obligations.
"Security Agreement" means the Omnibus Security Agreement to
be executed and delivered by the Borrower and each Guarantor, substantially in
the form of Exhibit D, as the same may be amended, supplemented or otherwise
modified from time to time.
"Security Documents" means the collective reference to the
Security Agreement, the Assignment of Contract, the Mortgage, the Assignment of
Leases, the Assignment of Agreements and all other security documents hereafter
delivered to the Agent granting a Lien on any Property of any Person to secure
the Obligations.
"Security Interest" means collectively the Liens in the
Collateral granted to the Agent or the Agent for the benefit of the Secured
Parties pursuant to this Agreement, the other Loan Documents, or any other
agreement or instrument, or by applicable law, in each case in respect of the
Obligations.
"Settlement Agreement" means the Settlement Agreement and
Releases, dated as of November 6, 2002, by and among Aladdin, Northwind, ▇▇▇▇
▇▇▇▇▇▇▇ Life Insurance Company, ▇▇▇▇ ▇▇▇▇▇▇▇ Variable Life Insurance Company,
▇▇▇▇ ▇▇▇▇▇▇▇ Reinsurance Company Limited, State Street Bank and Trust Company
and Aladdin Bazaar, as amended by that certain First Amendment to Settlement
Agreement and Releases, dated as of December 23, 2002.
"Sheraton" means Sheraton Operating Corporation, a Delaware
corporation.
"Shortfall Interest Amount" has the meaning given to such term
in Section 3.1(a)(ii) of this Agreement.
"Significant Repair or Improvement" means any improvement,
alteration or addition constructed or made by the Borrower at the Premises,
other than initial tenant improvement and other initial work done inside the
leased premises pursuant to any Lease
34
entered into by the Borrower in accordance with Section 7.17 (Leases) hereof,
which (a) costs or is reasonably estimated to cost in excess of $5,000,000, or
(b) when aggregated with all other improvements, alterations and additions
constructed or made by the Borrower at the Premises during such Fiscal Year,
costs or is reasonably estimated to cost in excess of $10,000,000. "Significant
Repair or Improvement" shall exclude improvements, alterations, additions, and
repairs made with Renovation Capital Expenditures.
"Sixth Measurement Period" has the meaning set forth in
Section 8.13(a) of this Agreement.
"Solvent" means, when used with respect to any Person, that,
as of any date of determination, (a) the amount of the "present fair saleable
value" of the assets of such Person will, as of such date, exceed the amount of
all "liabilities of such Person, contingent or otherwise", as of such date, as
such quoted terms are determined in accordance with applicable federal and state
laws governing determinations of the insolvency of debtors, (b) the present fair
saleable value of the assets of such Person will, as of such date, be greater
than the amount that will be required to pay the liability of such Person on its
debts as such debts become absolute and matured, (c) such Person will not have,
as of such date, an unreasonably small amount of capital with which to conduct
its business, and (d) such Person will be able to pay its debts as they mature.
For purposes of this definition, (i) "debt" and "claim" shall have the meanings
set forth in the Bankruptcy Code.
"Starwood" shall mean Starwood Hotels and Resorts Worldwide,
Inc., a Maryland corporation.
"Subordination Agreements" means, collectively, any Manager
Subordination Agreement, the License Subordination Agreement, and any Leasing
Manager Subordination Agreement.
"Subsequent Default Rate" has the meaning given to such term
in Section 3.3 of this Agreement.
"Subsidiary" means, as to any Person, a corporation,
partnership, limited liability company or other entity of which shares of stock
or other ownership interests having ordinary voting power (other than stock or
such other ownership interests having such power only by reason of the happening
of a contingency) to elect a majority of the board of directors or other
managers of such corporation, partnership or other entity are at the time owned,
or the management of which is otherwise controlled, directly or indirectly
through one or more intermediaries, or both, by such Person; provided, however,
that "Subsidiary" shall not include the Time Share Entity. Unless otherwise
qualified, all references to a "Subsidiary" or to "Subsidiaries" in this
Agreement shall refer to a Subsidiary or Subsidiaries of the Borrower.
"Survey" means a current ALTA survey of the Premises prepared
by a surveyor acceptable to the Borrower and Agent who is a licensed surveyor in
the State of Nevada, which survey shall be in form and substance, including
certification, acceptable to the Borrower and
35
Agent.
"Suspension Period" has the meaning given to such term in
Section 4.8 of this Agreement.
"Taking" (and its correlative meanings) means any temporary or
permanent taking by any Governmental Authority of the Premises or any portion
thereof through eminent domain, condemnation or other proceedings or by any
settlement or compromise of such proceedings, or any voluntary conveyance of
such property or any portion thereof during the pendency of any such
proceedings.
"Taxes" means any and all present or future taxes, levies,
imposts, duties, deductions, charges or withholdings imposed by any Governmental
Authority and any and all liabilities (including interest, fines, penalties or
additions to tax) with respect to the foregoing.
"Tax Liability" means the product of (a) the hypothetical
taxable income of the Borrower for Federal income tax purposes computed as if
the Borrower were a corporation subject to federal income tax for such purposes,
and (b) the sum of the maximum marginal United States income tax rate applicable
to corporations under Section 11 of the Code or any successor provision and
fifty (50) percent of the maximum marginal New York State income tax rate
applicable to corporations (after taking into account any Federal income tax
benefit in respect of such New York State tax rate).
"Tax Refund" has the meaning set forth in Section 3.7 of this
Agreement.
"Term Loan A" has the meaning set forth in Section 2.2 of this
Agreement.
"Term Loan A Commitment" means as to any Term Loan A Lender,
the obligation of such Lender to make a Term Loan A to the Borrower hereunder in
a principal amount not to exceed the amount set forth opposite such Lender's
name on Exhibit A hereto.
"Term Loan A Eurodollar Rate" means, for the Interest Period
of a Term Loan A, a rate per annum equal to the sum of: (i) (x) 3.25% per annum
during the period commencing on the day after the third Anniversary Date and
ending on the fourth Anniversary Date and (y) LIBOR; and (ii) (x) 3.50% per
annum during the period commencing on the day after the fourth Anniversary Date
and ending on the sixth Anniversary Date and (y) LIBOR.
"Term Loan A Interest Amount" means, during the Initial
Interest Period, an amount equal to (i) EBITDA for the Fiscal Quarter last ended
less (ii) the aggregate amount of any Maintenance Capital Expenditures paid in
cash by the Borrower during the Fiscal Quarter last ended (subject to the
limitations set forth in Section 8.12) and (iii) dividing the difference between
(i) and (ii) by 1.20 (until such time as the Reserve Amount equals $25,000,000
and thereafter this clause (iii) shall no longer apply).
"Term Loan A Lender" means each Lender designated as a Term
Loan A Lender
36
on the signature pages hereof, or who is the holder of a Term Loan A.
"Term Loan A Percentage" means as to any Term Loan A Lender at
any time, the percentage which the aggregate principal amount of such Lender's
Term Loans A then outstanding constitutes of the aggregate principal amount of
the Term Loan A then outstanding.
"Term Loan B" has the meaning set forth in Section 2.3 of this
Agreement.
"Term Loan B Commitment" means as to any Term Loan B Lender,
the obligation of such Lender to make a Term Loan B to the Borrower hereunder in
a principal amount not to exceed the amount set forth opposite such Lender's
name on Exhibit A hereto.
"Term Loan B Eurodollar Rate" means, for the Interest Period
for a Eurodollar Loan, a rate per annum equal to the sum of: (a) 4.00% and (b)
LIBOR.
"Term Loan B Lender" means each Lender designated as a Term
Loan B Lender on the signature pages hereof, or who is the holder of a Term Loan
B.
"Term Loan B Percentage" means as to any Term Loan B Lender at
any time, the percentage which the aggregate principal amount of such Lender's
Term Loans B then outstanding constitutes of the aggregate principal amount of
the Term Loan B then outstanding.
"Term Loan Commitment" means, collectively, the Term Loan A
Commitment and the Term Loan B Commitment.
"Term Loan Notes" has the meaning set forth in Section 2.4 of
this Agreement.
"Term Loans" means, collectively, the Term Loan A and the Term
Loan B.
"Termination Date" means the earlier of: (x) the Maturity Date
or (y) the date as of which all Term Loans and all Obligations in respect
thereof have been paid in full.
"Terrorist Event" means the occurrence of an event which is an
"act of terrorism" (as defined in the Terrorism Risk Insurance Act of 2002,
Public Law No. 107-297) (other than an act that occurs in the premises of a
United States mission) which results in a Visitor Decrease of greater than five
percent during the calendar month in which such event occurs or the immediately
succeeding calendar month.
"Terrorist Event Period" means the period beginning on the
first day of the calendar month in which a Terrorist Event results in a Visitor
Decrease of greater than five percent and ending on the first day of the next
calendar month in which the Visitor Decrease is not greater than five percent.
"Theater" means the Theater for Performing Arts located on the
Premises, described on Exhibit B-3.
37
"Third Renovation Capital Expenditure Measurement Date" the
third Anniversary Date unless there is Tolling. In the event there is Tolling,
the Third Renovation Capital Expenditure Measurement Date means X months after
the Resolution Date, where X equals (A) 36 months minus (B) the Non-Tolling
Months.
"Time Share Entity" means any Person to which the Borrower
contributes or otherwise makes a Disposition of the Time Share Premises in
accordance with the Time Share Plan or otherwise with the prior written consent
of the Required Term Loan A Lenders (other than the FF&E Lender).
"Time Share Plan" means a plan for the development of the Time
Share Premises that (x) includes the following and is consistent in all ways
with the term sheet describing such plan that was approved by the Required Term
Loan A Lenders (other than the FF&E Lender) in accordance with Section 5.1(dd)
of this Agreement or (y) is satisfactory to the Agent (acting at the reasonable
direction of the Required Term Loan A Lenders (other than the FF&E Lender)):
(i) In connection with the Disposition of the Time Share Premises
(which may be made by the Borrower as permitted by this
Agreement or by Aladdin directly to an Affiliate of the
Borrower pursuant to the Plan and the Purchase and Sale
Agreement so that in any event the Borrower shall be deemed to
have initially received the payment described in Section
5.1(x) of this Agreement and thereafter the Agent shall have
actually received the payment described in Section 5.1(x) of
this Agreement) (x) the Borrower shall receive payments based
upon not less than (a) 65% of 10%, (b) 60% of 11%, or (c) 55%
of 12%, of the gross proceeds of the sale of all time share
units developed on the Time Share Premises (such 10%, 11% or
12%, as the case may be, of the gross proceeds shall be
referred to herein as the "Time Share Proceeds") and pay such
65%, 60% or 55% to the Agent in accordance with Section 4.3(a)
of this Agreement and (y) such Disposition shall be made in
such a manner that does not cause an Event or an Event of
Default by the Borrower under this Agreement; and
(ii) Other than Starwood, Affiliates of Starwood or any other
developer of the Time Share Premises that is (a) approved in
writing by the Required Term Loan A Lenders (other than the
FF&E Lender) and (b) not an Affiliate of the Bay Harbour or
the ▇▇▇▇ Investor but is an Affiliate of the Borrower, no
Affiliate of the Borrower shall be entitled to receive any
payments in connection with the development of the Time Share
Premises or the sale of time share units; provided, that any
Affiliate of the Borrower or the Investor Group that, directly
or indirectly, provides any funding for the payment described
in Section 5.1(x) of this Agreement, will be entitled to
receive (x) the percentage of the Time Share Proceeds not paid
to the Borrower in accordance with clause (i)(x) of this
definition, and (y) land release or similar payments totaling
the amount of such funding provided to the Borrower, up to a
maximum of $14,000,000 in the aggregate, plus interest on such
amounts at a rate not exceeding 6.75% per annum over a term of
at least six years; provided, that in no event may the amounts
38
described in this clause (ii)(y) be offset or deducted or
reduce the amount of the Time Share Proceeds.
For purposes of simplicity, the foregoing plan will result in
the Borrower receiving at least (a) 65% of 10%, (b) 60% of
11%, or (c) 55% of 12%, of the gross proceeds of the sale of
all time share units developed on the Time Share Premises
(such 65%, 60% or 55% of the Time Share Proceeds, as the case
may be, shall be referred to herein as the "Borrower's Time
Share Proceeds"). The Borrower is required by Section 4.3(a)
of this Agreement to pay the Agent 100% of the Borrower's Time
Share Proceeds (other than amounts withheld in connection with
estimated taxes) on a quarterly basis.
"Time Share Premises" means the real property of the Borrower
described on Exhibit B-2 hereto.
"Title Company" means Chicago Title Insurance Company.
"Title Insurance Commitment" means the Pro Forma Title Policy,
issued by the Title Company under Policy No. _, along with copies of all
instruments creating or evidencing exceptions or encumbrances to title.
"Title Insurance Policy" means an ALTA 1970 form of mortgagee
title insurance policy from the Title Company and insuring the priority and
sufficiency of the Mortgage as a first priority Lien upon the Premises, (a) in
an aggregate amount equal to at least $510,000,000, (b) showing that the
Borrower is the sole owner of fee title to the Premises subject to no liens or
encumbrances and no exceptions or qualifications other than the Permitted Liens
and as otherwise may be reasonably acceptable to the Agent, (c) insuring the
priority of the Mortgage unconditionally against all possible contractors',
suppliers', and mechanics' lien claims that heretofore or hereafter arise, as
well as matters related to the Survey, (d) omitting any creditors' rights
exclusion in the Title Insurance Policy, (e) containing any endorsements or
assurances that the Agent and the Term Loan A Lenders may reasonably request for
protection of its interests that are available under applicable law and (f)
otherwise being reasonably acceptable to the Agent and the Lenders in form and
content.
"Tolling" means the timing for the Borrower to make the
Renovation Capital Expenditures under Sections 4.3(b) and 7.13 of this Agreement
is extended and the compliance by the Borrower with the financial covenants set
forth in Sections 8.13, 8.14, and 8.15 of this Agreement is suspended in each
case until the Resolution Date. Tolling shall only occur if the Resolution Date
is after the Closing Date and shall be effective as of the Closing Date. There
shall be no Tolling if the Resolution Date occurs prior to the Closing Date.
39
"Tolling EBITDA Default" means, in the event there is Tolling,
EBITDA of less than $23,500,000 calculated on a trailing twelve months basis as
of the end of the sixth, twelfth and eighteenth calendar month during which
there is Tolling; provided, that when calculating trailing twelve months EBITDA
as of the end of the sixth calendar month during which there is Tolling, EBITDA
during the six months prior to the Closing Date shall refer to the EBITDA of
Aladdin (the "Aladdin EBITDA"); and, provided, further, that Aladdin EBITDA
shall be deemed to be not less than $11,750,000 during such six month period.
Notwithstanding the above, if the Borrower has commenced making any
Renovation Capital Expenditures that do not require Aladdin Bazaar's consent
during a Tolling Period (it being agreed that the making of any such Renovation
Capital Expenditures will not result in clause (iv) of the definition of
Resolution Date being satisfied) and the Required Lenders reasonably determine
that the making of such Renovation Capital Expenditures will have a materially
adverse effect on the Borrower's ability to comply with the above EBITDA
requirements (the "Tolling EBITDA Amount"), the Borrower shall be deemed to be
in compliance with the Tolling EBITDA Amount for such period if no later than 15
days after the end of the applicable measurement period, the Investor Group
provides cash equity (the "Tolling EBITDA Cure Amount") to the Borrower in an
amount equal to or greater than the difference between the (i) Tolling EBITDA
Amount and (ii) the actual EBITDA for such period.
"Transferee" has the meaning given to such term in Section
3.7(b) of this Agreement.
"UCC" means the Uniform Commercial Code (or any successor
statute), as in effect from time to time, of the State of New York or of any
other state the laws of which are required to be applied with respect to the
creation, validity, perfection or priority of the Agent's Liens for the benefit
of the Secured Parties.
"Unsuitable Lender" has the meaning given to such term in
Section 4.9 of this Agreement.
"Visitor Decrease" means a decrease in the number of monthly
visitor volume to Las Vegas, Nevada (as published by the Las Vegas Convention
and Visitors Authority) compared to the number of monthly visitors to Las Vegas,
Nevada in the same calendar month of the immediately preceding year.
1.2 Other Definitional Provisions. (a) Unless otherwise specified
therein, all terms defined in this Agreement shall have the defined meanings
when used in the other Loan Documents or any certificate or other document made
or delivered pursuant hereto or thereto.
(b) As used herein and in the other Loan Documents, and
any certificate or other document made or delivered pursuant hereto or thereto,
accounting terms relating to the Borrower and its Subsidiaries not defined in
Section 1.1 and accounting terms partly defined in
40
Section 1.1, to the extent not defined, shall have the respective meanings given
to them under GAAP.
(c) The words "hereof", "herein" and "hereunder" and
words of similar import when used in this Agreement shall refer to this
Agreement as a whole and not to any particular provision of this Agreement, and
Section, Schedule and Exhibit references are to this Agreement unless otherwise
specified.
(d) The meanings given to terms defined herein shall be
equally applicable to both the singular and plural forms of such terms. The
words "include" and "including" whenever used in this Agreement or any other
Loan Document shall be deemed to be followed by the words "without limitation."
(e) Any reference to any agreement in this Loan Agreement
shall be deemed to mean such agreement as it may from time to time be amended,
restated, extended, renewed, increased, consolidated, spread, severed,
supplemented or otherwise modified in accordance with the terms thereof.
1.3 Other Terms. All other undefined terms contained in this
Agreement shall, unless the context indicates otherwise, have the meanings
provided for by the UCC to the extent the same are used or defined therein.
Wherever appropriate in the context, terms used herein in the singular also
include the plural, and vice versa and each masculine, feminine, or neuter
pronoun shall also include the other genders.
1.4 Accounting Terms. (a) Unless otherwise expressly provided
herein, each accounting term used herein shall have the meaning given it under
GAAP.
(b) If any "Accounting Changes" (as defined below) occur
and such changes result in a change in the calculation of the financial
covenants, standards or terms used in this Agreement or any other Loan Document,
then the Borrower, the Agent and the Lenders agree to enter into good faith
negotiations in order to amend such provisions of the Agreement so as to
equitably reflect such Accounting Changes with the desired result that the
criteria for evaluating the Borrower and its Subsidiaries' financial condition
shall be the same after such Accounting Changes as if such Accounting Changes
had not been made; provided, however, that the agreement of the Required Term
Loan A Lenders to any required amendments of such provisions shall be sufficient
to bind all the Lenders. "Accounting Changes" shall mean changes in accounting
principles required by the promulgation of any rule, regulation, pronouncement
or opinion by the Financial Accounting Standards Board of the American Institute
of Certified Public Accountants (or successor thereto) or any agency with
similar functions. If the Agent, the Borrower and the Required Term Loan A
Lenders agree upon the required amendments, then after appropriate amendments
have been executed and the underlying Accounting Change with respect thereto has
been implemented, any reference to GAAP contained in this Agreement or in any
other Loan Document shall, only to the extent of such Accounting Change, refer
to GAAP, consistently applied after giving effect to the implementation of such
Accounting Change. Unless and until any such required amendments shall become
effective, all calculations of
41
financial covenants and other standards and terms shall continue to be
calculated without regard to the underlying Accounting Change; and if the Agent,
the Borrower and the Required Lenders cannot agree upon the required amendments
within thirty (30) days following the entering into of the good faith
negotiations, then all financial statements delivered and all calculations of
financial covenants and other standards and terms in accordance with this
Agreement and the other Loan Documents shall be prepared, delivered and made
without regard to the underlying Accounting Change.
ARTICLE 2
LOANS
2.1 Total Facility. Subject to the terms and conditions of this
Agreement, the Lenders shall be deemed to have made available to the Borrower on
the Closing Date a total credit facility of $510,000,000 comprised of Term Loan
A in aggregate principal amount equal to $500,000,000 (of which $14,000,000 in
accordance with the Time Share Plan shall be paid to the Term Loan A Lenders
(other than the FF&E Lender) on the Closing Date pursuant to Section 5.1(x), so
that after receipt by the Agent of such payment, the aggregate principal amount
of the Term Loan A shall be equal to $486,000,000) and Term Loan B in an
aggregate principal amount equal to $10,000,000, as provided in this Article 2.
This Agreement is an amendment and restatement of all terms of the Pre-Petition
Credit Agreement and the GECC Facilities Agreement, such terms to be superseded
in all events by this Agreement, and the Borrower shall have no liabilities or
obligations whatsoever under the Pre-Petition Credit Agreement or the GECC
Facilities Agreement, except to the extent such liabilities and obligations are
expressly assumed by the Borrower under the (i) Purchase and Sale Agreement,
(ii) the Plan of Reorganization approved by the Confirmation Order, or (iii)
under this Agreement or any other Loan Document executed by the Borrower.
2.2 Term Loan A. Subject to the terms and conditions hereof, each
Term Loan A Lender shall be deemed to have made a term loan (a "Term Loan A") to
the Borrower on the Closing Date in an amount equal to the amount of the Term
Loan A Commitment of such Lender; provided, that on the Closing Date the
aggregate principal amount of the Term Loan A shall equal $500,000,000 (of which
$14,000,000 in accordance with the Time Share Plan shall be paid to the Term
Loan A Lenders (other than the FF&E Lender) on the Closing Date pursuant to
Section 5.1(aa), so that after receipt by the Agent of such payment, the
aggregate principal amount of the Term Loan A shall be equal to $486,000,000).
2.3 Term Loan B. Subject to the terms and conditions hereof, each
Term Loan B Lender shall be deemed to have made a term loan (a "Term Loan B") to
the Borrower on the Closing Date in an amount equal to the amount of the Term
Loan B Commitment of such Lender (excluding any amounts arising under Section
3.2 of this Agreement); provided, that on the Closing Date the aggregate
principal amount of the Term Loan B shall equal $10,000,000.
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2.4 Notes Evidencing Term Loans. In addition to this Agreement,
the Borrower's obligations to repay the Term Loans shall be evidenced by (i) a
single promissory note of the Borrower payable to the order of the Term Loan A
Lenders and held by the Agent on behalf of each Term Loan A Lender in the form
attached as Exhibit E-1 and (ii) a single promissory note of the Borrower
payable to the order of the Term Loan B Lenders and held by the Agent on behalf
of each Term Loan B Lender in the form attached as Exhibit E-2, each as amended,
modified, replaced or reissued from time to time (collectively, the "Term Loan
Notes"). In the event that a Lender shall request a Term Loan Note payable to
its order or shall assign all or a part of its rights and obligations under, and
in accordance with the terms of this Agreement and the new Lender shall request
a Term Loan Note payable to its order, the Borrower shall execute and deliver
one or more Term Loan Notes or replacement Term Loan Notes, as the case may be,
to carry out any such request.
2.5 Borrowing of Term Loans. The Term Loans shall be deemed to
have been made on the Closing Date.
2.6 Renewals of Term Loans. All Eurodollar Loans shall be
automatically renewed at the end of each Interest Period unless such a renewal
is prohibited by Section 3.12 or if an Event or Event of Default has occurred or
is continuing.
2.7 Term Loan Account. The Agent will establish a loan account for
the Borrower with each Lender. Unless the Agent otherwise elects, the principal
amount of each Term Loan A and each Term Loan B, the amount of each required
principal repayment, all accrued interest, all fees, all payments due to the
Agent or a Lender from the Borrower under Sections 3.8 (Requirements of Law),
3.9 (Capital Adequacy Costs), 3.11 (Indemnity) and 4.3(b) (Renovation Capital
Expenditures) in the event that the Letter of Credit has not been issued and
drawn by the Agent, and all costs and expenses described in Section 11.10 (Fees
and Expenses) will be charged to the Borrower's Term Loan account with the
appropriate Lender as of the date made, or the date such other amount is due
from the Borrower or is paid or incurred by the Agent or a Lender, or the date
such amount becomes chargeable to the Borrower's loan account pursuant to
Section 11.10 (Fees and Expenses), as the case may be.
ARTICLE 3
INTEREST AND OTHER CHARGES
3.1 Term Loan A Interest.
(a) Term Loan A Interest Payments During the Initial
Interest Period.
(i) On or before the fifteenth (15th) day after the end
of each Fiscal Quarter during the Initial Interest Period, the Borrower shall
pay the Agent, for the pro rata benefit of the Term Loan A Lenders, an amount
equal to the Term Loan A Interest Amount for the Fiscal Quarter last ended
(which shall be calculated by the Borrower based on a good faith estimate of
EBITDA for the Fiscal Quarter last ended) less the Excess Interest Amount, if
any, that was
43
credited during the Fiscal Quarter last ended; provided, however, that in no
event shall the amount of interest payable by the Borrower pursuant to this
Section 3.1(a)(i) be (i) greater than the Maximum Term Loan A Rate on the
Average Daily Outstanding Principal Amount during such Fiscal Quarter (after
taking into account any payments of principal made by the Borrower pursuant to
Section 4.1, 4.2 or 4.3 prior to the end of such Fiscal Quarter) and (ii) less
than the Minimum Term Loan A Rate on the Average Daily Outstanding Principal
Amount during such Fiscal Quarter (after taking into account any payments of
principal made by the Borrower pursuant to Section 4.1, 4.2 or 4.3 prior to the
end of such Fiscal Quarter). The Term Loan A Interest Amount shall be due and
payable as set forth above regardless of whether a Terrorist Event shall have
occurred and the financial covenants shall have been suspended in accordance
with Sections 8.13(c), 8.14(b) or 8.15(b) of this Agreement.
(ii) In the event that the amount of interest paid by the
Borrower to the Agent in any Fiscal Year during the Initial Interest Period (the
"Annual Estimated Amount of Interest") differs from the aggregate amount of
interest that would have been payable by the Borrower as a result of the
aggregate Term Loan A Interest Amount based on estimated EBITDA for the four
Fiscal Quarters during such Fiscal Year being greater or less than the actual
Term Loan A Interest Amount based on EBITDA for such Fiscal Year (the "Annual
Actual Amount of Interest"), (A) the Borrower will pay to the Agent within 90
days of the end of such Fiscal Year, the amount equal to the positive
difference, if any, between (i) the Annual Actual Amount of Interest and (ii)
the Annual Estimated Amount of Interest (the amount of such difference shall be
referred to herein as the "Shortfall Interest Amount") or (B) the Agent will
credit to the account of the Borrower with the Term A Lenders an amount equal to
the positive difference, if any, between (i) the Annual Estimated Amount of
Interest and (ii) the Annual Actual Amount of Interest (the "Excess Interest
Amount"). Any amounts payable under this Section 3.1(a)(ii) shall be due and
payable as set forth above regardless of whether a Terrorist Event shall have
occurred and the financial covenants shall have been suspended in accordance
with Sections 8.13(c), 8,14(b) or 8.15(b) of this Agreement.
(b) Term Loan A Interest Payments After the Initial
Interest Period. Commencing on the Interest Payment Date immediately following
the third Anniversary Date and on each Interest Payment Date thereafter, the
Borrower shall make a payment to the Agent, for the pro rata benefit of the Term
Loan A Lenders, in an amount equal to the Term Loan A Eurodollar Rate on the
Average Daily Outstanding Principal Amount during the Fiscal Quarter last ended
prior to such Interest Payment Date (after taking into account any payments of
principal made by the Borrower pursuant to Section 4.1, 4.2 or 4.3 of this
Agreement prior to the end of such Fiscal Quarter). Any amounts payable under
this Section 3.1(b) shall be due and payable as set forth above regardless of
whether a Terrorist Event shall have occurred and the financial covenants shall
have been suspended in accordance with Sections 8.13(c), 8.14(b) or 8.15(b) of
this Agreement.
3.2 Term Loan B Interest. Each Term Loan B shall bear interest
from the Closing Date on the Average Daily Outstanding Principal Amount thereof
at a rate per annum equal to the Term Loan B Eurodollar Rate and such interest
shall accrue and be added to the outstanding principal of the Term Loan B on
each Interest Payment Date and thereafter bear interest at the
44
Term Loan B Eurodollar Rate with respect to the Term Loan B until paid in full.
Any amounts due under this Section 3.2 shall be due and payable as set forth
above regardless of whether a Terrorist Event shall have occurred and the
financial covenants shall have been suspended in accordance with Sections
8.13(c), 8.14(b) or 8.15(b) of this Agreement.
3.3 Default Rate. (a) If any Event of Default occurs, (i) during
the period commencing on the Closing Date and ending on the second Anniversary
Date, then, from the date such Event of Default occurs until it is cured or
waived or until all Obligations are paid and performed in full, all outstanding
Loans shall bear interest (as well after as before judgment) at a rate (the
"Initial Default Rate") per annum which is equal to the Prime Lending Rate plus
2% and (ii) at any time after the second Anniversary Date, then, from the date
such Event of Default occurs until it is cured or waived or until all
Obligations are paid and performed in full, all outstanding Loans shall bear
interest (as well after as before judgment) at a rate (the "Subsequent Default
Rate") per annum which is equal to the then applicable interest rate plus 2%;
and (b) if all or a portion of any interest payable on any Loan or other amount
payable hereunder shall not be paid when due (whether at the stated maturity, by
acceleration or otherwise), (i) during the period commencing on the Closing Date
and ending on the second Anniversary Date such overdue amount shall bear
interest at a rate per annum equal to the Initial Default Rate and (ii) at any
time after the second Anniversary Date such overdue amount shall bear interest
at a rate per annum equal to the Subsequent Default Rate, in each case from the
date of such non-payment until such amount is paid in full (as well after as
before judgment). Interest accruing pursuant to this Section 3.3 on the Term
Loan A shall be payable from time to time on demand and interest accruing
pursuant to this Section 3.3 on the Term Loan B shall accrue and be added to the
outstanding principal of the Term Loan B on each Interest Payment Date and
thereafter bear interest at the Term Loan B Eurodollar Rate until paid.
3.4 Maximum Interest Rate. In no event shall any interest or other
charge hereunder exceed the highest rate permissible under any law which a court
of competent jurisdiction shall, in a final determination, deem applicable
hereto. In the event that a court so determines that any Lender has received
interest and other charges hereunder in excess of the highest rate applicable
thereto, such excess shall be deemed received on account of, and shall
automatically be applied to reduce, the Obligations owed to such Lender other
than interest in the inverse order of maturity, and the provisions hereof shall
be deemed amended to provide for the highest permissible rate. If there are no
Obligations outstanding, then such Lender shall refund such excess to the
Borrower.
3.5 Computation of Interest. All computations of interest
hereunder shall be made on a daily basis on the actual number of days elapsed
over a year of 360 days.
3.6 Agency and Collateral Monitoring Fee. The Borrower agrees to
pay the Agent for its own account an agency and collateral monitoring fee (the
"Agency and Collateral Monitoring Fee") in the amount of $67,500 per annum (of
which $60,000 per annum is the agency fee and $7,500 per annum is the collateral
monitoring fee), payable in advance on the Closing Date and on each anniversary
of the Closing Date until the Commitments have expired or been terminated and
all Obligations have been paid in full.
