EXHIBIT 10.1
U.S. $500,000,000
AMENDED AND RESTATED
SENIOR UNSECURED CREDIT AGREEMENT
Dated as of February 13, 1998
Among
AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP, L.P.
as the Borrower,
---------------
SOCIETE GENERALE, SOUTHWEST AGENCY
as Arranger, Syndication Agent, and Documentation Agent,
-------------------------------------------------------
BANK ONE, TEXAS, N.A.
as Administrative Agent,
-----------------------
and
THE BANK OF NOVA SCOTIA and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION
as Managing-Agents
------------------
and
THE BANKS NAMED HEREIN
as the Banks
------------
TABLE OF CONTENTS
-----------------
Page
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms....................................... 2
Section 1.02 Computation of Time Periods.................................38
Section 1.03 Accounting Terms; Changes in GAAP...........................38
Section 1.04 Types of Advances...........................................38
Section 1.05 Miscellaneous...............................................38
Section 1.06 Recitals....................................................38
Section 1.07 Amendment and Restatement...................................39
ARTICLE II
THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01 The Advances................................................39
Section 2.02 Method of Borrowing.........................................40
Section 2.03 Fees........................................................44
Section 2.04 Reduction of the Commitments................................44
Section 2.05 Repayment of Advances.......................................45
Section 2.06 Interest, Late Payment Fee..................................45
Section 2.07 Prepayments.................................................47
Section 2.08 Breakage Costs..............................................49
Section 2.09 Increased Costs.............................................50
Section 2.10 Payments and Computations...................................52
Section 2.11 Taxes.......................................................54
Section 2.12 Illegality..................................................56
Section 2.13 Letters of Credit...........................................56
Section 2.14 Determination of Borrowing Base.............................60
-ii-
Section 2.15 Bank Replacement............................................60
Section 2.16 Sharing of Payments, Etc....................................62
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to initial Advance.....................63
Section 3.02 Conditions Precedent for each Borrowing
or Letter of Credit.........................................65
Section 3.03 Conditions Precedent to a Hotel Property Qualifying
as an Eligible Property.....................................66
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
Section 4.01 Existence; Qualification; Partners; Subsidiaries............71
Section 4.02 Partnership and Corporate Power.............................73
Section 4.03 Authorization and Approvals.................................74
Section 4.04 Enforceable Obligations.....................................74
Section 4.05 Parent Common Stock.........................................74
Section 4.06 Financial Statements........................................75
Section 4.07 True and Complete Disclosure................................75
Section 4.08 Litigation..................................................75
Section 4.09 Use of Proceeds.............................................76
Section 4.10 Investment Company Act......................................76
Section 4.11 Taxes.......................................................76
Section 4.12 Pension Plans...............................................77
Section 4.13 Condition of Hotel Property; Casualties; Condemnation.......77
Section 4.14 Insurance...................................................78
Section 4.15 No Burdensome Restrictions; No Defaults.....................78
Section 4.16 Environmental Condition.....................................79
Section 4.17 Legal Requirements, Zoning, Utilities, Access...............79
Section 4.18 Existing Indebtedness.......................................80
-iii-
Section 4.19 Title; Encumbrances.........................................80
Section 4.20 Leasing Arrangements........................................81
Section 4.21 Franchise Agreements........................................81
ARTICLE V
AFFIRMATIVE COVENANTS
Section 5.01 Compliance with Laws, Etc...................................82
Section 5.02 Preservation of Corporate Existence; Corporate
Separateness, Etc...........................................82
Section 5.03 Payment of Taxes, Etc.......................................84
Section 5.04 Visitation Rights; Bank Meeting.............................84
Section 5.05 Reporting Requirements......................................84
Section 5.06 Maintenance of Property and Required Work...................89
Section 5.07 Insurance...................................................90
Section 5.08 Casualty; Condemnation......................................90
Section 5.09 Supplemental Guaranties.....................................90
Section 5.10 Participating Leases........................................90
ARTICLE VI
NEGATIVE COVENANTS
Section 6.01 Liens, Etc..................................................91
Section 6.02 Indebtedness................................................91
Section 6.03 Agreements Restricting Distributions From Subsidiaries......93
Section 6.04 Restricted Payments.........................................93
Section 6.05 Fundamental Changes; Asset Dispositions.....................94
Section 6.06 Personal Property Leases....................................95
Section 6.07 Investments, Loans, Future Properties.......................95
Section 6.08 Affiliate Transactions......................................97
Section 6.09 Sale and Leaseback..........................................97
Section 6.10 Sale or Discount of Receivables.............................98
Section 6.11 No Further Negative Pledges.................................98
Section 6.12 Franchise Agreements........................................98
-iv-
Section 6.13 Material Documents......................................... 98
Section 6.14 Limitations on Development, Construction, Renovation
and Purchase of Hotel Properties........................... 99
ARTICLE VII
FINANCIAL COVENANTS
7.01 Interest Coverage Ratio.............................................. 99
7.02 Debt Service Coverage Ratio.......................................... 99
7.03 Maintenance of Net Worth.............................................100
7.04 Limitations on Total Indebtedness....................................100
7.05 Limitations on Secured Recourse Indebtedness.........................100
7.06 Limitations on Secured Non-Recourse Indebtedness.....................101
7.07 Limitations on Secured Indebtedness..................................101
7.08 Permitted Non-Voting Stock Company Adjustment........................101
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.01 Events of Default..........................................102
Section 8.02 Optional Acceleration of Maturity..........................108
Section 8.03 Automatic Acceleration of Maturity.........................108
Section 8.04 Cash Collateral Account....................................109
Section 8.05 Non-exclusivity of Remedies................................109
Section 8.06 Right of Set-off...........................................109
ARTICLE IX
AGENCY AND ISSUING BANK PROVISIONS
Section 9.01 Authorization and Action...................................110
Section 9.02 Agents' Reliance, Etc......................................111
-v-
Section 9.03 Each Agent and Its Affiliates..............................111
Section 9.04 Bank Credit Decision.......................................111
Section 9.05 Indemnification............................................112
Section 9.06 Successor Agent and Issuing Banks..........................112
Section 9.07 Arranger, Syndication Agent and Managing Agents............113
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc............................................113
Section 10.02 Notices, Etc...............................................116
Section 10.03 No Waiver; Remedies........................................116
Section 10.04 Costs and Expenses.........................................117
Section 10.05 Binding Effect.............................................117
Section 10.06 Bank Assignments and Participations........................117
Section 10.07 Indemnification............................................120
Section 10.08 Execution in Counterparts..................................121
Section 10.09 Survival of Representations, Indemnifications, etc.........121
Section 10.10 Severability...............................................121
Section 10.11 Business Loans.............................................122
Section 10.12 Usury Not Intended.........................................122
Section 10.13 Certain Office and Retail Space............................123
Section 10.14 Florida Liens..............................................123
Section 10.15 Governing Law..............................................123
Section 10.16 Consent to Jurisdiction....................................124
Section 10.17 Knowledge of Borrower......................................124
Section 10.18 Banks Not in Control.......................................124
Section 10.19 Headings Descriptive.......................................124
Section 10.20 Time is of the Essence.....................................125
Section 10.21 WAIVERS OF JURY TRIAL......................................125
Section 10.22 ENTIRE AGREEMENT...........................................125
-vi-
EXHIBITS:
Exhibit A - Form of Note
Exhibit B - Form of Assignment and Acceptance
Exhibit C - Form of Borrowing Base Certificate
Exhibit D - Form of Compliance Certificate
Exhibit E - Form of Environmental Indemnity
Exhibit F - Form of Guaranty
Exhibit G - Form of Notice of Borrowing
Exhibit H - Form of Notice of Conversion or Continuation
Exhibit I - Form of Property Adjustment Report
Exhibit J - Form of Battle ▇▇▇▇▇▇ L.L.P. Opinion
-vii-
SCHEDULES:
Schedule 1.01(a) - Commitments
Schedule 1.01(b) - Initial Properties, Cost Basis and Hotel Value
Schedule 1.01(c) - Engineer Report Scope of Services
Schedule 1.01(d) - Approved Engineers
Schedule 1.01(e) - Environmental Report Scope of Services
Schedule 1.01(f) - Approved Environmental Consultants
Schedule 1.01(g) - Existing Letters of Credit
Schedule 1.01(h) - Franchisors
Schedule 1.01(i) - Ground Leases
Schedule 1.01(j) - Guarantors
Schedule 1.01(k) - Participating Leases
Schedule 3.03 - Conditions Precedent
Schedule 4.01 - Subsidiaries
Schedule 4.08 - Litigation
Schedule 4.17 - Legal Requirements; Zoning; Utilities; Access
Schedule 4.18 - Existing Indebtedness
Schedule 4.21 - Franchise Agreements
Schedule 4.22 - Management Agreements
Schedule 5.06 - Required Work
Schedule 5.07 - Insurance
Schedule 10.02 - Notice Information
-viii-
AMENDED AND RESTATED
SENIOR UNSECURED CREDIT AGREEMENT
AMENDED AND RESTATED SENIOR UNSECURED CREDIT AGREEMENT, dated as of
February 13, 1998, is among AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership, as the Borrower, SOCIETE GENERALE,
SOUTHWEST AGENCY, as Arranger, Syndication Agent, and Documentation Agent, BANK
ONE, TEXAS, N.A., as Administrative Agent, THE BANK OF NOVA SCOTIA and ▇▇▇▇▇
FARGO BANK, NATIONAL ASSOCIATION, as Managing Agents and the Banks.
PRELIMINARY STATEMENTS
WHEREAS, many of the parties hereto previously entered into the Existing
Credit Agreement pursuant to which the Existing Lenders have made Advances (as
defined in the Existing Credit Agreement) to the Borrower, and have issued or
participated in the Existing Letters of Credit, in each case on the terms and
conditions set forth therein;
WHEREAS, the Borrower has requested that the Existing Lenders amend the
Existing Credit Agreement and the other Existing Credit Documents in order to
revise certain terms thereof and the Existing Lenders have agreed to do so on
the terms and conditions set forth herein;
WHEREAS, the parties hereto have agreed to amend and restate the Existing
Credit Agreement as amended in its entirety for clarity only, and amend the
other Existing Credit Documents, in order to (i) add certain Banks as parties to
this Agreement, (ii) acknowledge that those Existing Lenders who will be repaid
in full in connection with this Agreement are no longer parties to this
Agreement, (iii) increase the Commitments under this Agreement to $500,000,000,
(iv) provide for the release of the Liens securing the Existing Credit Documents
except for the Florida Liens and (v) amend certain other provisions of the
Existing Credit Agreement and the other Existing Credit Documents as more fully
set forth in this Agreement;
WHEREAS, this Amended and Restated Senior Unsecured Credit Agreement
constitutes for all purposes an amendment to the Existing Credit Agreement and
not a new or substitute agreement and each reference to an "Advance" and "Letter
of Credit" herein shall mean such Advance made and each Letter of Credit issued
heretofore under the Existing Credit Agreement;
NOW, THEREFORE, in consideration of the foregoing recitals and the
provisions contained in this Agreement, the parties hereto do hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
Section 1.01 Certain Defined Terms. As used in this Agreement, the
---------------------
following terms shall have the following meanings (unless otherwise indicated,
such meanings to be equally applicable to both the singular and plural forms of
the terms defined):
"Accession Agreement" means an Accession Agreement in the form attached
-------------------
respectively to the Guaranty and Environmental Indemnity as Annex 1 thereto,
which agreement causes the Person executing and delivering the same to the
Administrative Agent to become a party to the Guaranty and Environmental
Indemnity.
"Acquisition Agreements" means for any Hotel Property the agreements
----------------------
entered into in connection with the acquisition of such Hotel Property.
"Adjusted EBITDA" means, for any Person or Hotel Property, as applicable,
---------------
for any period, the EBITDA of such Person or Hotel Property, as applicable, for
such period less the aggregate FF&E Reserves for such period in respect of, as
----
applicable, each Hotel Property owned by such Person or its Subsidiaries
(whether located on land owned by or land leased to such owner of the Hotel
Property) or such Hotel Property. For any New Property or any Person who owns or
leases a New Property, Adjusted EBITDA shall include the Adjusted EBITDA for
such New Property incurred before the date of acquisition of such New Property,
adjusted upward or downward to provide for a deemed management equal to a three
percent (3%) of gross revenues from such New Property incurred before the date
of acquisition of such New Property regardless of the actual management fees
paid in connection with such New Property incurred before the date of
acquisition of such New Property.
"Adjusted Net Worth" means, for the Parent as of any date, the sum of (a)
------------------
the Parent's Net Worth on such date plus (b) the minority interest of the Parent
----
on such date determined in accordance with GAAP.
-2-
"Adjusted Prime Rate" means, for any day, the fluctuating rate per annum of
-------------------
interest equal to the greater of (a) the Prime Rate in effect on such day and
(b) the Federal Funds Rate in effect on such day plus 1/2%.
"Adjustment Event" has the meaning set forth in Section 2.14(b).
----------------
"Administrative Agent" means Bank One, Texas, N.A. in its capacity as
--------------------
Administrative Agent for the Banks pursuant to Article IX and any successor
Administrative Agent appointed pursuant to Section 9.06.
"Advance" means an Advance by a Bank to the Borrower, any such Advance
-------
being either a Prime Rate Advance or a LIBOR Rate Advance.
"Affiliate" means, as to any Person, any other Person that, directly or
---------
indirectly, through one or more intermediaries, controls, is controlled by, or
is under common control with, such Person or any Subsidiary of such Person. The
term "control" (including the terms "controlled by" or "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 a Person, whether through
ownership of a Control Percentage, by contract or otherwise.
"Agents" means the Administrative Agent and the Documentation Agent, and
------
"Agent" means either such agent.
-----
"▇▇▇▇" means American General Hospitality, Inc., a Texas corporation.
----
"AGH Leasing" means AGH Leasing, L.P., a Delaware limited partnership.
-----------
"AGH LP" means AGH LP, Inc., a Nevada corporation.
------
"Agreement" has the meaning given such term in the initial paragraph of
---------
this agreement.
"Allocation Percentage" means, for any Person, with respect to a Person's
---------------------
Non Wholly-Owned Subsidiary, the percentage ownership interest of such Person in
such Non Wholly-Owned Subsidiary.
-3-
"Applicable Lending Office" means, with respect to each Bank, such Bank's
-------------------------
Domestic Lending Office in the case of a Prime Rate Advance and such Bank's
LIBOR Lending Office in the case of a LIBOR Rate Advance.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
-4-
"Applicable Margin" means, (a) with respect to each Type of Advance at any
-----------------
date, the applicable percentage per annum set forth below based upon the Status
then in effect under the column for such Type of Advance and (b) with respect to
the commitment fee payable under Section 2.03(a) at any date, the applicable
percentage per annum set forth below under the column "Unused Commitment Fee,"
based upon the Status then in effect.
Unused
Prime Rate LIBOR Commitment
Advances Rate Advances Fee
-------- -------------- -----------
Level I 0% 1.00% .125%
Status
Level II 0% 1.125% .15%
Status
Level III 0% 1.25% .15%
Status
Level IV 0% 1.375% .20%
Status
Level V 0% 1.40% .20%
Status
Level VI 0% 1.50% .20%
Status
Level VII .125% 1.625% .25%
Status
Level VIII .25% 1.75% .30%
Status
Level IX .375% 1.875% .30%
Status
Level X .50% 2.00% .30%
Status
"Asset Disposition" means (a) any sale, lease of substantially all of a
-----------------
Hotel Property (in which the Borrower or a Guarantor is lessor but exclusive of
the Participating Leases), conveyance,
-5-
exchange, transfer, or assignment of any Property by the Borrower or a Guarantor
to a Person other than the Borrower or a Guarantor; and (b) any insured loss or
casualty of Hotel Property owned by the Borrower or any Guarantor if the
insurance proceeds in connection therewith are required by the provisions of
this Agreement to be used to repay Obligations.
"Assignment and Acceptance" means an assignment and acceptance entered into
-------------------------
by a Bank and an Eligible Assignee, and accepted by the Administrative Agent, in
substantially the form of the attached Exhibit B.
"Associates" means, for any individual, the Associates (as such term is
----------
defined in Rule 12b-2 promulgated under the Exchange Act) of such individual.