45
3.7 Taxes. (a) All payments made by the Borrower in respect of the
Obligations shall be made free and clear of, and without reduction for or on
account of, any Taxes; provided, however, that the Borrower shall not be
required by this Section to pay or reimburse the Agent or any Lender for (i)
income and franchise taxes, doing business taxes or minimum taxes imposed on or
in respect of any such Person's overall net income or gross receipts from all
operations (or taxes imposed in lieu of such income or franchise taxes on
overall net income, net worth or capital or gross receipts) by the jurisdiction
of organization of the Lender or the jurisdiction in which is located the
Lending Office or other office for payments of such Person, or any political
subdivision or taxing authority thereof or therein, (ii) Taxes imposed solely by
reason of failure by the Agent or any Lender to comply with the requirements of
paragraph (b) of this Section 3.7, (iii) any Taxes in the nature of transfer,
stamp, recording or documentary taxes resulting from a transfer (other than as a
result of foreclosure) by a Lender of all or any portion of its interest in this
Agreement, the Term Loan Notes or any other Loan Documents, and (iv) Taxes which
are finally judicially determined by a court of competent jurisdiction to have
arisen solely as a result of gross negligence or willful misconduct of the Agent
or any Lender (all of the foregoing, except for those taxes excluded by the
proviso to this sentence, being referred to hereinafter as the "Non-Excluded
Taxes"). If any Non-Excluded Taxes are required to be withheld from any amounts
payable to the Agent or a Lender hereunder or under the applicable Term Loan
Note, the amounts so payable to such Person shall be increased to the extent
necessary to yield to such Person (after withholding or payment of all
Non-Excluded Taxes and all Taxes applicable to additional sums payable under
this Section) interest or any such other amounts payable hereunder or thereunder
at the rates or in the amounts specified herein and in the applicable Term Loan
Note as if no such deduction had been made, and the Borrower shall make such
deduction and pay the full amount deducted to the appropriate Governmental
Authority in accordance with applicable law. Whenever any Non-Excluded Tax is
payable by the Borrower, as promptly as possible thereafter, the Borrower shall
send to the Agent a certified copy of an original official receipt showing
payment thereof. If the Borrower fails to pay any Non-Excluded Taxes when due to
the appropriate taxing authority or fails to remit to the Agent the required
receipts or other required documentary evidence, the Borrower shall indemnify
the Agent, or the Lender, as the case may be, for any incremental Taxes,
interest or penalties that may become payable by such Person as a result of any
such failure. This indemnification shall be made within 30 days from the date
the Agent or such Lender (as the case may be) makes written demand therefor. If
any Lender receives a refund or credit or otherwise would have received a refund
or credit but for the offset of the amount of such refund against such Lender's
Taxes (that are not otherwise indemnifiable by the Borrower) (a "Tax Refund"),
which in the good faith judgment of such Lender is allocable to the Borrower, it
shall promptly pay such Tax Refund (net of (i) any Taxes and net income or
franchise taxes imposed on the Lender with respect to the Tax Refund and (ii)
any costs or expenses incurred in obtaining such Tax Refund) to the Borrower.
(b) Each Lender or transferee or assignee (including a
participation holder) thereof (any such entity, a "Transferee") that is not a
"United States person", as defined in Section 7701(a)(30) of the Code, agrees
that it will deliver to the Borrower and the Agent on or before the date it
becomes a Lender or Transferee (x) two duly completed copies of United States
Internal Revenue Service Form W-8BEN or successor applicable form certifying
that under an
46
applicable treaty such Lender or Transferee is entitled to receive all payments
under this Agreement without deduction or withholding of any United States
federal income taxes (or, in the case of a Transferee, that any such deduction
or withholding is no greater than it would have been for the Lender (or the
Transferee) that transferred or assigned its interest to such Transferee), (y)
two duly completed copies of United States Internal Revenue Service Form W-8ECI
or successor applicable form, or (z) two duly completed copies of United States
Internal Revenue Service Form W-8BEN or successor applicable form and a
statement in the form of Exhibit F hereto. Each such Lender or Transferee also
agrees (x) to deliver to the Borrower and the Agent two further copies of the
said statement and Form W-8BEN or W-8ECI or successor applicable forms or other
manner of certification, as the case may be, on or before the date reasonably
requested in writing by the Borrower or the Agent, and (y) to obtain such
extensions of the time for filing and to renew such statements or forms and
certifications thereof as may reasonably be requested by the Borrower or the
Agent, unless in any such case any change in treaty, law or regulation (or the
interpretation thereof) has occurred prior to the date on which any such
delivery would otherwise be required which renders all such statements or forms
inapplicable or which would prevent such Lender or Transferee from duly
completing and delivering any such statement or form with respect to it and such
Lender or Transferee so advises the Borrower and the Agent. Such Lender or
Transferee shall certify in the case of a Form W- 8BEN or W-8ECI (and, if
applicable, the statement) that it is entitled to receive payments under this
Agreement without deduction or withholding of any United States federal income
taxes (or, in the case of a Transferee, that any such deduction or withholding
is no greater than it would have been for the Lender or the Transferee that
transferred or assigned its interest to such Transferee). Such Lender or
Transferee shall, promptly upon the written request of the Borrower to that
effect, deliver to the Borrower such other forms or similar documentation as may
be required from time to time by any applicable law, treaty, rule or regulation
(or the interpretation thereof) in order to establish such Lender's or
Transferee's tax status for withholding purposes (to the extent that it is then
legally permitted to do so). Such Lender or Transferee also shall notify the
Borrower promptly after any change in any applicable law or regulation or in the
written interpretation thereof by any Governmental Authority applicable to such
Lender or Transferee that results in such Lender or Transferee no longer being
capable of receiving payments under this Agreement without any deduction or
withholding of United States federal income tax. Each Lender or Transferee that
is a "United States person", as defined under Section 7701(a)(30) of the Code,
and that is not a corporation agrees that it will deliver to the Borrower and
the Agent a Form W-9 stating that it is entitled to an exemption from United
States backup withholding tax.
3.8 Requirements of Law. In the event that after the date of this
Agreement any change in law, regulation, treaty, or directive or any change
therein or in the interpretation or application thereof, or compliance by any
Lender with any request or directive (whether or not having the force of law) of
any central bank or other Governmental Authority : (a) does or shall subject any
Lender (or any corporation controlling a Lender) to any tax of any kind
whatsoever with respect to any Loan or change the basis of taxation of payments
to such Lender of principal, interest, or any other amount payable in respect of
any Loan (other than Non-Excluded Taxes and except for changes in the rate of
tax on or in respect of such Person's overall net income, net worth or capital
or gross receipts); (b) does or shall impose, modify, deem applicable, or result
in
47
the application of any reserve, special deposit, compulsory loan or similar
requirement against loans or loan commitments made by a Lender or against any
other extensions of credit or commitments to extend credit or other assets of or
any deposits or other liabilities taken or entered into by a Lender and which
was not otherwise included in determining the rate of interest on the Loans of
such Lender; or (c) imposes on a Lender (or any corporation controlling a
Lender) any other condition regarding this Agreement; and the result of any such
event shall be to increase the cost to a Lender (or any corporation controlling
a Lender) of making or maintaining the Loans or the other Obligations of the
Borrower hereunder or to reduce the amounts receivable by such Person hereunder
then, within 30 days after written demand by such Lender, the Borrower shall,
subject to the provisions of Section 4.8 (Regulatory Replacement of Lenders),
either (a) immediately pay to the appropriate Lender, from time to time as
specified by such Person, additional fees which shall be sufficient to
compensate such Person (or any corporation controlling such Person) for such
increased cost or reduction in amounts receivable, or (b) pay all outstanding
Obligations and terminate this Agreement, paying the foregoing fees to the date
of termination. Such Lender will promptly notify the Borrower of any event
occurring after the date of this Agreement of which it has actual knowledge,
that will entitle such Lender to compensation pursuant to this Section 3.8 and
will designate a different Lending Office if such designation will avoid the
need for, or reduce the amount of, such compensation, provided that such
designation is permitted by applicable law and does not result in any tax,
reserve, special deposit or other obligation or any increased cost to such
Lender. Upon the occurrence of any event referred to above, the affected Person
shall send the Agent and the Borrower a certificate setting forth in reasonable
detail the increased cost or reduction in amounts receivable, which certificate
shall be conclusive, absent manifest error or bad faith, as to the amount
thereof.
3.9 Capital Adequacy Costs. If after the date of this Agreement
the introduction of or any change in (a) the judicial, administrative, or other
governmental interpretation of any law or regulation or (b) compliance by a
Lender (or any corporation controlling a Lender) with any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law) has the effect of requiring an increase in the amount of capital
required or expected to be maintained by such Lender or any corporation
controlling such Lender, and such Lender determines in good faith that such
increase is based upon its transactions with the Borrower hereunder, then,
subject to the provisions of Section 4.8 (Regulatory Replacement Lenders), then
within 30 days after written demand by such Lender, the Borrower shall either:
(x) pay to such Lender such additional amount as such Lender shall certify in
good faith to be the amount allocable to its transactions with the Borrower
hereunder; or (y) pay to the Lenders all outstanding Obligations and terminate
this Agreement. Such Lender will notify the Borrower and the Agent of any event
occurring after the date of this Agreement that will entitle such Lender to
compensation pursuant to this Section as promptly as practicable after such
Lender obtains Knowledge thereof and determines to request such compensation.
Such Lender's determination for purposes of this Section of the effect of any
increase in the amount of capital required to be maintained by it and of the
amount allocable to its transactions with the Borrower hereunder shall be
conclusive, provided that such determination is made on a reasonable basis. For
purposes of this Section, in calculating the amount necessary to compensate a
Lender for any increase in or imposition of capital requirements, such Lender
shall be deemed to be entitled to a rate of return on capital per annum (after
federal, state and local taxes) equivalent to that which it
48
would have received had such increase in or imposition of capital requirements
not occurred.
3.10 Inability to Determine Interest Rate. In the event that the
Agent or any Lender shall have determined (which determination shall be
conclusive and binding upon the Borrower) that by reason of circumstances
affecting the interbank Eurodollar market, adequate and reasonable means do not
exist for ascertaining LIBOR for any Interest Period with respect to any
Eurodollar Loans, or that LIBOR as so ascertained will not accurately reflect
such Lender's cost of creating or maintaining such Loan, or Dollar deposits in
the relevant amount and for the relevant Interest Period are not available to
such Lender in its relevant market, then any Lender making such determination
shall so notify the Agent, and the Agent in either case shall forthwith give
prompt telephonic notice of such determination, confirmed in writing, to the
Borrower. If such notice is given and until such notice has been withdrawn by
the Agent, any requested Eurodollar Loan shall be made as a Prime-Based Loan;
provided, however, that such Lender shall promptly notify the Agent and the
Agent shall forthwith give prompt telephonic notice thereof to the Borrower,
confirmed in writing to the Borrower, if the circumstances giving rise to such
situation no longer exist. Until such notice has been withdrawn by the Agent, as
the case may be, no further Eurodollar Loans shall be made, nor shall any
Eurodollar Loan be renewed.
3.11 Indemnity. The Borrower agrees to indemnify each Lender
against, to hold each Lender harmless from and to pay to the Agent on such
Lender's behalf on demand, any cost, loss or expenses which such Lender may
sustain or incur as a consequence of (a) default by the Borrower in payment of
the principal amount of or interest on any Eurodollar Loan, including, but not
limited to, any such loss or expense arising from interest or fees payable by a
Lender to lenders of funds obtained by it in order to maintain such Eurodollar
Loan, (b) failure by the Borrower to make a renewal of a Loan after the Borrower
has given a notice in accordance with the terms hereof, unless such failure is
as a result of the provisions of Section 3.12, or (c) repayment of a Eurodollar
Loan on a day which is not the end of the Interest Period with respect thereto,
including, but not limited to, any such loss or expense arising from interest or
fees payable by any Lender to lenders of funds obtained by it in order to
maintain such Eurodollar Loan. Notice of a claim thereunder shall be given to
the Borrower by the Agent within 90 days of the payment of any Eurodollar Loan.
The Borrower shall pay such Lender the amount shown as due on any such notice of
claim within 30 days after receipt thereof.
3.12 Illegality. If, after the date of this Agreement, the adoption
of any applicable law, rule or regulation, or any change therein, or any change
in the interpretation or administration thereof by any Governmental Authority,
or compliance by a Lender with any request or directive (whether or not having
the force of law) of any such Governmental Authority shall make it unlawful or
impossible for such Lender to make, maintain or fund Eurodollar Loans, then such
Lender shall forthwith so notify the Borrower and the Agent. Before giving any
such notice to the Borrower and the Agent, such Lender shall designate a
different Lending Office if such designation will avoid the need for giving such
notice, provided that such designation is permitted by applicable law and does
not result in any tax, reserve, special deposit or other obligation or any
increased cost to such Lender. Upon giving of such notice by such Lender, such
Lender's obligation to make Eurodollar Loans shall be suspended, and the
Borrower shall convert then-outstanding principal amount of each Eurodollar Loan
(on either (a) the last day of
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then-current Interest Period applicable to such Eurodollar Loan if such Lender
may lawfully continue to maintain and fund such Eurodollar Loan to such day or
(b) immediately, if such Lender may not lawfully continue to fund and maintain
such Eurodollar Loan to such day) into a Prime-Based Loan in an equal principal
amount.
3.13 Replacement by the Borrower of a Lender.
(a) Acquired Lender. If any Lender is acquired by or
merges with any other Person (including any other Lender) and (i) such Lender is
not the surviving Person, and (ii) there exits no Event or Event of Default
hereunder, the Borrower may replace such Lender in whole in the event that the
surviving Person is not an Eligible Assignee with an Eligible Assignee
reasonably acceptable to the Agent pursuant to an Assignment Agreement within 30
days following the date of consummation of any such acquisition or merger.
(b) Certain Circumstances. If (i) there exists no Event
or Event of Default on any such date and no Event or Event of Default shall be
caused by the action permitted below and (ii) any one Lender refuses to consent
to any amendment, waiver or consent to any provision hereof or in any Loan
Documents in accordance with the terms of Section 11.14 of this Agreement (other
than an amendment to increase the Commitment of such Lender), but to which each
other Lender has previously agreed in writing, then the Borrower may, within 45
days after the date of such consent, amendment or waiver, replace such Lender in
whole with another Eligible Assignee reasonably acceptable to the Agent,
pursuant to an Assignment Agreement.
ARTICLE 4
PAYMENTS AND PREPAYMENTS
4.1 Principal Payments.
(a) Excess Cash Flow Principal Payments. At any time
after the Reserve Amount equals $25,000,000 (and thereafter without regard to
any decrease in the Reserve Amount) until the Term Loan A is paid in full, the
Borrower shall pay the Agent, for the pro rata benefit of the Term Loan A
Lenders (including any payments allocated to Term Loan Notes held by the
Pre-Petition Swap Lender as set forth in Section 4.4 of this Agreement), on or
before the first day of the immediately succeeding Fiscal Quarter (the "Initial
Excess Cash Flow Principal Payment Date") and on each anniversary and sixth
month anniversary of the Initial Excess Cash Flow Principal Payment Date, an
amount equal to (i) 100% of the Excess Cash Flow in the event that the Leverage
Ratio is equal to or greater than 4.00:1.00 for either of the two Fiscal
Quarters most recently ended, (ii) 75% of the Excess Cash Flow in the event that
the Leverage Ratio is less than 4.00:1.00 for each of the two Fiscal Quarters
most recently ended but greater than 3.50:1.00 for either of the two Fiscal
Quarters most recently ended and (iii) 50% of Excess Cash Flow in the event that
the Leverage Ratio is less than or equal to 3.50:1.00 for each of the two Fiscal
Quarters most recently ended.
The following examples are provided for purposes of clarity:
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(1) Leverage Ratio is 3.3:1.00 at end of Fiscal Quarter 1 and the
Leverage Ratio is 3.7 at end of Fiscal Quarter 2, the Borrower must pay the
Agent 75% of Excess Cash Flow.
(2) Leverage Ratio is 3.7:1.00 at end of Fiscal Quarter 1 and the
Leverage Ratio is 3.3 at end of Fiscal Quarter 2, the Borrower must pay the
Agent 75% of Excess Cash Flow.
(b) Term Loan A Scheduled Installments of Principal
Payments Following Initial Interest Period. Unless sooner payable as provided in
Sections 9.2 (Remedies), 10.2 (Termination by the Borrower) and 10.3
(Termination by the Required Term Loan A Lenders), the Term Loan A shall be paid
by the Borrower to the Agent in the following installments, in addition to the
Excess Cash Flow principal payment required under Section 4.1(a) above:
(i) $1,250,000 on the first day of each Fiscal
Quarter during the period beginning on the second Anniversary Date and
ending on the third Anniversary Date;
(ii) $3,750,000 on the first day of each Fiscal
Quarter during the period beginning on the third Anniversary Date and
ending on the fourth Anniversary Date;
(iii) $5,000,000 on the first day of each Fiscal
Quarter during the period beginning on the fourth Anniversary Date and
ending on the fifth Anniversary Date;
(iv) $6,250,000 on the first day of each Fiscal
Quarter during the period beginning on the fifth Anniversary Date and
ending on the Maturity Date; and
(v) the then unpaid amount of the Term Loan A on
the Maturity Date.
All payments made pursuant to Section 4.1(a) and (b) shall be applied to the
payment of the Term Loan A for the pro rata benefit of the Term Loan A Lenders
(including any payments allocated to the Term Loan Notes held by the
Pre-Petition Swap Lender as set forth in Section 4.4 of this Agreement).
(c) Term Loan B Principal Payments. Except as provided in
Section 4.2 or Section 4.3 or unless sooner payable as provided in Sections 9.2
(Remedies), 10.2 (Termination by the Borrower) and 10.3 (Termination by the
Required Term Loan A Lenders), no principal payments on the Term Loan B shall be
due or payable until the Maturity Date.
(d) Principal Payment at Maturity. The Borrower shall pay
the unpaid principal balance of the Loan together with all other Obligations in
a single installment on the Maturity Date.
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4.2 Optional Prepayments of Term Loans. Optional prepayments of
each of the Term Loan A and Term Loan B may be made by the Borrower to the
Agent, without penalty or premium but subject to the payment of the amounts set
forth in Section 3.11 (Indemnity) with respect to Eurodollar Loans being prepaid
prior to the expiration date of the Interest Period applicable thereto, on one
or more occasions in a minimum amount of $5,000,000 or more (in $1,000,000
increments), upon three (3) Business Days' prior written notice to the Agent to
be applied first, subject to the next sentence, to the prepayment of the Term
Loan A pro rata to the then unpaid amounts of the Term Loan A and second, after
the Term Loan A has been repaid in full (including all accrued and unpaid
interest thereon and all other obligations associated therewith), to the
prepayment of the Term Loan B pro rata to the then unpaid amounts of the Term
Loan B. Notwithstanding the immediately preceding sentence, 86.23% of the amount
of any optional prepayments made to the Agent on behalf of the Term Loan A
Lenders (other than the FF&E Lender) shall be allocated by the Agent to the Term
Loan Notes held by the Pre- Petition Swap Lender unless and until the
Pre-Petition Swap Claim has been paid in full. During the Initial Interest
Period, interest on any prepayments made under this Section 4.2 shall be paid in
accordance with Section 3.1(a)(i) of this Agreement.
4.3 Mandatory Prepayments and Commitment Reductions.
(a) Payments Relating to Time Share Plan. The
Borrower shall assign and pay to the Agent, no later than 20 days after the end
of each calendar month, 100% of any amounts it receives in connection with the
Time Share Plan during such calendar month; provided that the Borrower may
withhold from such payment an amount equal to the Tax Liability for such
calendar month with respect to the taxable income derived from the Time Share
Plan. For this purpose, the Tax Liability with respect to the taxable income
derived from the Time Share Plan shall be an amount (not less than zero) equal
to the product of (A) the Borrower's Tax Liability for the relevant calendar
month (determined by an interim closing of its books) and (B) a fraction, (i)
the numerator of which is the Borrower's taxable income from the Time Share
Premises for such calendar month computed as if the Borrower were a corporation
subject to federal income tax for such purposes , and (ii) the denominator of
which is the Borrower's total taxable income for such calendar month computed on
the same basis. Additionally, in the event that the Borrower makes any
Disposition of the Time Share Premises, other than in connection with the Time
Share Plan (which it may only do with the prior written consent of the Required
Term Loan A Lenders (other than the FF&E Lender), the Borrower shall, within
five (5) days after any such Disposition, pay the Agent the amount by which (i)
the Net Cash Proceeds received by the Borrower or any Affiliate of the Borrower
from any such Disposition exceeds (ii) $14,000,000.
(b) Renovation Capital Expenditures. The Borrower is
required under Section 7.13 to spend and pay not less than $90,000,000 on and
for Renovation Capital Expenditures. If, by the (A) First Renovation Capital
Expenditure Measurement Date, the Borrower has not spent and paid at least
$72,000,000 on and for Renovation Capital Expenditures, the Borrower shall by
the 30th day following the First Renovation Capital Expenditure Measurement
Date, pay the Agent the difference between (x) $72,000,000 and (y) the amount
spent and paid on and for Renovation Capital Expenditures as of the First
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Renovation Capital Expenditure Measurement Date, (B) Second Renovation Capital
Expenditure Measurement Date, the Borrower has not spent and paid an aggregate
amount of $81,000,000 on and for Renovation Capital Expenditures, the Borrower
shall by the 30th day following the Second Renovation Capital Expenditure
Measurement Date, pay the Agent the difference between (x) $81,000,000 and (y)
the sum of (i) the amount spent and paid on and for Renovation Capital
Expenditures through the Second Renovation Capital Expenditure Measurement Date
and (ii) the amount paid to the Agent by the Borrower in accordance with clause
(A) of this Section 4.3(b) through the Second Renovation Capital Expenditure
Measurement Date and (C) Third Renovation Capital Expenditure Measurement Date,
the Borrower has not spent and paid an aggregate amount of $90,000,000 on
Renovation Capital Expenditures, the Borrower shall by the 30th day following
the Third Renovation Capital Expenditure Measurement Date, pay the Agent the
difference between (x) $90,000,000 and (y) the sum of (i) the amount spent and
paid for Renovation Capital Expenditures through the Third Renovation Capital
Expenditure Measurement Date, (ii) the aggregate amount paid to the Agent by the
Borrower in accordance with clauses (A) and (B) of this Section 4.3(b) through
the Third Renovation Capital Expenditure Measurement Date. If any amount
required to be paid to the Agent pursuant to the immediately preceding sentence
is not paid when due, the Agent may, without further notice or demand, (i) draw
upon the Letter of Credit in an amount equal to the amount due to the Agent or
(ii) charge the Borrower's loan account pursuant to Section 2.7 in an amount
equal to the amount due to the Agent. The Agent drawing upon the Letter of
Credit or charging the Borrower's loan account shall constitute a payment for
purposes of determining clauses (B)(y)(ii) and (C)(y)(ii) of this Section
4.3(b). The Borrower hereby acknowledges and agrees that the $14,000,000 payment
described in Section 5.1(x), shall not reduce the $90,000,000 of Renovation
Capital Expenditures required to be made pursuant to this Section 4.3(b).
(c) Proceeds of Other Asset Transfers. If the Borrower or
any of its Subsidiaries shall receive Net Cash Proceeds from any Asset Transfers
or Casualty Events (other than Net Cash Proceeds required to be paid to the
Agent to the extent provided in Section 4.3(a)), then, within fifteen (15) days
of providing the notice required under Section 7.3(k), the Borrower (for itself
and on behalf of any Subsidiary effecting the Asset Transfer) shall pay such Net
Cash Proceeds to the Agent who shall apply such Net Cash Proceeds toward the
prepayment of the Term Loans as set forth in Section 4.3(e) below; provided,
that, notwithstanding the foregoing, (i) the Borrower may elect (a "Reinvestment
Election") to exclude from the foregoing requirement amounts with respect to the
relevant Asset Transfers or Casualty Events to the extent that such are to be
reinvested in Reinvestment Assets (the "Reinvestment Amount") by delivering to
the Agent a written Reinvestment Notice delivered with the information required
under Section 7.3(g) setting forth the anticipated Reinvestment Amount (the
"Notified Reinvestment Amount"), whereupon the Borrower and its Subsidiaries
shall have eighteen (18) months from the date of such notice in which to
reinvest such Reinvestment Amount in Reinvestment Assets, subject however to the
provisions of Section 7.19 with respect to Casualty Events; provided, that the
Reinvestment Amounts so specified in any eighteen (18) month period (including
insurance proceeds or condemnation awards for Casualty Events) shall not exceed
the amounts set forth in Section 8.12 for any such eighteen (18) month period,
provided, further, that after six (6) months following the end of the month to
which the Reinvestment Notice relates, the
53
Agent may in its reasonable discretion (acting upon the direction of the
Required Term Loan A Lenders) establish reserves in respect of the Reinvestment
Amount not yet reinvested and provided further, that on the Reinvestment
Prepayment Date with respect to a Reinvestment Election, the Borrower shall pay
to the Agent an amount equal to the Reinvestment Prepayment Amount, if any, for
application as provided in Section 4.3(e).
(d) Application of Funds from Time Share Premises.
Amounts to be applied in connection with prepayment and Commitment reductions
made pursuant to clause (a) above and the payment required by Section 5.1(x)
shall be applied as follows: first, the Initial Time Share Premises Payment
(which is defined as the greater of (i) $20,000,000 of Net Cash Proceeds (which
upon the satisfaction of Section 5.1(x), shall include the payment of such
$14,000,000 on account of the Time Share Premises) and (ii) the Fair Market
Value of the Time Share Premises as determined by the FF&E Lender Appraisal)
shall be applied, subject to the next sentence of this Section 4.3(d), to the
prepayment of the Term Loan A pro rata to the then unpaid amounts of the Term
Loan A held by all Term Loan A Lenders other than the FF&E Lender, second, after
the application of the Initial Time Share Premises Payment, to the prepayment of
the Term Loan A pro rata to the then unpaid amounts (without taking into account
the Initial Time Share Premises Payment referred to above) of the Term Loan A
held by all Term Loan A Lenders including the FF&E Lender, and third, after the
Term Loan A has been repaid in full (including all accrued and unpaid interest
thereon and all other obligations associated therewith), to the prepayment of
the Term Loan B pro rata to the then unpaid amounts of the Term Loan B.
Notwithstanding the immediately preceding sentence, the Agent shall allocate
86.23% of the Initial Time Share Premises Payment to the Term Loan Notes held by
the Pre-Petition Swap Lender unless and until the Pre-Petition Swap Claim has
been paid in full. After receipt by the Required Term Loan A Lenders (other than
the FF&E Lender) of the Initial Time Share Premises Payment, all references in
this Agreement to the Required Term Loan A Lenders with respect to the Time
Share Premises shall include the FF& E Lender.
(e) Application of Other Mandatory Principal Payments.
Amounts to be applied in connection with prepayments and Commitment reductions
made pursuant to clauses (b) and (c) above shall be applied first, subject to
the next sentence of this Section 4.3(e), to the prepayment of the Term Loan A
pro rata to the then unpaid amounts of the Term Loan A, and second, after the
Term Loan A has been repaid in full (including all accrued and unpaid interest
thereon and all other obligations associated therewith), to the prepayment of
the Term Loan B pro rata to the then unpaid amounts of the Term Loan B.
Notwithstanding the immediately preceding sentence, 86.23% of the amount of any
prepayments made to the Agent on behalf of the Term Loan A Lenders (other than
the FF&E Lender) pursuant to clauses (b) and (c) above shall be allocated by the
Agent to the Term Loan Notes held by the Pre-Petition Swap Lender unless and
until the Pre-Petition Swap Claim has been paid in full.
Each prepayment of the Loans under this Section 4.3 shall be
accompanied by accrued interest (which, in the case of the Term Loan B, may, at
the option of the Borrower, be added to the outstanding principal of the Term
Loan B (after giving effect to any such prepayment) and bear interest at the
Term Loan B Eurodollar Rate until paid in full) to the date of such prepayment
on the amount prepaid; provided, however, that during the Initial Interest
Period,
54
interest on any prepayments of the Term A Loan under this Section 4.3 shall be
paid in accordance with Section 3.1(a)(i) of this Agreement.
4.4 Payments, No Reborrowings. (a) Each payment (including each
prepayment) by the Borrower on account of (i) principal of the Term Loan A shall
be made by the Agent (x) until such time as the Pre-Petition Swap Claim has been
paid in full, to the Term Loan Notes held by the Pre-Petition Swap Lender in an
amount equal to 86.23% of any such payment to the Term Loan A Lenders (other
than the FF&E Lender) with the balance of such payment being made pro rata
according to the respective Term Loan A Percentages of all of the Term Loan A
Lenders (except as set forth in Section 4.3(d) above) and (y) after an amount
equal to the Pre-Petition Swap Claim has been paid to the Pre-Petition Swap
Lender in full, pro rata according to the respective Term Loan A Percentages of
all of the Term Loan A Lenders (except as set forth in Section 4.3(d) above),
(ii) interest on the Term Loan A and any other amounts payable to the Term Loan
A Lenders shall be made by the Agent pro rata according to the respective Term
Loan A Percentages of all of the Term Loan A Lenders, and (iii) principal and
interest on the Term Loans B and any other amounts payable to the Term Loan B
Lenders shall be made by the Agent pro rata according to the respective Term
Loan B Percentages of all of the Term Loan B Lenders.
[The following example of the application of Section 4.4(a)(i)(x) is
provided for purposes of clarity: Payment of $100,000,000 is made by the
Borrower on the Term Loan A. Payment to Term Loan A Lenders (other than the FF&E
Lender) is $89,000,000 of which $76,000,000 shall be for the Pre-Petition Swap
Lender and $13,000,000 for the Term Loan A Lenders (other than the FF&E Lender).
$11,000,000 of such $100,000,000 payment is for the FF&E Lender. The allocations
among the Term Loan A Lenders (other than the FF&E Lender) evidenced by Section
4.4(a)(i)(x) relating to the Pre-Petition Swap Claim shall not change the amount
of the payment to the FF&E Lender.]
(b) The parties hereto acknowledge that the Borrower
assumes no liability or obligation related to the Pre-Petition Swap Claims other
than the Obligations owed to the Term Loan A Lenders.
(c) Amounts prepaid on account of the Term Loans may not
be reborrowed.
4.5 Place and Form of Payments; Extension of Time. All payments of
principal, interest, and other sums due to the Agent, or any Lender shall be
made without offset, defense, or counterclaim at the Agent's address set forth
in Section 11.11 of this Agreement. All such payments shall be made in Dollars
and in immediately available funds. All payments required to be made to the
Agent hereunder shall be made not later than 2:00 p.m. New York City time. Funds
received after that time shall be deemed to have been received by the Agent on
the next Business Day. If any payment of principal, interest, or other sum to be
made hereunder becomes due and payable on a day other than a Business Day, then,
except as otherwise provided herein, the due date of such payment shall be
extended to the next succeeding Business Day and interest thereon shall be
payable at the applicable interest rate during such extension.
55
4.6 Sharing of Payments. If any Lender shall obtain any payment or
reduction (including, without limitation, any amounts received as adequate
protection of a deposit treated as cash collateral under the Bankruptcy Code) of
any Obligations of the Borrower hereunder (whether voluntary, involuntary,
through the exercise of any right of set-off, or otherwise) which exceeds its
ratable share of payments or reductions on account of such Obligations obtained
by all the Lenders under the Facility (other than payments under Section 3.7,
3.8, 3.9, 3.11 and/or 4.3) such Lender shall promptly (i) notify the Agent of
such receipt, and (ii) purchase from the other Lenders under the Facility such
participations in the affected Obligations as shall be necessary to cause such
purchasing Lender to share the excess payment or reduction, net of costs
incurred in connection therewith, ratably with each of them; provided that if
all or any portion of such excess payment or reduction is thereafter recovered
from such purchasing Lender or additional costs are incurred, the purchase shall
be rescinded and the purchase price restored to the extent of such recovery or
such additional costs, but without interest. The Borrower agrees that any Lender
so purchasing a participation from another Lender pursuant to this Section may,
to the fullest extent permitted by law, exercise all its rights of payment
(including the right of set-off) with respect to such participation as fully as
if such Lender were the direct creditor of the Borrower in the amount of such
participation. For the purposes of this Section, a Lender shall be deemed to
have received a payment of the Obligations when it exercises a right of set-off
against Property of the Borrower or a Subsidiary unless such Property was being
held expressly and solely for or in connection with a transaction unrelated to
the transactions contemplated by the Loan Documents.
4.7 Indemnity for Returned Payments. If after receipt of any
payment of, or Proceeds applied to the payment of, all or any part of the
Obligations, any Lender is for any reason required to surrender such payment or
Proceeds to any Person, because such payment or Proceeds is invalidated,
declared fraudulent, set aside, determined to be void or voidable as a
preference, or a diversion of trust funds, or for any other reason, then: the
Obligations or the part thereof intended to be satisfied shall be revived and
continue and this Agreement shall continue in full force as if such payment or
Proceeds had not been received by such Lender, and within 30 days after demand
therefor, the Borrower shall indemnify such Person and hold such Person
harmless, from and against the amount of such payment or Proceeds surrendered.
The Agent shall reflect the surrender of such payment or Proceeds, and any
subsequent payment by the Borrower to such Lender pursuant to this Section 4.7,
in the applicable loan account. The provisions of this Section 4.7 shall be and
remain effective notwithstanding any contrary action which may have been taken
by such Lender in reliance upon such payment or Proceeds, and any such contrary
action so taken shall be without prejudice to such Lender's rights under the
Loan Documents and shall be deemed to have been conditioned upon such payment or
Proceeds having become final and irrevocable. The provisions of this Section 4.7
shall survive the termination of this Agreement and the final and full payment
and performance of the Obligations.
4.8 Regulatory Replacement of Lender. If the Borrower receives a
certificate from a Lender pursuant to Section 3.8 (Requirements of Law) or 3.9
(Capital Adequacy Costs) setting forth increased fees and other costs to be
charged to the Borrower as a result of any event set forth in either such
section, then, solely as a result of receiving such certificate, the Borrower
may replace such Lender with another lender approved by the Agent, which
approval shall not be
56
unreasonably withheld (any such replacement being referred to herein as a
"Regulatory Replacement"). During the 90-day period commencing on the date the
Borrower receives such certificate under Section 3.8 or 3.9 (the "Suspension
Period"), the Borrower shall not be required to pay the increased fees and other
costs specified in such certificate for such 90-day period (but such fees and
costs shall accrue during such period). In order to make a Regulatory
Replacement, the Borrower must (a) give the Agent a written notice of its
intention to do so, which notice must be received by the Agent during the
Suspension Period and no later than ten Business Days prior to the proposed date
for the Regulatory Replacement and (b) consummate the Regulatory Replacement
within 90 days after the Agent receives such notice. If the Borrower makes a
timely Regulatory Replacement, it shall be required to pay the increased fees
and other costs which have accrued under Section 3.8 or 3.9 during the
Suspension Period in respect of the event described in the Lender's certificate,
after the end of the Suspension Period and on or prior to the date of the
Regulatory Replacement. If the Borrower does not make a timely Regulatory
Replacement (whether or not it gave notice to do so), then, at the end of the
Suspension Period, the Borrower shall immediately pay all fees and other charges
under Section 3.8 or 3.9 that were set forth in the Lender's certificate and
that accrued during the Suspension Period, and shall pay all such fees and other
charges accruing thereafter when due in accordance with Section 3.8 or 3.9. Upon
the Regulatory Replacement of a Lender, such Lender shall assign its Term Loans
and other rights and obligations under this Agreement and the other Loan
Documents to the new lender without recourse pursuant to a written agreement
meeting the requirements of Section 11.13(b) and otherwise mutually reasonably
acceptable to such Lender, the Borrower and the new lender, and the new lender
shall thereafter constitute a Lender hereunder for all purposes to the same
extent as if the assignment had been made pursuant to Section 11.13.
4.9 Replacement of Lender Due to Gaming Authorities. If any Gaming
Authority shall determine in a non-appealable final order that any Lender (an
"Unsuitable Lender") does not meet the suitability standards prescribed under
any applicable Gaming Law or the suitability standards of such Gaming Authority,
as the case may be, the Borrower may give notice in writing to the Agent and
such Unsuitable Lender of its intention to replace such Unsuitable Lender with a
financial institution designated in such notice. If the Agent shall, in the
exercise of its reasonable discretion and promptly following its receipt of such
notice, notify the Borrower and such Unsuitable Lender in writing that the
designated financial institution is satisfactory to the Agent (such consent not
being required where such financial institution is already a Lender or an
Approved Fund), then such Unsuitable Lender shall, subject to the payment of any
amounts due pursuant to Sections 3.7, 3.8, 3.9 and 3.11 by the Borrower, assign,
in accordance with Section 11.13, its Term Loan Notes and other rights and
obligations under this Agreement and all other Loan Documents to such designated
financial institution without recourse pursuant to a written agreement meeting
the requirements of Section 11.13(b) and otherwise mutually reasonably
acceptable to such Unsuitable Lender and the new lender, and the new lender
shall thereafter constitute a Lender hereunder for all purposes to the same
extent as if the assignment had been made pursuant to Section 11.13. The
Borrower shall pay to the Unsuitable Lender and the Agent all reasonable
out-of-pocket expenses incurred by the Unsuitable Lender and the Agent in
connection with such assignment and assumption.
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4.10 Agent's and Lenders' Books and Records. The Borrower agrees
that the Agent's and each Lender's books and records showing the Obligations and
the transactions pursuant to this Agreement and the other Loan Documents shall
be admissible in any action or proceeding arising therefrom, and shall
constitute prima facie proof thereof, irrespective of whether any Obligation is
also evidenced by a promissory note or other instrument.
4.11 Register. The Agent shall maintain a register (the "Register")
showing each Lender of a Loan hereunder. Any transfer or attempted transfer of a
Term Loan Note in violation of any provision of this Agreement shall be null and
void, and the Agent shall not record such transfer on the Register or treat any
purported transferee of a Term Loan Note as the owner of such Term Loan Note for
any purpose.
ARTICLE 5
CONDITIONS PRECEDENT
5.1 Lender Conditions Precedent. The Lenders will be obligated to
make the Term Loans, on the Closing Date, if the following conditions precedent
have been satisfied or waived by the Agent on or before the Closing Date as
determined by the Agent (acting on the reasonable direction of the Required
Lenders):
(a) Term Loan Notes and Security Documents. The Agent on
behalf of each Lender shall have received the Term Loan Notes duly executed by
the Borrower, together with fully executed and, where appropriate, acknowledged
counterparts of this Agreement and each of the other Loan Documents.
(b) Delivery of Documents. The Borrower shall have
delivered, or cause to be delivered, to the Agent on behalf of the Lenders the
documents, instruments and certificates listed on Schedule 5.1 hereto,
(including, without limitation, the Bazaar Note, any certificates representing
Equity Interests pledged to the Agent under the Security Agreement and an
opinion of counsel to the Borrower substantially in the form of Exhibit G
hereto), and such other documents, instruments, certificates and agreements as
the Required Term Loan A Lenders shall reasonably request in connection
herewith, duly executed by all parties thereto other than the Lenders or the
Agent, and in form and substance reasonably satisfactory to the Agent and the
Lenders and their respective counsel.
(c) Confirmation of Plan of Reorganization; Effective
Date. (i) The Lenders shall have approved the Plan of Reorganization and
Confirmation Order in their reasonable discretion, and (ii) the Confirmation
Order shall have been entered by the Bankruptcy Court and the Agent shall have
received a certified copy of same, and such order shall have become a Final
Order (unless the Borrower or Required Lenders have otherwise agreed), shall be
in full force and effect and shall not have been reversed, stayed, modified or
amended absent the prior written consent of the Lenders and the Borrower. The
Agent shall have received evidence reasonably satisfactory to it that the
Effective Date shall occur contemporaneously with the Closing Date hereunder.
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(d) Fees. The Borrower shall have paid in full the Agency
and Collateral Monitoring Fee due on the Closing Date and any other fees then
owing by the Borrower under this Agreement for which invoices containing a
general description thereof have been received by the Borrower at least two (2)
days prior to the Closing Date.
(e) Business Plan; Financial Statements. The Agent shall
have received (i) a business plan prepared by the Borrower containing
projections through the Maturity Date and (ii) the most recent financial
statements of the Borrower.
(f) Cash Management Arrangements. The Required Term Loan
A Lenders shall be reasonably satisfied as to the implementation by the Borrower
of a cash management system and the Agent shall have received blocked
account/control agreements with respect to the Operating Accounts and all other
Accounts in form and substance reasonably satisfactory to the Agent.
(g) Required Approvals. The Required Term Loan A Lenders
shall have received evidence reasonably satisfactory to the Required Term Loan A
Lenders of all consents or approvals of any Governmental Authority or other
Person which the Required Term Loan A Lenders reasonably determine are required
in connection with the transactions contemplated by this Agreement, including
all approvals, expiration of all waiting periods under the ▇▇▇▇-▇▇▇▇▇- ▇▇▇▇▇▇
Anti-Trust Improvement Act and all other applicable law, except those consents
and approvals the failure of which to obtain would not result in a Material
Adverse Effect as reasonably determined by the Agent.
(h) Gaming Authorization. The Required Term Loan A
Lenders shall be satisfied that all Gaming Licenses or other authorizations by
any Gaming Authority, if any, required or desirable in connection with (i) the
acquisition and operation of the Premises, and (ii) the execution, delivery and
performance of this Agreement, the other Loan Documents and the Liens and
security interests granted pursuant hereto and thereto, have been obtained and
are in full force and effect.
(i) Representations and Warranties, Etc. As of the
Closing Date: (i) the representations and warranties of the Borrower and the
other Loan Parties contained herein and in the other Loan Documents shall be
true and correct in all material respects as of the Closing Date, except those
representations and warranties made as of a specified date, which shall be true
and correct in all material respects as of such specified date; (ii) no Event or
Event of Default shall have occurred and be continuing; and (iii) the Agent
shall have received a certificate to such effect from an Approved Officer of the
Borrower. On the Closing Date, the Borrower shall have delivered to the Agent
the Representation and Warranty Certificate, together with the Disclosure
Schedule.
(j) No Material Adverse Change. No event has occurred or
condition exists which has had a Material Adverse Effect since December 31,
2002.
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(k) Proceedings. All proceedings to be taken in
connection with the transactions contemplated by this Agreement, and all
documents contemplated in connection herewith, shall be reasonably satisfactory
in form and substance to the Agent, the Borrower and their respective counsel.
(l) Title Policy. The Agent shall have received the Title
Insurance Policy, or the Title Insurance Commitment whereby the Title Company
unconditionally commits to issue the Title Policy, all in form and substance
reasonably satisfactory to the Agent.
(m) Survey. The Agent shall have received the Survey.
(n) Lien Searches. The Agent shall have received the
results of a recent lien search in each of the jurisdictions where any real
property of any of the Loan Parties is located and where each Loan Party is
organized, and such search shall reveal no liens on any of the assets of the
Borrower or its Subsidiaries except for (i) Permitted Liens and (ii) liens to be
discharged or assigned to the Agent on or prior to the Closing Date pursuant to
the Confirmation Order and documentation reasonably satisfactory to the Agent.
(o) Insurance. The Agent shall have received the
certificates of insurance (in form commonly used within the industry) and
determined such insurance coverage to be reasonably acceptable in form and
substance.
(p) Filings, Registrations and Recordings. Each document
(including, without limitation, any Financing Statements) required by the
Security Documents or under law or reasonably requested by the Agent to be
filed, registered or recorded in order to create in favor of the Agent, for the
benefit of the Secured Parties, a perfected Lien on the Collateral described
therein (including, without limitation with respect to the "The Marks", "Domain
Names" and "The Memo", each as defined in the License Agreement), prior and
superior in right to any other Person (other than the holders of Permitted
Liens), shall be in proper form for filing, registration or recordation.
(q) Organizational Documents, Etc. On or before the
"Sales Process and Purchaser Protection Hearing" (as defined in the Purchase and
Sale Agreement), the Agent shall have received such documents and certificates
as it or its counsel may reasonably request relating to the organization,
existence and good standing of the Borrower and any Guarantor, the authorization
of this Agreement and the other Loan Documents, in form and substance reasonably
satisfactory to the Agent (which shall provide for a representative of the
Lenders having a seat on the board of directors or managers of the Borrower or
in the event there is no such board of directors or managers, the representative
of the Lenders shall have a comparable advisory position).
(r) Purchase and Sale Documents and Closing of
Acquisition. The Agent shall have (i) received duly executed copies of the
Purchase and Sale Agreement and all documents and instruments executed in
connection therewith and the Required Lenders shall be reasonably satisfied with
the terms and provisions thereof and (ii) determined that the Borrower
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shall have acquired good and marketable fee title to the Premises.
(s) Manager, Management Agreement and Manager
Subordination Agreement. On or before the "Sales Process and Purchaser
Protection Hearing" (as defined in the Purchase and Sale Agreement), the Agent
(acting at the direction of the Required Lenders) shall have either (A)(i)
received evidence reasonably satisfactory to it that the Manager and the
Borrower shall have duly executed a Management Agreement and delivered duly
executed copies of such Management Agreement and all documents and instruments
executed in connection therewith to the Agent and the Required Lenders shall
have approved the terms and provisions thereof, which approval shall not be
unreasonably withheld or delayed and (ii) received a duly executed Manager
Subordination Agreement and such assignments, documents and instruments
reasonably requested by the Agent in connection therewith and the Required
Lenders shall have approved the terms and provisions thereof, which approval
shall not be unreasonably withheld or delayed or (B) approved any casino
operator and the Chief Executive Officer of the Borrower and shall have received
a duly executed agreement relating to the employment or retention of each such
Person and shall have approved the terms and provisions of such agreement
related thereto, which approval shall not be unreasonably withheld or delayed,
and shall have received such assignments, documents and instruments reasonably
requested by the Agent in connection therewith.
(t) License Agreement. On or before the "Sales Process
and Purchaser Protection Hearing" (as defined in the Purchase and Sale
Agreement), the Agent shall have received (i) a duly executed copy of the
License Agreement and the Required Lenders shall have approved the terms and
provisions of such document, which approval shall not be unreasonably withheld
or delayed, (ii) a duly executed subordination, assignment and recognition
agreement and such other assignments, documents and instruments reasonably
requested by the Agent in connection therewith and the Required Lenders shall
have approved the terms and provisions thereof, which approval shall not be
unreasonably withheld or delayed, (iii) a security agreement duly executed by
Planet Hollywood International, Inc ("PHI") and Planet Hollywood Memorabilia,
Inc ("PHMemo") in favor of the Agent for the benefit of the Lenders in form and
substance reasonably satisfactory to the Required Lenders securing an amount
equal to the outstanding amount of the Obligations pursuant to which PHI and
PHMemo shall grant a legal, valid and perfected first priority Lien on "The
Marks", "Domain Names" "The Memo" and other intellectual property relating to
the name "Planet Hollywood" (the "IP") each as described in the License
Agreement in favor of the Agent and which security agreement shall provide,
inter alia, that the remedies thereunder may be exercised only if (a) PHI or
PHMemo breach or otherwise fail to perform any obligation under the License
Agreement, such security agreement or the subordination agreement described in
clause (ii) of this Section 5.1(t) or (b) the License Agreement is terminated
for any reason, and that upon a foreclosure of such Lien on "The Marks", "Domain
Names", "The Memo" and the IP the Agent will take title to such Collateral but
will grant back to PHI a perpetual, royalty free, exclusive licence (which
license shall be in form and substance reasonably satisfactory to the Required
Lenders) to use "The Marks" except in connection with the Premises and the
Business (it being acknowledged that the Agent shall retain sole and exclusive
ownership and use of "The Marks" in connection with the Premises and Business);
provided, however, that, if prior to the Closing Date PHI segregates "The Marks"
in a
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manner reasonably satisfactory to the Required Lenders so that "The Marks" that
will apply to the Premises and the Business are separate and distinct from marks
that apply to other uses, the Lien on "The Marks" shall only be granted on those
that will apply to the Premises and the Business and, as a consequence, no
license back by the Agent shall be required in the event of a foreclosure;
provided, further, that in the event of a breach or failure to perform under the
License Agreement, such security agreement or such subordination agreement, the
Agent or other party succeeding to the interests of PHI and PHMemo in "The
Marks", "Domain Names", "The Memo" and the IP will agree (so long as there is no
breach or default by the Borrower of or under such License Agreement or such
subordination agreement) to recognize the terms and provisions of the License
Agreement subject to the intercreditor agreement referred to in clause (iv) of
this Section 5.1(t), and, provided, further that "The Marks", "Domain Names",
"The Memo" and the IP will be reconveyed to PHI or PHMemo, as applicable, upon
the expiration of the term of the License Agreement (after giving effect to any
and all extensions of such term) for nominal consideration and (iv) a duly
executed intercreditor agreement between any Person having a Lien on "The
Marks", "Domain Names" and "The Memo" of PHI or PHMemo referred to above and the
Agent and the Required Lenders shall have approved the terms and provisions of
such agreement, which approval shall not be unreasonably withheld or delayed.
(u) Investor Group. The Required Lenders shall be
satisfied with the members of the Investor Group (it being agreed that if the
▇▇▇▇▇▇ ▇▇▇▇ Investor, any Hotel Investor and the Bay Harbour Investor
collectively constitute all members of the Investor Group on the Closing Date,
the Lenders shall be deemed to be satisfied with the members of the Investor
Group on the Closing Date); provided, that each of the ▇▇▇▇▇▇ ▇▇▇▇ Investor, any
Hotel Investor and the Bay Harbour Investor may add additional investors to the
Investor Group prior to the Closing Date if (i) doing so shall not result in a
Change of Control, (ii) by no later than 45 days after the date of the entry of
the Confirmation Order, such additional investors shall have filed all required
applications with the Gaming Authorities and (iii) the Required Lenders shall
have determined in their reasonable discretion that any such additional
investors shall provide a strategic benefit to the Borrower.
(v) Warrants. The Agent shall have received for the
ratable benefit of the Lenders warrants to purchase at least 2.5% of the
outstanding Equity Interests as of the Closing Date of Equityco., LLC, a Nevada
limited liability company and holder of 100% of the Equity Interests of
Holdings, at a price equal to the price paid by the principals of Equityco., LLC
and the Agent shall be satisfied with the terms and conditions of such warrants.
(w) Aladdin Working Capital and Cash Transfer. The Agent
shall have received evidence satisfactory to it that Aladdin shall have
transferred an amount equal to $15,000,000 of working capital (including
$10,000,000 of cash) to the Borrower.
(x) Payment of $14,000,000. The Agent shall have received
payment in full (from either the Borrower or Aladdin pursuant to the Plan and
Purchase and Sale Agreement) in cash of $14,000,000, in connection with the
Disposition of the Time Share Premises in accordance with the Time Share Plan,
to be distributed pro rata to all of the Term Loan A Lenders other than the FF&E
Lender as set forth in Section 4.3(d).
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(y) Intercreditor Agreement. On or before the Auction
Date, the Agent shall have received the duly executed Intercreditor Agreement
and such agreement shall be reasonably satisfactory to the Required Term Loan A
Lenders and Required Term Loan B Lenders.
(z) New Equity. The Agent shall have received evidence
satisfactory to it that (i) $90,000,000 shall have been deposited into an
account designated for Renovation Capital Expenditures that the Agent may draw
upon as provided in Section 2.7 and 4.3(b) in the event that the Borrower fails
to comply with Section 4.3(b) or (ii) an unconditional irrevocable stand- by
letter of credit shall have been issued in favor of the Agent and the Lenders in
the amount of $90,000,000 in form and issued by a financial institution
reasonably satisfactory to the Required Lenders, which letter of credit shall
support the Borrower's obligations to make $90,000,000 of Renovation Capital
Expenditures as provided in Section 7.13 hereof (the "Letter of Credit").
(aa) Operating Agreements, Estoppels and Subordination
Agreements. The Agent shall have approved all Operating Agreements and Leases,
and to the extent the Agent is not reasonably satisfied with the Final Order,
and provided that the Agent shall have delivered to the Borrower on or before
the 65th day prior to the anticipated Closing Date a notice requesting the same,
shall have received (i) estoppel certificates with respect to each of the Leases
and Operating Agreements and (ii) subordination agreements for each of the
Leases, all in form and content reasonably acceptable to the Agent, such
approval not to be unreasonably withheld or delayed.
(bb) Mezzanine Loan. The Agent and the Lenders shall have
(i) on or before the Auction Date, approved the proposed terms and conditions of
the Mezzanine Loan, if any, (which shall in no event provide for the granting of
a Lien on the Property of the Borrower or its Subsidiaries), such approval not
to be unreasonably withheld or delayed and (ii) within nine (9) months following
the Auction Date but in no event later than 90 days prior to the Closing Date
(A) received duly executed copies of the Mezzanine Loan Documents, if any, and
determined that the terms and conditions thereof are substantially similar to
those disclosed to the Lenders prior to the Auction Date or more favorable to
the Borrower than those disclosed to the Lenders prior to the Auction Date and
reasonably acceptable to the Required Lenders (such approval not to be
unreasonably withheld or delayed), and (B) received the duly executed Mezzanine
Intercreditor Agreement and determined that the terms and conditions thereof are
reasonably acceptable to the Required Lenders (such approval not to be
unreasonably withheld or delayed).
(cc) Certain Consents. On or before the earlier of (i) the
Closing Date or (ii) six (6) months following the entry of the Confirmation
Order, the Borrower shall have delivered a plan (the "Borrower's Plan") to
Aladdin Bazaar setting forth any Renovation Capital Expenditures and other
activities which the Borrower believes shall require the prior consent of
Aladdin Bazaar and such plan shall be satisfactory to the Agent (acting at the
reasonable direction of the Required Term Loan A Lenders) and shall expressly
ask for Aladdin Bazaar to consent to any such proposed Renovation Capital
Expenditures in accordance with the terms and provisions of the REA.
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(dd) Certain Matters Relating to Time Share Premises. On
or before the Auction Date, the Borrower shall have delivered to the Agent an
executed term sheet with a Person reasonably satisfactory to the Required Term
Loan A Lenders (other than the FF&E Lender). outlining the proposed terms and
conditions of the Time Share Plan or any other arrangement with respect to the
Disposition of the Time Share Premises which term sheet shall be reasonably
satisfactory to the Required Term Loan A Lenders (other than the FF&E Lender).
5.2 Borrower Condition Precedent. The Borrower will be obligated
to incur the Debt evidenced by the Term Loans, on the Closing Date, if the
following conditions precedent have been satisfied or waived by the Borrower
before the Closing Date as determined by the Borrower in its reasonable
discretion: The transactions contemplated to occur pursuant to the Purchase and
Sale Agreement shall have occurred on or before the Closing Date.
ARTICLE 6
GENERAL WARRANTIES AND REPRESENTATIONS
The Borrower warrants and represents to the Agent and each Lender that,
except as hereafter disclosed to and accepted by the Agent acting upon the
reasonable direction of the Required Lenders in writing or as otherwise provided
herein:
6.1 Authorization, Validity, and Enforceability of this Agreement
and the Loan Documents. The Borrower has the requisite limited liability company
power and authority to execute, deliver, and perform this Agreement and the
other Loan Documents, to incur the Obligations, and to grant the Security
Interest. The Borrower has taken all necessary limited liability company action
(including, without limitation, obtaining any required approval of its equity
holders) to authorize its execution, delivery, and performance of this Agreement
and the other Loan Documents. No consent, approval, or authorization of, or
filing with, any Governmental Authority, and no consent of any other Person, is
required in connection with the Borrower's execution, delivery, and performance
of this Agreement and the other Loan Documents, except for those listed on
Schedule 6.1 hereto, those already duly obtained and except where the failure to
obtain such consent, approval, authorization or filing will not have a Material
Adverse Effect. This Agreement has been, and as of the Closing Date the other
Loan Documents will be duly executed and delivered by the Borrower, and
constitute or will constitute the legal, valid, and binding obligation of the
Borrower to the extent party thereto, enforceable against the Borrower in
accordance with their respective terms without defense, setoff, or counterclaim.
The Borrower's execution, delivery, and performance of this Agreement does not,
and the Borrower's and its Subsidiaries' execution, delivery and performance of
the other Loan Documents will not conflict with, or constitute a violation or
breach of, or constitute a default under, or result in the creation or
imposition of any Lien upon the Property of the Borrower or any Subsidiary
(except as contemplated by this Agreement and the other Loan Documents) by
reason of the terms of (a) any mortgage, lease, agreement, or instrument to
which the Borrower or any Subsidiary is a party or which is binding upon it,
except where such conflict, violation or default would reasonably be expected to
have a Material Adverse Effect (b) any judgment, law, statute, rule or
governmental regulation applicable to the Borrower or any Subsidiary, except
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where such conflict, violation or default would reasonably be expected to have a
Material Adverse Effect or (c) Organizational Documents of the Borrower or any
Subsidiary.
6.2 Organization and Qualification. The Borrower: (a) is duly
formed and organized and validly existing in good standing under the laws of the
State of Nevada; (b) has all requisite limited liability company power and
authority to conduct its business and to own its Property; and (c) is qualified
to do business as a foreign limited liability company and in good standing in
Nevada and any other state where the failure to so qualify would reasonably be
expected to have a Material Adverse Effect.
6.3 Subsidiaries. As of the Closing Date, Schedule 6.3(a) and
Schedule 6.3(b) are correct and complete lists of the name and relationship to
the Borrower of each and all of the Borrower's Subsidiaries. Each Subsidiary is
(a) duly formed and organized and validly existing in good standing under the
laws of its state of incorporation or organization and (b) qualified to do
business as a foreign entity and in good standing in any state where the failure
to so qualify would reasonably be expected to have a Material Adverse Effect.
6.4 Business Plan. (a) The Borrower has delivered to the Agent its
business plan that contains projections through the Maturity Date which is
reasonably satisfactory to the Agent.
(b) Since the date of the latest financial statements of
the Borrower delivered to the Agent, there has been no material adverse change
in the business, assets, liabilities, property, condition (financial or
otherwise) or prospects of the Borrower and its Subsidiaries taken as a whole.
6.5 Capitalization. After giving effect to the Purchase and Sale
Agreement, on the Effective Date the capitalization of the Borrower is as set
forth on Schedule 6.5 hereto.
6.6 Solvency. On the Effective Date the Borrower is Solvent and
possesses adequate assets for the conduct of its business.
6.7 Restrictive Agreements. Neither of the Borrower nor any of its
Subsidiaries is a party to any agreement, or subject to any corporate
restriction, which affects the ability of the Borrower or any other Loan Party
to execute, deliver, and perform the Loan Documents and repay the Obligations or
which is reasonably likely to have a Material Adverse Effect.
6.8 Regulations U and X. Neither the Borrower nor any of its
Subsidiaries owns any "margin stock" as such term is defined in Regulation U, as
amended, of the Board. The proceeds of the borrowings made pursuant to Article
II will be used by the Borrower only for working capital or other general
business purposes. None of such proceeds will be used, directly or indirectly,
(i) for the purpose of purchasing or carrying any margin stock or (ii) for the
purpose of reducing or retiring any Debt which was originally incurred to
purchase or carry margin stock or (iii) for any other purpose which might
constitute any of the Loans under this Agreement a "purpose credit" within the
meaning of Regulation U or X of the Board. Neither the Borrower nor its
Subsidiaries has taken or will take any action which might cause this Agreement
or any of
65
the Loan Documents to violate any regulation of the Board or to violate the
Securities Exchange Act of 1934 or any state securities laws.
6.9 Broker's Fees. The Borrower and its Subsidiaries has not made
any commitment or taken any action which will result in a valid claim for any
brokers, finders or similar fees or commitments in respect to the transactions
described in this Agreement. The Borrower agrees to defend the Agent and each
Lender and save them harmless from all claims of any Person acting on behalf of
the Borrower for any such fees, and this indemnity shall include reasonable
attorneys' fees and legal expenses.
6.10 Disclosure. To the Knowledge of the Borrower, neither this
Agreement nor any document or written statement (other than projections referred
to in Section 6.12 of this Agreement) furnished to the Agent or any Lender and
prepared by or on behalf of the Borrower hereunder contains any untrue statement
of a material fact or omits to state any material fact necessary in order to
make the statements contained herein or therein not misleading in any manner
that is reasonably likely to have a Material Adverse Effect.
6.11 Investment and Holding Company Status. Neither the Borrower
nor any of its Subsidiaries is (a) an "investment company" as defined in, or
subject to regulation under, the Investment Company Act of 1940 or (b) a
"holding company" as defined in, or subject to regulation under, the Public
Utility Holding Company Act of 1935 or (c) under any other federal or state
statute or regulation which may limit its ability to incur Debt, other than the
Gaming Laws or which may otherwise render all or any portion of the Obligations
unenforceable. Incurrence of the Obligations under the Loan Documents complies
with all applicable provisions of the Gaming Laws.
6.12 Projections. The Borrower has heretofore furnished to ▇▇▇▇▇▇▇
and Marsal, Inc. ("A&M"), financial advisor to the Lenders, annual projected
income statements of the Borrower. The projections are based upon assumptions
that were, at the time made and at the time such projections were furnished to
A&M, believed by the Borrower to have been reasonable in light of the conditions
which existed at the time the projections were made and delivered to A&M. As of
the date made and furnished to A&M, the projections represented the Borrower's
good faith estimate of the projected results of operations of the Borrower,
provided that no representation is made that the projections will prove to be
correct.
6.13 Payments with respect to Time Share Premises. Neither the
Borrower nor any Subsidiary or Affiliate thereof has entered into any agreement
or arrangement (other than as contemplated by the Time Share Plan) that provides
for any such Person to receive any payments of any nature or kind with respect
to the Time Share Premises other than those approved in writing by the Required
Term Loan A Lenders (other than the FF&E Lender).
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ARTICLE 7
AFFIRMATIVE COVENANTS
The Borrower covenants and agrees that from and after the Closing Date
and so long as this Agreement is in effect and until the Commitments have
terminated and all Obligations (other than any indemnities which are not then
due and payable) are discharged in full:
7.1 Books and Records. The Borrower will, and will cause its
Subsidiaries to: (a) maintain, at all times, correct and complete books, records
and accounts in which complete, correct and timely entries are made of its
transactions in accordance with GAAP; (b) reflect by means of appropriate
entries in such accounts and in all financial statements proper liabilities and
reserves for all taxes and proper provision for depreciation and amortization of
Property and bad debts, all in accordance with GAAP; (c) maintain at all times
books and records pertaining to the Collateral in such detail, form, and scope
as the Agent (acting upon the reasonable direction of the Required Term Loan A
Lenders) shall reasonably require, including without limitation, records of all
dealings affecting the Collateral; and (d) permit, upon reasonable prior notice
to the Authorized Officer of the Borrower and during normal business hours,
officers and designated representatives of the Agent or any Lender to visit and
inspect any of the properties or assets of the Borrower and any of its
Subsidiaries and to examine the books of account of the Borrower and any of its
Subsidiaries and to inspect or examine the items referred to in Section 7.18(c)
and discuss the affairs, finances and accounts of the Borrower and any of its
Subsidiaries with, and be advised as to the same by, the officers and
independent accountants of the Borrower or such Subsidiary, all at such
reasonable times and intervals and to such reasonable extent as the Agent or any
such Lender may request.