"Banks" means the lenders listed on the signature pages of this Agreement
-----
and each Eligible Assignee that shall become a party to this Agreement pursuant
to Section 10.06.
"Blockage Period" means a period of time during which the subordination
---------------
terms of any Subordinated Indebtedness prevent such Subordinated Indebtedness
from being paid.
"Borrower" means American General Hospitality Operating Partnership, L.P.,
--------
a Delaware limited partnership.
"Borrower Controlled Group" means all members of a controlled group of
-------------------------
corporations and all trades (whether or not incorporated) under common control
which, together with the Borrower, are treated as a single employer under
Section 414 of the Code.
"Borrowing" means a borrowing consisting of simultaneous Advances of the
---------
same Type made by each Bank pursuant to Section 2.01 or Converted by each Bank
to Advances of a different Type pursuant to Section 2.02(b).
"Borrowing Base" means, at any date of its determination, an amount equal
--------------
to (a) the lesser of (i) the sum of the Adjusted EBITDA for the Rolling Period
immediately preceding such date for all Eligible Properties multiplied by five
(5) and (ii) 50% of the sum of the Hotel Values for all Eligible Properties on
such date minus (b) unsecured Indebtedness (except for the Obligations) of the
-----
Parent and its Subsidiaries outstanding on such date; provided, however, that
prior to December
-6-
31, 1998, the first $125,000,000 of Subordinate Indebtedness shall not be
included in the calculation of this clause (b).
"Borrowing Base Certificate" means a certificate of the Borrower in
--------------------------
substantially the form of the attached Exhibit C, certified by a Responsible
Officer of Borrower to be true, correct and accurate in all material respects.
"Borrowing Base Determination Date" means any date the Borrowing Base is
---------------------------------
determined in accordance with Section 2.14.
"Borrowing Base Requirements" means collectively that (a) all Eligible
---------------------------
Properties must be located within the United States; (b) the Cost Basis for the
Eligible Properties which are located in any one state shall not exceed 20%
(except for Florida which (i) until the earlier of March 31, 1999 or the
acquisition of the second group of Hotel Properties from Prime Hospitality shall
not exceed 40%, and (ii) thereafter shall not exceed 35%) of the Cost Basis for
all Eligible Properties; (c) the Cost Basis for the Eligible Properties which
are limited service hotels or extended stay shall not collectively in the
aggregate exceed 20% of the Cost Basis for all Eligible Properties (for purposes
of this definition Courtyards by Marriott shall not be deemed limited service
hotels); (d) the Cost Basis for the Eligible Properties which are not operated
under any franchise or license agreement shall not exceed 15% of the Cost Basis
for all Eligible Properties; (e) no Hotel Property or other Property shall cause
the Parent to forfeit the Parent's tax status as a REIT; (f) the Cost Basis for
Eligible Properties which are subject to a ground lease shall not exceed 22.5%
of the Cost Basis or 22.5% of the total guest rooms for all Eligible Properties;
(g) the total guest rooms for Eligible Properties which are out of service at
any one time shall not exceed 15% of the total guest rooms for all Eligible
Properties; and (h) the Cost Basis for the Eligible Properties which are owned
by Non Wholly-Owned Subsidiaries of the Borrower shall not exceed 20% of the
Cost Basis for all Eligible Properties.
"Business Day" means a day of the year on which banks are not required or
------------
authorized to close in New York City or Dallas, Texas and, if the applicable
Business Day relates to any LIBOR Rate Advances, any day other than a Saturday
or Sunday or a day on which banking institutions are generally authorized or
obligated by law or executive order to close in the City of London, England.
"Capital Expenditure" means any payment made directly or indirectly for the
-------------------
purpose of acquiring or constructing fixed assets, Real Property or equipment
which in accordance with GAAP
-7-
would be capitalized in the fixed asset accounts of such Person making such
expenditure, including, without limitation, amounts paid or payable for such
purpose under any conditional sale or other title retention agreement or under
any Capital Lease, but excluding repairs of Property in the normal and ordinary
course of business in keeping with the past practices of the Borrower.
"Capitalization Event" means either (a) any sale or issuance by the Parent
--------------------
or any of its Subsidiaries of equity securities except for the issuance of the
Borrower's operating partnership units in exchange for a direct or indirect
ownership interest in a Person that owns a Hotel Property, or (b) any issuance
or incurrence by the Parent or any of its Subsidiaries of any Indebtedness
except for Indebtedness permitted pursuant to the provisions of Section 6.02.
"Capital Lease" means, for any Person, any lease of any Property (whether
-------------
real, personal or mixed) by that Person as lessee which, in accordance with
GAAP, is or should be accounted for as a capital lease on the balance sheet of
that Person.
"Capitalized Lease Obligations" means, as to any Person, the capitalized
-----------------------------
amount of all obligations of such Person or any of its Subsidiaries under
Capitalized Leases, as determined on a consolidated basis in conformity with
GAAP.
"Cash Collateral Account" means a special cash collateral account
-----------------------
containing cash deposited pursuant to the terms of this Agreement to be
maintained at the Administrative Agent's office in accordance with Section 8.04.
"CERCLA" means the Comprehensive Environmental Response, Compensation, and
------
Liability Act of 1980, as amended, state and local analogs, and all rules and
regulations and requirements thereunder in each case as now or hereafter in
effect.
"Closing Date" means February 13, 1998.
------------
"Code" means the Internal Revenue Code of 1986, as amended, and any
----
successor statute.
"Commitment" means, with respect to any Bank, the amount set opposite such
----------
Bank's name on Schedule 1.01(a) as its Commitment, or if such Bank has entered
into any Assignment and Acceptance, the amount set forth for such Bank as its
Commitment in the Register maintained by
-8-
the Administrative Agent pursuant to Section 10.06(c), as such amount may be
reduced pursuant to Section 2.04.
"Compliance Certificate" means a certificate of the Borrower in
----------------------
substantially the form of the attached Exhibit D.
"Conditions to Asset Disposition" shall for any Asset Disposition include
-------------------------------
all of the following requirements: (a) no Default has occurred and is continuing
or would occur upon the consummation of such Asset Disposition, as certified by
the Borrower; (b) the Borrower shall have delivered to the Administrative Agent
a Property Adjustment Report in connection with such Asset Disposition; and (c)
if required pursuant to the provisions of Section 2.07(c)(ii), the Borrower
makes a prepayment of the Advances in an amount of not less than the amount of
Advances that would need to be repaid, if any, to cure a Borrowing Base
deficiency under Section 2.07(c)(ii).
"Consolidated" refers to the consolidation of the accounts of the Borrower
------------
with the Borrower's Subsidiaries and the Parent with the Parent's Subsidiaries,
as applicable, in accordance with GAAP, including, when used in reference to the
Borrower, principles of consolidation consistent with those applied in the
preparation of the Financial Statements.
"Control Percentage" means, with respect to any Person, the percentage of
------------------
the outstanding capital stock of such Person having ordinary voting power which
gives the direct or indirect holder of such stock the power to elect a majority
of the Board of Directors of such Person.
"Controlled Group" means each of the Borrower Controlled Group, the
----------------
Participating Lessee Controlled Group and the Manager Controlled Group, and
"Controlled Groups" means, collectively, all of such groups.
-----------------
"Convert", "Conversion", and "Converted" each refers to a conversion of
------- ---------- ---------
Advances of one Type into Advances of another Type pursuant to Section 2.02(b).
"Cost Basis" means for any Hotel Property the sum of (a) for any Initial
----------
Property, the amount set forth for such Initial Property on Schedule 1.01(b)
attached hereto, and for any other Hotel Property, the aggregate purchase price
paid by the Borrower or its Subsidiary for such other Hotel Property (giving
effect to any securities used to purchase a Hotel Property at the fair market
value of the securities at the time of purchase based upon the price at which
such securities could be
-9-
exchanged into the Parent's common stock assuming such exchange occurred on the
date of acquiring the Hotel Property), and (b) the actual cost of any Capital
Expenditures or expenditures for FF&E for such Hotel Property made by the
Borrower or its Subsidiaries pursuant to a Preliminary Property Plan; provided
--------
that with respect to the Cost Basis for a Hotel Property owned or leased by a
Non Wholly-Owned Subsidiary, the Cost Basis for such Hotel Property shall be
deemed to be the Allocation Percentage of the Cost Basis for such Hotel.
"Credit Documents" means this Agreement, the Notes, the Guaranties, the
----------------
Environmental Indemnities, the Fee Letter, and each other agreement, instrument
or document executed by the Borrower or any of its Subsidiaries at any time in
connection with this Agreement.
"Debt Service" means, for any Person for the period for which such amount
------------
is being determined, the amount (without duplication) of all mandatory principal
payments scheduled to be made (excluding optional prepayments and scheduled
principal payments in respect of any such Indebtedness which is payable in a
single installment at final maturity), Interest Expense and all payments
scheduled to be made in respect of Capital Leases of such Person.
"Debt Service Coverage Ratio" means, as of the end of any Rolling Period, a
---------------------------
ratio of (a) Adjusted EBITDA to (b) Debt Service, for such Rolling Period.
"Default" means (a) an Event of Default or (b) any event or condition which
-------
with notice or lapse of time or both would, unless cured or waived, become an
Event of Default.
"Documentation Agent" means Societe Generale, Southwest Agency in its
-------------------
capacity as Documentation Agent for the Banks pursuant to Article IX and any
successor Documentation Agent pursuant to Section 9.06.
"Dollar Equivalent" means the equivalent in another currency of an amount
-----------------
in U.S. Dollars to be determined by reference to the rate of exchange quoted by
the Administrative Agent, at 11:00 a.m. (Dallas, Texas time) on the date of
determination, for the spot purchase in the foreign exchange market of such
amount of Dollars with such other currency.
"Dollars" and "$" means lawful money of the United States of America.
------- -
-10-
"Domestic Lending Office" means, with respect to any Bank, the office of
-----------------------
such Bank specified as its "Domestic Lending Office" opposite its name on
Schedule 10.02 or such other office of such Bank as such Bank may from time to
time specify to the Borrower and the Administrative Agent.
"EBITDA" means for any Person or Hotel Property, as applicable, for any
------
period for which such amount is being determined, an amount equal to (a) the Net
Income for such Person or Hotel Property, as applicable, for such period plus
----
(b) to the extent deducted in determining Net Income, Interest Expense, income
taxes, depreciation, amortization, and other non-cash items for such period, as
determined in accordance with GAAP; provided that if any Property of a Person
--------
has been sold or conveyed by such Person in such period, the amounts referred to
in clauses (a)-(b) above arising from such Property shall be excluded from the
calculation of EBITDA for such Person for such period; and provided further that
----------------
if such Person has acquired any Property in such period, the amounts referred to
in clauses (a)-(b) above arising from such Property during such entire period
shall be included in the calculation of EBITDA for such Person for such period.
"Effective Date" means the date all of the conditions precedent set forth
--------------
in Section 3.01 have been satisfied.
"Eligible Assignee" means (a) a commercial bank organized under the laws of
-----------------
the United States, or any State thereof, and having primary capital of not less
than $250,000,000 and approved by the Agents and the Issuing Bank, which
approvals will not be unreasonably withheld, (b) a commercial bank organized
under the laws of any other country which is a member of the Organization for
Economic Cooperation and Development and having primary capital (or its
equivalent) of not less than $250,000,000 (or its Dollar Equivalent) and
approved by the Agents and the Issuing Bank, which approvals will not be
unreasonably withheld, (c) a Bank, and (d) an Affiliate of the respective
assigning Bank, without approval of any Person but otherwise meeting the
eligibility requirements of (a) or (b) above.
"Eligible Property" means, as of any Borrowing Base Determination Date, any
-----------------
Hotel Property which is owned by the Borrower or any Guarantor on such date and
was so owned on the date of the most recent Borrowing Base Certificate delivered
to the Banks, and which satisfies the conditions to qualifying as an Eligible
Property set forth in Section 3.03 on such Borrowing Base Determination Date.
-11-
"Engineering Report" means with respect to any Hotel Property, an
------------------
engineering report in accordance with the scope of services attached hereto as
Schedule 1.01 (c) reasonably satisfactory to the Agents prepared for the Banks
by a Person set forth on Schedule 1.01(d) or otherwise satisfactory to the
Agents covering the physical condition of the Hotel Property, including without
limitation the structural, electrical, plumbing, mechanical and other essential
components of the Hotel Property.
"Environment" or "Environmental" shall have the meanings set forth in 42
----------- -------------
U.S.C. (S) 9601(8), as amended.
"Environmental Claim" means any third party (including governmental
-------------------
agencies and employees) action, lawsuit, claim, demand, regulatory action or
proceeding, order, decree, consent agreement or notice of potential or actual
responsibility or violation (including claims or proceedings under the
Occupational Safety and Health Acts or similar laws or requirements relating to
health or safety of employees) which seeks to impose liability under any
Environmental Law.
"Environmental Indemnity" means one or more environmental indemnity
-----------------------
agreements dated of even date herewith in substantially the form of the attached
Exhibit E executed or to be executed by the Borrower, the Parent and all
Subsidiaries of the Borrower (excluding the Permitted Other Subsidiaries), and
any future environmental indemnities executed in connection with any Hotel
Property, as any of such environmental indemnities may be amended hereafter in
accordance with the terms of such agreements.
"Environmental Law" means all Legal Requirements arising from, relating to,
-----------------
or in connection with the Environment, health, or safety, including without
limitation CERCLA, relating to (a) pollution, contamination, injury,
destruction, loss, protection, cleanup, reclamation or restoration of the air,
surface water, groundwater, land surface or subsurface strata, or other natural
resources; (b) solid, gaseous or liquid waste generation, treatment, processing,
recycling, reclamation, cleanup, storage, disposal or transportation; (c)
exposure to pollutants, contaminants, hazardous, medical, infectious, or toxic
substances, materials or wastes; (d) the safety or health of employees; or (e)
the manufacture, processing, handling, transportation, distribution in commerce,
use, storage or disposal of hazardous, medical, infectious, or toxic substances,
materials or wastes.
"Environmental Permit" means any permit, license, order, approval or other
--------------------
authorization under Environmental Law.
-12-
"Environmental Report" means with respect to any Hotel Property, an
--------------------
environmental report in accordance with the scope of services attached hereto as
Schedule 1.01 (e) prepared for the Banks by a Person set forth on Schedule
1.01(f) or otherwise satisfactory to the Agents certifying to the Agents and the
Banks that the Hotel Property and the soil and the groundwater thereunder do not
contain Hazardous Substances except for Permitted Hazardous Substances.
"ERISA" means the Employee Retirement Income Security Act of 1974, as
-----
amended from time to time.
"Eurocurrency Liabilities" has the meaning assigned to that term in
------------------------
Regulation D of the Federal Reserve Board (or any successor), as in effect from
time to time.
"Exchange Act" has the meaning set forth in Section 2.04.
------------
"Event of Default" has the meaning set forth in Section 8.01.
----------------
"Existing Credit Agreement" means that Amended and Restated Credit
-------------------------
Agreement, dated as of June 25, 1997, among the Borrower, Societe Generale,
Southwest Agency, as Arranger, Syndication Agent, and Documentation Agent, Bank
One, Texas, N.A., as Administrative Agent, the Bank of Nova Scotia and ▇▇▇▇▇
Fargo Bank, National Association, as Co-Agents and the Existing Lenders, as
amended by First Amendment to Credit Agreement dated as of December 23, 1997,
among such same Persons.
"Existing Credit Documents" means the Credit Documents (as defined in the
-------------------------
Existing Credit Agreement).
"Existing Lenders" means the banks and other financial institutions party
----------------
to the Existing Credit Agreement.
"Existing Letters of Credit" means the letters of credit outstanding on the
--------------------------
date of this Agreement issued for the account of the Borrower or its
Subsidiaries which are described in the attached Schedule 1.01(g), as the same
may be amended, supplemented, and otherwise modified from time to time.
"Existing Notes" means the promissory notes payable under the Existing
--------------
Credit Agreement.
-13-
"Expiration Date" means, with respect to any Letter of Credit, the date on
---------------
which such Letter of Credit will expire or terminate in accordance with its
terms.