7.2 Financial and Other Information. From and after the Closing
Date, the Borrower will, furnish to the Agent, with copies for each of the
Lenders:
(a) within 120 days after the end of each Fiscal Year,
commencing with Fiscal Year 2003, (i) Consolidated balance sheets and
Consolidated income statements showing the financial condition of the Borrower
and its Subsidiaries as of the close of such Fiscal Year and the results of
their operations during such year, and (ii) a Consolidated statement of
shareholders' equity and a Consolidated statement of cash flow, as of the close
of such Fiscal Year, all the foregoing financial statements to be audited by a
Big 4 or other independent certified public accountants reasonably acceptable to
the Required Lenders, and to be in form and substance reasonably acceptable to
the Required Lenders;
(b) within 30 days after the end of each fiscal month
unaudited Consolidated income statements of the Borrower and its Subsidiaries
and within 60 days after the end of each Fiscal Quarter unaudited Consolidated
and consolidating balance sheets and Consolidated and consolidating income
statements showing the financial condition and results of operations of the
Borrower and its Subsidiaries as of the end of each such quarter, a Consolidated
and consolidating statement of shareholders' equity and a Consolidated and
consolidating statement of cash flow as of the end of each such quarter,
prepared and certified by an Approved Officer of
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the Borrower as presenting fairly in all material respects the financial
condition and results of operations of the Borrower and its Subsidiaries and as
having been prepared in accordance with GAAP consistently applied, setting forth
in the case of each consolidated statement in comparative form the corresponding
figures for the corresponding quarter of the preceding year and corresponding
figures for the period beginning with the first day of the current Fiscal Year
and ending on the last day of the relevant Fiscal Quarter and the corresponding
period for the previous Fiscal Year, in each case subject to footnotes and
normal year-end audit adjustments;
(c) (i) promptly after the same become publicly
available, copies of such registration statements, annual, periodic and other
reports, and such proxy statements and other information, if any, as shall be
filed by the Borrower with the Securities and Exchange Commission pursuant to
the requirements of the Securities Act of 1933 or the Securities Exchange Act of
1934; (ii) as soon as practicable, copies of all material reports, forms,
filings and financial information submitted to any other Governmental Authority
and all material reports submitted to its interest holders; (iii) within 5
Business Days after receipt by the Borrower thereof, copies of any exception
reports prepared by any Gaming Authority and (iv) within 5 Business Days of
filing by the Borrower with any Gaming Authority, copies of any and all reports
of borrowings on form 8.130 or its equivalent;
(d) concurrently with any delivery under (a) or (b)
(solely in the case of quarterly deliveries) above, a certificate of the firm or
Person referred to therein (which certificate furnished by the independent
public accountants referred to in paragraph (a) above may be limited to
accounting matters and disclaim responsibility for legal interpretations and
shall be in a form to be reasonably agreed upon by the Borrower, such
independent public accountants and the Agent (acting at the reasonable direction
of the Required Lenders)) certifying that during their audit or preparation, as
applicable, of such financial statements nothing has come to its, his or her
attention that would result in an Event or Event of Default has occurred
(including recognizing (in the case of an audit performed by a Big 4 or other
independent certified public accountants reasonably acceptable to the Required
Lenders), however, that the scope and purpose of their audit was not to
determine compliance with the terms of this Agreement or whether an Event or
Event of Default has otherwise occurred); provided, however, that any
certificate delivered concurrently with (a) above shall be accompanied by a
supplemental certificate confirming the accuracy of the accountants' certificate
(and shall in any event include calculations demonstrating compliance with the
financial covenants set forth herein) and signed by an Approved Officer of the
Borrower. The parties hereto agree that in the case of any delivery under (b)
above, a certificate from the Chief Financial Officer or Chief Executive Officer
of the Borrower shall satisfy the requirements of this Section 7.2(d) with
respect to the certification of calculations demonstrating the Borrower's
compliance, as of the date of the financial statements being furnished, with the
financial covenants set forth herein or, in connection with the occurrence of an
Event or Event of Default has occurred, specifying the nature and extent thereof
and any corrective action taken or proposed to be taken with respect thereto;
(e) concurrently with any delivery under (a) or (b)
(solely in the case of quarterly deliveries) above, a management discussion and
analysis certified by an Approved Officer of the Borrower describing any
differences between the reported financial results under
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the financial statements delivered thereunder from the budget required by
Section 7.2(j) below, which shall include, among any other information or
explanation reasonably requested by the Agent, (i) the calculation of EBITDA,
the Annual Actual Amount of Interest, the Annual Estimated Amount of Interest,
the Shortfall Interest Amount or the Excess Interest Amount, if any, and the
Excess Cash Flow for the Fiscal Quarter last ended, (ii) a list of any Capital
Expenditures (including Renovation Capital Expenditures and Maintenance Capital
Expenditures) made during such Fiscal Quarter and shall set forth in connection
with any such Capital Expenditures made during such Fiscal Quarter, the amount
and nature of any such expenditure with attached copies of any contracts entered
into, invoices received and evidence of payment made with respect to any such
expenditure together with mechanic's liens releases in connection with any
payments made by the Borrower, and (iii) the Reserve Amount and the Operating
Cash Reserve Amount at such time and a schedule listing how any cash
constituting the Reserve Amount was spent;
(f) concurrently with any delivery under (b) (solely in
the case of quarterly deliveries) above, a certificate from an Approved Officer
of the Borrower demonstrating that the Borrower shall be in compliance with the
minimum EBITDA covenant in Section 8.13 for the four Fiscal Quarter period
ending on the immediately succeeding Fiscal Quarter. In addition, the Borrower
shall test the EBITDA covenant in Section 8.13 by making a good faith estimate
of the EBITDA for the immediately succeeding Fiscal Quarter and adding such
number to the sum of the EBITDA for the Fiscal Quarter last ended (the "Last
Ended Fiscal Quarter") and for the two Fiscal Quarters ending immediately prior
to the Last Ended Fiscal Quarter;
(g) concurrently with any delivery under (a) above, a
management letter prepared by the independent public accountants who reported on
the financial statements delivered under (a) above, with respect to the internal
audit and financial controls of the Borrower and its Subsidiaries;
(h) any gaming reports generated by the Borrower;
(i) within two Business Days after receipt of any
response from Aladdin Bazaar to the Borrower's Plan, a copy of such response (or
a written summary thereof in the event such response is not in writing) and
immediately when delivered to Aladdin Bazaar (but in no event later than 15
Business Days after receipt of Aladdin Bazaar's response), the Borrower's
counter response and any proposed course of action with respect to making any
Renovation Capital Expenditures (it being agreed that any further responses from
Aladdin Bazaar shall be delivered to the Agent within two Business Days after
receipt thereof by the Borrower and the Borrower shall deliver its counter
response(s) and any proposed course(s) of action to Aladdin Bazaar and the Agent
within 15 Business Days after its receipt of any response from Aladdin Bazaar);
(j) as soon as available, but in any event not later than
December 31 of each Fiscal Year, the Borrower's annual internal operating budget
(which shall list with reasonable specificity the Borrower's good faith estimate
of planned Renovation Capital Expenditures through the third Anniversary Date,
Maintenance Capital Expenditures, and other Capital
69
Expenditures) for the next Fiscal Year, and as soon as prepared and available
any amendments thereof prepared in the ordinary course;
(k) as soon as available, but in any event not later than
December 31 of each Fiscal Year, a consolidated and consolidating plan and
financial forecast for the next Fiscal Year and each subsequent Fiscal Year
through the Maturity Date, including (a) forecasted consolidated and
consolidating balance sheets and forecasted consolidated and consolidating
statements of income and cash flows of the Borrower and its Subsidiaries for
such Fiscal Years, together with an explanation of the assumptions on which such
forecasts are based and (b) such other information and projections for such
Fiscal Years as the Agent may reasonably request;
(l) as soon as available, but in any event not later than
30 calendar days following the end of each fiscal month, a monthly operating
report for the month then ended which shall include items used by the Borrower
in measuring its operating and financial performance in the ordinary course
which shall include, without limitation, the average daily room rate, food and
beverage revenue per room, gaming revenue and the other items set forth on
Exhibit J or as may otherwise be prepared by the Borrower in the ordinary course
of its management and financial reporting so long as any such items are
acceptable to the Agent (acting upon the reasonable direction of the Required
Lenders), together with such other information reasonably requested by Agent or
any Lender;
(m) promptly upon receipt thereof, copies of all material
notices, reports, budgets, forecasts, proposals, studies, financial statements
and other information provided by any Manager, any casino operator or any
Leasing Manager;
(n) at the Agent's request, a copy of each annual report
or other filing filed with respect to each Plan of the Borrower or any ERISA
Affiliate;
(o) promptly upon the earlier of preparation or receipt
thereof, copies of any proposed agreements and Plans and Specifications with
respect to the Time Share Premises so that the Agent (acting at the reasonable
direction of the Required Term Loan A Lenders (other than the FF&E Lender) may
determine that any of the foregoing are consistent with the Time Share Plan and
thereafter copies of any such executed agreements; and
(p) such additional information as the Agent may from
time to time reasonably request, or which the Agent shall reasonably request
upon the reasonable request of any Lender, regarding the financial and business
affairs, operations or prospects of the Borrower and its Subsidiaries.
7.3 Notices to the Agent. In addition to any other notices
required hereunder, the Borrower shall notify the Agent in writing of the
following matters at the following times:
(a) Immediately after becoming aware of the existence of
any Event or Event of Default.
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(b) Immediately after becoming aware that (i) any Manager
has terminated a Management Agreement or otherwise ceased acting as Manager, or
(ii) any Leasing Manager has terminated a Leasing Services Agreement, or has
otherwise ceased managing such portions of the Premises or (iii) the License
Agreement has been terminated.
(c) Promptly after receiving notice (but in no event
later than five days after the earlier of (i) receiving such notice or (ii) the
occurrence of any such change) of a change in the composition of the members or
other equity holders of the Investor Group.
(d) Promptly after receiving notice (but in no event
later than five days after the earlier of (i) receiving such notice or (ii) the
occurrence of any such change) of any change in the composition of the board of
directors or other governing body that manages the operations of the Borrower.
(e) Within five Business Days after becoming aware of:
(i) any material adverse change in the Property,
business, operations, or condition (financial or otherwise) or
prospects of the Borrower and its Subsidiaries taken as a whole
(including, without limitation any Casualty Event);
(ii) any pending or threatened action,
proceeding, or counterclaim by any Person, or any pending or threatened
investigation by a Governmental Authority, which is reasonably likely
to have a Material Adverse Effect;
(iii) any pending or threatened strike, work
stoppage, material unfair labor practice claim, or other material labor
dispute which is reasonably likely to have a Material Adverse Effect;
(iv) any violation of any law, statute,
regulation, or ordinance of a Governmental Authority applicable to the
Borrower or any Subsidiary, which is reasonably likely to have a
Material Adverse Effect; and
(v) the fact that the Borrower or any Subsidiary
has materially violated any Environmental Laws or that its compliance
is being investigated in respect of an alleged material failure to
comply with any Environmental Law.
(f) Not less than thirty (30) days prior to the Borrower
changing its name or the location of its chief executive office or its
jurisdiction of organization or formation.
(g) Not more than thirty (30) days after the end of each
quarter: (i) the execution of a definitive lease or sublease of real property by
the Borrower; (ii) the termination of a lease or sublease of real property to
which the Borrower is a party; (iii) the opening or closing of a place of
business owned or operated by the Borrower; unless prior notice of any such
event is required by another provision of this Section 7.3, in each case
effected during the prior month; (iv) any Casualty Event involving a loss of
Property having a Fair Market Value of
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$1,500,000 or more and the extent to which such occurrence is covered by
insurance; and (vi) the amount of any Reinvestment Amount reinvested in such
month.
(h) Within five (5) days of the Borrower's receipt or
giving of same, a copy of any written notice under, pursuant to or in connection
with any Lease or Material Operating Agreement, (i) alleging a default by the
Borrower or Lessee or any other Persons thereunder, (ii) setting forth a claim
against the Borrower or any Manager in an amount greater than $1,500,000 or
(iii) exercising a renewal, extension, expansion or termination option
thereunder.
(i) Promptly upon receipt of same by the Borrower, a copy
of any written notice or other written instrument which might materially
adversely affect the Premises, the Liens securing the Obligations or the Agent's
or any Lender's rights and remedies under or with respect to any Loan Document,
including any written notice from a Governmental Authority concerning any tax or
special assessment, or any written notice of any change in or alleged violation
of any zoning ordinance, Permitted Lien, fire ordinance, building code
provision, or other Legal Requirement affecting the Premises.
(j) Not more than thirty (30) days after the end of each
quarter: Permitted Liens described in clauses (a)(ii), (e) and (i) of the
definition thereof which are created during such quarter.
(k) Within 30 days after the end of each quarter, any
sales and other Dispositions of Property permitted by Section 8.1, consummated
during such quarterly period.
(l) Three Business Days prior to entering into any merger
permitted under Section 8.1(b).
Each notice given under this Section shall describe the subject matter thereof
in reasonable detail and shall set forth the action that the Borrower has taken
or proposes to take with respect thereto.
7.4 Taxes and Other Obligations. The Borrower will, and will cause
its Subsidiaries to: (a) file when due all tax returns and other reports which
it is required to file, pay when due all Taxes against it or upon its Property,
income, and franchises, make all required withholding and other tax deposits,
and establish adequate reserves for the payment of all such items, and shall
provide to the Agent, upon request, reasonably satisfactory evidence of its
timely compliance with the foregoing, except in each case where the failure to
comply would not reasonably be expected to have a Material Adverse Effect; (b)
pay when due all Debt owed by it and perform and discharge in a timely manner
all other obligations undertaken by it, except where the failure to do so would
not reasonably be expected to have a Material Adverse Effect; (c) duly and
promptly comply with the terms and provisions of each judgment, law, statute,
rule, and governmental regulation applicable to it and each contract, mortgage,
lien, lease, indenture, order, instrument, agreement, or document to which it is
a party or by which it is bound, except in each case where the failure to comply
would not reasonably be expected to have a Material Adverse Effect, and (d) duly
and promptly comply, in all material respects, with the provisions of, and
enforce all of its rights under, all Material Operating Agreements, except to
the extent
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that the failure to maintain the foregoing is not reasonably likely to have a
Material Adverse Effect; provided, however, that the Borrower or Subsidiary
shall not be required to pay any Tax or Debt, or perform or discharge any other
obligation, that it is contesting in good faith by appropriate proceedings
diligently pursued, and it has established and maintains adequate reserves (in
the good faith judgment of the management of such Person) with respect thereto
in accordance with GAAP.
7.5 Existence, Good Standing and Legal Requirements. (a) The
Borrower will, and will cause its Subsidiaries to, maintain its corporate or
limited liability company, as applicable, existence and its qualification and
good standing in Nevada and all other states necessary to conduct its business
and own its Property, and shall obtain and take all actions which may be
required to preserve, renew and extend Permits (including, without limitation,
any permits or authorizations relating to the sale of alcohol), franchises and
governmental authorizations necessary to conduct its business and own its
Property and to operate and maintain the Premises in accordance with the Loan
Documents, the Management Agreement (if any), the Leasing Services Agreement (if
any), and any other Material Operating Agreements, in each case except to the
extent, other than with respect to corporate or limited liability company, as
applicable, existence, that the failure to maintain the foregoing is not
reasonably likely to have a Material Adverse Effect. The Borrower shall comply
with all laws, rules, regulations and governmental orders (whether Federal,
state or local) (including, without limitation, all Gaming Laws) applicable to
the operation of such businesses whether now in effect or hereafter enacted
(including, without limitation, all applicable laws, rules, regulations and
governmental orders promulgated by any Gaming Authority and all those relating
to public and employee health and safety and all Environmental Laws) and with
any and all other applicable laws, rules, regulations and governmental orders,
except to the extent where such noncompliance is not reasonably likely to have a
Material Adverse Effect.
(b) The Borrower shall have the right, in good faith, to
contest by appropriate legal proceedings, after notice to the Agent, but without
cost or expense to the Agent or the Lenders, the validity of any Legal
Requirement and to postpone the compliance therewith, provided that (i) such
contest shall operate to prevent the enforcement thereof, (ii) such contest
shall be promptly and diligently prosecuted by and at the expense of the
Borrower, (iii) none of the Borrower, the Agent nor the Lenders shall suffer or
would be the subject of any civil or criminal liabilities, penalties or
sanctions, (iv) the Borrower shall comply with such contested Legal Requirement
if at any time all or any part of the Premises shall be in danger of being
foreclosed, sold, forfeited, or otherwise lost or materially impaired or if such
contest shall be discontinued, (v) the Borrower shall agree to indemnify and
hold harmless the Agent and the Lenders from and against any liability and
claims arising out of the postponement of the compliance with such Legal
Requirement, and (vi) the Borrower shall, prior to commencing any such
proceedings, furnish proof reasonably satisfactory to the Agent that it has
established a reserve account or provided collateral reasonably acceptable to
the Agent in which the Agent and the Lenders shall have a security interest and
which reserve or collateral, as the case may be, shall be in an amount not less
than the amount of any penalties, including interest and additional charges
which may be incurred as a result of such contest or has otherwise, to the
reasonable satisfaction of the Agent, provided for the payment of such amounts.
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7.6 Insurance. (a) The Borrower shall maintain, or cause to be
maintained insurance as evidenced by the Insurance Policies set forth in Section
U of the Disclosure Schedule (which shall include terrorism insurance), and
shall deliver or cause to be delivered to the Agent, (i) contemporaneously with
the execution hereof, the certificates of insurance evidencing the Insurance
Policies and (ii) all renewal certificates of insurance, at least thirty (30)
days before the expiration date of each expiring Insurance Policy if available
and commercially reasonable or otherwise as soon as practicable and within ten
(10) days after such renewal, upon the Agent's request, the Borrower shall
deliver to the Agent evidence satisfactory to the Agent of the Borrower's
payment of the premium for such Insurance Policy.
(b) All Insurance Policies shall be issued by an insurer
or insurers reasonably acceptable to the Agent with an A.M. Best rating and size
of A- VIII or better or otherwise acceptable to the Agent, or equivalent rating
from another agency acceptable to the Agent and be licensed in the state of
Nevada. The property, boiler and machinery Insurance Policies shall also name
the Agent under a non-contributing Nevada standard mortgagee clause or an
equivalent endorsement on a standard form or such other form as may be
reasonably satisfactory to the Agent in form and content. Loss of rental income
insurance shall name the Agent as loss payee. All property Insurance Policies
also shall contain an agreed amount (coinsurance waiver) and replacement cost
value endorsement and shall cover, without limitation, all tenant improvements
and betterments which the Borrower is required to insure in accordance with any
Lease or any Material Operating Agreement. The insurance policy shall be
endorsed to also provide building replacement cost. The amount of any deductible
under any Insurance Policy must be reasonably acceptable to the Agent. Without
the Agent's prior written consent, the Borrower shall not name any Person other
than the Agent, as loss payee under any property Insurance Policies covering the
Improvements and such tenant improvements and betterments that the Borrower is
required to insure pursuant to this Agreement; provided that, if blanket
policies are obtained, this sentence shall not apply to property covered by such
blanket policies other than the Improvements and such tenant improvements and
betterments which the Borrower is required to insure pursuant to this Agreement.
Notwithstanding the immediately preceding sentence but subject to the terms and
conditions of Section 7.19 of this Agreement, such Insurance Policy shall
provide that any proceeds that are payable to a loss payee shall be payable to
the Agent only and requiring the endorsement of the Agent only.
(c) The Borrower hereby agrees that it shall not (x)
cancel or terminate any Insurance Policy, (y) modify the provisions of any
Insurance Policy relating to the coverage, deductibles and limits, or (z) modify
the provision of any Insurance Policy not relating to coverage, deductibles or
limits if, after giving effect to such modification, such policy would no longer
satisfy the requirements of this Agreement. Each Insurance Policy shall contain
a provision whereby the insurer (i) waives any right to claim any premiums and
commissions against the Agent provided that such policy need not waive the
requirement that the premium be paid in order for a claim to be paid to the
insured, and (ii) provides that the Agent is permitted, but not obligated, to
make payments to effect the continuation of such policy upon notice of
cancellation due to nonpayment of premiums. In the event any Insurance Policy
(except for fidelity, general public and other liability and workers'
compensation insurance) shall contain
74
breach of warranty provisions, such policy shall provide, to the fullest extent
allowable under such policy, that with respect to the interest of the Agent,
such Insurance Policy shall not be invalidated by and shall insure the Agent
regardless of (A) any act, failure to act or negligence of or violation of
warranties, declarations or conditions contained in such policy by any named
insured, (B) the occupancy or use of the Premises for purposes more hazardous
than permitted by the term thereof, or (C) any foreclosure or other action or
proceeding taken by the Agent pursuant to any provision of the Mortgage.
(d) The Borrower shall pay the premiums for the Insurance
Policies as the same become due and payable. The Borrower shall deliver to the
Agent certificates of insurance. The Borrower also shall deliver to the Agent,
within ten (10) days of Agent's request, a certificate of the Borrower or the
Borrower's insurance agent setting forth the particulars as to all such
Insurance Policies, that all premiums due thereon have been paid and that the
same are in full force and effect. Not later than thirty (30) days prior to the
expiration date of each of the Insurance Policies, if available and commercially
reasonable or otherwise as soon as practicable, the Borrower shall deliver to
the Agent a certificate of insurance evidencing renewal of coverage as required
herein. Not later than sixty (60) days after the renewal of each of the
insurance policies, the Borrower shall deliver to the Agent certificates of
insurance. Within ten (10) days after such renewal, if requested by the Agent,
the Borrower shall deliver to the Agent evidence of payment of premium
reasonably satisfactory to the Agent.
(e) Notwithstanding anything to the contrary contained
herein, if at any time the Agent is not in receipt of written evidence that all
insurance policies required hereunder is maintained in full force and effect,
the Agent shall have the right (but not the obligation), upon five (5) Business
Days prior notice to the Borrower, to take such action as the Agent deems
necessary in its reasonable discretion to protect its interest in the Premises,
including, without limitation, the obtaining of such insurance policies as the
Agent shall deem appropriate, and all reasonable expenses incurred by the Agent
in connection with such action shall be paid by the Borrower.
(f) Any insurance maintained pursuant to this section may
be evidenced by blanket insurance policies covering the Premises and other
properties or assets of the Borrower or its affiliates, provided that any such
policy shall in all other respects comply with the requirements of this Section
and are otherwise reasonably approved by the Agent and its insurance consultant.
Agent shall reasonably determine whether such blanket policies shall provide
sufficient limits of insurance.
(g) The Insurance Policies set forth on Section U of the
Disclosure Schedule shall not be changed without the reasonable prior written
consent of the Agent (which consent shall not be unreasonably withheld or
delayed).
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7.7 Environmental Laws. The Borrower will, and will cause its
Subsidiaries to: (a) conduct its business in full compliance with all
Environmental Laws applicable to it (including, without limitation, those
relating to such Person's generation, handling, use, storage, and disposal of
Hazardous Materials), except where non-compliance is not reasonably likely to
have a Material Adverse Effect; (b) notify the Agent of any Environmental Claim,
or event or circumstance on the basis of which an Environmental Claim involving
material liability could reasonably be expected to be made, in each case which
is reasonably likely to have a Material Adverse Effect upon becoming aware
thereof; (c) take prompt and appropriate action to respond to any Environmental
Claim, and regularly report to the Agent on such response with respect to any
Environmental Claim which would reasonably be expected to have a Material
Adverse Effect; and (d) pay when due all fines and penalties assessed against
them for violations of Environmental Laws, except any such fine or penalty that
it is contesting in good faith by appropriate proceedings diligently pursued or
which is not reasonably likely to have a Material Adverse Effect. Without
limiting the generality of the foregoing, whenever (A) Agent reasonably believes
that there may be non-compliance by the Borrower or a Subsidiary with any
Environmental Law, which is reasonably likely to have a Material Adverse Effect
(B) required by applicable law, and (C) any time during the continuance of an
Event or Event of Default, the Borrower shall, at the Agent's reasonable request
(acting upon the reasonable direction of the Required Term Loan A Lenders) and
at the Borrower's reasonable expense: (a) cause an independent environmental
engineer reasonably acceptable to the Agent to conduct such tests of the
Premises and prepare and deliver to the Agent and the Borrower, with a copy for
each Lender, a report setting forth the results of such tests, a proposed plan
for responding to any environmental problems described therein, and an estimate
of the costs thereof; and (b) provide to the Agent, with a copy for each Lender,
a supplemental report of such engineer whenever the scope of the environmental
problems, or the response thereto or the estimated costs thereof, shall change.
If the Borrower or any of its Subsidiaries fails to conduct any such
environmental test or provide any such report to the Agent, the Agent is
authorized to enter upon the Borrower's or Subsidiary's premises at reasonable
times and on reasonable notice to conduct or have conducted such test and obtain
such report at the Borrower's reasonable expense. The Borrower hereby grants to
the Agent a license for such purpose, which shall be irrevocable until all of
the Obligations have been fully and finally paid and the Commitments have
terminated.
7.8 Maintain Operating and Other Accounts. The Borrower and any
Subsidiary thereof shall (i) maintain its Operating Accounts, cash management
arrangements and all other Accounts with institutions that shall have executed
blocked account agreements in favor of the Agent in form and substance
reasonably satisfactory to the Agent, and (ii) notify the Agent promptly of the
closing of any Account specified on Section P of the Disclosure Schedule and the
opening up of any new Accounts (in detail reasonably satisfactory to the Agent,
which shall include, prior to the opening of such Accounts, obtaining blocked
account agreements in favor of the Agent and in form and substance reasonably
satisfactory to the Agent). The Borrower, any Subsidiary thereof and any Manager
shall maintain funds only in Accounts for which blocked account agreements have
been executed in favor of the Agent in form and substance reasonably
satisfactory to the Agent. No funds in any Account shall be commingled with any
other funds of any Manager, or any Affiliate of any of the foregoing. As long as
no Event of Default shall have occurred and be continuing, the Borrower, any
Subsidiary thereof or if permitted under any
76
Management Agreement, any Manager, as the case may be, may make or receive
withdrawals from the Operating Accounts and other Accounts to the extent not
prohibited under this Agreement and the other Loan Documents.
7.9 End of Fiscal Years. The Borrower will, for financial
reporting purposes, cause its, and each of its Subsidiaries' Fiscal Years to end
on December 31 of each year.
7.10 Discharge of Liens.
(a) Removal by the Borrower. In the event that,
notwithstanding the covenants contained in Section 8.8, a Lien which is not a
Permitted Lien at any time encumbers any Collateral or any portion thereof, the
Borrower, at its option, shall either (i) promptly discharge or cause to be
discharged by payment to the lienor or Lien claimant or promptly secure removal
by bonding or deposit with the county clerk or otherwise or (ii) pledge cash
collateral to the Agent, for the benefit of the Lenders, in an amount equal to
such Lien, within 30 days after the date of notice thereof; provided that,
compliance with the provisions of this Section 7.10 shall not be deemed to
constitute a waiver of the provisions of Section 8.8. The Borrower shall deliver
to the Agent upon written request therefor all receipts or other reasonably
satisfactory evidence of payment, bonding, deposit of taxes, assessments, Liens
or any other item which may cause any such Lien to be filed against any
Collateral. The Borrower and each of its Subsidiaries shall fully preserve the
Lien and the priority of each Security Document without cost or expense to the
Agent or the Lenders.
(b) Removal by the Agent. If the Borrower or any of its
Subsidiaries fails to promptly discharge, remove or pledge cash collateral in
respect of any such Lien or mechanics' or materialmen's claim of Lien as
described above, which is not being contested by the Borrower or any of its
Subsidiaries in good faith by appropriate proceedings promptly instituted and
diligently conducted, within 30 days after the receipt of notice thereof, then
the Agent may, but shall not be required to, procure the release and discharge
of such Lien, mechanics' or materialmen's claim of Lien and any judgment or
decree thereon, and in furtherance thereof may, in its reasonable discretion,
effect any settlement or compromise with the lienor or Lien claimant or post any
bond or furnish any security or indemnity as the Agent, in its reasonable
discretion, may elect. In settling, compromising or arranging for the discharge
of any Liens under this subsection, the Agent shall not be required to establish
or confirm the validity or amount of the Lien. The Borrower agrees that all
reasonable costs and expenses expended or otherwise incurred pursuant to this
Section 7.10 (including reasonable attorneys' fees and disbursements) by the
Agent shall be paid by the Borrower in accordance with the terms hereof. All
such advances or expenditures by the Agent shall payable as provided in Section
11.10.
7.11 Further Assurances.
(a) General Assurances. The Borrower shall execute and
deliver, or cause to be executed and delivered, to the Agent such documents and
agreements, and shall take or cause to be taken such actions, as the Agent may,
from time to time, reasonably request to carry out the terms and conditions of
this Agreement and the other Loan Documents.
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(b) Filing and Recording Obligations. The Borrower shall
pay or cause to be paid all filing, registration and recording fees and all
similar expenses incident to the execution and acknowledgment of the Mortgage or
any other Security Document and shall pay or cause to be paid all amounts,
mortgage recording taxes, transfer taxes, general intangibles taxes and
governmental stamp and other taxes, duties, imposts, assessments and charges
arising out of or in connection with the execution, delivery, filing, recording
or registration of any Security Document or any other Loan Document, (except to
the extent already recorded) or memoranda thereof (but only to the extent that
any such amounts are not required to be paid by Aladdin pursuant to the Purchase
and Sale Agreement) by reason of its interest in, or measured by amounts payable
under, the Term Loan Notes, any Security Document or any other Loan Document,
and shall pay all stamp taxes and other taxes required to be paid on the Notes
or any other Loan Document, but excluding in the case of each Lender and the
Agent, Taxes imposed on its income by a jurisdiction under the laws of which it
is organized or in which its principal executive office is located or in which
its applicable lender office for funding or booking its Loans hereunder is
located and other taxes described in the proviso to the first sentence of
Section 3.7(a). If the Borrower fails to make or cause to be made any of the
payments described in the preceding sentence within 15 days after notice thereof
from the Agent (or such shorter period as is necessary to protect the loss of or
diminution in value of any Collateral by reason of tax foreclosure, as
determined by the Agent, in its reasonable discretion) accompanied by
documentation verifying the nature and amount of such payments, the Agent may
(but shall not be obligated to) pay the amount due and the Borrower shall
reimburse all amounts in accordance with the terms hereof. All such advances or
expenditures by the Agent shall be payable as provided in Section 11.10.