"Federal Funds Rate" means, for any period, a fluctuating interest rate per
------------------
annum equal for each day during such period to the weighted average of the rates
on overnight Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published for such day (or, if such
day is not a Business Day, for the next preceding Business Day) by the Federal
Reserve Bank of New York, or, if such rate is not so published for any day which
is a Business Day, the average of the quotations for any such day on such
transactions received by the Administrative Agent from three Federal funds
brokers of recognized standing selected by it.
"Federal Reserve Board" means the Board of Governors of the Federal Reserve
---------------------
System or any of its successors.
"Fee Letter" means the letter agreement dated as of January 15, 1998 among
----------
the Borrower, the Documentation Agent, the Administrative Agent and the Managing
Agents, as amended.
"FF&E" means furniture, fixtures and equipment.
----
"FF&E Reserve" means, for any Person or any Hotel Property for any period,
------------
a reserve equal to four percent (4%) of gross revenues from any Hotel Property
owned by such Person or from such Hotel Property, as applicable, for such
period, excluding, however, from such calculation for the applicable Persons and
Hotel Properties the gross revenues generated by the office portion of the
Houston, Texas Marriott and the gross revenues generated by the retail portion
of the St. Tropez hotel, Las Vegas, Nevada.
"Financial Statements" means the financial statements of the Parent, the
--------------------
Borrower and their respective Subsidiaries dated as of September 30, 1997.
"Fiscal Quarter" means each of the three-month periods ending on March 31,
--------------
June 30, September 30 and December 31.
"Fiscal Year" means the twelve-month period ending on December 31.
-----------
-14-
"Florida Liens" means the Liens securing the Existing Credit Documents on
-------------
the Initial Properties located in the State of Florida except for those Liens
pertaining to the cash management system used in the Existing Credit Documents.
"Franchise Agreements" means those certain Agreements listed on Schedule
--------------------
4.21 attached hereto and any future franchise or license agreement for an
Eligible Property with a Franchisor.
"Franchisor" means those certain franchisors listed on Schedule 1.01(h)
----------
attached hereto, or any other reputable, nationally known, third party
franchisor or licensor of a Hotel Property approved by the Agents in writing.
"Free Cash Flow" means, for any Person for any period, the Funds From
--------------
Operations for such period plus any amortization of deferred financing costs for
----
such period less (a) the aggregate FF&E Reserves for such Person and its
----
Subsidiaries for such period, and (b) the aggregate amount of scheduled
principal payments on the Total Indebtedness of such Person (excluding optional
prepayments and scheduled principal payments in respect of any such Indebtedness
which is payable in a single installment at final maturity) required to be made
during such period.
"Fund," "Trust Fund," or "Superfund" means the Hazardous Substance Response
---- ---------- ---------
Trust Fund, established pursuant to 42 U.S.C. (S) 9631 (1988) and the Post-
closure Liability Trust Fund, established pursuant to 42 U.S.C. (S) 9641 (1988),
which statutory provisions have been amended or repealed by the Superfund
Amendments and Reauthorization Act of 1986, and the "Fund," "Trust Fund," or
"Superfund" that are now maintained pursuant to 42 U.S.C. (S) 9507.
"Funds From Operations" means, for any Person for any period for which such
---------------------
amount is being determined, an amount equal to such Person's Net Income for such
period excluding gains (losses) from debt restructuring and sales of property
(including furniture and equipment) plus depreciation and amortization
(excluding amortization of deferred financing costs) and after adjustments for
unconsolidated partnerships and joint ventures.
"Future Property" means any Hotel Property except for the Initial
---------------
Properties which the Borrower or any Subsidiary of the Borrower acquires.
"GAAP" means United States generally accepted accounting principles as in
----
effect from time to time, applied on a basis consistent with the requirements of
Section 1.03.
-15-
"General Partner" means AGH GP, Inc., a Nevada corporation.
---------------
"Governmental Authority" means any foreign governmental authority, the
----------------------
United States of America, any state of the United States of America and any
subdivision of any of the foregoing, and any agency, department, commission,
board, authority or instrumentality, bureau or court having jurisdiction over
any Bank, the Parent, the Borrower, any Subsidiaries of the Borrower or the
Parent, the Participating Lessee, the Manager or any of their respective
Properties.
"Governmental Proceedings" means any action or proceedings by or before any
------------------------
Governmental Authority, including, without limitation, the promulgation,
enactment or entry of any Legal Requirement.
"Ground Lease" means each of the ground leases or subground leases set
------------
forth on Schedule 1.01(i) hereto and for a Future Property means any ground
lease (a) which is a direct ground lease granted by the fee owner of real
property, (b) which may be transferred and/or assigned without the consent of
the lessor (or as to which the lease expressly provides that (i) such lease may
be transferred and/or assigned with the consent of the lessor and (ii) such
consent shall not be unreasonably withheld or delayed), (c) which has a
remaining term (including any renewal terms exercisable at the sole option of
the lessee) of at least twenty five (25) years, (d) under which no material
default has occurred and is continuing, (e) with respect to which a Lien may be
granted without the consent of the lessor, and (f) which contains lender
protection provisions acceptable to the Documentation Agent, including, without
limitation, provisions to the effect that (i) the lessor shall notify any holder
of a Lien in such lease of the occurrence of any default by the lessee under
such lease and shall afford such holder the option to cure such default, and
(ii) in the event that such lease is terminated, such holder shall have the
option to enter into a new lease having terms substantially identical to those
contained in the terminated lease.
"Guarantor" means Parent and each Subsidiary of the Borrower (except the
---------
Permitted Other Subsidiaries). The Guarantors on the Effective Date are
identified on Schedule 1.01(j).
"Guaranty" means one or more Guaranty and Contribution Agreements in
--------
substantially the form of the attached Exhibit F executed by the Borrower and
all of the Subsidiaries of the Borrower (excluding the Permitted Other
Subsidiaries), evidencing the joint and several guaranty by the signatories
thereto of the obligations of Borrower in respect of the Credit Documents and
the obligations of landlords under Participating Leases, and any future guaranty
and contribution
-16-
agreement executed to secure Advances except for Supplemental Guaranties, as any
of such agreements may be amended hereafter in accordance with the terms of such
agreements.
"Hazardous Substance" means the substances identified as such pursuant to
-------------------
CERCLA and those regulated under any other Environmental Law, including without
limitation pollutants, contaminants, petroleum, petroleum products, radio
nuclides, radioactive materials, and medical and infectious waste.
"Hazardous Waste" means the substances regulated as such pursuant to any
---------------
Environmental Law.
"Hotel Capital Lease Limit" means for any Hotel Property $1,000 per room in
-------------------------
such Hotel Property or such other amount of Capital Leases as is approved by the
Agents in writing (which approval will not be unreasonably withheld).
"Hotel Operating Lease Limit" means for any Hotel Property $750 per room in
---------------------------
such Hotel Property or such other amount of operating leases as is approved by
the Agents in writing (which approval will not be unreasonably withheld).
"Hotel Property" for any hotel means the Real Property and the Personal
--------------
Property for such hotel, and the property referred to in Section 10.13.
"Hotel Value" means, with respect to any Hotel Property, at any date, the
-----------
value thereof to be calculated as follows:
(a) For a Seasoned Property, (i) the Adjusted EBITDA for such
Seasoned Property for the preceding Rolling Period divided by (ii) ten percent
----------
(10.0%); and
(b) For a New Property, the Cost Basis in such New Property.
The initial Hotel Value for the Initial Properties is set forth on Schedule
1.01(b) attached hereto.
"Improvements" for any hotel means all buildings, structures, fixtures,
------------
tenant improvements and other improvements of every kind and description now or
hereafter located in or on or attached
-17-
to the Land for such hotel; and all additions and betterments thereto and all
renewals, substitutions and replacements thereof.
"Indebtedness" means (without duplication), at any time and with respect to
------------
any Person, (a) indebtedness of such Person for borrowed money (whether by loan
or the issuance and sale of debt securities) or for the deferred purchase price
of property or services purchased (other than amounts constituting trade
payables or bank drafts arising in the ordinary course); (b) indebtedness of
others in the amount which such Person has directly or indirectly assumed or
guaranteed or otherwise provided credit support therefor or for which such
Person is liable as a partner of such Person; (c) indebtedness of others in the
amount secured by a Lien on assets of such Person, whether or not such Person
shall have assumed such indebtedness; (d) obligations of such Person in respect
of letters of credit, acceptance facilities, or drafts or similar instruments
issued or accepted by banks and other financial institutions for the account of
such Person (other than trade payables or bank drafts arising in the ordinary
course); (e) obligations of such Person under Capital Leases; and (f)
obligations under interest rate swap agreements, interest rate cap agreements,
interest rate collar agreements or other similar agreements or arrangements
designed to protect against fluctuations in interest rates.
"Initial Properties" means collectively the Hotel Properties listed on
------------------
Schedule 1.01(b), and "Initial Property" means any of such Hotel Properties.
----------------
"Interest Coverage Ratio" means, as of the end of any Rolling Period, a
-----------------------
ratio of (a) Adjusted EBITDA to (b) Interest Expense, for such Rolling Period.
"Interest Expense" means, for any Person for any period for which such
----------------
amount is being determined, the total interest expense (including that properly
attributable to Capital Leases in accordance with GAAP) and all charges incurred
with respect to letters of credit determined on a consolidated basis in
conformity with GAAP, plus capitalized interest of such Person and its
----
Subsidiaries.
"Interest Period" means, for each LIBOR Rate Advance comprising part of the
---------------
same Borrowing, the period commencing on the date of such Advance or the date of
the Conversion of any Prime Rate Advance into such an Advance and ending on the
last day of the period selected by the Borrower pursuant to the provisions below
and Section 2.02 and, thereafter, each subsequent period commencing on the last
day of the immediately preceding Interest Period and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and Section
2.02.
-18-
The duration of each such Interest Period shall be one, two, or three months, in
each case as the Borrower may select, upon notice received by the Administrative
Agent not later than 11:00 a.m. (Dallas, Texas time) on the third Business Day
prior to the first day of such Interest Period, provided, however, that:
-------- -------
(a) Interest Periods for Advances of the same Borrowing shall be of the
same duration;
(b) whenever the last day of any Interest Period would otherwise occur on
a day other than a Business Day, the last day of such Interest Period shall be
extended to occur on the next succeeding Business Day, provided that if such
--------
extension would cause the last day of such Interest Period to occur in the next
following calendar month, the last day of such Interest Period shall occur on
the next preceding Business Day;
(c) any Interest Period which begins on the last Business Day of a
calendar month (or on a day for which there is no numerically corresponding day
in the calendar month at the end of such Interest Period) shall end on the last
Business Day of the calendar month in which it would have ended if there were a
numerically corresponding day in such calendar month; and
(d) each successive Interest Period shall commence on the day on which the
next preceding Interest Period expires; and
(e) no Interest Period with respect to any portion of any Advance shall
extend beyond the Maturity Date.
"Interest Rate Agreements" means any interest rate swap agreement, interest
------------------------
rate cap agreement, interest rate collar agreement or other similar agreement or
arrangement designed to protect the Borrower, the Parent or any of their
respective Subsidiaries against fluctuations in interest rates.
"Investment" means, with respect to any Person, (a) any loan or advance to
----------
any other Person, (b) the ownership, purchase or other acquisition of, any
Stock, Stock Equivalents, other equity interest, obligations or other securities
of, (i) any other Person, (ii) or all or substantially all of the assets of any
other Person, or (iii) all or substantially all of the assets constituting the
business of a division, branch or other unit operation of any other Person, or
(c) any joint venture or partnership with, or any capital contribution to, or
other investment in, any other Person or any real property.
-19-
"Issuing Bank" means Bank One, Texas, N.A., or any Bank acting as a
------------
successor issuing bank pursuant to Section 9.06, and "Issuing Banks" means,
-------------
collectively, all of such Banks.
"Land" for any hotel means the real property upon which the hotel is
----
located, together with all rights, title and interests appurtenant to such real
property, including without limitation all rights, title and interests to (a)
all strips and gores within or adjoining such property, (b) the streets, roads,
sidewalks, alleys, and ways adjacent thereto, (c) all of the tenements,
hereditaments, easements, reciprocal easement agreements, rights-of-way and
other rights, privileges and appurtenances thereunto belonging or in any way
pertaining thereto, (d) all reversions and remainders, (e) all air space rights,
and all water, sewer and wastewater rights, (e) all mineral, oil, gas,
hydrocarbon substances and other rights to produce or share in the production of
anything related to such property, and (f) all other appurtenances appurtenant
to such property, including without limitation, any now or hereafter belonging
or in anywise appertaining thereto.
"Legal Requirement" means any law, statute, ordinance, decree, requirement,
-----------------
order, judgment, rule, regulation (or official interpretation of any of the
foregoing) of, and the terms of any license or permit issued by, any
Governmental Authority.
"Letter of Credit" means, individually, any letter of credit issued by the
----------------
Issuing Bank in accordance with the provisions of Section 2.13 of this Agreement
including any Existing Letter of Credit, and "Letters of Credit" means all such
-----------------
letters of credit collectively.
"Letter of Credit Documents" means, with respect to any Letter of Credit,
--------------------------
such Letter of Credit and any reimbursement or other agreements, documents, and
instruments entered into in connection with or relating to such Letter of
Credit.
"Letter of Credit Exposure" means, at any time, the sum of (a) the
-------------------------
aggregate undrawn maximum face amount of each Letter of Credit and (b) the
aggregate unpaid amount of all Reimbursement Obligations at such time.
"Letter of Credit Obligations" means all obligations of the Borrower
----------------------------
arising in respect of the Letter of Credit Documents, including the
Reimbursement Obligations.
-20-
"Leverage Ratio" means the ratio of (a) the Parent's Total Indebtedness to
--------------
(b) the Hotel Value of the Parent's and the Parent's Subsidiaries' Hotel
Properties which meet the Parent Property Requirements.
"LIBOR Lending Office" means, with respect to any Bank, the office of such
--------------------
Bank specified as its "LIBOR Lending Office" opposite its name on Schedule 10.02
(or, if no such office is specified, its Domestic Lending Office) or such other
office of such Bank as such Bank may from time to time specify to the Borrower
and the Administrative Agent.
"LIBOR Rate" means, for the Interest Period for each LIBOR Rate Advance
----------
comprising part of the same Borrowing, an interest rate per annum (rounded
upward to the nearest whole multiple of 1/16 of 1% per annum) equal to (A) the
rate per annum at which deposits in Dollars are offered to prime banks in the
London interbank market at 11:00 a.m. (London time) three Business Days before
the first day of such Interest Period as shown on the display designated
"British Banker's Association Interest Settlement Rates" on the Telerate System
("Telerate") at Page 3750 or Page 3740, or such other page or pages as may
replace such pages on Telerate for purposes of displaying such rate, in an
amount substantially equal to the Administrative Agent's LIBOR Rate Advance
comprising part of such Borrowing and for a period equal to such Interest Period
divided by (B) one minus the LIBOR Reserve Requirement; provided, however, that
if such rate is not available on Telerate then such offered rate shall be
otherwise independently determined by Administrative Agent from an alternate,
substantially similar source available to Administrative Agent or shall be
calculated by Administrative Agent by a substantially similar methodology as
that theretofore used to determine such offered rate in Telerate. It is agreed
that for purposes of this definition, LIBOR Rate Advances made hereunder shall
be deemed to constitute Eurocurrency Liabilities as defined in Regulation D and
to be subject to the reserve requirements of Regulation D.
"LIBOR Rate Advance" means any Advance which bears interest as provided in
------------------
Section 2.06(b).
"LIBOR Reserve Requirement" shall mean, on any day, that percentage
-------------------------
(expressed as a decimal fraction) which is in effect on such date, as provided
by the Federal Reserve System for determining the maximum reserve requirements
generally applicable to financial institutions regulated by the Federal Reserve
Board comparable in size and type to the Administrative Agent (including,
without limitation, basic, supplemental, marginal and emergency reserves) under
Regulation D with respect to "Eurocurrency liabilities" as currently defined as
Regulation D, or
-21-
under any similar or successor regulation with respect to Eurocurrency
liabilities or Eurocurrency funding (or other category of liabilities which
includes deposits by reference to which the interest rate on a LIBOR Rate
Advance is determined or any category or extensions of credit which includes
loans by a non-United States office of the Administrative Agent to United States
residents). Each determination by the Administrative Agent of the LIBOR Reserve
Requirement, shall, in the absence of manifest error, be conclusive and binding
upon the Borrower.
"Lien" means any mortgage, lien, pledge, charge, deed of trust, security
----
interest, encumbrance or other type of preferential arrangement to secure or
provide for the payment of any obligation of any Person, whether arising by
contract, operation of law or otherwise (including, without limitation, the
interest of a vendor or lessor under any conditional sale agreement, Capital
Lease or other title retention agreement).
"Liquid Investments" means:
------------------
(a) direct obligations of, or obligations the principal of and interest on
which are unconditionally guaranteed by, the United States;
(b) (i) negotiable or nonnegotiable certificates of deposit, time
deposits, or other similar banking arrangements maturing within 180 days from
the date of acquisition thereof ("bank debt securities"), issued by (A) any Bank
or (B) any other bank or trust company which has a combined capital surplus and
undivided profit of not less than $250,000,000 or the Dollar Equivalent thereof,
if at the time of deposit or purchase, such bank debt securities are rated not
less than "A" (or the then equivalent) by the rating service of S&P or of
Moody's, and (ii) commercial paper issued by (A) any Bank or (B) any other
Person if at the time of purchase such commercial paper is rated not less than
"A-2" (or the then equivalent) by the rating service of S&P or not less than "P-
2" (or the then equivalent) by the rating service of Moody's, or upon the
discontinuance of both of such services, such other nationally recognized rating
service or services, as the case may be, as shall be selected by the Borrower
with the consent of the Administrative Agent;
(c) repurchase agreements relating to investments described in clauses (a)
and (b) above with a market value at least equal to the consideration paid in
connection therewith, with any Person who regularly engages in the business of
entering into repurchase agreements and has a combined capital surplus and
undivided profit of not less than $250,000,000 or the Dollar Equivalent thereof,
-22-
if at the time of entering into such agreement the debt securities of such
Person are rated not less than "A" (or the then equivalent) by the rating
service of S&P or of Moody's; and
(d) such other instruments (within the meaning of Article 9 of the Texas
Business and Commerce Code) as the Borrower may request and the Administrative
Agent may approve in writing, which approval will not be unreasonably withheld.
"Majority Banks" means, at any time, Banks holding at least 51% of the then
--------------
aggregate unpaid principal amount of the Notes and the Letter of Credit Exposure
of the Banks at such time, or, if no such principal amount of the Notes and
Letter of Credit Exposure is then outstanding, Banks having at least 51% of the
aggregate amount of the Commitments at such time.
"Management Agreements" means those certain Management Agreements listed on
---------------------
Schedule 4.22 attached hereto and any future management agreement for an
Eligible Property in substantially the same form or as otherwise approved by the
Agents in writing.
"Manager" means ▇▇▇▇, or any other manager of a Hotel Property approved by
-------
the Agents in writing.
"Manager Controlled Group" means all members of a controlled group of
------------------------
corporations and all trades (whether or not incorporated) under common control
which, together with the Manager, are treated as a single employer under Section
414 of the Code.
"Managing Agents" means The Bank of Nova Scotia and ▇▇▇▇▇ Fargo Bank,
---------------
National Association as Managing Agents, and any successor Managing Agents.
"Material Adverse Change" shall mean a material adverse change in the
-----------------------
business, financial condition, or results of operations of the Borrower, the
Parent or any Guarantor, in each case since the date of the most recent
financial statements of the Borrower or the Parent delivered to the Banks.
"Maturity Date" means February 13, 2001.
-------------
"Maximum Rate" means the maximum nonusurious interest rate under applicable
------------
law.
-23-
"Minimum Tangible Net Worth" means, with respect to the Parent, at any
--------------------------
time, the sum of $450,000,000 plus (a) 75% of the aggregate net proceeds
----
received by the Parent or any of its Subsidiaries after the date of this
Agreement in connection with any offering of Stock or Stock Equivalents of the
Parent or its Subsidiaries taken as a whole and (b) 75% of the value of any
partnership interests in Borrower issued after the date of this Agreement for
the acquisition of a Hotel Property or any interest in a Hotel Property
permitted hereunder.
"Minority Interest Adjustment" means an amount equal to the fair market
----------------------------
value on the date of issuance of all partnership interests in the Borrower which
(a) are not directly or indirectly owned by the Parent and (b) have been
conveyed to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or Persons owned or controlled by such
individuals in exchange for a Hotel Property or an ownership interest in a
Person which own a Hotel Property.
"Moody's" means ▇▇▇▇▇'▇ Investor Service Inc.
-------
"Multiemployer Plan" means a "multiemployer plan" as defined in Section
------------------
4001(a)(3) of ERISA to which the Borrower or any member of a Controlled Group is
making or accruing an obligation to make contributions.
"Net Cash Proceeds" means (a) the aggregate cash proceeds (including,
-----------------
without limitation, insurance proceeds) received by the Parent, the Borrower or
any of their respective Subsidiaries (as applicable) in connection with any
Asset Disposition or Capitalization Event, minus (b) the reasonable expenses of
-----
such Person in connection with such Asset Disposition or such Capitalization
Event.
"Net Income" means, for any Person or Hotel Property for any period for
----------
which such amount is being determined, the net income of such Person (on a
consolidated basis) or Hotel Property, as applicable, after taxes, as determined
in accordance with GAAP, excluding, however, extraordinary items, including but
not limited to (i) any net gain or loss during such period arising from the
sale, exchange, or other disposition of capital assets (such term to include all
fixed assets and all securities) other than in the ordinary course of business
and (ii) any write-up or write-down of assets; provided that with respect to Net
--------
Income received from a Non Wholly-Owned Subsidiary or for a Hotel Property owned
by a Non Wholly-Owned Subsidiary, such Person or Hotel Property shall only be
deemed to have received the Allocation Percentage of such Net Income, and
provided further that
----------------
-24-
to the extent that the Net Income for any Hotel Property does not include a
reasonable allocation of administrative, accounting or other overhead of the
Person or Persons who directly or indirectly own or lease such Hotel Property
which directly pertains to the operation of Hotel Properties, then such
allocation amount shall be deemed subtracted from such Net Income for purposes
of the financial tests and other definitions contained in this Agreement which
utilize Hotel Property Net Income.
"Net Worth" means, for any Person, stockholders equity of such Person
---------
determined in accordance with GAAP.
"New Property" means, as at any date, any Hotel Property (including any
------------
Renovating Property) that is not a Seasoned Property.
"Non Wholly-Owned Subsidiary" of a Person means any Subsidiary of such
---------------------------
Person which is controlled and managed by such Person, except for a Wholly-Owned
Subsidiary.
"Note" means a promissory note of the Borrower payable to the order of any
----
Bank, in substantially the form of the attached Exhibit A, evidencing
indebtedness of the Borrower to such Bank resulting from Advances owing to such
Bank, and "Notes means all of such promissory notes.
-----
"Notice of Borrowing" means a notice of borrowing in the form of the
-------------------
attached Exhibit G signed by a Responsible Officer of the Borrower.
"Notice of Conversion or Continuation" means a notice of conversion or
------------------------------------
continuation in the form of the attached Exhibit H signed by a Responsible
Officer of the Borrower.
"Obligations" means all Advances, Letter of Credit Obligations, and other
-----------
amounts payable by the Borrower to the Documentation Agent, the Administrative
Agent, or the Banks under the Credit Documents.
"Parent" means American General Hospitality Corporation, a Maryland
------
corporation.
"Parent Common Stock" means the common stock of Parent, par value $.01 per
-------------------
share.
"Parent Properties" means all Hotel Properties owned or leased by the
-----------------
Parent or one of the Parent's Subsidiaries.
-25-
"Parent Property Requirements" means collectively that (a) all Parent
----------------------------
Properties must be located within the United States; (b) the Cost Basis for the
Parent Properties which are located in any one state shall not exceed 20%
(except for Florida which shall not exceed 35%) of the Cost Basis for all Parent
Properties; (c) the Cost Basis for the Parent Properties which are limited
service hotels or extended stay shall not collectively in the aggregate exceed
20% of the Cost Basis for all Parent Properties (for purposes of this definition
Courtyards by Marriott shall not be deemed limited service hotels); (d) the
Cost Basis for the Parent Properties which are not operated under any franchise
or license agreement shall not exceed 15% of the Cost Basis for all Parent
Properties; (e) no Hotel Property or other Property shall cause the Parent to
forfeit the Parent's tax status as a REIT; and (f) the Cost Basis for Parent
Properties which are subject to a ground lease shall not exceed 22.5% of the
Cost Basis or 22.5% of the total guest rooms for all Parent Properties.
"Parent Total Cost Basis" means the sum of (a) the Minority Interest
-----------------------
Adjustment plus (b) the cost of all Hotel Properties owned or leased by the
----
Parent and its Subsidiaries on a Consolidated basis determined in accordance
with GAAP.
"Participating Leases" means those certain Participating Leases listed on
--------------------
Schedule 1.01(k) attached hereto and any future participating lease for an
Eligible Property approved by the Agents in writing (which approval shall not
be unreasonably withheld).
"Participating Lessee" means AGH Leasing, TT Leasing, Prime Hospitality and
--------------------
any future participating lessee for a Hotel Property approved by the Agents in
writing (which approval shall not be unreasonably withheld as long as such
Person is at least 65% owned by the same individuals required of a Participating
Lessee pursuant to the provisions of Section 8.01(r)).
"Participating Lessee Controlled Group" means all members of a controlled
-------------------------------------
group of corporations and all trades (whether or not incorporated) under common
control which, together with the Participating Lessee, are treated as a single
employer under Section 414 of the Code.
"PBGC" means the Pension Benefit Guaranty Corporation or any entity
----
succeeding to any or all of its functions under ERISA.
"Permitted Encumbrances" means the Liens permitted to exist pursuant to
----------------------
Section 6.01.
-26-
"Permitted Hazardous Substances" means (a) Hazardous Substances, petroleum
------------------------------
and petroleum products which are (i) used in the ordinary course of business and
in typical quantities for a hotel and (ii) generated, used and disposed of in
accordance with all Legal Requirements and good hotel industry practice and (b)
non-friable asbestos to the extent (i) that no applicable Legal Requirements
require removal of such asbestos from the Hotel Property and (ii) such asbestos
is encapsulated in accordance with all applicable Legal Requirements and such
reasonable operations and maintenance program as may be required by the Agents.
"Permitted Hotel Sale" means the Asset Disposition of all, but not a
--------------------
portion, of (a) a Hotel Property or (b) the ownership interest in a Subsidiary
of the Borrower which owns a Hotel Property, in either case for which the
Conditions to Asset Disposition are satisfied or will be satisfied within the
time periods required under this Agreement; provided, however, that the Borrower
shall be entitled to sell the office building portion of the Houston, Texas
Marriott as long as the other Conditions to Asset Disposition are satisfied in
connection with such sale.
"Permitted Non-Eligible Property" means any Hotel Property (a) which either
-------------------------------
(i) does not satisfy the conditions to qualifying as an Eligible Property set
---
forth in Section 3.03 or (ii) has not been submitted to the Banks as a potential
Eligible Property or has been removed as an Eligible Property by the Borrower;
(b) which is owned by a Permitted Other Subsidiary; and (c) which neither is
subject to any Environmental Claim, nor contains any Hazardous Substance which
could reasonably be expected to cause a Material Adverse Change as evidenced by
an Environmental Report delivered to the Administrative Agent at least 10 days
prior to the acquisition of such Hotel Property by Borrower or one of Borrower's
Subsidiaries.
"Permitted Non-Voting Stock Company" means a corporation (a) which has one
----------------------------------
class of voting common stock which is 91% owned by ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ and 9% owned
by the Borrower or a Subsidiary of the Borrower and one class of non-voting
common stock (the "Non-Voting Stock") owned entirely by the Borrower or a
Subsidiary of the Borrower, (b) which has ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as its president or
chief executive officer, (c) which has articles of incorporation, by-laws or
other organizational documents which provide that the Non-Voting Stock
stockholder is entitled to at least 95% of all dividends declared by the Board
of Directors of the Permitted Non-Voting Stock Company, (d) which has no Liens
on any of the Hotel Properties owned by such Person except Permitted
Encumbrances and Liens which are held by the Borrower, and (e) the ownership of
which by the Borrower or any Subsidiary of the Borrower would not cause a
Material Adverse Change.
-27-
"Permitted Non-Voting Stock Investment" means (a) the Non-Voting Stock of a
-------------------------------------
Permitted Non-Voting Stock Company and (b) a loan to a Permitted Non-Voting
Stock Company which may or may not be secured by a Permitted Non-Voting Stock
Mortgage.
"Permitted Non-Voting Stock Mortgage" means a Lien on a Hotel Property
-----------------------------------
owned by a Permitted Non-Voting Stock Company which is held by the Borrower.
"Permitted Officer Assignment" means such sales, assignments or pledges of
----------------------------
such legal and beneficial interests in the Parent or the Borrower by ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or any of their respective
Associates which for any such individual and such individual's Associates either
(a) does not result in a decrease in such individual's or individual's
Associates' ownership interests below 50% of the ownership interests in the
Borrower and the Parent's common stock represented by the sum of (i) the
interests that are owned on the date of this Agreement by such individual or
such individual's Associates and which is not subject to forfeiture on the date
of this Agreement and (ii) for which such individual or such individual's
Associates have vested options to acquire as of the date of this Agreement, (b)
occurs following such individual's termination of employment with the Parent or
(c) involves the exchange of ownership interests in the Borrower for the
Parent's common stock.
"Permitted Other Subsidiaries" means a Wholly-Owned Subsidiary or a Non
----------------------------
Wholly-Owned Subsidiary of the Borrower which (a) does not own and has never
owned any Eligible Property, (b) is a newly-formed, single-purpose Person and
(c) if such Person has any Hotel Property pledged to secure any Secured Non-
Recourse Indebtedness or Secured Recourse Indebtedness, then such Person shall
not own any Hotel Properties other than those that secure such Indebtedness.
"Person" means an individual, partnership, corporation (including a
------
business trust), joint stock company, trust, unincorporated association, limited
liability company, joint venture or other entity, or a government or any
political subdivision or agency thereof or any trustee, receiver, custodian or
similar official.
"Personal Property" for any Hotel Property means all FF&E, inventory and
-----------------
other personal property of every kind, whether now existing or hereafter
acquired, tangible and intangible, now or hereafter located on or about the
Land, and used or to be used in the future in connection with the operation of
such Hotel Property.
-28-
"Plan" means an employee benefit plan (other than a Multiemployer Plan)
----
maintained for employees of the Borrower or any member of a Controlled Group and
covered by Title IV of ERISA or subject to the minimum funding standards under
Section 412 of the Code.
"Preliminary Property Plan" means for any Hotel Property, the preliminary
-------------------------
financial projections of the Capital Expenditures and the expenditures for FF&E
for such Hotel Property in connection with a renovation or expansion (but not
maintenance) of such Hotel Property, as such projections may be amended by the
Borrower from time to time.
"Prime Hospitality" means Prime Hospitality Corp. or an Affiliate of Prime
-----------------
Hospitality Corp.
"Prime Rate" means a fluctuating interest rate per annum as shall be in
----------
effect from time to time equal to the rate of interest publicly announced by the
Administrative Agent as its prime commercial lending rate (which may not be the
lowest rate offered to its customers), whether or not the Borrower has notice
thereof.
"Prime Rate Advance" means an Advance which bears interest as provided in
------------------
Section 2.06(a).
"Property" of any Person means any property or assets (whether real,
--------
personal, or mixed, tangible or intangible) of such Person.
"Property Adjustment Report" means a certificate of the Borrower in
--------------------------
substantially the form of the attached Exhibit I.
"Property Information" for any Hotel Property means the information and
--------------------
documentation for such Hotel Property listed in Sections 3.03(f), 3.03(g),
3.03(k)(i)-(iii) and (v) and a commitment for a Title Policy for such Hotel
Property, together with a legible copy of all documents referred to in such
commitment.
"Property Owner" for any Initial Property or Future Property, means the
--------------
Person who owns fee or leasehold title interest (as applicable) in, and to such
Property.