(c) Costs of Defending and Upholding the Lien. The Agent
may, upon at least five Business Days' prior notice to the Borrower, (i) appear
in and defend any action or proceeding, in the name and on behalf of the Agent
or the Lenders in which the Agent or any Lender is named or which the Agent in
its reasonable discretion determines is reasonably likely to materially
adversely affect the Mortgaged Property, any other Collateral, any Security
Document, the Liens thereof or any other Loan Document and (ii) during an Event
of Default, institute any action or proceeding which the Agent reasonably
determines should be instituted to protect the interest or rights of the Agent
and the Lenders in the Mortgaged Property or other Collateral or under any Loan
Document. The Borrower agrees that all reasonable costs and expenses expended or
otherwise incurred pursuant to this subsection (including reasonable attorneys'
fees and disbursements) by the Agent shall be paid by the Borrower or reimbursed
to the Agent, as provided in Section 11.10.
(d) Costs of Enforcement. The Borrower agrees to bear and
shall pay or reimburse the Agent and the Lenders in accordance with the terms of
Section 11.10 for all reasonable sums, costs and expenses incurred by the Agent
and the Lenders (including reasonable attorneys' fees and the expenses and fees
of any receiver or similar official) of or incidental to the collection of any
of the Obligations, any foreclosure (or transfer in lieu of foreclosure) of this
Agreement, any Security Document or any other Loan Document or any sale of all
or any portion of the Mortgaged Property or all or any portion of the other
Collateral.
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7.12 Subsidiary Security Agreement. The Borrower shall with
reasonable promptness (i) cause each of its Subsidiaries and any Person that
becomes a Subsidiary after the Closing Date with the prior written consent of
the Required Lenders to become party to the Security Agreement and execute any
other documents reasonably requested by the Agent in order to perfect its lien
on the Collateral of such Person and (ii) pledge its right, title and interest
in the Equity Interests of such Subsidiary (which shall include the interest of
the Borrower in the Time Share Entity for purposes of this Section 7.12(ii)) to
the Agent as provided in the Security Agreement.
7.13 Use of Additional Capital for Renovation Capital Expenditures.
The Borrower shall use its commercially reasonable efforts to spend and pay not
less than $90,000,000 on and for Renovation Capital Expenditures on or before
the third Anniversary Date (of which, subject to the tolling provisions set
forth in Section 4.3(b), at least $72,000,000 shall be spent and paid by the
second Anniversary Date, at least $81,000,000, if any shall be spent and paid by
the last day of the thirtieth (30th) month following the Closing Date and the
full $90,000,000 shall be spent and paid by the third Anniversary Date). If the
Borrower has not spent and paid any of the foregoing amounts on Renovation
Capital Expenditures by the foregoing dates (or the dates set forth in Section
4.3(b) solely in the event that the tolling provisions set forth in Section
4.3(b) are applicable), the Borrower shall make the mandatory payments of
principal in the amounts and at the times set forth in Section 4.3(b) with
respect to funds not spent on Renovation Capital Expenditures. The Borrower
hereby acknowledges and agrees that the $14,000,000 payment described in Section
5.1(x), shall not reduce the $90,000,000 of Renovation Capital Expenditures
required to be made pursuant to this Section 7.13.
7.14 Intentionally Omitted.
7.15 Ownership of Premises and other Collateral; Defense of Title.
(a) The Borrower shall at all times be the sole legal and beneficial owner of
the Premises and the other Collateral, subject only to (a) the Permitted Liens,
(b) the Liens created pursuant to the Loan Documents and (c) such other claims
and interests as may be otherwise expressly allowed by the terms of the Loan
Documents.
(b) The Borrower hereby warrants and agrees to forever
defend, all and singular, title to the Collateral unto the Agent, Lenders and
their respective successors and assigns, forever, against every Person
whomsoever claiming the same or any part thereof, subject, however, to the
Permitted Liens. The Borrower will take all reasonable actions necessary or
proper to defend title to the Premises, subject to Permitted Liens. Agent shall
have the right, to intervene in any suit affecting such title and to employ
independent counsel in connection with any such suit to which it may be a party
by intervention or otherwise, and upon demand, the Borrower agrees to pay Agent
all reasonable expenses paid or incurred by Agent in respect of any such suit
affecting title to any such property or affecting Agent's and Lenders' Lien or
rights hereunder, including, without limitation, reasonable fees and
disbursements to the Agent's attorneys. The Borrower will indemnify and hold
harmless Agent and Lenders from and against any and all costs, expenses, loss,
damage or liability including any and all cost, expense,
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loss, damage or liability which Agent or Lenders may suffer or incur by reason
of the failure of the title to all or any part of the Premises, subject to
Permitted Liens or by reason of the failure or liability of the Borrower, for
any reason, to convey the rights, titles and interests which the Mortgage
purports to mortgage or assign, and all amounts at any time so payable by the
Borrower shall be secured by the lien of the Mortgage.
7.16 Management of Premises. (a) If the Borrower enters into a
Management Agreement, the Hotel Premises shall at all times be managed under the
terms and conditions of such Management Agreement. The Borrower shall cause the
Subordination Agreements to be executed by any Manager (if the Borrower enters
into a Management Agreement) and the Leasing Manager (if any), and any casino
operator. The Borrower shall cause any Management Agreement and any Leasing
Services Agreement to remain in full force and effect at all times, and shall
comply with any Management Agreement and any Leasing Services Agreement at all
times, except where the failure to comply would not reasonably be expected to
have a Material Adverse Effect, or would result in a material default under such
agreements. The Borrower shall cause the Hotel Premises to be at all times open
for business as a hotel, the Retail Shops to be open for business as a retail
shopping center and the Casino to be open for business as a casino, except to
the extent necessary to undertake the Renovation Capital Expenditures with due
diligence in accordance with the provisions of Section 7.18 hereof. The Borrower
shall cause the Premises to be at all times operated, managed and maintained, at
all times and in the manner and accordance with the standards required pursuant
to any Management Agreement and any Leasing Services Agreement (including all
marketing, advertising, promotional and reservation programs), except where the
failure to comply would not reasonably be expected to have a Material Adverse
Effect, or would not result in a material default under such agreements (if any)
but in no event below Comparable Standards. The Borrower shall, except where the
failure to comply would not reasonably be expected to have a Material Adverse
Effect, or would not result in a material default under such agreements observe,
perform, and discharge in all material respects all obligations, covenants, and
warranties provided for under the terms of any Management Agreement and any
Leasing Services Agreement to be kept, observed, and performed by the Borrower,
subject however to any applicable cure periods provided therein. The Borrower
shall not terminate or cancel any Management Agreement or any Leasing Services
Agreement without the prior written consent of the Agent, which consent shall
not be unreasonably withheld or delayed. The Borrower shall not enter into any
other management agreement for management of the Hotel Premises or the Casino
which is not a "Management Agreement" as defined herein, a leasing and/or
services agreement which is not a "Leasing Services Agreement" as defined
herein, or a franchise agreement with respect to the Premises, in each case
without Agent's prior written consent (acting upon the reasonable direction of
the Required Lenders), which consent shall not be unreasonably withheld or
delayed. The Borrower shall not amend, modify or waive any material provision of
any Management Agreement or any Leasing Services Agreement except upon notice
and with the prior written consent of Agent (acting upon the reasonable
direction of the Required Term Loan A Lenders), which consent shall not be
unreasonably withheld or delayed. The Borrower shall use its commercially
reasonable efforts to secure the performance of the obligations of the Manager
under any Management Agreement and of any Leasing Manager under the Leasing
Services Agreement and to enforce the Borrower's rights thereunder. The Borrower
shall not pledge, transfer, assign,
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mortgage or encumber the Borrower's interest in any Management Agreement or any
Leasing Services Agreement or any interest therein, or allow to be encumbered
the Borrower's interest in any Management Agreement or any Leasing Services
Agreement or any interest therein, in each case other than as provided herein to
the Agent and the Lenders. Notwithstanding the above, the Borrower may replace
any Manager with an Identified Hotel Manager without the prior written consent
of the Agent.
(b) The Borrower shall not consent to any assignment by
any Manager of its rights and obligations under any Management Agreement or any
Leasing Manager under any Leasing Services Agreement without Agent's prior
written consent (acting upon the reasonable direction of the Required Lenders),
which consent shall not be unreasonably withheld or delayed.
(c) In the event (x) a Manager is terminated and replaced
with a new Manger, which termination and replacement shall only be in accordance
with the provisions of this Agreement, or (y) of any default under, or the
termination of, any agreement entered into in connection with the Time Share
Plan or Time Share Premises, no termination fee, penalty, liability, cost or
expense, or rebranding fee, penalty, liability, cost or expense, shall be paid
from any income or cash flow of the Premise without the prior written consent of
the Required Lenders in their sole and absolute discretion; provided, however,
that the Borrower may pay (i) hotel rebranding fees, penalties, liabilities,
costs or expenses (but no termination fees, penalties, liabilities, costs or
expenses) from funds constituting the Reserve Amount without the prior written
consent of the Required Lenders and (ii) any termination or rebranding fees,
penalties, liabilities, costs or expenses from new equity contributed to the
Borrower by the Investor Group; provided, further, that no income or cash flow
of the Premises shall be used to redeem or purchase any Equity Interest in
EquityCo, L.L.C. in the event of any default under, or termination of, any
agreement entered into in connection with the Time Share Plan or Time Share
Premises.
7.17 Leases.
(a) Leases Generally. The Borrower shall not, without the
prior written consent of the Agent (acting upon the reasonable direction of the
Required Lenders), which consent shall not be unreasonably withheld or delayed,
enter into, amend or modify in any material respect, cancel, terminate, accept a
surrender or shorten the term of, or waive any term, condition or requirement
under, any Lease demising more than 7,500 net leasable square feet of space in
the Premises; provided, that, the Borrower may, without the Agent's prior
consent, enter into, amend or modify in any material respect any Lease demising
7,500 or less net leasable square feet of space in the Retail Shops in the
ordinary course of business provided that (i) the rent thereunder shall be at
prevailing market rates for an enclosed retail shopping center of Comparable
Standards as reasonably determined by the Borrower, (ii) the lease does not
provide for a tenant improvement allowance or other monetary concessions or
allowances in excess of $20 per square foot of raw space and $10 per square foot
for renewals or replacement leases, and (iii) the lease is in a commercially
reasonable form used for similar properties in similar locations; and provided,
further that the Borrower shall be permitted to provide up to four kiosks in
connection with the Time Share Plan during the term of this Agreement at no
charge to the lessee of any such kiosk. For purposes of this Section 7.17(a)
only, multiple Leases with a single
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Lessee shall be deemed to be one Lease. The Borrower shall not enter into any
lease for the Theater without the prior written consent of the Agent which
consent shall not be unreasonably withheld or delayed; provided, however, that
the Borrower may without the prior consent of the Agent enter into a lease of
the Theater in connection with any concert, show or event that is presented in
the Theater so long as (i) the performer is headline performer of international
repute and standing and the average ticket price for any such performance is at
least $100 per ticket or (ii) any such lease shall have a term or duration of
less than six (6) months.
(b) Compliance with Leases. The Borrower shall use
commercially reasonable efforts to observe, perform, and discharge in all
material respects all material obligations, covenants, and warranties provided
for under the terms of the Leases to be kept, observed, and performed by the
Borrower.
(c) Delivery of Copies of Leases, Etc. to the Agent.
Within fifteen (15) days after execution of any Lease or any material amendment,
material modification, material restatement or any extension, renewal or
supplement of any Lease or termination or acceptance of surrender of any Lease,
the Borrower shall deliver to the Agent certified true and complete photocopies
of such Leases, amendments, modifications, restatements, extensions, renewals or
supplements or documents terminating or accepting such a surrender.
(d) Enforcement of Leases. The Borrower shall use its
commercially reasonable efforts to secure the performance of each and every
obligation, term, covenant, condition, and agreement to be performed by any
Lessee under the terms of the applicable Lease. The Borrower shall appear in and
defend any action or proceeding arising under, occurring out of, or in any
manner connected with, the Leases or the obligations, duties, or liabilities of
the Borrower or any Lessee, if an Event of Default under this Agreement exists
and is continuing, upon reasonable request by Agent to do so, shall appear in
and defend in the name and on behalf of Agent, but at the expense of the
Borrower, and shall pay all reasonable costs and expenses of Agent, including
reasonable attorneys' fees and disbursements, in any action or proceeding in
which Agent may appear.
(e) No Collection of Rents in Advance. The Borrower shall
not receive or collect any Rents for a period of more than one (1) month in
advance (excluding for purposes of this Section 7.17(e), security deposits)
unless such advance Rents are deposited in an Operating Account or other blocked
Account.
(f) No Transfer of Interest in Leases. The Borrower shall
not pledge, transfer, assign, mortgage, encumber, or allow to be encumbered any
Leases or Rents except to the Agent as provided herein or in the Loan Documents.
(g) Subordination of Leases. All Leases entered into
after the Closing Date shall contain provisions obligating the Lessees
thereunder to attorn to the Agent or any purchaser therefrom in the event Agent
or such purchaser succeeds to the interest of the Borrower under such Leases and
shall be expressly subject and subordinate to the Mortgage and the Assignment of
Leases either (i) pursuant to its terms or (ii) pursuant to a subordination,
non-disturbance and
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attornment agreement in substantially the form attached hereto as Exhibit M.
(h) Leasing Commissions. The Borrower shall not enter
into any agreement with any Person to pay leasing commissions with regard to any
Lease if such leasing commissions are reasonably expected by the Borrower to be
in excess of the leasing commissions which generally would be payable in the
market in which the Premises is located with respect to a similar lease as of
the date of determination without Agent's prior written consent which consent
(acting upon the reasonable direction of the Required Term Loan A Lenders) shall
not be unreasonably withheld or delayed.
7.18 Maintenance, Operations, Repairs and Alterations.
(a) Generally. The Borrower will, and will cause its
Subsidiaries to, maintain, preserve, protect and keep the Premises and any
Property owned or leased by such Person in good repair, working order and
condition (ordinary wear and tear excepted), and make all necessary and proper
repairs, renewals and replacements so that its business carried on in connection
therewith may be properly conducted at all times. The Borrower shall at all
times manage, operate and maintain the Premises as a luxury themed casino hotel
in accordance with standards at least equivalent to the Comparable Standards.
The theme of the Premises shall not be materially changed without the prior
written consent of the Agent other than to the extent disclosed to the Agent in
writing prior to the Closing Date, provided that the Agent and Lenders hereby
consent to the re-theming of the Premises as a Planet Hollywood theme consistent
with the Renovation Capital Expenditures described in Exhibit L. The Theater
shall be used to present events which are consistent with the first class nature
of the complex, and consistent with the Comparable Standards.
(b) Repairs. In furtherance of clause (a), the Borrower
shall diligently make or cause to be made all needful and proper repairs,
renewals and replacements thereto whether interior or exterior, structural or
non-structural, ordinary or extraordinary, or foreseen or unforeseen. All such
repairs, renewals and replacements shall be at least equal in quality, value and
class to that of the improvements which are the subject of such repairs,
renewals and replacements. All repairs and alterations at the Premises,
including, without limitation, Significant Repairs and Improvements, the
Renovation Capital Expenditures and Maintenance Capital Expenditures, shall be
done in a good and workmanlike manner and shall be completed substantially in
accordance with all Legal Requirements and free and clear of Liens or claims for
materials supplied or for labor or services performed in connection with such
repairs and alterations or otherwise. Prior to commencement of any Significant
Repair or Improvement, all of the following requirements and conditions shall be
satisfied:
(i) The Required Lenders shall have determined
that (x) the Borrower has the financial resources to complete the
Significant Repair or Improvement (except for Renovation Capital
Expenditures) on a timely and lien-free basis, other than Permitted
Liens, (y) the Renovation Capital Expenditures can be completed on or
before the Third Renovation Capital Expenditure Date or other period
requested by the Borrower and approved by the Agent (acting upon the
reasonable direction of the Required Lenders),
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and (z) any other Significant Repair or Improvement can be completed
prior to the Termination Date;
(ii) If reasonably requested by the Agent, the
Agent shall have received architectural or engineering plans and
specifications for the Renovation Capital Expenditures and any other
Significant Repair or Improvement and an estimate of the costs and
expenses of such Renovation Capital Expenditures and any other
Significant Repair or Improvement;
(iii) If requested by Agent, Agent shall have
received copies of the agreements pursuant to which the Renovation
Capital Expenditures and any other Significant Repair or Improvement
shall be done and the identities of the parties performing the
construction obligations thereunder;
(iv) Agent shall have received the assignment to
the Agent of all construction and design-professional contracts
pursuant to the Mortgage and the Assignment of Agreements, together
with the written consent to such assignments by all parties to such
contracts (which may be included in any such contract), all of which
shall be in form and substance reasonably satisfactory to the Agent
(acting upon the reasonable direction of the Required Lenders); and
(v) Agent shall have received such other
information and documentation as Agent may reasonably request regarding
the Renovation Capital Expenditures and any other Significant
Improvement and Repair and the restoration or repairs and the cost
thereof.
The Borrower shall not undertake to construct (i) any Renovation Capital
Expenditures and any other Significant Repair or Improvement except in
compliance with this Section 7.18(b) hereof, and (ii) with respect to any
Renovation Capital Expenditures, also in compliance with Section 4.3(b).
(c) Agent's Inspection. From time to time and upon
reasonable prior notice to the Borrower (except in cases of Casualty Events or
other similar emergencies in which case no notice need be given), as required by
Agent, the Borrower shall, or cause any Manager to, permit the Agent, any Lender
and their respective agents and representatives, to enter upon any of the
Premises during normal business hours for the purpose of inspection thereof.
Without limitation of the foregoing, the Borrower shall, or cause any Manager
to, permit the Agent and the Agent's designated representatives to enter upon
the Premises, at any reasonable times during business hours on reasonable
notice, to inspect, examine or copy:
(i) All materials and shop drawings pertaining
to the performance of the Renovation Capital Expenditures and any other
Significant Repairs and Improvements;
(ii) Any contracts, bills of sale, statements,
receipts or vouchers
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pertaining to the Renovation Capital Expenditures and any other
Significant Repairs and Improvements;
(iii) All work done, labor performed or materials
furnished in connection with the Renovation Capital Expenditures and
any other Significant Repairs and Improvements; and
(iv) All books, contracts and records of the
Borrower pertaining to the Significant Repairs and Improvements.
(d) The Borrower shall keep in effect at all times any
material contractual arrangements, as may be necessary to meet the standard of
operation described in this Section 7.18 or as may be required by Legal
Requirements and all Permits.
7.19 Application of Insurance Proceeds.
(a) The Borrower shall give prompt notice to the Agent of
any damage, destruction or casualty to the Premises or any part thereof, whether
or not covered by insurance, the cost of restoration of which is in excess of
$1,500,000.
(b) Provided no Event of Default shall have occurred and
be continuing, the Borrower may make proof of loss, adjust and compromise any
claim under any insurance policy, appear in and prosecute any action arising
from such insurance policy, collect and receive the proceeds of any and all
insurance that may become payable with respect to any damage, destruction or
casualty to the Premises so long as the cost of the repair or restoration
necessitated by such damage, destruction or casualty, in the reasonable estimate
of the Agent will not exceed Five Million Dollars ($5,000,000). Provided no
Event of Default shall have occurred and be continuing, the Borrower shall use
all such proceeds actually received by it to restore or rebuild the Premises to
a condition reasonably satisfactory to the Agent, but in any event to
substantially the same character and condition as prior to such damage,
destruction or casualty, subject to the provisions of Section 4.3(c). Any
insurance proceeds which may remain after payment of all costs and expenses of
such repair and restoration shall, at the option of the Agent, be applied as a
prepayment of the Obligations in the manner set forth herein.
(c) If the cost of restoration or repair of any damage,
destruction or casualty to the Premises, or any part thereof, in the reasonable
estimate of the Agent, will equal or exceed Five Million Dollars ($5,000,000),
the Agent may collect the proceeds of any and all insurance that may become
payable with respect thereto (and the Borrower hereby authorizes and directs any
insurance company to make payments of such proceeds directly to the Agent at the
Agent's request). The Net Cash Proceeds from the Insurance Policies shall be
made available to Borrower for the restoration and repair of the Premises from
time to time as such restoration or repair progresses, subject to compliance by
the Borrower with Section 4.3(e) hereof and to compliance by the Borrower with
the following terms and conditions:
(i) No Event of Default shall have occurred and be
continuing;
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(ii) The Borrower shall deposit with the Agent sums in an
amount at least equal to the excess, if any, of the Agent's reasonable estimate
of the aggregate costs and expenses of restoration and repair of the Premises,
over the amount of insurance proceeds payable with respect to such damage,
destruction or casualty, which additional sums shall be disbursed by the Agent
prior to any disbursements of insurance proceeds;
(iii) In the Agent's reasonable judgment, the repairs and
renovations can be completed prior to the then Maturity Date;
(iv) At the request of the Agent, prior to the
commencement of any work the Agent shall have received architectural plans and
specifications for all restoration and repairs and an estimate of the costs and
expenses of all such restoration and repairs, all of which shall be in form
reasonably acceptable to the Agent;
(v) Prior to any disbursement by the Agent, the following
information and documentation shall have been obtained by the Borrower, at the
Borrower's expense, and submitted to the Agent, which information and
documentation shall be in form and substance reasonably satisfactory to the
Agent:
(A) A request for disbursement signed by the Borrower,
accompanied by billing statements, vouchers or invoices, which request
for disbursement shall expressly warrant that the work with respect to
which the advance is requested has been performed in all material
respects in accordance with the approved plans and specifications for
the restoration or repair;
(B) At the request of the Agent, proof that all invoices
for labor and materials previously submitted by Borrower and approved
and reimbursed by the Agent have been paid, except for those the
subject of the current request for disbursement and except for any
invoices which the Borrower informs the Agent are being disputed in
good faith by the Borrower and for which appropriate reserves have been
established;
(C) At the request of the Agent, lien waivers for all
payees under previous requests for advances, except with respect to
those liens being contested by the Borrower in good faith in accordance
with this Agreement;
(D) At the request of the Agent, a report from the
Borrower's architect which shall specify the percentage of completion
of restoration or repair, shall provide reasonably detailed comments on
specific work performed since the date of the last such report, and, if
required by the Agent, an estimate of the cost to complete the
restoration and repair after taking into account the work then
completed;
(E) At the request of the Agent, an endorsement of the
Title Insurance Policy, which endorsement shall show no liens of record
or additional encumbrances not acceptable to the Agent, other than
Permitted Liens;
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(F) At the request of the Agent, copies of the agreements
pursuant to which the restoration or repair shall be done and the
identities of the parties performing the construction obligations
thereunder;
(G) An assignment to the Agent of all construction and
design-professional contracts (which may be pursuant to the Mortgage
and the Assignment of Agreements), together with the written consent to
such assignments by all parties to such contracts (which may be
included in any such contract) to the extent required thereunder; and
(H) Such other information and documentation as the Agent
may reasonably request regarding the Improvements and the restoration
or repairs and the cost thereof.
In the event each of the conditions set forth in clauses (i)
through (v) above is not satisfied within eighteen (18) months from and after
the date of the respective damage, destruction or casualty, or if such
conditions cannot reasonably be satisfied within said eighteen (18)-month
period, if the Borrower fails to commence satisfaction of such condition within
said (18)-month period or thereafter fails to diligently pursue such efforts to
completion, then the Agent may apply the insurance proceeds actually received by
it to the payment of the Obligations in the same manner and under the same
conditions as insurance proceeds are applied as set forth in Section 4.3(e)
hereof.
(d) Prior to application or disbursal of any insurance
proceeds received by the Agent under this Section 7.19, the Agent may deduct
therefrom any expenses reasonably incurred by the Agent in connection with the
collection or handling of such proceeds, it being understood and agreed that
neither the Agent nor the Lenders shall be, under any circumstances, liable or
responsible for failure to collect, or to exercise diligence in the collection
of, any such proceeds, and upon the request of the Borrower, the Agent shall
provide the Borrower with a written summary of all expenses deducted from such
proceeds.
(e) In the event the Mortgage is foreclosed or title to
the Premises is transferred to the Agent or Lenders by a deed in lieu of
foreclosure, all right, title, and interest of the Borrower in and to all
Insurance Policies and the proceeds thereof shall inure to the benefit of and
pass to the Agent.
7.20 Application of Condemnation Proceeds. The Agent shall be
entitled to receive any and all sums which may be awarded or become payable to
the Borrower for any Taking of the Premises for public or quasi-public use, or
by virtue of private sale in lieu thereof, and any sums which may be awarded or
become payable to the Borrower for damages caused by public works or
construction on or near the Premises. All such sums are hereby assigned to the
Agent and the Borrower shall, upon the reasonable request of the Agent, make,
execute, acknowledge, and deliver any and all additional assignments and
documents as may be necessary from time to time to enable the Agent to collect
and receive any such sums. The Agent may apply all such sums actually received
by the Agent to the payment of the Obligations in such order and manner as is
set forth herein. If the Premises or any part thereof is condemned, so long as
no Event of
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Default shall have occurred and shall be continuing, and provided the Borrower
promptly files all claims and diligently prosecutes the condemnation proceeding,
the Borrower shall have the right to file, adjust, settle and prosecute any
claim for any such awards or compensation relating to any such condemnation
proceeding; provided, however, the Borrower shall not agree to any adjustment or
settlement of any such claim payable with respect to any such condemnation
proceeding which awards and proceeds are reasonably estimated by the Agent to be
equal to or greater than $5,000,000; and provided, further, in the event that
the Agent reasonably determines that the Borrower is not diligently prosecuting
such claim, the Agent shall have the right, but not the obligation, to revoke
the Borrower's right to adjust, settle and prosecute any claim for any such
awards or compensation relating to such any such condemnation proceeding by
delivering a notice of same to the Borrower, which revocation shall be effective
immediately upon the Borrower's receipt of such notice. Notwithstanding the
foregoing, if the Premises or any part thereof is condemned and the awards and
proceeds of condemnation are reasonably estimated by the Agent to equal or
exceed five million Dollars ($5,000,000), then the Borrower authorizes and
empowers Agent, at Agent's reasonable option, as attorney-in-fact for the
Borrower, to commence, appear in and prosecute, in the Agent's or the Borrower's
name, any action or proceeding relating to any condemnation of the Premises or
any portion thereof, to settle or compromise any claim in connection with such
condemnation, to collect and receive condemnation awards and to deduct the
Agent's reasonable expenses in the settlement process. The Agent shall provide
the Borrower with a written summary of all expenses deducted from such awards.
If Agent elects not to participate in such condemnation proceeding, then the
Borrower shall, at its expense, diligently prosecute any such proceeding.
Neither the Agent nor the Lenders shall be, under any circumstances, liable or
responsible for failure to collect, or exercise diligence in the collection of,
any of such sums. Any sums so collected shall be applied by the Agent, first, to
the reasonable expenses, if any, of collection, and then in the same manner and
under the same conditions as insurance proceeds are applied as set forth in
Section 4.3(e) hereof.
7.21 Appraisals. At any time after the occurrence of an Event of
Default, the Agent shall have the right to cause an Appraisal of the Premises to
be performed at any time and from time to time; provided, that only one such
Appraisal per year shall be at the Borrower's cost and expense. In all events,
the Borrower shall cooperate with the Agent and any such appraiser and their
agents and employees in connection with such Appraisal.
7.22 ERISA. The Borrower shall, and shall use its reasonable best
efforts to cause each of its ERISA Affiliates to:
(a) Pay and discharge promptly any liability imposed upon
it pursuant to the provisions of Title IV of ERISA; provided, however, that
neither the Borrower nor any ERISA Affiliate shall be required to pay any such
liability if (1) the amount, applicability or validity thereof shall be
diligently contested in good faith by appropriate proceedings, and (2) such
Person shall have set aside on its books reserves which, in the opinion of the
independent certified public accountants of such Person, are adequate with
respect thereto.
(b) Deliver to the Agent, promptly and in any event
within five Business Days
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after (or within such other time period specified) (i) the occurrence of any
Reportable Event, a copy of the materials that are filed with the PBGC, or the
materials that would have been required to be filed if the 30-day notice
requirement to the PBGC was not waived, (ii) the Borrower or any ERISA Affiliate
or an administrator of any Pension Plan files with participants, beneficiaries
or the PBGC a notice of intent to terminate any such Plan, a copy of any such
notice, (iii) within five Business Days, the receipt of notice by the Borrower
or any ERISA Affiliate or an administrator of any Pension Plan from the PBGC of
the PBGC's intention to terminate any Pension Plan or to appoint a trustee to
administer any such Plan, a copy of such notice, (iv) within 30 days after, the
filing thereof with the Internal Revenue Service, copies of each annual report
that is filed on Treasury Form 5500 with respect to any Pension Plan, together
with certified financial statements (if any) for the Plan and any actuarial
statements on Schedule B to such Form 5500, (v) five Business Days after, the
Borrower or any ERISA Affiliate knows or has reason to know of any event or
condition which might constitute grounds under the provisions of Section 4042 of
ERISA for the termination of (or the appointment of a trustee to administer) any
Pension Plan, an explanation of such event or condition, (vi) the receipt by the
Borrower or any ERISA Affiliate of an assessment of withdrawal liability under
Section 4201 of ERISA from a Multiemployer Plan, a copy of such assessment,
(vii) within five Business Days, the Borrower or any ERISA Affiliate knows or
has reason to know of any event or condition which might cause any one of them
to incur a liability under Section 4062, 4063, 4064 or 4069 of ERISA or Section
412(n) or 4971 of the Code, an explanation of such event or condition, (viii)
the Borrower or any ERISA Affiliate knows or has reason to know that an
application is to be, or has been, made to the Secretary of the Treasury for a
waiver of the minimum funding standard under the provisions of Section 412 of
the Code, a copy of such application, and (ix) the establishment of, or the
incurrence of the obligation to contribute to, any Pension Plan or Multiemployer
Plan by the Borrower or any ERISA Affiliate, and in each case described in
clauses (i) through (iii) and (v) through (ix) together with a statement signed
by the Approved Officer of the Borrower setting forth details as to such
Reportable Event, notice, event or condition and the action which the Borrower
or such ERISA Affiliate proposes to take with respect thereto.
7.23 Final Certificate of Occupancy. In the event that the final
certificate of occupancy is not obtained prior to the Closing Date as required
under the Purchase and Sale Agreement, the Borrower shall take such action
necessary to obtain the final certificate of occupancy for the entire Premises
from the applicable Governmental Authority on or before the first Anniversary
Date.
7.24 Material Operating Agreements.
(a) Generally. The Borrower shall not, without the prior
written consent of the Agent (acting upon the reasonable direction of the
Required Term Loan A Lenders) which consent shall not be unreasonably withheld
or delayed, enter into, amend or modify in any material respect, cancel,
terminate or shorten the term of, or waive any material term, condition or
requirement under, any Material Operating Agreement (other than agreements
entered into in connection with the Time Share Plan in accordance with Section
8.23).
(b) Compliance. The Borrower shall observe, perform, and
discharge in all material respects all material obligations, covenants, and
warranties provided for under the terms
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of the Material Operating Agreements to be kept, observed, and performed by the
Borrower.
(c) Delivery of Copies of Material Operating Agreement,
Etc. to the Agent. Within ten (10) days after execution of any Material
Operating Agreement or any amendment, modification, restatement, extension,
renewal or supplement of any Material Operating Agreement or termination of any
Material Operating Agreement, the Borrower shall deliver to the Agent a complete
copy of such Material Operating Agreement, amendments, modifications,
restatements, extensions, renewals or supplements.
(d) Enforcement of Material Operating Agreement. The
Borrower shall use commercially reasonable efforts to enforce or secure the
performance of each and every obligation, term, covenant, condition, and
agreement to be performed by any party under the terms of the applicable
Material Operating Agreement, except where the failure would not reasonably be
expected to have a Material Adverse Effect or would result in a material default
thereunder. The Borrower shall, appear in and defend any action or proceeding
arising under, occurring out of, or in any manner connected with, the Material
Operating Agreements or the obligations, duties, or liabilities of the Borrower
or any party thereto. If an Event of Default under this Agreement exists and is
continuing, either (i) upon reasonable request by the Agent to do so, the
Borrower shall appear in and defend in the name and on behalf of the Agent, at
the reasonable expense of the Borrower, or (ii) the Agent may appear in and
defend itself, but, in each case, the Borrower shall pay all reasonable costs
and expenses of the Agent, including reasonable attorneys' fees and
disbursements, in any action or proceeding in which the Agent may appear.
(e) No Transfer of Interest in Material Operating
Agreement. The Borrower shall not pledge, transfer, assign any Material
Operating Agreement except to the Agent as provided herein or in the Loan
Documents.
7.25 Use of Reserve Amount and Operating Cash Reserve Amount. The
Borrower shall use the funds that constitute the Reserve Amount solely for
general business purposes and in any manner not prohibited by this Agreement. To
the extent that the Gaming Laws are applicable to funds that constitute the
Operating Cash Reserve Amount, the Borrower shall use the Operating Cash Reserve
Amount in a manner that does not violate any applicable laws (including without
limitation the Gaming Laws) and shall otherwise use the funds that constitute
the Operating Cash Reserve Amount solely for general business purposes and in
any manner not prohibited by this Agreement or any applicable laws.
7.26 Easements, Etc., in Favor of Time Share Entity. The Borrower
shall obtain the prior written consent of the Agent (which consent shall not
unreasonably be withheld or delayed) prior to its granting any easement in favor
of the Time Share Entity or entering into any reciprocal rights agreement or any
other comparable agreement with the Time Share Entity or otherwise with respect
to the Time Share Premises.
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7.27 Consents. The Borrower shall use its commercially reasonable
efforts to obtain any consents to the pledge or assignment to the Agent for the
benefit of the Lenders of the contracts, licenses and permits set forth on
Schedule 6.1 except, other than in the case of any Material Operating Agreement,
where the failure to obtain such consent would not have a Material Adverse
Effect or materially impair the Collateral taken as a whole.
7.28 Employment of Borrower's Chief Executive Officer. By no later
than the date set forth in the Purchase Agreement, the Borrower will enter into
a valid and binding employment agreement with its Chief Executive Officer that
provides for a term commencing not later than the Closing Date and expiring not
earlier than the first Anniversary Date.
7.29 Plans and Specifications. In the event that there is Tolling
with respect to the Renovation Capital Expenditures as set forth in Section
4.3(b), the Borrower shall use its commercially reasonable efforts to commence
and complete all plans, specifications, design documents, schematic drawings and
related items (the "Plans and Specifications") related to Renovation Capital
Expenditures and other improvements to the Premises before the second
Anniversary Date.
7.30 Amendments to this Agreement. The Borrower shall amend this
Agreement in form and substance reasonably satisfactory to the Borrower, Agent
and Required Lenders in the event that Holdings or any direct or indirect holder
of the Equity Interests of the Borrower enters into a Mezzanine Loan to take
into account the additional Debt represented by such Mezzanine Loan and the
provisions of the Mezzanine Loan Documents and cause the execution of any such
amendment to be a condition precedent to any Loan Party entering into a
Mezzanine Loan.
7.31 Termination of Certain Agreements Relating to the Time Share
Premises. In the event that any definitive agreement implementing the terms and
provisions of clause (i) of the definition of the Time Share Plan shall be
terminated for any reason, the Borrower shall promptly thereafter enter into a
new Time Share Plan satisfactory to the Agent (acting at the reasonable
direction of the Required Term Loan A Lenders (other than the FF&E Lender) which
new Time Share Plan shall provide, inter alia, for the Lenders receiving
payments comparable in amount and in timing to those described in clause (i) of
the definition of the Time Share Plan and shall execute all documents and
instruments acceptable to the Agent (acting at the reasonable direction of the
Required Term Loan A Lenders (other than the FF&E Lender) to implement any such
new Time Share Plan.
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ARTICLE 8
NEGATIVE COVENANTS
The Borrower covenants and agrees that so long as this
Agreement is in effect and until the Commitments have terminated and all
Obligations (other than any indemnities which are not then due and payable) are
discharged in full, the Borrower shall not and shall not permit any of its
Subsidiaries and in the case of Section 8.21 hereof, any ERISA Affiliate, to
directly or indirectly:
8.1 Mergers, Consolidations, Sales or other Disposition;
Disposition of Time Share Premises. Enter into any transaction of merger,
reorganization, or consolidation, or effect any Asset Transfer (including,
without limitation, any Disposition of the Time Share Premises); or wind up,
liquidate or dissolve, or agree to do any of the foregoing, except:
(a) any Disposition of the Time Share Premises solely in
accordance with the Time Share Plan or any other Disposition of the Time Share
Premises consented to in writing by the Required Term Loan A Lenders (other than
the FF&E Lender);
(b) a merger of any Subsidiary into the Borrower or any
Subsidiary;
(c) a sale or Disposition with or without consideration,
of Property determined to be obsolete or surplus or unnecessary to the business
operations of the Borrower in the discretion of management exercised pursuant to
normal commercial standards, so long as the Fair Market Value of all such
Property so disposed of in any Fiscal Year with consideration does not exceed
$1,000,000 in the aggregate, provided such Property is promptly replaced with
Property of equal or greater value;
(d) liquidations of Permitted Investments;
(e) dispositions of assets resulting from a Casualty
Event;
(f) sales, conveyances, or dispositions of inventory in
the ordinary course of business;
(g) any Subsidiary of the Borrower may sell, lease or
otherwise transfer assets to the Borrower or any wholly-owned Subsidiary of the
Borrower, provided that the Borrower and any such Subsidiary shall execute all
documents reasonably requested by the Agent to maintain or create the Agent's
security interest in such assets that constitute Collateral and such transfer
would not reasonably be expected to have a Material Adverse Effect;
(h) the Borrower and its Subsidiaries may dispose of any
assets having a fair market value not in excess of $1,000,000, provided that (i)
the aggregate sale proceeds of all assets subject to dispositions pursuant to
this clause (h) shall not exceed $5,000,000 in any Fiscal Year, (ii) each such
Disposition is for Fair Market Value, (iii) at least 90% of the consideration
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received in respect thereof is cash and (iv) the Net Cash Proceeds of such
disposition are applied or reinvested in accordance with Section 4.3(c) of this
Agreement;
(i) the Borrower and its Subsidiaries may remove or
otherwise dispose of Property in connection with the making of Renovation
Capital Expenditures so long as the Net Cash Proceeds from any such Disposition
are applied or reinvested in accordance with Section 4.3(c) of this Agreement;
(j) transfers of cash to Aladdin if required under
Section 2.10(d) of the Purchase and Sale Agreement; and
(k) other sales, transfers or other Dispositions of
assets not to exceed $500,000 in the aggregate in any Fiscal Year.
8.2 Distributions. Directly or indirectly declare or make, or
incur any liability to make, any Distribution, other than (a) the Borrower may
declare and pay dividends with respect to its Equity Interests payable solely in
additional Equity Interests, (b) Subsidiaries may declare and pay dividends
ratably with respect to their Equity Interests (c) so long as at the time
thereof and immediately after giving effect thereto, no Event of Default shall
have occurred and be continuing for each calendar year the Borrower may make a
cash Distribution equal to the Borrower's Tax Liability for the prior calendar
year; provided, that at the request of the Agent the Borrower will provide the
Agent with any documentation supporting its calculation of any Distribution
proposed to be made pursuant to this Section 8.2(c) for the Agent's review and
approval (which approval shall not be unreasonably withheld or delayed) no later
than five (5) Business Days prior to the estimated date of such Distribution,
and (d) so long as (i) at the time thereof and immediately after giving effect
thereto no Event or Event of Default shall have occurred and be continuing, and
(ii) the Leverage Ratio is less than 5.00:1.00, the Borrower may pay dividends
or make other Distributions to its Members on a quarterly basis to be used to
make payments on the Mezzanine Loan, or on any Debt or equity financing of
Holdings related to the acquisition, renovation or operation of the Premises
(including but not limited to any refinancings of any of the foregoing)
provided, that the aggregate amount of any such Distributions does not exceed
$6,000,000 per Fiscal Year (of which no more than $1,500,000 may be distributed
in any Fiscal Quarter).
8.3 Guaranties. Make, issue, or become liable on any Guaranty,
except (a) endorsements of instruments for deposit or collection in the ordinary
course of business, (b) Guaranties existing on the Closing Date as set forth on
Schedule 8.3, (c) customary indemnities in the ordinary course of business, and
(d) Guaranties of Debt permitted by Section 8.4.
8.4 Debt. Create, incur, assume, maintain or otherwise become
liable or be liable in respect of any Debt, other than: (a) the Obligations; (b)
Debt of the Borrower or any Subsidiary incurred to finance the acquisition,
construction or improvement of any fixed or capital assets, including Capital
Leases and any Debt assumed in connection with the acquisition of any such
assets or secured by a Lien on any such assets prior to the acquisition thereof,
and extensions, renewals and replacements of any such Debt that do not increase
the outstanding principal amount
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thereof; provided; that the aggregate amount of Debt permitted by this clause
(b) shall not exceed $3,250,000; and provided; further that (i) such Debt is
incurred prior to or within 90 days after such acquisition or the completion of
such construction or improvement and (ii) the aggregate principal amount of Debt
permitted by this clause (b) shall be in compliance with Section 8.11 (Capital
Expenditures); (c) the Debt listed on Schedule 8.4 hereto (which shall include
Debt (other than the Obligations) of Aladdin assumed by the Borrower pursuant to
the Purchase and Sale Agreement) and any renewals, extensions or refinancing
thereof that do not increase the aggregate outstanding principal amount thereof,
plus accrued and unpaid interest on the Debt refinanced; (d) the Guaranties
permitted by Section 8.3; (e) Debt of any Person that becomes a Subsidiary after
the date hereof, in accordance with the terms hereof, provided that such Debt
exists at the time such Person becomes a Subsidiary and is not created in
contemplation of or in connection with such Person becoming a Subsidiary and
provided, further, that the Borrower does not become liable for any such Debt;
(f) Debt of the Borrower or any Subsidiary as an account party in respect of
trade letters of credit issued in the ordinary course of business; (g) unsecured
intercompany Debt among the Borrower and its Subsidiaries that are Guarantors,
provided that if any of such Debt is evidenced by intercompany notes, such notes
shall be pledged to the Agent; (h) Debt of the Borrower or its Subsidiaries in
respect of performance bonds, bid bonds, appeal bonds, surety bonds and similar
obligations and trade-related letters of credit, in each case provided in the
ordinary course of business, and any extension, renewal or refinancing thereof
to the extent not provided to secure the repayment of other Indebtedness and to
the extent that the amount of refinancing Indebtedness is not greater than the
amount of Indebtedness being refinanced; (i) Hedge Obligations (provided,
however, that the notional principal amount of any such Hedge Obligations does
not exceed the principal amount of indebtedness to which such Hedge Obligation
relates); and (j) other unsecured Debt of the Borrower and its Subsidiaries not
to exceed $500,000 in aggregate principal amount outstanding.
8.5 Prepayment; Certain Matters Relating to the Mezzanine Loan.
(a) Other than in accordance with their terms, voluntarily prepay, redeem,
purchase or retire any Debt, other than the Obligations.
(b) Modify, amend or otherwise alter (or permit the modification,
amendment, or alteration of) the terms and provisions of the
Mezzanine Loan or any Mezzanine Loan Document other than in
accordance with the provisions of the Mezzanine Intercreditor
Agreement.
(c) Make any payments with respect to or on account of the
Mezzanine Loan other than Distributions permitted by Section
8.2(d) of this Agreement.
8.6 Transactions with Affiliates. Except as set forth below or as
otherwise permitted hereunder, sell, transfer, distribute, or pay any money or
Property to any Affiliate, or lend or advance money or Property to any
Affiliate, or invest in (by capital contribution or otherwise) or purchase or
repurchase any stock or indebtedness, or any Property, of any Affiliate, or
become liable on any Guaranty of the indebtedness, dividends, or other
obligations of any Affiliate (except as permitted by Section 8.3) except that:
(a) Distributions may be made to the extent provided in
94
Section 8.2; (b) customary and reasonable fees, indemnities and reimbursements
may be paid to officers and directors of the Borrower and its Subsidiaries; (c)
the Borrower or any of its Subsidiaries may enter into employment,
noncompetition or confidentiality agreements with their employees in the
ordinary course of business; (d) management fees may be paid to any Manager in
accordance with the Manager Subordination Agreement, and license and/or
franchise fees may be paid to Planet Hollywood in accordance with the License
Subordination Agreement; (e) loans or advances may be made to employees of the
Borrower to fund moving and travel expenses and the exercise price of options
granted under employment agreements or stock option plans or agreements of the
Borrower, not to exceed $400,000 outstanding at any time or (f) any transaction
entered into by the Borrower in connection with the Time Share Plan.
Notwithstanding the preceding sentence to the contrary, the Borrower and its
Subsidiaries may engage in transactions with Affiliates in the normal course of
business, in amounts and upon terms fully disclosed to the Agent on a quarterly
basis which are no less favorable to the Borrower and its Subsidiaries than
would be obtainable in a comparable arm's length transaction with a third party
who is not an Affiliate.
8.7 Business Conducted. Engage, directly or indirectly, in any
line of business other than that directly related to the Premises or the Time
Share Premises (which shall include the Time Share Plan) or reasonably
incidental thereto. The Borrower shall not discontinue the operation of the
Premises or any material portion thereof without the prior written consent of
the Agent (acting upon the reasonable direction of the Required Lenders), which
consent shall not be unreasonably withheld or delayed.
8.8 Liens. Create, incur, assume, or permit to exist any Lien on
any Property now owned or hereafter acquired by any of them, except Permitted
Liens.
8.9 Subsidiaries. Without the prior written consent of the
Required Lenders, (i) to cause or permit any Subsidiary to acquire any material
Property, or (ii) directly or indirectly, organize or acquire any Subsidiary
after the Closing Date, unless such Property or the Borrower's interest in any
new Subsidiary is pledged to the Agent in accordance with the Security Documents
and such new Subsidiary enters into a Guaranty of the Obligations in form and
substance reasonably satisfactory to the Agent.
8.10 Restricted Investments. Make any Restricted Investment.
8.11 Capital Expenditures. Make any Capital Expenditures other than
Renovation Capital Expenditures, Maintenance Capital Expenditures, Capital
Expenditures permitted under Sections 4.3(c), 8.1(c) and 8.1(h), and other
Capital Expenditures payable solely out of the Reserve Amount, unless the Agent
receives evidence reasonably satisfactory to it that the holders of the Equity
Interests of the Borrower shall have provided cash equity to the Borrower to be
used solely for Capital Expenditures.
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8.12 Maintenance Capital Expenditures. Permit the aggregate amount
of payments made for Maintenance Capital Expenditures of the Borrower and its
Subsidiaries on a consolidated basis to exceed the amounts set forth opposite
the periods below:
Period Amount
------ ------
Closing Date through first Anniversary Date $ 5,000,000
First Anniversary Date through second Anniversary Date $11,200,000
Second Anniversary Date through third Anniversary Date $12,300,000
Third Anniversary Date through fourth Anniversary Date $15,000,000
Fourth Anniversary Date through the fifth Anniversary Date $16,000,000
Fifth Anniversary Date through the Final Maturity Date $16,500,000
In addition to the amounts permitted above, the Borrower and its
Subsidiaries may make Capital Expenditures of up to $3,000,000 in the aggregate
(plus the Net Cash Proceeds of any Casualty Event) with Net Cash Proceeds of an
Asset Transfer or a Casualty Event in any Fiscal Year identified in a
Reinvestment Notice as a Reinvestment Amount in accordance with Section 4.3(c);
provided, that any such Capital Expenditures shall not constitute Maintenance
Capital Expenditures in clause (v) of the definition of Excess Cash Flow and in
clause (vi) in the definition of Reserve Amount.
In any twelve-month period referred to above, the unused portion of
Maintenance Capital Expenditures for such twelve-month period (without giving
effect to any prior carry-forward) may be expended by the Borrower only in the
immediately succeeding twelve-month period and the amounts so carried over shall
only be used after utilization of all allowed amounts (without regard to such
rollover) for Maintenance Capital Expenditures in such succeeding twelve-month
period.
8.13 EBITDA. (a) The Borrower will not permit EBITDA for any of the
periods set forth below, to be less than the respective amount set forth below
opposite such period:
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Period Amount
------ ------
The consecutive twelve (12) month period
immediately following (i) the Closing Date or
(ii) if there is Tolling, the Resolution Date (in
either case, the "First Measurement Period") $20,000,000
The consecutive twelve (12) month period
immediately following the last day of the First
Measurement Period (the "Second
Measurement Period") $30,000,000
The consecutive twelve (12) month period
immediately following the last day of the
Second Measurement Period (the "Third
Measurement Period") $60,000,000
The consecutive twelve (12) month period
immediately following the last day of the
Third Measurement Period
(the "Fourth Measurement Period") $ 70,000,00
The consecutive twelve (12) month period
immediately following the last day of the
Fourth Measurement Period (the "Fifth
Measurement Period") $75,000,000
The consecutive twelve (12) month period
immediately following the last day of the Fifth
Measurement Period (the "Sixth
Measurement Period") $80,000,000
(b) Notwithstanding the above, if EBITDA at the end of
the First Measurement Period or Second Measurement Period is less than the
minimum EBITDA requirements set forth above, the Borrower shall be deemed to be
in compliance with the above requirements for such period if no later than 90
days after the end of the First Measurement Period or the Second Measurement
Period, as applicable, the Investor Group provides cash equity (the "EBITDA Cure
Amount") to the Borrower in an amount equal to or greater than the difference
between the (i) $20,000,000 for the First Measurement Period or $30,000,000 for
the Second Measurement Period, as applicable and (ii) the actual EBITDA for such
period.
(c) Notwithstanding the above, in the event that a
Terrorist Event Period occurs during any of the EBITDA measurement periods set
forth in clause (a) above, and in the event the Borrower provides the Agent with
documentation satisfactory to the Agent demonstrating that the Borrower was
reasonably likely to be in compliance with the minimum EBITDA requirement set
forth above for such period prior to the occurrence of the Terrorist Event, then
the minimum EBITDA requirement for such period shall be the result of (x) the
minimum EBITDA amount set forth above for such period, multiplied by (y) 1 -
m/12, where "m"
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equals the number of calendar months in the Terrorist Event Period that occur
during such EBITDA measurement period.
8.14 Interest Coverage Ratio. (a) The Borrower will not permit the
Interest Coverage Ratio for any period ending on a Fiscal Quarter set forth
below to be less than the ratio set forth below opposite such Fiscal Quarter:
Four consecutive Fiscal Quarter
Period period ending on the last day of: Ratio
------ -------------------------------- -----
Fourth Measurement 1.95:1.00
Period FQ 13
FQ 14 1.97:1.00
FQ 15 1.98:1.00
FQ 16 2.01:1.00
Fifth Measurement FQ 17 2.10:1.00
Period
FQ 18 2.13:1.00
FQ 19 2.15:1.00
FQ 20 2.17:1.00
Sixth Measurement FQ 21 2.28:1.00
Period
FQ 22 2.37:1.00
FQ 23 2.52:1.00
FQ 24 2.71:1.00
(b) Notwithstanding the above, in the event that a
Terrorist Event occurred during any of the Interest Coverage Ratio measurement
periods set forth in clause (a) above, and in the event the Borrower provides
the Agent with documentation satisfactory to the Agent demonstrating that the
Borrower was reasonably likely to be in compliance with the Interest Coverage
Ratio requirement set forth above for such period prior to the occurrence of the
Terrorist Event, the Interest Coverage Ratio requirement shall be suspended
solely in the period(s) during which the Terrorist Event Period continues.
8.15 Leverage Ratio. (a) The Borrower will not permit the Leverage
Ratio for any period ending on a Fiscal Quarter set forth below to be greater
than the ratio set forth below opposite such Fiscal Quarter:
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Four consecutive Fiscal Quarter
Period period ending on the last day of: Ratio
------ -------------------------------- -----
Fourth Measurement FQ 13 7.00:1.00
Period
FQ 14 6.68:1.00
FQ 15 6.56:1.00
FQ 16 6.24:1.00
Fifth Measurement FQ 17 5.93:1.00
Period
FQ 18 5.63:1.00
FQ 19 5.52:1.00
FQ 20 5.23:1.00
Sixth Measurement FQ 21 4.96:1.00
Period
FQ 22 4.67:1.00
FQ 23 4.56:1.00
FQ 24 4.30:1.00
(b) Notwithstanding the above, in the event that a
Terrorist Event occurred during any of the Leverage Ratio measurement periods
set forth in clause (a) above, and in the event the Borrower provides the Agent
with documentation satisfactory to the Agent demonstrating that the Borrower was
reasonably likely to be in compliance with the Leverage Ratio requirement set
forth above for such period prior to the occurrence of the Terrorist Event, the
Leverage Ratio requirement shall be suspended solely in the period(s) during
which the Terrorist Event Period continues.
8.16 Negative Pledge Clauses. Enter into or suffer to exist or
become effective any agreement which prohibits or limits the ability of the
Borrower or any of its Subsidiaries to create, incur, assume or suffer to exist
the Liens upon the Collateral contemplated by the Loan Documents, to secure the
Obligations or, in the case of any Guarantor, its obligations under the Security
Agreement or hereunder, other than (a) this Agreement and the other Loan
Documents, and (b) any agreements governing Permitted Liens, but only to the
extent of the Property subject to such Permitted Liens.
8.17 Restrictions on Subsidiary Distributions. Enter into or suffer
to exist or become effective any consensual encumbrance or restriction on the
ability of any Subsidiary to (a) make Distributions in respect of any Equity
Interests of such Subsidiary held by, or pay any Debt owed to, the Borrower or
any other Subsidiary, or (b) make investments in the Borrower or any other
Subsidiary, except for such encumbrances or restrictions existing under or by
reason of any restrictions existing under the Loan Documents.
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8.18 Confirmation Order. At any time seek or consent to any
material modification, stay, vacation or amendment of the Confirmation Order,
except for those mutually agreed to by the Borrower and the Required Lenders.
8.19 Easements. Grant any easements or licenses for utilities,
roads or any other purposes over, under or on any portion of the Premises other
than as required in the REA or the Parking Agreement without the prior written
consent of Agent (unless granting any such easement or license would not
reasonably be expected to result in a Material Adverse Effect), which consent
shall not be unreasonably withheld or delayed.
8.20 Changes in Zoning. Request or seek to obtain any change to, or
consent to any request for or change in, any Legal Requirement, restrictive
covenant or other restriction applicable to the Premises or any portion thereof
or any other law, ordinance, rule, regulation, restrictive covenant or
restriction affecting the zoning, development or use of the Premises or any
portion thereof, or any variance or special exception therefrom, unless any such
change would not reasonably be expected to result in a Material Adverse Effect.
Notwithstanding the foregoing, any changes, consents, variances or other matters
concerning the Gaming Licenses or Gaming Laws shall require the prior written
consent of the Agent.
8.21 ERISA. (a) To the extent any of the following would reasonably
be expected to have a Material Adverse Effect, engage in any transaction in
connection with which the Borrower or any ERISA Affiliate could be subject to
either a material civil penalty assessed pursuant to the provisions of Section
502 of ERISA or a material tax imposed under the provisions of Section 4975 of
the Code.
(b) Terminate any Pension Plan in a "distress
termination" under Section 4041 of ERISA, or take any other action which could
result in a material liability of the Borrower or any ERISA Affiliate to the
PBGC.
(c) Fail to make payment when due of all amounts which,
under the provisions of any Plan, the Borrower or any ERISA Affiliate is
required to pay as contributions thereto, or, with respect to any Pension Plan,
permit to exist any material "accumulated funding deficiency" (within the
meaning of Section 302 of ERISA and Section 412 of the Code), whether or not
waived, with respect thereto.
(d) Adopt an amendment to any Pension Plan requiring the
provision of security under Section 307 of ERISA or Section 401(a)(29) of the
Code.
8.22 Organizational Documents. Amend, modify, restate or supplement
any material provision of any Organizational Document of the Borrower without
the prior written consent of Required Lenders (including without limitation the
position of the representative of the Lenders on any board of directors or
managers or other advisory position).
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8.23 Development Agreement. (a) Enter into a development agreement
with respect to the Time Share Premises or make any Plans and Specifications
with respect to the Time Share Premises unless, in either case the Agent shall
have determined that such development agreement or Plans and Specifications
shall be in accordance with the Time Share Plan (and such development agreement
or Plans and Specifications shall have been delivered to the Agent prior to
their execution or finalization as required by Section 7.2(o) so that the Agent
may make the determination as to consistency) or otherwise be satisfactory to
the Required Term Loan A Lenders (other than the FF&E Lender) or (b) amend,
modify, restate or supplement any material provision of any such development
agreement or Plans and Specifications without the prior written consent of the
Required Term Loan A Lenders (other than the FF&E Lender).
8.24 Management Agreement; Casino Operator Agreement. Enter into
any Management Agreement or any agreement relating to the operation of the
Casino without the prior written consent of the Required Lenders (which consent
shall not be unreasonably withheld or delayed).
8.25 Adverse Contracts. Enter into any contract or agreement which,
at the time it was entered into, is reasonably likely to materially and
adversely affect the Premises or the Borrower's business, property, assets,
operations, prospects, condition (financial or otherwise) taken as a whole, or
its ability to perform its obligations under this Agreement or any of the other
Loan Documents.
8.26 Management of the Borrower. (a) Permit any member or principal
of the Investor Group to hold the position of Chief Executive Officer, Chief
Financial Officer, Chief Operating Officer or President of the Borrower or (b)
hire or agree to hire any Chief Financial Officer, Chief Operating Officer or
President, in each case without the consent of the Agent and the Required
Lenders, which consent shall not be unreasonably withheld or delayed.
8.27 Maximum Operating Cash Reserve Amount. Permit the Operating
Cash Reserve Amount to be increased except as set forth in the immediately
succeeding sentence. The Operating Cash Reserve Amount may be increased by (i)
$3,000,000 following the first four successive Fiscal Quarters in which EBITDA
is at least $50,000,000, (ii) an additional $3,000,000 following the first four
successive Fiscal Quarters in which EBITDA is at least $60,000,000, (iii) an
additional $3,000,000 following the first four successive Fiscal Quarters in
which EBITDA is at least $70,000,000, and (iv) an additional $3,500,000
following the first four successive Fiscal Quarters in which EBITDA is at least
$80,000,000; provided, that the Borrower at all times shall be allowed to
maintain any cash reserves required under Gaming Laws regardless of the
provisions of this Section 8.27 so long as such cash reserves are funded solely
by equity from the Investor Group to the extent that the Gaming Laws require the
minimum cash reserve to be in an amount which exceeds the Operating Cash Reserve
Amount pursuant to this Section 8.27.
8.28 Plan of Reorganization. (a) Cause the Plan of Reorganization
to be amended or modified in any material respects or consent to the Plan of
Reorganization being amended or modified in any material respects or (b) waive
any of the conditions contained therein if the effect of such waiver would be
reasonably likely to result in a Material Adverse Effect.
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8.29 Maintenance of Operating Cash Reserve Amount. Permit the
Operating Cash Reserve Amount at any time to be less than the minimum amount
required by Gaming Laws.
8.30 Time Share Entity. (a) Enter into a joint venture agreement or
other organizational agreement with respect to the development of the Time Share
Premises unless (i) the Agent shall have determined that any such agreement
shall be in accordance with the Time Share Plan (and any such agreement shall
have been delivered to the Agent prior to its execution as required by Section
7.2(o) so that the Agent may make the determination as to consistency) or (ii)
such agreement shall otherwise be reasonably satisfactory in form and substance
to the Required Term Loan A Lenders (other than the FF&E Lender) (including,
without limitation, the holders of the Equity Interests of such joint venture
and the percentages of equity owned by each such holder and the economic
interests of each such holder) or (b) amend, modify, restate or supplement any
material provision of any such joint venture or other agreement without the
prior written consent of the Agent (acting at the reasonable direction of the
Required Term Loan A Lenders (other than the FF&E Lender)).
8.31 Payments with respect to Time Share Premises. Enter nor permit
the Bay Harbour Investor or the ▇▇▇▇▇▇ ▇▇▇▇ Investor to enter into any agreement
or arrangement that provides for any such Person to receive any payments of any
nature or kind with respect to the Time Share Premises other than payments that
are in accordance with the Time Share Plan or otherwise approved in writing by
the Agent (acting at the reasonable direction of the Required Term Loan A
Lenders (other than the FF&E Lender)).
8.32 Rates for Hotel Usage by the Time Share Entity. Shall not
permit or allow any complementary or reduced rates or services of the Hotel
Premises or the Casino in connection with the development, management,
ownership, sales or operation of the Time Share Premises except as set forth in
the term sheet relating to the Time Share Plan required to be delivered by
Section 5.1(dd) of this Agreement.