"Pro Rata Share" means, at any time with respect to any Bank, either (a)
--------------
the ratio (expressed as a percentage) of such Bank's Commitment at such time to
the aggregate Commitments at such
-29-
time or (b) if the Commitments have been terminated, the ratio (expressed as a
percentage) of such Bank's aggregate outstanding Advances and participation
interest in the Letter of Credit Exposure at such time to the aggregate
outstanding Advances and Letter of Credit Exposure of all the Banks at such
time.
"Real Property" for any hotel means the Land and the Improvements for such
-------------
hotel, including without limitation, parking and other ancillary functions
necessary for the operation of such hotel, and, (a) with respect to the Houston,
Texas Marriott shall include the Land and the Improvements for the office
building owned by the Borrower or a Guarantor other than the Parent in
connection with such hotel and (b) with respect to the St. Tropez hotel, Las
Vegas, Nevada shall include the Land and the Improvements for the retail
property owned by the Borrower or a Guarantor other than the Parent in
connection with such hotel.
"Register" has the meaning set forth in paragraph (c) of Section 10.06.
--------
"Reimbursement Obligations" means all of the obligations of the Borrower
-------------------------
set forth in Section 2.13(c) and the Letter of Credit Documents.
"REIT" means a real estate investment trust under Sections 856-860 of the
----
Code.
"Release" shall have the meaning set forth in CERCLA or under any other
-------
Environmental Law.
"Renovating Property" means a Hotel Property (i) that has been owned for
-------------------
four or more, but less than six, consecutive full Fiscal Quarters by the
Borrower or by a Person that has been a Subsidiary of the Borrower during such
entire period and (ii) with respect to which renovation, consisting of
alterations, remodeling and other similar work having an aggregate cost
exceeding ten percent (10%) of the Cost Basis in such Hotel Property, was
commenced within 180 days of such acquisition and was completed, or is
reasonably expected to be completed, within eighteen (18) months of such
acquisition.
"Reportable Event" means any of the events set forth in Section 4043(b) of
----------------
ERISA.
"Response" shall have the meaning set forth in CERCLA or under any other
--------
Environmental Law.
-30-
"Responsible Officer" means the Chief Executive Officer, President,
-------------------
Executive Vice President or Chief Financial Officer of any Person.
"Restricted Payment" means (a) any direct or indirect payment, prepayment,
------------------
redemption, purchase, or deposit of funds or Property for the payment (including
any sinking fund or defeasance), prepayment, redemption or purchase of
Indebtedness not permitted by this Agreement, and (b) the making by any Person
of any dividends or other distributions (in cash, property, or otherwise) on, or
payment for the purchase, redemption or other acquisition of, any shares of any
capital stock, any limited liability company interests or any partnership
interests of such Person, other than dividends or distributions payable in such
Person's stock, limited liability company interests or any partnership
interests.
"Required Work" means for any Initial Property, the work described on
-------------
Schedule 5.06 attached hereto as may be modified by agreement between the
Borrower and the Agents, and for any Future Property which the Borrower requests
be an Eligible Property, the work agreed upon by the Borrower and the Agents, if
any, as the Required Work for such Future Property, if any.
"Rolling Period" means, as of any date, the four Fiscal Quarters ending
--------------
immediately preceding such date.
"S&P" means Standard & Poor's Ratings Group, a division of ▇▇▇▇▇▇-▇▇▇▇,
---
Inc., or any successor thereof.
"Seasoned Property" means, as at any date, a Hotel Property (excluding any
-----------------
Renovating Property) that has been owned for four (4) or more Fiscal Quarters,
by the Borrower or by a Person that has been a Subsidiary of the Borrower during
such entire period.
"Secured Non-Recourse Indebtedness" of any Person means all Indebtedness of
---------------------------------
such Person with respect to which recourse for payment is limited to specific
assets encumbered by a Lien securing such Indebtedness; provided, however, that
-------- -------
personal recourse of a holder of Indebtedness against any obligor with respect
thereto for fraud, misrepresentation, misapplication of cash, non-payment of
real estate taxes or ground lease rent, waste and other circumstances
customarily excluded from non-recourse provisions in non-recourse financing of
real estate shall not, by itself, prevent any Indebtedness from being
characterized as Secured Non-Recourse Indebtedness, provided
--------
-31-
further that if a personal recourse claim is made in connection therewith, such
------- ----
claim shall not constitute Secured Non-Recourse Indebtedness for the purposes of
this Agreement.
"Secured Recourse Indebtedness" of any Person means any Total Indebtedness
-----------------------------
(excluding any Secured Non-Resource Indebtedness) of such Person for which the
obligations thereunder are secured by a Lien on any assets of such Person or its
Subsidiaries.
[REMAINDER OF THE PAGE INTENTIONALLY LEFT BLANK]
-32-
"Status" means the existence of Level I Status, Level II Status, Level III
------
Status, Level IV Status, Level V Status, Level VI Status, Level VII Status,
Level VIII Status, Level IX Status, Level X Status, as the case may be. As used
in this definition:
"Level I Status" exists at any date if, at such date, (a) the Leverage
--------------
Ratio is less than 50% and (b) the Parent has a long-term senior unsecured
actual or implied debt rating of A- or better by S&P and A3 or better by
▇▇▇▇▇'▇;
"Level II Status" exists at any date if, at such date, (a) the
---------------
Leverage Ratio is less than 50% and (b) the Parent has a long-term senior
unsecured actual or implied debt rating of BBB+ by S&P and Baal by ▇▇▇▇▇'▇;
"Level III Status" exists at any date if, at such date, (a) the
----------------
Leverage Ratio is less than 50% and (b) the Parent has a long-term senior
unsecured actual or implied debt rating of BBB by S&P and Baa2 by ▇▇▇▇▇'▇;
"Level IV Status" exists at any date if, at such date, (a) the
---------------
Leverage Ratio is less than 50% and (b) the Parent has a long-term senior
unsecured actual or implied debt rating of BBB- by S&P and Baa3 by ▇▇▇▇▇'▇;
"Level V Status" exists at any date if, at such date, (a) none of
--------------
Level I Status through Level IV Status exist and (b) the Leverage Ratio is
less than 25%;
"Level VI Status" exists at any date if, at such date, (a) none of
---------------
Level I Status through Level IV Status exist and (b) the Leverage Ratio is
equal to or greater than 25% but less than 35%;
"Level VII Status" exists at any date if, at such date, (a) none of
----------------
Level I Status through Level IV Status exist and (b) the Leverage Ratio is
equal to or greater than 35% but less than 40%;
"Level VIII Status" exists at any date if, at such date, (a) none of
-----------------
Level I Status through Level IV Status exist and (b) the Leverage Ratio is
equal to or greater than 40% but less than 50%;
"Level IX Status" exists at any date if, at such date, (a) none of
---------------
Level I Status through Level IV Status exist and (b) the Leverage Ratio is
equal to or greater than 50% but less than 55%; and
"Level X Status" exists at any date if, at such date, (a) none of
--------------
Level I Status through Level IV Status exist and (b) the Leverage Ratio is
equal to or greater than 55%.
provided that (i) if S&P and/or ▇▇▇▇▇'▇ shall cease to issue ratings of debt
--------
securities of REITs generally or (after issuing ratings with respect to the
Parent) shall cease to issue ratings with respect to the Parent, then the
Administrative Agent and the Borrower shall negotiate in good faith to agree
-33-
upon a substitute rating agency or agencies (and to correlate the system of
ratings of each substitute rating agency with that of the rating agency for
which it is substituting) and (a) until such substitute rating agency or
agencies are agreed upon, Status shall be determined on the basis of the rating
assigned by the other rating agency (or, if both S&P and ▇▇▇▇▇'▇ shall have so
ceased to issue such ratings, on the basis of the Status in effect immediately
prior thereto) and (b) after such substitute rating agency or agencies are
agreed upon, Status shall be determined on the basis of the rating assigned by
the other rating agency and such substitute rating agency or the two substitute
rating agencies, as the case may be; (ii) if the long-term senior unsecured
actual or implied debt ratings of the Parent by S&P and ▇▇▇▇▇'▇ are not
equivalent, the higher rating will apply for the purposes of determining Status;
and (iii) if the long-term senior unsecured actual or implied debt ratings of
the Parent by S&P and ▇▇▇▇▇'▇ are two or more Levels apart, the rating one Level
below the higher rating will apply for the purposes of determining Status.
Status shall be determined and changed as of the 50th day following any Fiscal
Quarter; provided that if any of Status I through Status IV is in effect and
-------------
either S&P, ▇▇▇▇▇'▇ or a substitute rating agency changes such Person's debt
rating of the Parent, Status shall be determined and changed as of the 10th day
following such rating change. Notwithstanding the foregoing, until the 50th day
following the Fiscal Quarter ending March 31, 1998, the Status in effect under
this Agreement shall be Level IX Status.
"Stock" means shares of capital stock, beneficial or partnership interests,
-----
participations or other equivalents (regardless of how designated) of or in a
corporation or equivalent entity, whether voting or non-voting, and includes,
without limitation, common stock and preferred stock.
"Stock Equivalents" means all securities (other than Stock) convertible
-----------------
into or exchangeable for Stock and all warrants, options or other rights to
purchase or subscribe for any stock, whether or not presently convertible,
exchangeable or exercisable.
"Subordinate Credit Agreement" means that Subordinate Unsecured Credit
----------------------------
Agreement dated as of even date herewith, between the Borrower and certain
lenders, as may be amended, modified or extended in accordance with the
provisions of this Agreement.
"Subordinate Credit Documents" means that Subordinate Credit Agreement and
----------------------------
the promissory notes, guaranties and other documents executed in connection with
the Subordinate Credit Agreement.
-34-
"Subordinate Indebtedness" means the Indebtedness of the Borrower, the
------------------------
Parent and their respective Subsidiaries under (a) the Subordinate Credit
Agreement and (b) any other unsecured Indebtedness of such Persons which (i)
shall not mature, become payable or require the payment of any principal amount
thereof (or any other amount in lieu thereof) or be mandatorily redeemable,
pursuant to a sinking fund or otherwise or redeemable at the option of the
holder thereof, in any case in whole or in part, before the date that is 91 days
after the Maturity Date and (ii) shall be junior and subordinate to the
Obligations and subject to an intercreditor agreement or subordination
provisions which is in accordance with the then prevailing customary market
terms and conditions.
"Subsidiary" of a Person means any corporation, association, partnership or
----------
other business entity of which more than 50% of the outstanding shares of
capital stock (or other equivalent interests) having by the terms thereof
ordinary voting power under ordinary circumstances to elect a majority of the
board of directors or Persons performing similar functions (or, if there are no
such directors or Persons, having general voting power) of such entity
(irrespective of whether at the time capital stock (or other equivalent
interests) of any other class or classes of such entity shall or might have
voting power upon the occurrence of any contingency) is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or more
Subsidiaries of such Person or by one or more Subsidiaries of such Person. A
Permitted Non-Voting Stock Company shall not be deemed a Subsidiary of either
the Borrower or the Parent for all purposes under this Agreement.
"Super Majority Banks" means, at any time, Banks holding at least 66 2/3%
--------------------
of the then aggregate unpaid principal amount of the Notes and the Letter of
Credit Exposure of the Banks at such time, or, if no such principal amount of
the Notes and Letter of Credit Exposure is then outstanding, Banks having at
least 66 2/3% of the aggregate amount of the Commitments at such time.
"Supplemental Guarantor" means any partner of the Borrower except for the
----------------------
Parent, the Guarantors, the General Partner or AGH LP that executes a
Supplemental Guaranty.
"Supplemental Guaranty" means any future assumption of liability in a form
---------------------
reasonably acceptable to the Agents executed by a Supplemental Guarantor to
secure Advances, as such future supplemental guaranties may be amended hereafter
in accordance with their terms.
"Termination Event" means (a) the occurrence of a Reportable Event with
-----------------
respect to a Plan, as described in Section 4043 of ERISA and the regulations
issued thereunder (other than a
-35-
Reportable Event not subject to the provision for 30-day notice to the PBGC
under such regulations), (b) the withdrawal of the Borrower or any of a
Controlled Group from a Plan during a plan year in which it was a "substantial
employer" as defined in Section 4001(a)(2) of ERISA, (c) the giving of a notice
of intent to terminate a Plan under Section 4041(c) of ERISA, (d) the
institution of proceedings to terminate a Plan by the PBGC, or (e) any other
event or condition which constitutes grounds under Section 4042 of ERISA for the
termination of, or the appointment of a trustee to administer, any Plan.
"Total Assets" of any Person means, at any date, the total assets of such
------------
Person and its Subsidiaries at such date determined on a consolidated basis in
conformity with GAAP.
"Total Indebtedness" of any Person means the sum of the following (without
------------------
duplication): (a) all Indebtedness of such Person and its Subsidiaries
determined on a Consolidated basis in conformity with GAAP, plus (b) such
----
Person's Unconsolidated Entity Percentage of Indebtedness (including Secured
Non-Recourse Indebtedness) of such Person's Unconsolidated Entities, minus (c)
-----
to the extent included in the calculation of either of the preceding clauses (a)
or (b), trade payables and accruals permitted under the provisions of Section
6.02(e) hereof and the amount of any minority interests.
"TT Leasing" means Twin Towers Leasing, L.P., a Delaware limited
----------
partnership.
"Type" has the meaning set forth in Section 1.04.
----
"Unconsolidated Entity" means, with respect to any Person, at any date, any
---------------------
other Person in whom such Person holds an Investment, which Investment is
accounted for in the financial statements of such Person on an equity basis of
accounting and whose financial results would not be consolidated under GAAP with
the financial results of such Person on the consolidated financial statements of
such Person, if such statements were prepared as of such date.
"Unconsolidated Entity Percentage" means, for any Person, with respect to a
--------------------------------
Person's Unconsolidated Entity, the percentage ownership interest of such Person
in such Unconsolidated Entity, provided that, in the event that such Person is
--------------
the general partner of such Unconsolidated Entity, such Person's Unconsolidated
Entity Percentage with respect to such Unconsolidated Entity shall be the
percentage of the general partner interests owned by such Person in such
Unconsolidated
-36-
Entity with respect to any Indebtedness for which recourse may be made against
any general partner of such Unconsolidated Entity.
"Unencumbered" means, with respect to any Hotel Property, at any date of
------------
determination, the circumstance that such Hotel Property on such date:
(a) is not subject to any Liens (including restrictions on
transferability or assignability) of any kind (including any such Lien or
restriction imposed by (i) any agreement governing Indebtedness, and (ii) the
organizational documents of the Borrower or any of its Subsidiaries, but
excluding Permitted Encumbrances and, in the case of any Ground Lease (to the
extent permitted by the definition thereof), restrictions on transferability or
assignability in respect of such Ground Lease);
(b) is not subject to any agreement (including (i) any agreement
governing Indebtedness, and (ii) if applicable, the organizational documents of
the Borrower or any of its Subsidiaries) which prohibits or limits the ability
of the Borrower or any of its Subsidiaries to create, incur, assume or suffer to
exist any Lien upon such Hotel Property, other than Permitted Encumbrances
(excluding any agreement or organizational document which limits generally the
amount of Indebtedness which may be incurred by the Borrower or its
Subsidiaries); and
(c) is not subject to any agreement (including any agreement
governing Indebtedness) which entitles any Person to the benefit of any Lien
(other than Permitted Encumbrances) on such Hotel Property, or would entitle any
Person to the benefit of any such Lien upon the occurrence of any contingency
(including, without limitation, pursuant to an "equal and ratable" clause).
For the purposes of this Agreement, any Hotel Property owned by a Subsidiary of
the Borrower shall not be deemed to be Unencumbered unless both (i) such Hotel
Property and (ii) all Stock owned directly or indirectly by Borrower in such
Subsidiary is Unencumbered.
"Wholly-Owned Subsidiary" of a Person means any Subsidiary for which such
-----------------------
Person's ownership interest is 99% or more.
-37-
Section 1.02 Computation of Time Periods. In this Agreement in the
---------------------------
computation of periods of time from a specified date to a later specified date,
the word "from" means "from and including" and the words "to" and "until" each
means "to but excluding".
Section 1.03 Accounting Terms; Changes in GAAP.
---------------------------------
(a) All accounting terms not specifically defined in this Agreement shall
be construed in accordance with GAAP applied on a consistent basis with those
applied in the preparation of the Financial Statements.