ARTICLE 9
DEFAULT; REMEDIES
9.1 Events of Default. It shall constitute an event of default
("Event of Default") if any one or more of the following shall occur for any
reason:
(a) (i) any failure to make any payment of principal on
any of the Loans or (ii) any failure to make any payment of interest, fees or
premium on any of the Loans or any other Obligations (other than an amount
referred to in clause (i) above) when due and such failure shall continue for
five or more days;
(b) any representation or warranty made by the Borrower
or any other Loan Party in this Agreement, any of the other Loan Documents, any
financial statement, or any certificate furnished by or on behalf of the
Borrower or any other Loan Party at any time to the
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Agent or any Lender shall prove to be untrue in any material respect as of the
date when made or furnished or deemed to have been made or furnished;
(c) (i) default shall occur in the observance or
performance of any of the covenants and agreements contained in this Agreement
(other than those which are the subject of clauses (a) and (b) above or clause
(c)(ii), (iii) or (iv) below or otherwise specified in this Section 9.1), or in
any of the Term Loan Notes or the other Loan Documents and the Borrower shall
fail to remedy such default within a period of thirty (30) days after it occurs
or if any such agreement or document shall terminate (other than in accordance
with its terms or the terms hereof or with the written consent of the Agent) or
become void or unenforceable without the written consent of the Agent; (ii) any
default shall occur in the observance of any covenant contained in Section
7.1(d), 7.3(a), 7.5, 7.8, 7.13, 7.23, 7.25, 7.28, 7.29 or Article 8, (iii) any
default shall occur in the observance of any covenant contained in Section 7.16
and the Borrower shall fail to remedy such default within a period of ten (10)
days after it occurs, or (iv) any default shall occur in the observance of any
covenant contained in Section 7.2 and the Borrower shall fail to remedy such
default within a period of five (5) Business Days after it occurs;
(d) any default by the Borrower or any Subsidiary in any
payment of principal of or interest on any Debt for borrowed money in an
aggregate amount in excess of $5,000,000 (other than the Obligations) beyond any
period of grace provided with respect thereto, or (unless the subject of a good
faith dispute) in the performance of any other agreement, term or condition
contained in any agreement under which any such Debt is created, if the effect
of such default is to cause, or permit the holder or holders of such obligation
to declare, such Debt to become due prior to its stated maturity, unless such
default has been waived by the holder or the holders of such Debt or cured prior
to acceleration under Section 9.2;
(e) (i) the Borrower or any Subsidiary shall (x) be
unable to pay its debts generally as they become due, (y) make an assignment for
the benefit of its creditors, or (z) file a petition or application, or an
answer, or otherwise commence a proceeding, under any applicable law or statute
of the United States of America, any state thereof or any foreign country (other
than under the Bankruptcy Code), seeking reorganization or arrangement or
similar relief or otherwise to take advantage of any insolvency act, or for the
appointment of a receiver, trustee, liquidator or conservator of itself or of
the whole or any substantial part of its Property; (ii) there is commenced
against the Borrower or any Subsidiary any proceeding for any of the relief
described in clause (i)(z) above and such proceeding shall remain undismissed
and unstayed for a 60 day period; (iii) the Borrower or any Subsidiary by any
act in any such proceeding indicates its consent to or approval of or
acquiescence in such relief; or (iv) the Borrower or any Subsidiary takes any
action for the purpose of effecting any of the foregoing;
(f) (i) the Borrower or any Subsidiary shall commence a
voluntary case concerning itself under the Bankruptcy Code; (ii) there is
commenced against the Borrower or any Subsidiary an involuntary case under the
Bankruptcy Code and such proceeding shall remain undismissed and unstayed for a
60 day period; or (iii) the Borrower or any Subsidiary by any act in any such
proceeding indicates its consent to, approval of or acquiescence in such relief;
(g) (i) a court of competent jurisdiction shall enter
(other than under the
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Bankruptcy Code) an order, judgment or decree appointing a custodian, receiver,
trustee, liquidator or conservator of the Borrower or any Subsidiary or of the
whole or any substantial part of its Property, or (ii) under the provisions of
any law for the relief or aid of debtors other than the Bankruptcy Code, a court
of competent jurisdiction shall assume custody or control of the Borrower or any
Subsidiary or of the whole or any substantial part of its Properties;
(h) the Borrower or any Subsidiary shall file a
certificate of dissolution under applicable state law or shall be liquidated,
dissolved or wound-up or shall commence any action or proceeding for
dissolution, winding-up or liquidation, or shall take any corporate action in
furtherance thereof, in each case, except as permitted by Section 8.1; or the
Borrower or any Subsidiary shall have commenced against it any action or
proceeding for dissolution, winding-up or liquidation, not otherwise permitted
hereunder;
(i) all or any substantial part of the Property of the
Borrower or any Subsidiary shall be nationalized, expropriated or condemned,
seized or otherwise appropriated, or custody or control of such Property or of
the Borrower or any Subsidiary shall be assumed by any Governmental Authority or
any court of competent jurisdiction at the instance of any Governmental
Authority, except where contested in good faith by proper proceedings diligently
pursued and where a stay of enforcement is in effect;
(j) any judgment in excess of $5,000,000 (in excess of
insurance coverage) is rendered against the Borrower or any Subsidiary, or there
is any attachment, injunction or execution against the Borrower or any
Subsidiary Property for an amount in excess of $5,000,000, unless such judgment,
attachment, injunction or execution is paid, stayed or dismissed within a period
of thirty (30) days after the first date on which the judgment creditor is
entitled to exercise its rights and remedies with respect to such judgment,
attachment, injunction or execution;
(k) any loss, theft, damage or destruction of any item or
items of Collateral occurs which: (i) causes a Material Adverse Effect; or (ii)
is in excess of $5,000,000 and is not adequately covered by insurance;
(l) any Gaming License shall be modified, refused,
suspended, revoked or canceled or allowed to lapse or if a notice of a material
violation is issued under any Gaming License by the issuing agency or other
Governmental Authority having jurisdiction, or any proceeding is commenced by
any Governmental Authority for the purpose of modifying in any materially
adverse respect, suspending, revoking or canceling any Gaming License in any
materially adverse respect, or any Governmental Authority shall have appointed a
conservator, supervisor or trustee to the Casino;
(m) a Change of Control occurs;
(n) (i) a Reportable Event shall have occurred with
respect to a Pension Plan, (ii) the filing by the Borrower, any ERISA Affiliate,
or an administrator of any Plan of a notice of intent to terminate such a Plan
in a "distress termination" under the provisions of Section 4041 of ERISA, (iii)
the receipt of notice by the Borrower, any ERISA Affiliate, or an administrator
of a Plan that the PBGC has instituted proceedings to terminate (or appoint a
trustee to administer)
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such a Pension Plan, (iv) any other event or condition exists which might, in
the opinion of the Agent, constitute grounds under the provisions of Section
4042 of ERISA for the termination of (or the appointment of a trustee to
administer) any Pension Plan by the PBGC, (v) a Pension Plan shall fail to
maintain the minimum funding standard required by Section 412 of the Code for
any plan year or a waiver of such standard is sought or granted under the
provisions of Section 412(d) of the Code, (vi) the Borrower or any ERISA
Affiliate has incurred, or is likely to incur, a liability under the provisions
of Section 4062, 4063, 4064 or 4201 of ERISA, (vii) the Borrower or any ERISA
Affiliate fails to pay the full amount of an installment required under Section
412(m) of the Code, (viii) the occurrence of any other event or condition with
respect to any Plan which would constitute an event of default under any other
agreement entered into by the Borrower or any ERISA Affiliate, and in each case
in clauses (i) through (viii) of this subsection (n), such event or condition,
together with all other such events or conditions, if any, could subject the
Borrower or any ERISA Affiliate to any taxes, penalties or other liabilities
which would reasonably be expected to have a Material Adverse Effect;
(o) the Borrower or any ERISA Affiliate (i) shall have
been notified by the sponsor of a Multiemployer Plan that it has incurred any
material withdrawal liability to such Multiemployer Plan, and (ii) does not have
reasonable grounds for contesting such withdrawal liability and is not in fact
contesting such withdrawal liability in a timely and appropriate manner which
would reasonably be expected to have a Material Adverse Effect;
(p) the Confirmation Order shall have been modified in
any respect without the prior written consent of the Agent or a determination
shall have been made regarding the Confirmation Order that is adverse in any
respect to the Agent and the Lenders;
(q) this Agreement, any Term Loan Note, any of the
Security Documents or other Loan Documents shall for any reason cease to be, or
shall be asserted by any Loan Party not to be, a legal, valid and binding
obligation of any Loan Party, enforceable in accordance with its terms, or the
security interest or Lien purported to be created by any of the Security
Documents shall, for any reason other than as a result of any action or inaction
by the Agent, any Lender or any representative thereof, cease to be, or be
asserted by any Loan Party not to be, a valid, first priority perfected security
interest in any Collateral (except to the extent otherwise permitted under this
Agreement or any of the Security Documents);
(r) the provisions of the Mezzanine Intercreditor
Agreement shall for any reason be revoked or invalidated or the validity or
enforceability thereof shall be contested in any proceeding by or on behalf of
any Mezzanine Lender or a default, event of default or a breach of any of the
terms shall occur and be continuing under any Mezzanine Loan Document;
(s) any default by any Loan Party not cured within any
applicable cure period under any of the Energy Services Agreement, the Energy
Premises Lease, the Parking Agreement or the REA the result of which is the loss
to any Loan Party of any benefits material to the operation of the Premises as
determined by the Agent in its reasonable discretion;
(t) any material default by Borrower under any Management
Agreement not cured within any applicable cure period thereunder or termination
of any Manager and failure to
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replace such Manager with an Identified Hotel Manager or another manager
satisfactory to Agent within thirty (30) days following the termination of any
such manager; or
(u) the License Agreement shall be terminated for any
reason or there shall be a default by any party to the License Agreement which
is not cured within any applicable cure period thereunder.
9.2 Remedies. (a) (x) If an Event of Default shall occur under
Section 9.1(f), all Obligations shall become immediately due and payable without
any action by the Agent, and (y) if any other Event of Default shall have
occurred and be continuing, the Agent may, and it shall, at the request of the
Required Term Loan A Lenders and if the Term Loan A has been paid in full, at
the request of the Required Term Loan B Lenders, without notice to or demand on
the Borrower, do one or more of the following at any time or times thereafter
and in any order: (i) terminate this Agreement in accordance with Article 10;
(ii) declare any or all Obligations to be immediately due and payable; and (iii)
pursue its other rights and remedies under the Loan Documents and applicable
law.
(b) If an Event of Default shall have occurred and be
continuing, the Borrower hereby waives (to the extent permitted under applicable
law) all rights to notice and hearing prior to the exercise by the Agent of the
Agent's rights to repossess the Collateral without judicial process or to
replevy, attach or levy upon the Collateral without notice or hearing (to the
extent permitted under applicable law).
(c) At any time upon the occurrence and during the
continuance of any Event of Default, Agent shall have the right, in addition to
any other rights or remedies of Agent hereunder or under the Mortgage or the
other Loan Documents, but not the obligation, in its own name or in the name of
the Borrower, to enter into possession of all or any portion of the Premises, to
perform all work necessary to complete the construction, reconstruction,
maintenance or renovation of or to operate all or any portion of the Premises
and to employ watchmen and other safeguards to protect the Collateral. The
Borrower hereby appoints Agent as the attorney-in- fact of the Borrower (coupled
with a interest), with full power of substitution, and in the name of the
Borrower, if Agent elects to do so, at any time upon the occurrence and during
the continuance of any Event of Default, (a) to use such sums as are necessary
to make such alterations, repairs and renovations to all or any portion of the
Premises and to employ such architects, engineers and contractors as may be
required for the purpose of completing any construction, reconstruction,
maintenance or renovation of all or any portion of the Premises as Agent may
determine or to operate the Premises or any portion thereof, (b) to execute all
applications and certificates which may be required for the alteration, repair
or renovation of or the completion of construction, reconstruction, maintenance
or renovation of all or any portion of the Premises or for the operation of the
Premises or any portion thereof, (c) to endorse the name of the Borrower on any
checks or drafts representing proceeds of insurance policies or condemnation
awards, or other checks or instruments payable to the Borrower with respect to
the Premises, (d) to do every act with respect to the alteration, repair or
renovation of or the construction, repair, maintenance and operation of the
Premises or any portion thereof which the Borrower otherwise may do, (e) to
prosecute or defend any action or proceeding incident to the Premises, (f) to
enforce or exercise any of the Borrower's rights or benefits under the Leases,
(g) to terminate any contract pertaining
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to the Premises to which the Borrower is party, and (h) to negotiate and
execute, on behalf of the Borrower, any Lease, Management Agreement or Leasing
Services Agreement or amendment, modification, extension or supplement to any
Lease, Management Agreement or Leasing Services Agreement. The power-of-attorney
granted hereby is a power coupled with an interest and is irrevocable. Agent
shall have no obligation to undertake any of the foregoing actions, and if Agent
should do so, it shall have no liability to the Borrower for the sufficiency or
adequacy of any such actions taken by Agent, except with respect to liability
arising from Lender's gross negligence or willful misconduct.
Notwithstanding the foregoing, it is expressly understood that
Agent assumes no liability or responsibility for (i) performance of any duties
of the Borrower hereunder or under any of the Loan Documents, (ii) compliance
with any applicable Legal Requirements, any Permitted Liens, any Lease, any
Management Agreement, any Operating Agreement or any Leasing Services Agreement,
or (iii) any other matters pertaining to control over the management and affairs
of the Borrower, nor by any such action shall Agent or Lenders be deemed to
create a partnership or joint venture with the Borrower.
(d) Upon the occurrence and during the continuance of any
Event of Default, in addition to any other rights or remedies of Agent hereunder
or under the other Loan Documents, Agent may exercise any rights and remedies
available to the Agent pursuant to the Subordination Agreements, including the
termination of any Management Agreement or any Leasing Services Agreement as
referred to therein and/or may require that the Borrower exercise any rights and
remedies available to the Borrower pursuant to any Management Agreement or any
Leasing Services Agreement, including the termination of such agreements to the
extent such termination is then permitted pursuant to the terms thereof. Upon a
foreclosure or deed in lieu of foreclosure with respect to all or any portion of
the Premises, Agent shall have the right to terminate any Management Agreement
or any Leasing Services Agreement or exercise any other rights and remedies
pursuant to and as and upon the terms described in any Management Agreement or
the Leasing Services Agreement and the Subordination Agreements.
(e) Any funds of Agent or Lenders used for any purpose
referred to in this Article 9 shall constitute a portion of the Obligations,
shall bear interest from the date advanced at the Initial Default Rate or the
Subsequent Default Rate, as applicable, shall be secured pursuant to the Loan
Documents by all collateral thereunder and shall be due and payable upon demand.
(f) If Borrower has failed to keep or perform any
covenant or obligation whatsoever contained in any Loan Document beyond the
expiration of any applicable notice and cure period, in addition to any other
rights or remedies of Agent hereunder or under the other Loan Documents, Agent
may, but shall not be obligated to any Person to, perform or attempt to perform
said covenant or obligation, and any payment made or expense incurred in the
performance or attempted performance of any such covenant or obligation shall be
a part of the Obligations, and Borrower shall pay to Agent, upon demand, all
sums so advanced or paid by Agent, together with interest at the Initial Default
Rate or the Subsequent Default Rate, as applicable, from the date when paid by
Agent. No such payment by Agent shall constitute a waiver of any Event of
Default. In addition to the Liens created pursuant to the Loan Documents, Agent
shall be subrogated to all rights, titles, liens, and security interests
securing the payment of
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any debt, claim, tax or assessment for the payment of which Agent may make an
advance or which Agent may pay.
9.3 Application of Proceeds of Collateral and Guaranty Agreements.
After the occur rence of an Event of Default and acceleration of the Obligations
as provided in this Article 9, the proceeds of the Collateral and collections
from each Guarantor shall be applied by the Agent to payment of the Obligations
in the following order, unless a court of competent jurisdiction shall otherwise
direct:
first, to payment of all costs and expenses of the Agent incurred in
connection with the preservation, collection and enforcement of the Obligations,
the Loan Documents, the Collateral, or otherwise, including, without limitation,
any amounts advanced by the Agent to protect or preserve the Collateral;
second, to payment of all reasonable costs and expenses of the Term
Loan A Lenders, incurred in connection with the preservation, collection and
enforcement of the Obligations, the Loan Documents or the Collateral;
third, pro rata to the payment in full of (i) principal and interest in
respect of the Term Loan A outstanding (pro rata as among the Term Loan A
Lenders in accordance with the amounts of the Term Loan A held by them; provided
that in connection with the payment of any principal in respect of the Term Loan
A, 86.23% of the amount of any such payment shall be allocated by the Agent to
the Term Loan Notes held by the Pre-Petition Swap Lender unless and until the
Pre- Petition Swap Claim has been paid in full) and (ii) all unpaid Hedging
Obligations of the Borrower under any Hedging Agreement relating to the Term
Loan A;
fourth, pro rata to the payment in full of all Obligations (other than
those referred to above) owed to the Term Loan A Lenders (pro rata as among the
Term Loan A Lenders in accordance to with the amounts of the Term Loan A held by
them);
fifth, to payment of all reasonable costs and expenses of the Term Loan
B Lenders, incurred in connection with the preservation, collection and
enforcement of the Obligations, the Loan Documents or the Collateral;
sixth, pro rata to the payment in full of (i) principal and interest in
respect of the Term Loan B outstanding (pro rata as among the Term Loan B
Lenders in accordance with the amounts of the Term Loan B held by them) and (ii)
all unpaid Hedging Obligations of the Borrower under any Hedging Agreement
relating to the Term Loan B;
seventh, pro rata to the payment in full of all Obligations (other than
those referred to above) owed to the Term Loan B Lenders (pro rata as among the
Term Loan B Lenders in accordance to with the amounts of the Term Loan B made by
them); and
eighth, the balance, if any, after all of the Obligations has been
satisfied, shall be paid by the Agent to the Borrower or paid over to such other
Person or Persons as may be required by law.
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ARTICLE 10
TERMINATION OF AGREEMENT
10.1 Termination Date. Unless sooner terminated as provided in
Section 9.2 or 10.2 hereof, this Agreement shall terminate (subject to Section
10.4) on the Termination Date.
10.2 Termination by the Borrower. At any time, the Borrower may
terminate this Agreement upon (i) the delivery to the Agent of an irrevocable
notice of its intention to terminate this Agreement and (ii) payment in full of
all the Obligations.
10.3 Termination by the Required Term Loan A Lenders. The Agent
may, and it shall at the request of the Required Term Loan A Lenders and after
the Term Loan A has been paid in full at the request of the Required Term Loan B
Lenders, terminate this Agreement immediately at any time during the continuance
of an Event of Default under Section 9.1.
10.4 Obligations. The termination of this Agreement shall not
affect any rights of the Borrower, the Agent or any Lender arising prior to the
effective date of such termination, and the provisions hereof shall continue to
be fully operative until all transactions entered into, rights created or
Obligations incurred prior to and after such termination have been fully
disposed of, concluded or liquidated. At the termination of this Agreement, all
Obligations then outstanding under this Agreement shall be due and payable
without notice or demand. The Security Interest granted to the Agent under the
Security Agreement and under the other Loan Documents shall continue in full
force and effect, notwithstanding the termination of this Agreement or the fact
that the Borrower's loan accounts may from time to time be temporarily in a
credit position, until all of the Obligations have been paid in full after the
termination hereof. All representations, warranties, covenants, waivers and
agreements contained herein shall survive the termination hereof until all
Obligations have been paid in full.
ARTICLE 11
MISCELLANEOUS
11.1 Cumulative Remedies; No Prior Recourse to Collateral. The
enumeration herein of the Agent's and the Lenders' rights and remedies is not
intended to be exclusive, and such rights and remedies are in addition to and
not by way of limitation of any other rights or remedies that the Agent or any
of the Lenders may have under the UCC or other applicable law. The Agent and the
Lenders shall have the right, in their sole discretion, and in the manner set
forth in this Agreement, to determine which rights and remedies are to be
exercised and in which order. The exercise of one right or remedy shall not
preclude the exercise of any others, all of which shall be cumulative. The Agent
and the Lenders may, without limitation, proceed directly against the Borrower
to collect the Obligations without any prior recourse to the Collateral.
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11.2 No Implied Waivers. No act, failure or delay by the Agent or
any Lender, or any course of dealing, shall constitute a waiver of any of its
rights and remedies. No single or partial waiver by the Agent or any Lender of
any provision of this Agreement or any other Loan Document, or a breach or
default hereunder or thereunder, or of any right or remedy which the Agent or
any Lender may have, shall operate as a waiver of any other provision, breach,
default, right or remedy or of the same provision, breach, default, right or
remedy on a future occasion. No waiver by the Agent or the Lenders shall affect
their rights to require strict performance of this Agreement or any other Loan
Document.
11.3 Severability. If any provision of this Agreement shall be
prohibited or invalid, under applicable law, it shall be ineffective only to
such extent, without invalidating the remainder of this Agreement.
11.4 Governing Law. THIS AGREEMENT, IN ACCORDANCE WITH SECTION
5-1401 OF THE GENERAL OBLIGATION LAW OF THE STATE OF NEW YORK, SHALL BE
CONSTRUED IN ACCORDANCE WITH AND GOVERNED BY THE LAWS OF THE STATE OF NEW YORK
WITHOUT REGARD TO ANY CONFLICTS OF LAWS PRINCIPLES THEREOF THAT WOULD CALL FOR
THE APPLICATION OF THE LAWS OF ANY OTHER JURISDICTION.
11.5 Consent to Jurisdiction and Venue; Service of Process. The
Borrower agrees that, in addition to any other courts that may have jurisdiction
under applicable laws, any action or proceeding to enforce or arising out of
this Agreement or any of the other Loan Documents may be commenced in the
Supreme Court of the State of New York for New York County, or in the United
States District Court for the Southern District of New York, and the Borrower
consents and submits in advance to such jurisdiction and agrees that venue will
be proper in such courts on any such matter. The Borrower hereby waives personal
service of process and agrees that a summons and complaint commencing an action
or proceeding in any such court shall be properly served and shall confer
personal jurisdiction if served by registered or certified mail to the Borrower.
The consent to forum set forth in this Section shall not be deemed to preclude
the enforcement of any judgment obtained in such forum, or the taking of any
action under this Agreement to enforce the same, in any appropriate
jurisdiction. The Borrower waives any objection it may now or hereafter have to
the laying of venue in the foregoing courts or that any such action has been
brought in an inconvenient forum.
11.6 Waiver of Jury Trial. TO THE EXTENT PERMITTED BY APPLICABLE
LAW, EACH OF THE PARTIES HERETO HEREBY WAIVES TRIAL BY JURY, RIGHTS OF SETOFF,
AND THE RIGHT TO IMPOSE COUNTERCLAIMS (OTHER THAN COMPULSORY COUNTERCLAIMS) IN
ANY LITIGATION IN ANY COURT WITH RESPECT TO, IN CONNECTION WITH, OR ARISING OUT
OF THIS AGREEMENT, THE OTHER LOAN DOCUMENTS, THE OBLIGATIONS OR THE COLLATERAL,
OR ANY INSTRUMENT OR DOCUMENT DELIVERED PURSUANT HERETO OR THERETO. EACH OF THE
PARTIES HERETO CONFIRMS THAT THE FOREGOING WAIVERS ARE INFORMED AND FREELY MADE.
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11.7 Survival of Representations and Warranties and
Indemnification. All of the Borrower's representations and warranties and
indemnifications contained in this Agreement shall survive the execution,
delivery and acceptance thereof by the parties, notwithstanding any
investigation by the Agent or any Lender or their respective agents.
11.8 Indemnification. The Borrower hereby agrees to indemnify,
defend and hold the Agent, each Lender, and their respective directors,
officers, agents, employees and counsel (each an "Indemnitee" and collectively,
the "Indemnitees"), harmless from and against any and all losses, claims,
damages, liabilities, deficiencies, judgments, penalties or expenses imposed on,
incurred by or asserted against any of them (except as a result of their gross
negligence or wilful misconduct or a claim against a Lender or the Agent by
another Lender or the Agent), whether direct, indirect or consequential, arising
out of or by reason of any litigation, investigation, claim, or proceeding
(whether based on any federal, state or local laws or other statutes or
regulations, including, without limitation, securities or commercial laws and
regulations, Environmental Laws, under common law or at equity, or on contract
or otherwise) commenced or threatened, which arise out of or are in any way
related to or based upon (i) the breach by the Borrower or its Subsidiaries of
any of the terms of the Loan Documents, (ii) any claim of injury or damage to
Persons or property, which injury or damage occurs after the Closing Date, or
any other claim or demand the underlying matter of which occurred after the
Closing Date which in any way relates to the Property, the Borrower, the
Investor Group, or the Loan, or (iii) any Hazardous Material on, in, under or
emanating from the Premises, or transported from the Premises or any act,
omission to act, event or transaction related or attendant thereto or any use by
the Borrower of the proceeds of the Term Loans (except for losses arising on
account of the Indemnitee's gross negligence or wilful misconduct or a claim
against a Lender or the Agent by another Lender or the Agent) (collectively,
"Indemnified Loss"). Indemnified Loss includes, without limitation, amounts paid
in settlement, court costs, and the reasonable fees and expenses of counsel
reasonably incurred in connection with any such litigation, investigation, claim
or proceeding. Without limiting the foregoing, if, by reason of any suit or
proceeding of any kind, nature, or description against the Borrower or any
Subsidiary, or by the Borrower or any Subsidiary or any other party against any
Indemnitee, which in the reasonable discretion of such Person makes it advisable
for such Person to seek counsel for protection and preservation of its Security
Interest, or to defend its own interest, such expenses and reasonable counsel
fees shall be allowed to such Person, to the extent that the underlying matter
gives rise to an indemnity under this Section 11.8; provided, however, that the
Borrower shall be required to pay the reasonable attorneys' fees and expenses of
one counsel for the Term Loan A Lenders and one counsel for the Term Loan B
Lenders, but subject to any limitations or requirements set forth elsewhere in
this Agreement. To the extent that the undertaking to indemnify, pay and hold
harmless set forth in this Section may be unenforceable, the Borrower shall
contribute the maximum portion which it is permitted to pay and satisfy under
applicable law to the payment and satisfaction of the Indemnified Loss. The
foregoing indemnity shall survive the payment of the Obligations and the
termination of this Agreement. The Borrower's obligations under this Section
shall be part of the Obligations and shall be secured by the Collateral. The
Borrower shall have the right to defend, with counsel reasonably acceptable to
the applicable Indemnitee, against any litigation, investigation, claim or
proceeding which could give rise to an Indemnified Loss, unless such litigation,
investigation, claim or proceeding shall have been commenced by or on behalf of
the Borrower. The Agent and each Lender agrees to give the Borrower written
notice of any such litigation, investigation, claim, or proceeding
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promptly after the Agent or such Lender becomes aware thereof, but the Agent's
or such Lender's failure to give such notice shall not relieve the Borrower of
its obligations under this Section unless it can be proved that the Borrower or
any of its Subsidiaries and Affiliates were actually prejudiced by such failure.
The Borrower, if it exercises such right, shall diligently pursue such defense
and shall give the applicable Indemnitee notice of the status of such defense
and any material developments. The Borrower will not enter into any settlement
of any litigation, investigation, claim or proceeding in which they are
conducting the defense without the prior written consent of the applicable
Indemnitee, which consent shall not be unreasonably withheld.
11.9 Other Security and Guaranties. The Agent may, on behalf of the
Lenders, without notice or demand and without affecting the Borrower's
obligations hereunder, from time to time: (a) take from any Person other than
the Borrower and/or Guarantor and hold collateral for the payment of all or any
part of the Obligations and exchange, enforce or release such collateral or any
part thereof; and (b) accept and hold any endorsement or guaranty of payment of
all or any part of the Obligations and release any such endorser or Guarantor,
or any Person who has given any Lien in any other collateral as security for the
payment of all or any part of the Obligations, or any other Person in any way
obligated to pay all or any part of the Obligations.
11.10 Fees and Expenses. The Borrower shall pay to the Agent, within
thirty (30) days after receipt of a written invoice with details of such costs,
expenses and advances, all reasonable out-of-pocket costs, expenses and advances
that the Agent or any one representative of the Term Loan A Lenders or any one
representative of the Term Loan B Lenders (provided, that at any time after an
Event of Default shall be continuing the Borrower shall be liable for costs and
expenses of each Lender), pays or incurs in connection with the administration
of this Agreement and the other Loan Documents, or that the Agent or any
representative of the Term Loan A Lenders or Term Loan B Lenders (provided, that
at any time after an Event of Default shall be continuing the Borrower shall be
liable for costs and expenses of each Lender) incurs in connection with
enforcement hereof and thereof or the collection of the Obligations, including,
without limitation: (a) reasonable attorneys' and paralegals' fees and
disbursements of counsel to the Term Loan A Lenders or Term Loan B Lenders other
than attorneys' and paralegals' fees and disbursements incurred in connection
with the negotiation, preparation or consummation of the Loan Documents; (b)
reasonable costs and expenses (including reasonable attorneys' and paralegals'
fees and disbursements) for any amendment, supplement, waiver, consent, or
subsequent closing in connection with the Loan Documents and the transactions
contemplated thereby; (c) all reasonable costs and expenses relating to any tax,
lien, UCC, and municipal, departmental, bankruptcy, judgment and title searches
requested by Agent; (d) taxes and reasonable fees and other charges paid by the
Agent or the representative of the Term Loan A Lenders or Term Loan B Lenders
(provided, that at any time after an Event of Default shall be continuing the
Borrower shall be liable for costs and expenses of each Lender) for filing
financing statements and continuation statements, and other actions to perfect,
protect, and continue the Security Interest; (e) sums paid or incurred to pay
any amount or take any action required of the Borrower after the Closing Date
under the Loan Documents that the Borrower fails to pay or take; (f) reasonable
costs of Appraisals (other than the FF&E Appraisal); (g) costs of inspections,
and verifications of the Collateral, including, without limitation, travel,
lodging, and meals for inspections of the Collateral and the Borrower's
operations by the Agent's employees or representatives; (h) costs and expenses
of forwarding loan proceeds, collecting checks and other items of payment, and
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establishing and maintaining Accounts; (i) reasonable costs and expenses of
preserving and protecting the Collateral; (j) reasonable costs and expenses
payable by or chargeable to the Borrower under any Loan Document; (k) reasonable
costs and expenses (including reasonable attorneys' and paralegals' fees and
disbursements) paid or incurred to obtain payment of the Obligations, enforce
the Security Interest, sell or otherwise realize upon the Collateral, and
otherwise enforce the provisions of the Loan Documents, or to defend any claims
made or threatened against the Agent or any Lender arising out of the
transactions contemplated hereby (including, without limitation, preparations
for and consultations concerning any such matters); (l) all title insurance and
title examination charges, including premiums for the Title Insurance Policy to
the extent not paid by Aladdin; (m) all survey costs and expenses, including the
cost of the Survey to the extent not paid by Aladdin; (n) all premiums for the
Insurance Policies, (o) from and after the occurrence of an Event or Event of
Default or as may otherwise be required under Section 7.7 of this Agreement, all
costs and expenses of any engineering or environmental audits or insurance
reviews reasonably required by the Agent, (p) in the event the Premises, or any
portion thereof, shall be advertised for foreclosure sale and not sold, all
costs in connection therewith, including reasonable attorneys' fees and
disbursements, advertising costs and trustees' commission, (q) other costs and
expenses incurred in connection with syndication of the Loan by any Lender, and
(r) all other costs and expenses payable to third parties which are incurred by
Agent or the representative of the Term Loan A Lenders or the Term Loan B
Lenders in connection with the Loan, if incurred after the Closing Date. Any of
the foregoing costs, expenses and advances shall be charged to the Borrower's
loan account pursuant to Section 2.7: when paid or incurred, if any Event of
Default has occurred and is continuing; or, otherwise, thirty (30) days after
the Agent's demand on the Borrower for payment thereof, together with an invoice
with details of such costs, expenses and advances to the extent not paid by the
Borrower within such 30-day period. The Borrower shall pay from its equity all
of its costs, expenses and advances in connection with the negotiation,
preparation and consummation of this Agreement and the transactions contemplated
hereunder.
11.11 Notices. All notices, demands, requests and other
communication that a party is required or elects to give to any other party
shall be in writing, shall be delivered (a) personally against receipt, or sent
by recognized overnight courier service, or mailed by registered or certified
mail, return receipt requested, postage prepaid, or (b) by facsimile, telecopier
or other telecommunications method, in each case with receipt confirmed and with
a copy delivered also under (a) above, and shall be addressed to the party to be
notified as follows:
If to the Agent: BNY Asset Solutions LLC
▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Fax No.: ▇▇▇.▇▇▇.▇▇▇▇
with a copy to Risk Management at the
above address
with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, 3 First
National Plaza,
113
Suite 4100, ▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇▇▇▇▇, ▇▇▇. 60602- 4231311, Attention:
▇▇▇▇▇▇▇ ▇▇▇▇▇, Esq., and to ▇▇▇▇ ▇▇▇▇▇▇▇
LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇,
▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇, Esq.