(b) Unless otherwise indicated, all financial statements of the Borrower
and the Parent, all calculations for compliance with covenants in this
Agreement, and all calculations of any amounts to be calculated under the
definitions in Section 1.01 shall be based upon the Consolidated accounts of the
Borrower, the Parent and their respective Subsidiaries (as applicable) in
accordance with GAAP.
(c) If any changes in accounting principles after December 31, 1997
required by GAAP or the Financial Accounting Standards Board of the American
Institute of Certified Public Accountants or similar agencies results in a
change in the method of calculation of, or affects the results of such
calculation of, any of the financial covenants, standards or terms found in this
Agreement, then the parties shall enter into and diligently pursue negotiations
in order to amend such financial covenants, standards or terms so as to
equitably reflect such change, with the desired result that the criteria for
evaluating the financial condition of Borrower and its Subsidiaries (determined
on a Consolidated basis) shall be the same after such change as if such change
had not been made.
Section 1.04 Types of Advances. Advances are distinguished by "Type". The
-----------------
"Type" of an Advance refers to the determination whether such Advance is a LIBOR
Rate Advance or Prime Rate Advance, each of which constitutes a Type.
Section 1.05 Miscellaneous. Article, Section, Schedule and Exhibit
-------------
references are to Articles and Sections of and Schedules and Exhibits to this
Agreement, unless otherwise specified.
Section 1.06 Recitals. The matters set forth in the recitals at the
--------
beginning of this Agreement are agreed to by the parties to this Agreement and
incorporated into this Agreement as if set forth in their entirety herein.
-38-
Section 1.07 Amendment and Restatement. The parties hereto agree to use
-------------------------
reasonable efforts to accomplish the matters set forth in the recitals at the
beginning of this Agreement and, without limitation, agree to the following:
(a) The Borrower shall execute Notes (the "Incremental Notes") in such
amounts and payable to such of the Banks that with the Existing Notes payable to
the Banks will provide for each Bank a Note or Notes which have an aggregate
stated principal amount equal to such Bank's Commitment. For each Bank which
has only an Incremental Note, such Incremental Note shall constitute the Note
the Borrower is obligated to deliver to such Bank as provided in Section 3.01.
(b) For each Bank which has an Existing Note, the Borrower will execute a
Note payable to such Bank in the amount of such Bank's Commitment which Note (i)
will replace in its entirety the Existing Note, and, if such Bank also has an
Incremental Note, consolidate such Bank's Incremental Note with its Existing
Note and (ii) constitute the Note the Borrower is obligated to deliver to such
Bank as provided in Section 3.01.
(c) Within a reasonable period of time following the Closing Date at the
Borrower's cost the Administrative Agent, together with Bank One, Texas, N.A.,
in its capacity as administrative agent under the Existing Credit Agreement
shall (i) release the Liens securing the Existing Credit Documents except for
the Florida Liens, including without limitation executing releases of liens to
be placed in the appropriate real estate records, executing appropriate UCC-3
termination financing statements and delivering to those Persons involved in the
cash management system under the Existing Credit Documents letters reflecting
that the Liens and rights provided for in such system have been terminated and
(ii) amend the Florida Liens to reflect that the Obligations have been increased
from the Existing Credit Documents without any change in the limitations on
recovery set forth in the Florida Liens, all in documentation reasonably
acceptable to the Agents and the Borrower.
ARTICLE II
THE ADVANCES AND THE LETTERS OF CREDIT
Section 2.01 The Advances. Each Bank severally agrees, on the terms and
------------
conditions set forth in this Agreement, to make Advances to the Borrower from
time to time on any Business Day up to 15 days prior to the Maturity Date in an
aggregate amount not to exceed at any time
-39-
outstanding an amount equal to such Bank's Commitment less such Bank's Pro Rata
----
Share of the Letter of Credit Exposure at such time. The aggregate amount of all
outstanding Advances and Letter of Credit Exposure at any time may not exceed
either the lesser of (i) the aggregate Commitments at such time or (ii) the
Borrowing Base at such time. Within the limits of each Bank's Commitment and the
Borrowing Base limitation set forth above, the Borrower may from time to time
prepay pursuant to Section 2.07 and reborrow under this Section 2.01.
Section 2.02 Method of Borrowing.
-------------------
(a) Notice. Each Borrowing shall be made pursuant to a Notice of
------
Borrowing, given not later than 11:00 a.m. (Dallas, Texas time) (i) on the third
Business Day before the date of the proposed Borrowing, in the case of a
Borrowing consisting of LIBOR Rate Advances, or (ii) on the Business Day before
the date of the proposed Borrowing, in the case of a Borrowing consisting of
Prime Rate Advances, by the Borrower to the Administrative Agent, which shall
give each Bank prompt notice on the day of receipt of such timely Notice of
Borrowing of such proposed Borrowing by telecopier. Each Notice of Borrowing
shall be in writing or by telecopier specifying the requested (i) date of such
Borrowing, (ii) Type of Advances comprising such Borrowing, (iii) aggregate
amount of such Borrowing, and (iv) if such Borrowing is to be comprised of LIBOR
Rate Advances, the Interest Period for each such Advance. In the case of a
proposed Borrowing comprised of LIBOR Rate Advances, the Administrative Agent
shall promptly notify each Bank of the applicable interest rate under Section
2.06(b). Each Bank shall, before 11:00 a.m. (Dallas, Texas time) on the date of
such Borrowing, make available for the account of its Applicable Lending Office
to the Administrative Agent at its address referred to in Section 10.02, or such
other location as the Administrative Agent may specify by notice to the Banks,
in same day funds, such Bank's Pro Rata Share of such Borrowing. After the
Administrative Agent's receipt of such funds and upon fulfillment of the
applicable conditions set forth in Article III, the Administrative Agent will
make such funds available to the Borrower at its account with the Administrative
Agent.
(b) Conversions and Continuations. In order to elect to Convert or
-----------------------------
continue Advances comprising part of the same Borrowing under this Section, the
Borrower shall deliver an irrevocable Notice of Conversion or Continuation to
the Administrative Agent at the Administrative Agent's office no later than
11:00 a.m. (Dallas, Texas time) (i) on the date which is at least three Business
Days in advance of the proposed Conversion or continuation date in the case of a
Conversion to or a continuation of a Borrowing comprised of LIBOR Rate Advances
and (ii) on the Business Day prior to the proposed conversion date in the case
of a Conversion to a Borrowing comprised of Prime
-40-
Rate Advances. Each such Notice of Conversion or Continuation shall be in
writing or by telecopier, specifying (i) the requested Conversion or
continuation date (which shall be a Business Day), (ii) the Borrowing amount and
Type of the Advances to be Converted or continued, (iii) whether a Conversion or
continuation is requested, and if a Conversion, into what Type of Advances, and
(iv) in the case of a Conversion to, or a continuation of, LIBOR Rate Advances,
the requested Interest Period. Promptly after receipt of a Notice of Conversion
or Continuation under this paragraph, the Administrative Agent shall provide
each Bank with a copy thereof and, in the case of a Conversion to or a
continuation of LIBOR Rate Advances, notify each Bank of the applicable interest
rate under Section 2.06(b). For purposes other than the conditions set forth in
Section 3.02, the portion of Advances comprising part of the same Borrowing that
are Converted to Advances of another Type shall constitute a new Borrowing. If
the Borrower shall fail to specify an Interest Period for a LIBOR Rate Advance
including the continuation of a LIBOR Rate Advance, the Borrower shall be deemed
to have selected a Prime Rate Advance.
(c) Certain Limitations. Notwithstanding anything in paragraphs (a) and
-------------------
(b) above:
(i) in the case of LIBOR Rate Advances each Borrowing shall be in
an aggregate amount of not less than $2,000,000 or greater multiples of
$100,000;
(ii) except for Borrowings for the acquisition of Future Properties
by the Borrower or its Subsidiary, the Borrower may not request Borrowings
on more than three days in any calendar month.
(iii) at no time shall there be more than five Interest Periods
applicable to outstanding LIBOR Rate Advances;
(iv) the Borrower may not select LIBOR Rate Advances for any
Borrowing to be made, Converted or continued if a Default has occurred and
is continuing;
(v) if any Bank shall, at any time prior to the making of any
requested Borrowing comprised of LIBOR Rate Advances, notify the
Administrative Agent that the introduction of or any change in or in the
interpretation of any law or regulation makes it unlawful, or that any
central bank or other governmental authority asserts that it is unlawful,
for such Bank or its LIBOR Lending Office to perform its obligations under
this Agreement to make LIBOR Rate Advances or to fund or maintain LIBOR
Rate Advances, then such Bank's Pro
-41-
Rata Share of such Borrowing shall be made as a Prime Rate Advance,
provided that such Prime Rate Advance shall be considered part of the same
Borrowing and interest on such Prime Rate Advance shall be due and payable
at the same time that interest on the LIBOR Rate Advances comprising the
remainder of such Borrowing shall be due and payable; and such Bank agrees
to use commercially reasonable efforts (consistent with its internal
policies and legal and regulatory restrictions) to designate a different
Applicable Lending Office if the making of such designation would avoid the
effect of this paragraph and would not, in the reasonable judgment of such
Bank, be otherwise materially disadvantageous to such Bank;
(vi) if the Administrative Agent is unable to determine the LIBOR
Rate for LIBOR Rate Advances comprising any requested Borrowing, the right
of the Borrower to select LIBOR Rate Advances for such Borrowing or for any
subsequent Borrowing shall be suspended until the Administrative Agent
shall notify the Borrower and the Banks that the circumstances causing such
suspension no longer exist, and each Advance comprising such Borrowing
shall be a Prime Rate Advance;
(vii) if the Majority Banks shall, at least one Business Day before
the date of any requested Borrowing, notify the Administrative Agent that
the LIBOR Rate for LIBOR Rate Advances comprising such Borrowing will not
adequately reflect the cost to such Banks of making or funding their
respective LIBOR Rate Advances, as the case may be, for such Borrowing, the
right of the Borrower to select LIBOR Rate Advances for such Borrowing or
for any subsequent Borrowing shall be suspended until the Administrative
Agent shall notify the Borrower and the Banks that the circumstances
causing such suspension no longer exist, and each Advance comprising such
Borrowing shall be a Prime Rate Advance; and
(viii) if the Borrower shall fail to select the duration or
continuation of any Interest Period for any LIBOR Rate Advances in
accordance with the provisions contained in the definition of "Interest
Period" in Section 1.01 and paragraph (a) or (b) above, the Administrative
Agent will forthwith so notify the Borrower and the Banks and such Advances
will be made available to the Borrower on the date of such Borrowing as
Prime Rate Advances or, if an existing Advance, Converted into Prime Rate
Advances.
(d) Notices Irrevocable. Each Notice of Borrowing and Notice of
-------------------
Conversion or Continuation shall be irrevocable and binding on the Borrower. In
the case of any Borrowing which
-42-
the related Notice of Borrowing specifies is to be comprised of LIBOR Rate
Advances, the Borrower shall indemnify each Bank against any loss, out-of-pocket
cost or expense incurred by such Bank as a result of any condition precedent for
Borrowing set forth in Article III not being satisfied for any reason,
including, without limitation, any loss, cost or expense actually incurred by
reason of the liquidation or reemployment of deposits or other funds acquired by
such Bank to fund the Advance to be made by such Bank as part of such Borrowing
when such Advance, as a result of such failure, is not made on such date.
(e) Administrative Agent Reliance. Unless the Administrative Agent shall
-----------------------------
have received notice from a Bank before the date of any Borrowing that such Bank
will not make available to the Administrative Agent such Bank's Pro Rata Share
of the Borrowing, the Administrative Agent may assume that such Bank has made
its Pro Rata Share of such Borrowing available to the Administrative Agent on
the date of such Borrowing in accordance with paragraph (a) of this Section 2.02
and the Administrative Agent may, in reliance upon such assumption, make
available to the Borrower on such date a corresponding amount. If and to the
extent that such Bank shall not have so made its Pro Rata Share of such
Borrowing available to the Administrative Agent, such Bank and the Borrower
severally agree to immediately repay to the Administrative Agent on demand such
corresponding amount, together with interest on such amount, for each day from
the date such amount is made available to the Borrower until the date such
amount is repaid to the Administrative Agent, at (i) in the case of the
Borrower, the interest rate applicable on each such day to Advances comprising
such Borrowing and (ii) in the case of such Bank, the Federal Funds Rate for
each such day. If such Bank shall repay to the Administrative Agent such
corresponding amount and interest as provided above, such corresponding amount
so repaid shall constitute such Bank's Advance as part of such Borrowing for
purposes of this Agreement even though not made on the same day as the other
Advances comprising such Borrowing.
(f) Bank Obligations Several. The failure of any Bank to make the Advance
------------------------
to be made by it as part of any Borrowing shall not relieve any other Bank of
its obligation, if any, to make its Advance on the date of such Borrowing. No
Bank shall be responsible for the failure of any other Bank to make the Advance
to be made by such other Bank on the date of any Borrowing.
(g) Notes. The indebtedness of the Borrower to each Bank resulting from
-----
Advances owing to such Bank shall be evidenced by the Note of the Borrower
payable to the order of such Bank in substantially the form of Exhibit A.
-43-
Section 2.03 Fees.
----
(a) Commitment Fees. For the period from the Effective Date until the
---------------
Maturity Date the Borrower agrees to pay to the Administrative Agent for the
account of each Bank a commitment fee on the average daily amount by which such
Bank's Commitment exceeds the sum of such Bank's outstanding Advances and Pro
Rata Share of the Letter of Credit Exposure at a rate per annum equal to the
Applicable Margin based upon a 360-day year. Such fees shall be due and payable
quarterly in arrears (i) on the date which is 30 days following the end of the
last Business Day of each March, June, September and December and (ii) on the
Maturity Date.
(b) Letter of Credit Fees. The Borrower agrees to pay to the
---------------------
Administrative Agent for the benefit of the Banks, fees in respect of all
Letters of Credit outstanding at a rate per annum equal to one and 50/100
percent (1.50%) calculated based upon a 360-day year and in respect of the
maximum amount available from time to time to be drawn under such outstanding
Letters of Credit, payable in arrears (i) on the last Business Day of each
calendar month and (ii) on the Maturity Date. In addition, the Borrower agrees
to pay to the Issuing Bank for its own account $500 for each Letter of Credit
issued, reissued, amended, increased, or extended by such Issuing Bank, such
fees due and payable at the time of such issuance, reissuance, amendment,
increase or extension.
(c) Agents' and Managing Agents' Fees. The Borrower agrees to pay to the
---------------------------------
Agents and the Managing Agents for their benefit the fees set forth in the Fee
Letter as and when the same are due and payable pursuant to the terms of the Fee
Letter.
Section 2.04 Reduction of the Commitments.
----------------------------
(a) Upon the occurrence of any of the following:
(i) a change in control is reported by the Borrower, the Parent,
AGH Leasing or any other Participating Lessee which is an Affiliate of the
Borrower, or ▇▇▇▇ in response to Item 6(e) of Schedule 14A of Regulation
14A promulgated under the Securities Exchange Act of 1934 (the "Exchange
Act"), or
(ii) any "person" (as such term is used in Section 13(d) and Section
14(d)(2) of the Exchange Act) is or becomes the "beneficial owner" (as
defined in Rule 13d-3 under the Exchange Act), directly or indirectly, of
securities of the Borrower, the Parent, AGH
-44-
Leasing or any other Participating Lessee which is an Affiliate of the
Borrower, or ▇▇▇▇ representing the Control Percentage or more of the
combined voting power of the Borrower's, the Parent's, such Participating
Lessee's or AGHI's, as applicable, then outstanding securities;
then, in such event the Majority Banks may, at their sole option upon written
notice to the Borrower (a "Termination Notice"), declare the obligation of each
Bank to make Advances and the obligation of the Issuing Bank to issue, increase,
or extend Letters of Credit to be terminated, whereupon the same shall forthwith
terminate and the Commitments shall reduce to zero.
Notwithstanding the foregoing, a "change of control" shall not be deemed to
occur as a result of the acquisition of securities of the Borrower, the Parent,
AGH Leasing or any other Participating Lessee which is an Affiliate of the
Borrower or ▇▇▇▇ by any of ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or their respective
Associates (as such term is defined in Rule 12b-2 promulgated under the Exchange
Act) or controlled Affiliates.
(b) The Borrower may, upon at least three Business Days' prior notice to
the Administrative Agent, permanently terminate in whole or permanently reduce
ratably in part the Commitments of the Banks; provided, however, that (i) each
-------- -------
partial reduction shall be in the aggregate amount of not less than $5,000,000
or an integral multiple of $1,000,000 in excess thereof, (ii) no such reduction
shall result in a Borrowing Base deficiency as provided in Section 2.07(c)(ii),
and (iii) no such reduction shall result in the total aggregate Commitments of
the Banks being less than $250,000,000.
Section 2.05 Repayment of Advances. The Borrower shall repay the
---------------------
outstanding principal amount of each Advance on the Maturity Date.
Section 2.06 Interest, Late Payment Fee. The Borrower shall pay interest
--------------------------
on the unpaid principal amount of each Advance made by each Bank from the date
of such Advance until such principal amount shall be paid in full, at the
following rates per annum:
(a) Prime Rate Advances. If such Advance is a Prime Rate Advance, a rate
-------------------
per annum (computed on the actual number of days elapsed, including the first
day and excluding the last, based on a 365 day year) equal at all times to the
lesser of (i) the Adjusted Prime Rate in effect from time
-45-
to time plus the Applicable Margin and (ii) the Maximum Rate, payable in arrears
----
on the last Business Day of each calendar month and on the date such Prime Rate
Advance shall be paid in full, provided that during the continuance of an Event
--------
of Default, Prime Rate Advances shall bear interest at a rate per annum equal at
all times to the lesser of (i) the rate required to be paid on such Advance
immediately prior to the date on which such amount becomes due plus three
----
percent (3%) and (ii) the Maximum Rate.
(b) LIBOR Rate Advances. If such Advance is a LIBOR Rate Advance, a rate
-------------------
per annum (computed on the actual number of days elapsed, including the first
day and excluding the last, based on a 360 day year) equal at all times during
the Interest Period for such Advance to the lesser of (i) the LIBOR Rate for
such Interest Period plus the Applicable Margin and (ii) the Maximum Rate,
----
payable in arrears on the last day of such Interest Period, and on the date such
LIBOR Rate Advance shall be paid in full, and, with respect to LIBOR Rate
Advances having an Interest Period in excess of 30 days, the last day of each
calendar month during such Interest Period excluding the month in which such
LIBOR Rate Advance shall be paid in full; provided that during the continuance
--------
of an Event of Default, LIBOR Rate Advances shall bear interest at a rate per
annum equal at all times to the lesser of (i) the rate required to be paid on
such Advance immediately prior to the date on which such amount became due plus
----
three percent (3%) and (ii) the Maximum Rate.
(c) Usury Recapture. In the event the rate of interest chargeable under
---------------
this Agreement or the Notes at any time is greater than the Maximum Rate, the
unpaid principal amount of the Notes shall bear interest at the Maximum Rate
until the total amount of interest paid or accrued on the Notes equals the
amount of interest which would have been paid or accrued on the Notes if the
stated rates of interest set forth in this Agreement had at all times been in
effect. In the event, upon payment in full of the Notes, the total amount of
interest paid or accrued under the terms of this Agreement and the Notes is less
than the total amount of interest which would have been paid or accrued if the
rates of interest set forth in this Agreement had, at all times, been in effect,
then the Borrower shall, to the extent permitted by applicable law, pay the
Administrative Agent for the account of the Banks an amount equal to the
difference between (i) the lesser of (A) the amount of interest which would have
been charged on the Notes if the Maximum Rate had, at all times, been in effect
and (B) the amount of interest which would have accrued on the Notes if the
rates of interest set forth in this Agreement had at all times been in effect
and (ii) the amount of interest actually paid or accrued under this Agreement on
the Notes. In the event the Banks ever receive, collect or apply as interest
any sum in excess of the Maximum Rate, such excess amount shall, to the extent
-46-
permitted by law, be applied to the reduction of the principal balance of the
Notes, and if no such principal is then outstanding, such excess or part thereof
remaining shall be paid to the Borrower.
(d) Other Amounts Overdue. If any amount payable under this Agreement
---------------------
other than the Advances is not paid when due and payable, including without
limitation, accrued interest and fees, then such overdue amount shall accrue
interest hereon due and payable on demand at a rate per annum equal to the
Adjusted Prime Rate plus three percent (3%), from the date such amount became
----
due until the date such amount is paid in full.
(e) Late Payment Fee. Subject to the provisions of Section 10.12, if any
----------------
interest payable under this Agreement is not paid when due and payable (after
taking into account any applicable grace period), then the Borrower will pay to
the Banks contemporaneously with the payment of such past due interest a late
payment fee equal to an amount equal to the product of (i) such overdue interest
times (ii) four percent (4%).
-----
Section 2.07 Prepayments.
-----------
(a) Right to Prepay. The Borrower shall have no right to prepay any
---------------
principal amount of any Advance except as provided in this Section 2.07.
(b) Optional Prepayments. The Borrower may elect to prepay any of the
--------------------
Advances, after giving by 11:00 a.m. (Dallas, Texas time) (i) in the case of
LIBOR Rate Advances, at least three Business Days' or (ii) in case of Prime Rate
Advances, at least one Business Day's prior written notice to the Administrative
Agent stating the proposed date and aggregate principal amount of such
prepayment, and if applicable, the relevant Interest Period for the Advances to
be prepaid. If any such notice is given, the Borrower shall prepay Advances
comprising part of the same Borrowing in whole or ratably in part in an
aggregate principal amount equal to the amount specified in such notice, and
shall also pay accrued interest to the date of such prepayment on the principal
amount prepaid and amounts, if any, required to be paid pursuant to Section 2.08
as a result of such prepayment being made on such date; provided, however, that
-------- -------
each partial prepayment shall be in an aggregate principal amount not less than
$1,000,000 and in integral multiples of $100,000.
(c) Mandatory Prepayments.
---------------------
-47-
(i) Change of Control. On the fifth Business Day following the
-----------------
Borrower's receipt of a Termination Notice pursuant to Section 2.04(a)
hereof, the Borrower shall be required to prepay all outstanding Advances
in full and to deposit with the Administrative Agent into the Cash
Collateral Account an amount equal to the Letter of Credit Exposure.
(ii) Borrowing Base Deficiency. (A) On or prior to the fifth (5th)
-------------------------
Business Day following a Borrowing Base Determination Date occurring under
the provisions of Section 2.14 which are not governed by the following
clause (B) and (B) on or prior to the thirtieth (30th) Business Day
following a Borrowing Base Determination Date occurring under the
provisions of Sections 2.14(a) or 2.14(b) to the extent such Adjustment
Event occurs because the Majority Banks determine that a Hotel Property no
longer qualifies as an Eligible Property as provided in Section 3.03, the
Borrower shall be required to prepay Advances in an aggregate amount equal
to the excess of (Y) the aggregate amount of outstanding Advances and
Letter of Credit Exposure on such date over (Z) the lesser of (1) the
Borrowing Base, as determined on such Borrowing Base Determination Date or
(2) the aggregate Commitments at such time (or, upon payment in full of all
outstanding Advances, to deposit with the Administrative Agent into the
Cash Collateral Account an amount equal to the amount of the Letter of
Credit Exposure which exceeds the Borrowing Base).
(iii) Capitalization Event. Upon the occurrence of any
--------------------
Capitalization Event, the Borrower shall prepay Advances on the Business
Day such Net Cash Proceeds are received by the Borrower or the Parent, as
applicable, in an amount equal to the lesser of (A) the amount of the
outstanding Advances on such Business Day and (B) 100% of the Net Cash
Proceeds of such Capitalization Event; provided that if no Blockage Period
is in effect, the Borrower may use such Net Cash Proceeds to repay
Subordinate Indebtedness.
(iv) Accrued Interest. Each prepayment pursuant to this Section
----------------
2.07(c) shall be accompanied by accrued interest on the amount prepaid to
the date of such prepayment and amounts, if any, required to be paid
pursuant to Section 2.08 as a result of such prepayment being made on such
date.
(v) Avoidance of Breakage Costs. In the event that the amount of
---------------------------
any mandatory prepayment of Advances under this Section 2.07(c) exceeds the
aggregate principal amount of Advances which consist of Prime Rate Advances
(the amount of such excess being the "Excess Amount"), the Borrower shall
-------------
have the right, in lieu of making such prepayment in
-48-
full, to prepay such outstanding Advances which are Prime Rate Advances and
to deposit an amount equal to the Excess Amount with the Administrative
Agent in the Cash Collateral Account maintained by and in the sole dominion
and control of the Administrative Agent for the ratable benefit of the
Banks. Any amount so deposited shall be held by the Administrative Agent as
collateral for the Obligations, earn interest on behalf of the Borrower and
be applied to the prepayment of Advances which are LIBOR Rate Advances at
the end of the current Interest Period(s) applicable thereto. On any day on
which amounts collected in the Cash Collateral Account remain on deposit in
or to the credit of the Cash Collateral Account after giving effect to the
payment made on such day pursuant to this Section 2.07(c), and the Borrower
shall have delivered to the Administrative Agent a written request or a
telephonic request (which shall be promptly confirmed in writing) prior to
11:00 am (Dallas, Texas time) that such remaining collected amounts be
invested in cash equivalents specified in such request, the Administrative
Agent shall invest such funds, to the extent the Administrative Agent is
reasonably able to do so, in such cash equivalents as are acceptable to,
and with no risk to, the Administrative Agent on an overnight basis or with
maturities such that amounts will be available to pay the Obligations
secured thereby as they become due, whether at maturity, by acceleration or
otherwise; provided, however, that any loss resulting from such investments
-------- -------
shall be charged to and be immediately payable by the Borrower on demand by
the Administrative Agent.
(d) Ratable Payments. Each payment of any Advance pursuant to this Section
-----------------
2.07 or any other provision of this Agreement shall be made in a manner such
that all Advances comprising part of the same Borrowing are paid in whole or
ratably in part.
(e) Effect of Notice. All notices given pursuant to this Section 2.07
----------------
shall be irrevocable and binding upon the Borrower.
(f) Payments with respect to Florida Liens. Notwithstanding anything in
---------------------------------------
this Agreement or any other Credit Document to the contrary, each payment of any
Advance pursuant to this Section 2.07 or any other provision of this Agreement
shall be made in a manner such that all Advances secured by Florida Liens shall
be deemed the last Advances repaid.
Section 2.08 Breakage Costs. If (a) any payment of principal of any
--------------
LIBOR Rate Advance is made other than on the last day of the Interest Period for
such Advance as a result of any payment pursuant to Section 2.07 or the
acceleration of the maturity of the Notes pursuant to Article VIII or
-49-
otherwise; (b) any Conversion of a LIBOR Rate Advance is made other than on the
last day of the Interest Period for such Advance pursuant to Section 2.12 or
otherwise; or (c) the Borrower fails to make a principal or interest payment
with respect to any LIBOR Rate Advance on the date such payment is due and
payable, the Borrower shall, within 10 days of any written demand sent by any
Bank to the Borrower through the Administrative Agent, pay to the Administrative
Agent for the account of such Bank any amounts (without duplication of any other
amounts payable in respect of breakage costs) required to compensate such Bank
for any additional losses, out-of-pocket costs or expenses which it may
reasonably incur as a result of such payment or nonpayment, including, without
limitation, any loss, cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by any Bank to fund or maintain
such Advance.
Section 2.09 Increased Costs.
---------------
(a) LIBOR Rate Advances. If, due to either (i) the introduction of or any
-------------------
change (other than any change by way of imposition or increase of reserve
requirements included in the calculation of the LIBOR Rate) in or in the
interpretation of any law or regulation following the date of this Agreement or
(ii) the compliance with any guideline or request from any central bank or other
Governmental Authority (whether or not having the force of law) not complied
with prior to the date of this Agreement, there shall be any increase in the
cost to any Bank of agreeing to make or making, funding or maintaining LIBOR
Rate Advances, then the Borrower shall from time to time, upon demand by such
Bank (with a copy of such demand to the Administrative Agent), immediately pay
to the Administrative Agent for the account of such Bank additional amounts
(without duplication of any other amounts payable in respect of increased costs)
sufficient to compensate such Bank for such increased cost; provided, however,
-------- -------
that, before making any such demand, each Bank agrees to use commercially
reasonable efforts (consistent with its internal policy and legal and regulatory
restrictions) to designate a different Applicable Lending Office if the making
of such a designation would avoid the need for, or reduce the amount of, such
increased cost and would not, in the reasonable judgment of such Bank, be
otherwise disadvantageous to such Bank. A certificate as to the amount of such
increased cost and detailing the calculation of such cost submitted to the
Borrower and the Administrative Agent by such Bank at the time such Bank demands
payment under this Section shall be conclusive and binding for all purposes,
absent manifest error.
(b) Capital Adequacy. If any Bank or the Issuing Bank determines in good
----------------
faith that compliance with any law or regulation or any guideline or request
from any central bank or other Governmental Authority (whether or not having the
force of law) implemented or effective after the
-50-
date of this Agreement affects or would affect the amount of capital required or
expected to be maintained by such Bank or the Issuing Bank and that the amount
of such capital is increased by or based upon the existence of such Bank's
commitment to lend or the Issuing Bank's commitment to issue Letters of Credit
or any Bank's commitment to risk participate in Letters of Credit and other
commitments of this type, then, upon 30 days prior written notice by such Bank
or the Issuing Bank (with a copy of any such demand to the Administrative
Agent), the Borrower shall immediately pay to the Administrative Agent for the
account of such Bank or to the Issuing Bank, as the case may be, from time to
time as specified by such Bank or the Issuing Bank, additional amounts (without
duplication of any other amounts payable in respect of increased costs)
sufficient to compensate such Bank or the Issuing Bank, in light of such
circumstances, (i) with respect to such Bank, to the extent that such Bank
reasonably determines such increase in capital to be allocable to the existence
of such Bank's commitment to lend under this Agreement or its commitment to risk
participate in Letters of Credit and (ii) with respect to the Issuing Bank, to
the extent that such Issuing Bank reasonably determines such increase in capital
to be allocable to the issuance or maintenance of the Letters of Credit. A
certificate as to such amounts and detailing the calculation of such amounts
submitted to the Borrower and the Administrative Agent by such Bank or the
Issuing Bank shall be conclusive and binding for all purposes, absent manifest
error.
(c) Letters of Credit. If any change in any law or regulation or in the
-----------------
interpretation thereof by any court or administrative or Governmental Authority
charged with the administration thereof following the date of this Agreement
shall either (i) impose, modify, or deem applicable any reserve, special
deposit, or similar requirement against letters of credit issued by, or assets
held by, or deposits in or for the account of, Issuing Bank or any Bank or (ii)
impose on Issuing Bank or any Bank any other condition regarding the provisions
of this Agreement relating to the Letters of Credit or any Letter of Credit
Obligations, and the result of any event referred to in the preceding clause (i)
or (ii) shall be to increase the cost to Issuing Bank of issuing or maintaining
any Letter of Credit, or increase the cost to such Bank of its risk
participation in any Letter of Credit (which increase in cost shall be
determined by Issuing Bank's or such Bank's reasonable allocation of the
aggregate of such cost increases resulting from such event), then, upon demand
by Issuing Bank or such Bank (with a copy sent to the Administrative Agent), as
the case may be, the Borrower shall pay to the Administrative Agent for the
account of Issuing Bank or Bank, as the case may be, from time to time as
specified by Issuing Bank or such Bank, additional amounts which shall be
sufficient to compensate such Issuing Bank or such Bank for such increased cost.
Issuing Bank and each Bank agrees to use commercially reasonable efforts
(consistent with internal policy and legal and regulatory restrictions) to
designate a different Applicable Lending Office for the booking of its
-51-
Letters of Credit or risk participations if the making of such designation would
avoid the effect of this paragraph and would not, in the reasonable judgment of
Issuing Bank or such Bank, be otherwise disadvantageous to Issuing Bank or such
Bank, as the case may be. A certificate as to such increased cost incurred by
Issuing Bank or such Bank, as the case may be, as a result of any event
mentioned in clause (i) or (ii) above, and detailing the calculation of such
increased costs submitted by Issuing Bank or such Bank to the Borrower and the
Administrative Agent, shall be conclusive and binding for all purposes, absent
manifest error.
Section 2.11 Payments and Computations.
-------------------------
(a) Payment Procedures. Except if otherwise set forth herein, the Borrower
------------------
shall make each payment under this Agreement and under the Notes not later than
11:00 a.m. (Dallas, Texas time) on the day when due in Dollars to the
Administrative Agent at the location referred to in the Notes (or such other
location as the Administrative Agent shall designate in writing to the Borrower)
in same day funds. The Administrative Agent will on the same day cause to be
distributed like funds relating to the payment of principal, interest or fees
ratably (other than amounts payable solely to the Administrative Agent, the
Issuing Banks, or a specific Bank pursuant to Section 2.03(b), 2.03(c), 2.06(c),
2.08, 2.09, 2.11, 2.12, or 2.13(c) but after taking into account payments
effected pursuant to Section 10.04) to the Banks in accordance with each Bank's
Pro Rata Share for the account of their respective Applicable Lending Offices,
and like funds relating to the payment of any other amount payable to any Bank
or Issuing Bank for the account of its Applicable Lending Office, in each case
to be applied in accordance with the terms of this Agreement.
(b) Computations. All computations of interest based on the Adjusted Prime
------------
Rate shall be made by the Administrative Agent on the basis of a year of 365
days and all computations of fees and interest based on the LIBOR Rate and the
Federal Funds Rate shall be made by the Administrative Agent on the basis of a
year of 360 days, in each case for the actual number of days (including the
first day, but excluding the last day) occurring in the period for which such
interest or fees are payable. Each determination by the Administrative Agent of
an interest rate shall be conclusive and binding for all purposes, absent
manifest error.
(c) Non-Business Day Payments. Whenever any payment shall be stated to be
-------------------------
due on a day other than a Business Day, such payment shall be made on the next
succeeding Business Day, and such extension of time shall in such case be
included in the computation of payment of interest or fees, as the case may be;
provided, however, that if such extension would cause payment of
--------
-52-
interest on or principal of LIBOR Rate Advances to be made in the next following
calendar month, such payment shall be made on the next preceding Business Day.
(d) Administrative Agent Reliance. Unless the Administrative Agent shall
-----------------------------
have received written notice from the Borrower prior to the date on which any
payment is due to the Banks that the Borrower will not make such payment in
full, the Administrative Agent may assume that the Borrower has made such
payment in full to the Administrative Agent on such date and the Administrative
Agent may, in reliance upon such assumption, cause to be distributed to each
Bank on such date an amount equal to the amount then due such Bank. If and to
the extent the Borrower shall not have so made such payment in full to the
Administrative Agent, each Bank shall repay to the Administrative Agent
forthwith on demand such amount distributed to such Bank, together with
interest, for each day from the date such amount is distributed to such Bank
until the date such Bank repays such amount to the Administrative Agent, at the
Federal Funds Rate for each such day.
(e) Application of Payments. Unless otherwise specified in Section 2.07
-----------------------
hereof, whenever any payment received by the Administrative Agent under this
Agreement is insufficient to pay in full all amounts then due and payable under
this Agreement and the Notes, such payment shall be distributed and applied by
the Administrative Agent and the Banks in the following order: first, to the
-----
payment of fees and expenses due and payable to the Administrative Agent under
and in connection with this Agreement or any other Credit Document; second, to
------
the payment of all expenses due and payable under Section 2.11(c), ratably among
the Banks in accordance with the aggregate amount of such payments owed to each
such Bank; third, to the payment of fees due and payable to the Issuing Bank
-----
pursuant to Section 2.03(b); fourth, to the payment of all other fees due and
------
payable under Section 2.03; and fifth, to the payment of the interest accrued on
-----
and the principal amount of all of the Notes and the interest accrued on and all
Reimbursement Obligations, regardless of whether any such amount is then due and
payable, ratably among the Banks in accordance with the aggregate accrued
interest plus the aggregate principal amount owed to such Bank.
(f) Register. The Administrative Agent shall record in the Register the
--------
Commitment and the Advances from time to time of each Bank and each repayment or
prepayment in respect to the principal amount of such Advances of each Bank.
Any such recordation shall be conclusive and binding on the Borrower and each
Bank, absent manifest error; provided however, that failure to make any such
-------- -------
recordation, or any error in such recordation, shall not affect the Borrower's
obligations hereunder in respect of such Advances.
-53-
Section 2.11 Taxes.
-----
(a) No Deduction for Certain Taxes. Any and all payments by the Borrower
------------------------------
shall be made, in accordance with Section 2.10, free and clear of and without
deduction for any and all present or future taxes, levies, imposts, deductions,
charges or withholdings, and all liabilities with respect thereto, excluding, in
the case of each Bank, Issuing Bank, and the Administrative Agent, taxes imposed
on its income, and franchise taxes imposed on it, by the jurisdiction under the
laws of which such Bank, Issuing Bank, or the Administrative Agent (as the case
may be) is organized or any political subdivision of the jurisdiction (all such
nonexcluded taxes, levies, imposts, deductions, charges, withholdings and
liabilities being hereinafter referred to as "Taxes") and, in the case of each
Bank and Issuing Bank, Taxes by the jurisdiction of such Bank's Applicable
Lending Office or any political subdivision of such jurisdiction. If the
Borrower shall be required by law to deduct any Taxes from or in respect of any
sum payable to any Bank, Issuing Bank, or the Administrative Agent, (i) the sum
payable shall be increased as may be necessary so that, after making all
required deductions (including deductions applicable to additional sums payable
under this Section 2.11), such Bank, Issuing Bank, or the Administrative Agent
(as the case may be) receives an amount equal to the sum it would have received
had no such deductions been made; provided, however, that if the Borrower's
--------
obligation to deduct or withhold Taxes is caused solely by such Bank's, Issuing
Bank's, or the Administrative Agent's failure to provide the forms described in
paragraph (e) of this Section 2.11 and such Bank, Issuing Bank, or the
Administrative Agent could have provided such forms, no such increase shall be
required; (ii) the Borrower shall make such deductions; and (iii) the Borrower
shall pay the full amount deducted to the relevant taxation authority or other
authority in accordance with applicable Legal Requirements.
(b) Other Taxes. In addition, the Borrower agrees to pay any present or
-----------
future stamp or documentary taxes or any other excise or property taxes, charges
or similar levies which arise from any payment made or from the execution,
delivery or registration of, or otherwise with respect to, this Agreement, the
Notes, or the other Credit Documents (hereinafter referred to as "Other Taxes").
(c) Indemnification. The Borrower indemnifies each Bank, Issuing Bank, and
---------------
the Administrative Agent for the full amount of Taxes or Other Taxes (including,
without limitation, any Taxes or Other Taxes imposed by any Governmental
Authority on amounts payable under this Section 2.11) paid by such Bank, Issuing
Bank, or the Administrative Agent (as the case may be) and any liability
(including interest and expenses) arising therefrom or with respect thereto,
whether or not such Taxes or Other Taxes were correctly or legally asserted.
Each payment required to be
-54-
made by the Borrower in respect of this indemnification shall be made to the
Administrative Agent for the benefit of any party claiming such indemnification
within 30 days from the date the Borrower receives written demand detailing the
calculation of such amounts therefor from the Administrative Agent on behalf of
itself as Administrative Agent, Issuing Bank, or any such Bank. If any Bank, the
Administrative Agent, or Issuing Bank receives a refund in respect of any Taxes
or Other Taxes paid by the Borrower under this paragraph (c), such Bank, the
Administrative Agent, or Issuing Bank, as the case may be, shall promptly pay to
the Borrower the Borrower's share of such refund.
(d) Evidence of Tax Payments. The Borrower will pay prior to delinquency
------------------------
all Taxes and Other Taxes payable in respect of any payment. Within 30 days
after the date of any payment of Taxes, the Borrower will furnish to the
Administrative Agent, at its address referred to in Section 10.02, the original
or a certified copy of a receipt evidencing payment of such Taxes or Other
Taxes.
(e) Foreign Bank Withholding Exemption. Each Bank and each Issuing Bank
----------------------------------
that is not incorporated under the laws of the United States of America or a
state thereof agrees that it will deliver to the Borrower and the Administrative
Agent on the date of this Agreement or upon the effectiveness of any Assignment
and Acceptance (i) two duly completed copies of United States Internal Revenue
Service Form 1001 or 4224 or successor applicable form, as the case may be,
certifying in each case that such Bank is entitled to receive payments under
this Agreement and the Notes payable to it, without deduction or withholding of
any United States federal income taxes, (ii) if applicable, an Internal Revenue
Service Form W-8 or W-9 or successor applicable form, as the case may be, to
establish an exemption from United States backup withholding tax, and (iii) any
other governmental forms which are necessary or required under an applicable tax
treaty or otherwise by law to reduce or eliminate any withholding tax, which
have been reasonably requested by the Borrower. Each Bank which delivers to the
Borrower and the Administrative Agent a Form 1001 or 4224 and Form W-8 or W-9
pursuant to the next preceding sentence further undertakes to deliver to the
Borrower and the Administrative Agent two further copies of Form 1001 or 4224
and Form W-8 or W-9, or successor applicable forms, or other manner of
certification, as the case may be, on or before the date that any such form
expires or becomes obsolete or after the occurrence of any event requiring a
change in the most recent form previously delivered by it to the Borrower and
the Administrative Agent, and such extensions or renewals thereof as may
reasonably be requested by the Borrower and the Administrative Agent certifying
in the case of a Form 1001 or 4224 that such Bank is entitled to receive
payments under this Agreement without deduction or withholding of any United
States federal income taxes. If an event (including without limitation any
-55-
change in treaty, law or regulation) has occurred prior to the date on which any
delivery required by the preceding sentence would otherwise be required which
renders all such forms inapplicable or which would prevent any Bank from duly
completing and delivering any such letter or form with respect to it and such
Bank advises the Borrower and the Administrative Agent that it is not capable of
receiving payments without any deduction or withholding of United States federal
income tax, and in the case of a Form W-8 or W-9, establishing an exemption from
United States backup withholding tax, such Bank shall not be required to deliver
such forms. The Borrower shall withhold tax at the rate and in the manner
required by the laws of the United States with respect to payments made to a
Bank failing to timely provide the requisite Internal Revenue Service forms.
Section 2.12 Illegality. If any Bank shall notify the Administrative
----------
Agent and the Borrower that the introduction of or any change in or in the
interpretation of any Legal Requirement makes it unlawful, or that any central
bank or other Governmental Authority asserts that it is unlawful for such Bank
or its LIBOR Lending Office to perform its obligations under this Agreement to
maintain any LIBOR Rate Advances of such Bank then outstanding hereunder, then,
notwithstanding anything herein to the contrary, the Borrower shall, if demanded
by such Bank by notice to the Borrower and the Administrative Agent no later
than 11:00 a.m. (Dallas, Texas time), (a) if not prohibited by Legal Requirement
to maintain such LIBOR Rate Advances for the duration of the Interest Period, on
the last day of the Interest Period for each outstanding LIBOR Rate Advance of
such Bank or (b) if prohibited by Legal Requirement to maintain such LIBOR Rate
Advances for the duration of the Interest Period, on the second Business Day
following its receipt of such notice from such Bank, Convert all LIBOR Rate
Advances of such Bank then outstanding to Prime Rate Advances, and pay accrued
interest on the principal amount Converted to the date of such Conversion and
amounts, if any, required to be paid pursuant to Section 2.08 as a result of
such Conversion being made on such date. Each Bank agrees to use commercially
reasonable efforts (consistent with its internal policies and legal and
regulatory restrictions) to designate a different Applicable Lending Office if
the making of such designation would avoid the effect of this paragraph and
would not, in the reasonable judgment of such Bank, be otherwise disadvantageous
to such Bank.
Section 2.13 Letters of Credit.
-----------------
(a) Issuance. From time to time from the date of this Agreement until
--------
three months before the Maturity Date, at the request of the Borrower, the
Issuing Bank shall, on any Business Day and on the terms and conditions
hereinafter set forth, issue, increase, decrease, amend, or extend the
expiration date of Letters of Credit for the account of the Borrower (for its
own benefit or for the
-56-
benefit of any of its Subsidiaries). Upon the Effective Date, but subject to the
limitations contained in the following sentence, each Existing Letter of Credit
shall be automatically converted to a Letter of Credit. No Letter of Credit will
be issued, increased, or extended and no Existing Letter of Credit will be
converted to a Letter of Credit (i) if such issuance, increase, extension or
conversion would cause the Letter of Credit Exposure to exceed the lesser of (x)
$60,000,000 or (y) an amount equal to (A) the lesser of the Borrowing Base or
the aggregate Commitments less (B) the aggregate outstanding Advances and Letter
----
of Credit Exposure at such time; (ii) unless such Letter of Credit has an
Expiration Date not later than the earlier of (A) one year after the date of
issuance thereof and (B) one day prior to the Maturity Date; (iii) unless such
Letter of Credit is in form and substance acceptable to the respective Issuing
Bank; (iv) unless such Letter of Credit is a standby letter of credit not
supporting the repayment of indebtedness for borrowed money of any Person; (v)
unless the Borrower has delivered to the respective Issuing Bank the completed
and executed Letter of Credit Documents (other than the Letter of Credit) on
such Issuing Bank's standard form, which shall contain terms no more restrictive
than the terms of this Agreement; (vi) unless such Letter of Credit is governed
by the Uniform Customs and Practice for Documentary Credits (1993 Revision),
International Chamber of Commerce Publication No. 500 ("UCP") or any successor
to the UCP; and (vii) no Default has occurred and is continuing or would result
from the issuance of such Letter of Credit. If the terms of any of the Letter of
Credit Documents referred to in the foregoing clause (v) conflicts with the
terms of this Agreement, the terms of this Agreement shall control.
(b) Participations. On the date of the issuance or increase of any Letter
--------------
of Credit on or after the Effective Date or the conversion of any Existing
Letter of Credit to a Letter of Credit in accordance with provisions of the
preceding Section 2.13(a), each Issuing Bank shall be deemed to have sold to
each other Bank and each other Bank shall have been deemed to have purchased
from such Issuing Bank a participation in the Letter of Credit Exposure related
to the Letters of Credit issued by such Issuing Bank equal to such Bank's Pro
Rata Share at such date and such sale and purchase shall otherwise be in
accordance with the terms of this Agreement. Each Issuing Bank shall promptly
notify each such participant Bank by telex, telephone, or telecopy of each
Letter of Credit of such Issuing Bank issued, increased or decreased, and the
actual dollar amount of such Bank's participation in such Letter of Credit.
Each Bank's obligation to purchase participating interests pursuant to this
Section and to reimburse the respective Issuing Bank for such Bank's Pro Rata
Share of any payment under a Letter of Credit by such Issuing Bank not
reimbursed in full by the Borrower shall be absolute and unconditional and shall
not be affected by any circumstance, including, without limitation, (i) any of
the circumstances described in paragraph (d) below, (ii) the occurrence and
continuance of a Default, (iii) an adverse change in the financial condition of
the
-57-
Borrower or any Guarantor, or (iv) any other circumstance, happening or event
whatsoever, whether or not similar to any of the foregoing, except for any such
circumstance, happening or event constituting or arising from gross negligence
or willful misconduct on the part of such Issuing Bank.
(c) Reimbursement. The Borrower shall have the right (but not the
-------------
obligation) to pay promptly on demand to each Issuing Bank in respect of each
Letter of Credit issued by such Issuing Bank an amount equal to any amount paid
by such Issuing Bank under or in respect of such Letter of Credit. In the event
any Issuing Bank makes a payment pursuant to a request for draw presented under
a Letter of Credit and such payment is not promptly reimbursed by the Borrower
upon demand, such Issuing Bank shall give notice of such payment to the
Administrative Agent and the Banks, and each Bank shall promptly reimburse such
Issuing Bank for such Bank's Pro Rata Share of such payment, and such
reimbursement shall be deemed for all purposes of this Agreement to constitute a
Prime Rate Advance to the Borrower from such Bank. If such reimbursement is not
made by any Bank to any Issuing Bank on the same day on which such