If to the Borrower: OpBiz, L.L.C.
[_____________________]
Attention: [______________]
Fax No.: [________________]
with a copy to:
▇▇▇▇▇ Day
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, Esq.
Fax No.: ▇▇▇-▇▇▇-▇▇▇▇
If to a Lender: at its address set forth below its name on
Annex A hereto with a copy to ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇, 70 West Madison Street, Chicago, Ill. 60602-4231311, Attention: ▇▇▇▇▇▇▇
▇▇▇▇▇, Esq., and to ▇▇▇▇ ▇▇▇▇▇▇▇ LLP, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇, ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, Esq.
or to such other address as each party may designate for itself by like notice.
Any such notice, demand, request or other communication shall be deemed given
(i) when received, if personally delivered or sent by overnight courier, (ii)
four days after being sent when deposited in the United States mails, postage
paid, if sent by registered or certified mail, or (iii) when receipt is
acknowledged or is confirmed when delivered by facsimile, telecopier or other
communications method.
11.12 Waiver of Notices. Unless otherwise expressly provided herein,
the Borrower waives presentment, protest and notice of demand or dishonor and
protest as to any instrument, as well as any and all other notices to which it
might otherwise be entitled. No notice to or demand on the Borrower which the
Agent or any Lender may elect to give shall entitle the Borrower to any or
further notice or demand in the same, similar or other circumstances.
11.13 Binding Effect; Assignment; Confidentiality. (a) The
provisions of this Agreement shall be binding upon and inure to the benefit of
the parties hereto and their respective successors and assigns; provided,
however, that no right or obligation of the Borrower may be assigned or
otherwise transferred without the prior written consent of the Required Lenders,
and any purported assignment or transfer without such consent shall be void.
(b) A Lender may assign and delegate to any one or more
banks or other entities with the prior written consent of the Borrower which
consent shall not be unreasonably
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withheld or delayed (but no such consent shall be required for assignments after
the occurrence of an Event of Default or with respect to Eligible Assignees) and
with the written consent of the Agent, all or a portion of its outstanding Term
Loans A and Term Loans B and interests, rights and obligations under this
Agreement and the other Loan Documents. Each such assignment pursuant to the
immediately preceding sentence shall (i) be an assignment of a constant and not
a varying, ratable percentage of such Lender's interest in the Loan, (ii) be in
an aggregate principal amount of at least One Million Dollars ($1,000,000) and
(iii) only be permitted if the assigning Lender's unassigned interest in the
Loan shall be in a principal amount of at least One Million Dollars ($1,000,000)
after giving effect to such transaction unless such transaction encompasses all
of such Lender's rights in and to the Loan in which case such Lender shall have
assigned all of its rights in and to the Loan.
If any Lender so sells or assigns all or a part of its rights hereunder
or under the Term Loan Notes, any reference in this Agreement, the Term Loan
Notes or the other Loan Documents to such assigning Lender shall thereafter
refer to such Lender and to the respective assignee to the extent of their
respective interests, and the respective assignee shall have, to the extent of
such assignment (unless otherwise provided therein), the same rights and
benefits as it would if it were such assigning Lender. Each assignment pursuant
to this Section 11.13 shall be effected by the execution and delivery of an
assignment agreement substantially in the form of Exhibit I hereto (an
"Assignment Agreement"). In the event of any such assignment either the
assigning or the assignee Lender shall pay to the Agent a nonrefundable
assignment fee of $500 and, and at the time of any assignment pursuant to this
Section 11.13, (1) the signature pages hereof shall be deemed to be amended to
reflect the Commitment or Commitments of the respective assignee (which shall
result in a direct reduction to the respective Commitment or Commitments of the
assigning Lender) and of the other Lenders, and (2) such assignee shall become a
party to the Loan Documents as a Lender and such assignee shall have, to the
extent of such assignment, the rights, benefits and obligations of a Lender
under the Loan Documents. Each Lender and the Borrower agree to execute such
documents (including without limitation amendments to this Agreement and the
other Loan Documents) as shall be necessary to effect the foregoing. Nothing in
this Section 11.13(b) shall prevent or prohibit any Lender from pledging its
Term Loan Notes or Loans to a Federal Reserve Bank in support of borrowings made
by such Lender from such Federal Reserve Bank.
(c) Any Lender may at any time sell to one or more
financial institutions or other entities (a "Participating Lender")
participating interests in the Loans, the Term Loan Notes held by such Lender,
the Commitment of such Lender or any other interest of such Lender hereunder,
provided, however, that (i) such Lender's obligations under the Loan Documents
shall remain unchanged, (ii) such Lender shall remain solely responsible for the
performance of such obligations, (iii) the Participating Lender shall not have
any rights under the Loan Documents (the Participating Lender's rights against
such Lender in respect of such participation to be those set forth in the
agreement executed by such Lender in favor of the Participating Lender relating
thereto) and all amounts payable by the Borrower hereunder shall be determined
as if such Lender had not sold such participation, except that the participant
shall be entitled to the benefits of Sections 3.6 (Taxes) and 3.10 (Indemnity)
of this Agreement to the extent that the granting Lender would have been
entitled to such benefits if the participation had not been entered into or sold
(and accordingly, no Participating Lender shall be entitled to receive any
greater amount pursuant
115
to such Sections than the granting Lender would have been entitled to receive in
respect of the amount of the participation granted by such granting Lender to
such Participating Lender had no such participation been granted), (iv) the
Borrower and the Agent shall continue to deal solely and directly with such
granting Lender in connection with such Lender's rights and obligations under
the Loan Documents, and (v) no Lender shall transfer or grant any participating
interest under which the Participating Lender shall have rights to approve any
amendment to, or any consent or waiver with respect to, the Loan Documents
except to the extent such amendment, consent or waiver would require unanimous
consent as described in Section 11.14. In the case of any participation under
this Section 11.13(c), the Participating Lender shall not have any rights under
the Loan Documents, and all amounts payable by the Borrower hereunder shall be
determined as if such Lender had not sold such participation, except that the
Borrower agrees that if amounts outstanding under this Agreement are due and
unpaid, or shall have been declared or shall have become due and payable upon
the occurrence of any Event of Default, each Participating Lender shall be
deemed to have the right of set-off in respect of its participating interest in
amounts owing under this Agreement to the same extent as if the amount of its
participating interest were owing directly to it as a Lender under this
Agreement.
(d) Each Lender and the Agent agree to take normal and
reasonable precautions and exercise due care to maintain the confidentiality of
all non-public information provided to them by the Borrower, any Subsidiary of
the Borrower, any member of the Investor Group or any of their respective
Subsidiaries or Affiliates, or by the Agent on the Borrower's or Subsidiary's
behalf in connection with this Agreement or any Loan Document and agrees and
undertakes that neither they nor any of their Affiliates shall use any such
information for any purpose or in any manner other than pursuant to the terms
contemplated by this Agreement. Any Lender or the Agent may disclose such
information: (i) at the request of any bank regulatory authority or in
connection with an examination of such Lender by any such authority; (ii)
pursuant to subpoena or other court process; (iii) when required to do so in
accordance with the provisions of any applicable law; (iv) at the express
direction of any other agency of any State of the United States of America or of
any other jurisdiction in which such Lender conducts its business; and (v) to
such Lender's independent auditors and other professional advisors.
Notwithstanding the foregoing, the Borrower authorizes each Lender to disclose
to any permitted assignee or Participating Lender and any prospective permitted
assignee or Participating Lender such financial and other information in such
Lender's possession concerning the Borrower and its Subsidiaries which has been
delivered to the Lender pursuant to this Agreement or which has been delivered
to a Lender by the Borrower or the Agent in connection with the Lender's credit
evaluation of the Borrower prior to entering into this Agreement, provided that
such assignee or Participating Lender agrees in writing to such Lender and the
Borrower to keep such information confidential to the same extent required of
the Lenders hereunder. Notwithstanding anything to the contrary described
herein, from the commencement of discussions with respect to this Agreement and
the other Loan Documents, the parties hereto and each of their respective
employees, representatives or other agents, are, and hereby confirm that they
have been, permitted to disclose to any and all Persons, without limitations of
any kind, the tax treatment and tax structure of the transactions occurring
pursuant to this Agreement and all materials of any kind (including opinions or
other tax analyses) that are or have been provided to such parties related to
such tax treatment and tax structure.
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11.14 Modification. (a) This Agreement and the Loan Documents are
intended by the Borrower, the Agent and the Lenders to be the final, complete,
and exclusive expression of the agreement between them. This Agreement
supersedes any and all prior oral or written agreements relating to the subject
matter hereof. Except as expressly set forth elsewhere in this Agreement, no
amendment or waiver of any provision of this Agreement or any Loan Document, and
no consent with respect to any departure by the Borrower therefrom, shall in any
event be effective unless the same shall be in writing and signed by the
Borrower and the Required Lenders, and then such waiver shall be effective only
in the specific instance and for the specific purpose for which given.
Notwithstanding any provision of this Section to the contrary, no waiver,
amendment, or consent shall, unless in writing and signed by each Lender
affected thereby, increase the Commitment of any Lender or subject any Lender to
any additional obligations (except pursuant to an assignment by one Lender to
another Lender in accordance with the terms and provisions of this Agreement).
(b) In addition, notwithstanding any provision of this
Section to the contrary, no waiver, amendment, or consent shall, unless in
writing and signed by each Term Loan A Lender affected thereby, do any of the
following:
(i) reduce the principal of, or the rate of
interest on, any Term Loan A or of any fees or other amounts payable
hereunder or under any Loan Document to any Term Loan A Lender;
(ii) change the percentage of the Term Loan A
Commitments or of the aggregate unpaid principal amount of the Term
Loan A which shall be required for the Term Loan A Lenders to take any
action hereunder;
(iii) amend this Section 11.14, or the definitions
of Required Lenders and Required Term Loan A Lenders; and
(iv) release any material portion of the
Collateral except as otherwise provided herein or in any other Loan
Documents;
(c) In addition, notwithstanding any provision of this
Section to the contrary, no waiver, amendment, or consent shall, unless in
writing and signed by each Term Loan B Lender affected thereby, do any of the
following:
(i) reduce the principal of, or the rate of
interest on, any Term Loan B or of any fees or other amounts payable
hereunder or under any Loan Document to any Term Loan B Lender;
(ii) change the percentage of the Term Loan B
Commitments or of the aggregate unpaid principal amount of the Term
Loan B which shall be required for the Term Loan B Lenders to take any
action hereunder;
(iii) amend this Section 11.14, or the definitions
of Required Lenders and Required Term Loan B Lenders; and
117
(iv) release any material portion of the
Collateral except as otherwise provided herein or in any other Loan
Documents;
and provided, further, that no amendment, waiver or consent shall, unless in
writing and signed by the Agent in addition to the Required Term Loan A Lenders
and Required Term Loan B Lenders, as the case may be, affect the rights or
duties of the Agent under this Agreement or any Loan Document. The parties
hereto agree that any provisions in this Agreement relating to the Time Share
Premises (including, without limitation, the Disposition or development thereof
and any joint venture or other agreement with respect thereto) that requires
consent or approval of the Lenders shall only require the consent or approval of
the Required Term Loan A Lenders (other than the FF&E Lender until such time as
the Initial Time Share Premises Payment is paid and thereafter the consent or
approval of all of the Required Term Loan A Lenders shall be required).
11.15 Counterparts. This Agreement may be executed in any number of
counterparts, and by the Agent, each Lender and the Borrower in separate
counterparts, each of which shall be an original, but all of which shall
together constitute one and the same agreement. Execution of the signature page
or pages of any Loan Document by the Lenders, the Agent or any Loan Party and
the delivery of such page or pages to the Agent or its counsel by facsimile
shall be fully effective as if any such party had executed and delivered an
original counterpart of such Loan Document.
11.16 Captions. The captions contained in this Agreement are for
convenience only, are without substantive meaning and should not be construed to
modify, enlarge, or restrict any provision.
11.17 Right of Set-Off; Security Interest in Deposit Accounts.
Without limitation of any other or additional rights granted by applicable law,
whenever an Event of Default has occurred and is continuing, each Lender is
hereby authorized at any time and from time to time, 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 or any
Affiliate of such Lender to or for the credit or the account of the Borrower or
any Guarantor (whether or not such deposits or other indebtedness are then due
and payable) against any and all of the Obligations (including interests in
obligations purchased by a Lender under Section 4.6), whether or not then due
and payable or contingent or unmatured. Each Lender agrees promptly to notify
the Borrower after any such set-off and application made by such Lender,
provided that the failure to give such notice shall not affect the validity of
such set-off and application. The Borrower and each Guarantor hereby further
grants the Agent and each Lender a security interest in all deposits and
accounts maintained with the Agent or such Lender as security for the
Obligations.
11.18 Limitation of Liability. (a) Notwithstanding anything to the
contrary contained in this Agreement, in the Term Loan Notes, the Mortgage or in
the other Loan Documents, no recourse shall be had for the payment of the
principal, interest or other amounts owed hereunder or under the Term Loan Notes
or the other Loan Documents, or for any claim based on this Agreement, the Term
Loan Notes or any other Loan Document, against any Member or any of its assets
(other than from the interest of such Member in the Borrower), or against any
principal,
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partner, member, shareholder, officer, director, agent or employee of the
Borrower or of any such Member (other than from the indirect interest of any
such Person in the Borrower), it being expressly understood that the sole
remedies of Agent and Lenders with respect to such amounts and claims shall be
against the assets of the Borrower, including the Mortgaged Property and other
Collateral; provided, however, that nothing contained in this Agreement
(including the provisions of this Section 11.18), the Term Loan Notes or the
other Loan Documents shall constitute a waiver of any of the Borrower's other
obligations herein, under the Term Loan Notes, the Environmental Indemnity or
any other Loan Documents.
11.19 Time Within Which to Consent to Certain Actions. Whenever this
Agreement requires the Required Lenders to consent to an action or proposed
action to be taken by the Borrower relating solely to a Material Operating
Agreement, unless this Agreement expressly provides otherwise, such consent (i)
shall not be unreasonably withheld or delayed and (ii) shall be deemed to have
been given by the Required Lenders if the Required Lenders have not responded to
the request for consent within 30 days of receipt thereof.
ARTICLE 12
THE AGENT
In order to accomplish the transactions contemplated by this Agreement,
BNY Asset Solutions LLC is hereby appointed to act as Agent on behalf of the
Lenders. Each of the Lenders and each subsequent holder of any Term Loan Note by
its acceptance thereof, irrevocably authorizes the Agent to take such action on
its behalf and to exercise such powers hereunder and under the Security
Documents and other Loan Documents as are specifically delegated to or required
of the Agent by the terms hereof and the terms thereof together with such powers
as are reasonably incidental thereto. Neither the Agent nor any of its
directors, officers, members, managers, employees or agents shall be liable as
such for any action taken or omitted to be taken by it or them hereunder or
under any of the Security Documents and other Loan Documents or in connection
herewith or therewith (a) at the request or with the approval of the Required
Term Loan A Lenders (or in the event that the Term Loan A is paid in full, the
Required Term Loan B Lenders) or the Required Lenders, as the context requires
(or, if otherwise specifically required hereunder or thereunder, the consent of
all the Lenders, or all of the Term Loan A Lenders or all of the Term Loan B
Lenders) or (b) in the absence of its or their own gross negligence or willful
misconduct. The Agent shall not have or be deemed to have any fiduciary duty to
any Lender.
The Agent is hereby expressly authorized on behalf of the Lenders,
without hereby limiting any implied authority, (a) to receive on behalf of each
of the Lenders any payment of principal of or interest on the Term Loan Notes
outstanding hereunder and all other amounts accrued hereunder paid to the Agent,
and promptly to distribute to each Lender its proper share of all payments and
insurance proceeds so received, (b) to distribute to each Lender copies of all
notices, agreements and other material as provided for in this Agreement or in
the Security Documents and other Loan Documents as received by such Agent and
(c) to take all actions with respect to this Agreement and the Security
Documents and other Loan Documents as are specifically delegated to the Agent.
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With respect to the release of Collateral, the Lenders hereby
irrevocably authorize the Agent, at its option and in its discretion, to release
any Lien granted to or held by the Agent upon any property covered by this
Agreement or the other Loan Documents (i) upon termination or expiration of the
Commitments, the payment and satisfaction of all obligations arising with
respect to the Term Loans, all fees and expenses, or (ii) constituting property
being sold or disposed of in compliance with the provisions of the Loan
Documents (and the Agent may rely in good faith conclusively on any certificate
stating that the property is being sold or disposed of in compliance with the
provisions of the Loan Documents, without further inquiry); provided, however,
that (x) the Agent shall not be required to execute any release on terms which,
in the Agent's opinion, would expose the Agent to liability or create any
obligation or entail any consequence other than the release of such Liens
without recourse or warranty, and (y) such release shall not in any manner
discharge, affect or impair any Liens upon all interests retained, all of which
shall continue to constitute part of the property covered by the Loan Documents.
In the event that (a) the Borrower fails to pay when due the principal
of or interest on any Term Loan Note or any fee payable hereunder or (b) the
Agent receives written notice of or otherwise becomes aware of the occurrence of
a Default or an Event of Default, the Agent shall promptly give written notice
thereof to the Lenders, and shall take such action with respect to such Event of
Default or other condition or event as it shall be directed to take by the
Required Term Loan A Lenders (but shall not be required to take any such actions
which violate any law or any term of this Agreement or any other Loan Document);
provided, however, that, unless and until the Agent shall have received such
directions, the Agent may take such action or refrain from taking such action
hereunder or under the Security Documents or other Loan Documents with respect
to a Event or Event of Default as it shall deem advisable in the best interests
of the Lenders.
The Agent shall not be responsible in any manner to any of the Lenders
for the effectiveness, enforceability, perfection, value, genuineness, validity
or due execution of this Agreement, the Term Loan Notes or any of the other Loan
Documents or Collateral or any other agreements or certificates, requests,
financial statements, notices or opinions of counsel or for any recitals,
statements, warranties or representations contained herein or in any such
instrument or be under any obligation to ascertain or inquire as to the
performance or observance of any of the terms, provisions, covenants,
conditions, agreements or obligations of this Agreement or any of the other Loan
Documents or any other agreements on the part of the Borrower and, without
limiting the generality of the foregoing, the Agent shall, in the absence of
Knowledge to the contrary, be entitled to accept any certificate furnished
pursuant to this Agreement or any of the other Loan Documents as conclusive
evidence of the facts stated therein and shall be entitled to rely on any note,
notice, consent, certificate, affidavit, letter, telegram, teletype message,
statement, order or other document which it believes in good faith to be genuine
and correct and to have been signed or sent by the proper Person or Persons. It
is understood and agreed that the Agent may exercise its rights and powers under
other agreements and instruments to which it is or may be a party, and engage in
other transactions with the Borrower, as though it were not Agent of the Lenders
hereunder.
Neither the Agent nor any of its directors, officers, members,
managers, employees or agents shall have any responsibility to the Borrower on
account of the failure or delay in
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performance or breach by any Lender of any of its obligations hereunder or to
any Lender on account of the failure of or delay in performance or breach by any
other Lender or the Borrower of any of its obligations hereunder or in
connection herewith.
The Agent may consult with legal counsel selected by it in connection
with matters arising under this Agreement or any of the other Loan Documents and
any action taken or suffered in good faith by it in accordance with the opinion
of such counsel shall be full justification and protection to it. The Agent may
exercise any of its powers and rights and perform any duty under this Agreement
or any of the other Loan Documents through agents or attorneys.
The Agent and the Borrower may deem and treat the payee of any Term
Loan Note as the holder thereof until written notice of transfer shall have been
delivered as provided herein by such payee to the Agent and the Borrower.
The Agent and/or its Affiliates may accept deposits from, lend money to
and generally engage in any kind of business with the Borrower, or other
affiliate thereof as if it were not the Agent.
Each Lender agrees (i) to reimburse the Agent in the amount of such
Lender's pro rata share (based on its Commitment hereunder) of any expenses
incurred for the benefit of the Lenders by the Agent, including counsel fees and
compensation of agents paid for services rendered on behalf of the Lenders, not
reimbursed by the Borrower and (ii) to indemnify and hold harmless the Agent and
any of its directors, officers, members, managers, employees or agents, on
demand, in the amount of its pro rata share, from and against any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever which may be
imposed on, incurred by or asserted against it or such directors, officers,
members, managers, employees or agents in its or their capacity as, or acting on
behalf of, the Agent in any way relating to or arising out of this Agreement or
any of the other Loan Documents or any action taken or omitted by it or any of
them under this Agreement or any of the other Loan Documents, to the extent not
reimbursed by the Borrower; provided, however, that no Lender shall be liable to
the Agent for any portion of such liabilities, obligations, losses, damages,
penalties, actions, judgment, suits, costs, expenses or disbursements resulting
from the gross negligence or willful misconduct of the Agent or any of its
directors, officers, employees or agents.
Each Lender acknowledges that it has, independently and without
reliance upon the Agent, or any Lender and based on such documents and
information as it has deemed appropriate, made its own credit analysis and
decision to enter into this Agreement and any other Loan Document to which such
Lender is party. Each Lender also acknowledges that it will, independently and
without reliance upon the Agent, or any Lender and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
decisions in taking or not taking action under or based upon this Agreement, any
other Loan Document, any related agreement or any document furnished hereunder.
Subject to the appointment and acceptance of a successor Agent as
provided below, the Agent may resign at any time by notifying the Lenders and
the Borrower. Upon any such
121
resignation, the Lenders shall have the right to appoint a successor Agent. If
no successor Agent shall have been so appointed by such Lenders and shall have
accepted such appointment within 30 days after the retiring Agent gives notice
of its resignation, then the retiring Agent may, on behalf of the Lenders, and
with the consent of the Borrower, which shall not be unreasonably withheld or
delayed, appoint a successor Agent which shall be a bank or other financial
institution with an office (or an Affiliate with an office) in New York, New
York, having a combined capital and surplus of at least $500,000,000. Upon the
acceptance of any appointment as Agent hereunder by a successor bank, such
successor shall thereupon succeed to and become vested with all the rights,
powers, privileges and duties of the retiring Agent and the retiring Agent shall
be discharged from its duties and obligations hereunder and under each of the
other Loan Documents. After any Agent's resignation hereunder, the provisions of
this Article shall continue in effect for its benefit in respect of any actions
taken or omitted to be taken by it while it was acting as Agent.
The Lenders hereby acknowledge that the Agent shall be under no duty to
take any discretionary action permitted to be taken by the Agent pursuant to the
provisions of this Agreement or any of the other Loan Documents unless it shall
be requested in writing to do so by the Required Term Loan A Lenders or Required
Lenders, as the context so requires (and the Agent shall not be obligated to
take any such requested action which violates applicable law or any terms of
this Agreement or any other Loan Document).
ARTICLE 13
GUARANTEES
Each Guarantor party hereto unconditionally guarantees, as a primary
obligor and not merely as a surety, jointly and severally with each other
Guarantor party hereto, the due and punctual payment of the principal of and
interest on the Term Loans and of all other Obligations, when and as due,
whether at maturity, by acceleration, by notice or prepayment or otherwise. Each
Guarantor party hereto further agrees that the Obligations may be extended and
renewed, in whole or in part, without notice to or further assent from it, and
that it will remain bound upon its guarantee notwithstanding any extension or
renewal of any Obligations.
To the fullest extent permitted by law, each Guarantor party hereto
waives presentment to, demand of payment from and protest to the Borrower or any
other Person of any of the Obligations, and also waives notice of acceptance of
its guarantee and notice of protest for nonpayment. To the fullest extent
permitted by law, the obligations of a Guarantor party hereto hereunder shall
not be affected by (a) the failure of the Agent or any Lender to assert any
claim or demand or to enforce any right or remedy against the Borrower or any
other Guarantor under the provisions of this Agreement or any of the other Loan
Documents or otherwise; (b) any rescission, waiver, amendment or modification of
any of the terms or provisions of this Agreement, any of the other Loan
Documents, any guarantee or any other agreement; (c) the release of any security
held by the Agent or any Lender for the Obligations or any of them; or (d) the
failure of the Agent or any Lender to exercise any right or remedy against any
other Guarantor of the Obligations.
Each Guarantor party hereto further agrees that its guarantee
constitutes a guarantee of payment when due and not of collection, and waives
any right to require that any resort be had by
122
the Agent or any Lender to any security (if any) held for payment of the
Obligations or to any balance of any deposit account or credit on the books of
the Agent or any Lender in favor of the Borrower or any other Person.
To the fullest extent permitted by law, the obligations of each
Guarantor party hereto hereunder shall not be subject to any reduction,
limitation, impairment or termination for any reason, including, without
limitation, any claim of waiver, release, surrender, alteration or compromise,
and shall not be subject to any defense or setoff, counterclaim, recoupment or
termination whatsoever by reason of the invalidity, illegality or
unenforceability of any of the Obligations or otherwise. Without limiting the
generality of the foregoing, to the fullest extent permitted by law, the
obligations of each Guarantor party hereto hereunder shall not be discharged or
impaired or otherwise affected by the failure of the Agent or any Lender to
assert any claim or demand or to enforce any remedy under this Agreement or
under any other Loan Document, any guarantee or any other agreement, by any
waiver or modification of any provision thereof, by any default, failure or
delay, willful or otherwise, in the performance of any of the Obligations, or by
any other act or omission which may or might in any manner or to any extent vary
the risk of such Guarantor or otherwise operate as a discharge of such Guarantor
as a matter of law or equity.
Each Guarantor party hereto further agrees that its guarantee shall
remain in full force and effect until the indefeasible payment and satisfaction
in full of the Obligations and the termination of the Commitments and shall
continue to be effective or be reinstated, as the case may be, if at any time
payment, or any part thereof, of principal or of interest on any Obligation or
of any other Obligation is rescinded or must otherwise be returned by the Agent
or any Lender upon the bankruptcy or reorganization of the Borrower, Guarantor
or otherwise.
Until the Obligations are indefeasibly paid in full in cash, each
Guarantor party hereto hereby waives and releases all rights of subrogation
against each Loan Party and its property and all rights of indemnification,
contribution and reimbursement from each Loan Party and its property, in each
case in connection with this guarantee and any payments made hereunder, and
regardless of whether such rights arise by operation of law, pursuant to
contract or otherwise.
123
IN WITNESS WHEREOF, the parties hereto have caused this Loan
Agreement to be executed and delivered by their duly authorized officers as of
the date first above written.
BORROWER:
OPBIZ, L.L.C.
By: ________________________________
Title:
GUARANTORS:
[_________________________]
By: ________________________________
Title:
ADMINISTRATIVE AND COLLATERAL
AGENT:
BNY ASSET SOLUTIONS LLC
By: ________________________________
Title:
TERM LOAN A LENDERS:
AG CAPITAL FUNDING PARTNERS LP
By: _______________________________
Name:
Title:
AIMCO CDO SERIES 2000-A
By: ________________________________
Name:
Title:
ALLSTATE LIFE INSURANCE
COMPANY
By: _________________________________
Name:
Title:
BDCM OPPORTUNITY FUND, LP
By: _________________________________
Name:
Title:
BEAR, ▇▇▇▇▇▇▇ & CO. INC.
By: _________________________________
Name:
Title:
BFC CAPITAL INC
By: _________________________________
Name:
Title:
BLUE SQUARE FUNDING LIMITED
SERIES 3
By: Deutsche Bank Trust Co. Americas
(f/k/a Bankers Trust Co.)
By: _________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇ COMMERCIAL BANK
By: _________________________________
Name:
Title:
DEBT STRATEGIES FUND II
By: _________________________________
Name:
Title:
ELF FUNDING TRUST I
By: _________________________________
Name:
Title:
EVENT PARTNERS DEBT ACQUISITION,
LLC
By: _________________________________
Name:
Title:
FOOTHILL PARTNERS IV, L.P.
By: _________________________________
Name:
Title:
GLENEAGLES TRADING LLC
By: _________________________________
Name:
Title:
HIGHLAND LEGACY LIMITED
By: _________________________________
Name:
Title:
INTERNATIONAL COMMERCIAL BANK
OF CHINA
By: _________________________________
Name:
Title:
▇▇▇▇▇▇▇ NATIONAL LIFE INSURANCE
COMPANY
By: _________________________________
Name:
Title:
LIBERTY-▇▇▇▇▇ ▇▇▇ ADVISOR
FLOATING RATE ADVANTAGE FUND
By: ▇▇▇▇▇ ▇▇▇ & ▇▇▇▇▇▇▇ Incorporated, as
Advisor
By: _____________________________
Name:
Title:
ML CLO PILGRIM XV PILGRIM
AMERICA (CAYMAN) LTD.
By: _________________________________
Name:
Title:
ML CLO XX PILGRIM AMERICA
(CAYMAN) LTD.
By: _________________________________
Name:
Title:
OCM REAL ESTATE OPPORTUNITIES
FUND III, L.P.
By: OCM Real Estate Opportunities Fund III
GP, LLC, its general partner
By: Oaktree Capital Management, LLC, its
manager
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
OCM REAL ESTATE OPPORTUNITIES
FUND II, L.P.
By: Oaktree Capital Management, LLC, its
general partner
By: _________________________________
Name:
Title:
By: _________________________________
Name:
Title:
PACIFICA PARTNERS I, LP
By: _________________________________
Name:
Title:
▇▇▇ CAPITAL FUNDING LP
By: _________________________________
Name:
Title:
PILGRIM PRIME RATE TRUST
By: ING Pilgrim Investments LLC, as its
investment manager
By: _________________________________
Name:
Title:
SILVER OAK CAPITAL, LLC
By: _________________________________
Name:
Title:
SRV-HIGHLAND, INC.
By: _________________________________
Name:
Title:
▇▇▇▇▇ ▇▇▇ FLOATING RATE LIMITED
LIABILITY COMPANY
By: _________________________________
Name:
Title:
THE BANK OF NOVA SCOTIA
By: _________________________________
Name:
Title:
THE ING CAPITAL SENIOR SECURED
HIGH INCOME HOLDINGS FUND
By: _________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ CLO I LIMITED
By: _________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ CLO II, LTD.
By: _________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ PRIME RATE INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory
Corp.
By: _________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ SENIOR FLOATING RATE FUND
By: _________________________________
Name:
Title:
▇▇▇ ▇▇▇▇▇▇ SENIOR INCOME TRUST
By: ▇▇▇ ▇▇▇▇▇▇ Investment Advisory
Corp.
By: _________________________________
Name:
Title:
GENERAL ELECTRIC CAPITAL CORPORATION
By: _________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE CORPORATION
By: _________________________________
Name:
Title:
TERM LOAN B LENDER:
GENERAL ELECTRIC CAPITAL CORPORATION
By:
_____________________________________
Name:
Title:
GMAC COMMERCIAL MORTGAGE CORPORATION
By:
_____________________________________
Name:
Title:
OCM REAL ESTATE OPPORTUNITIES FUND
II, L.P.
By: By: Oaktree Capital Management,
LLC, its manager
By:
_____________________________________
Name:
Title:
_____________________________________
Name:
Title: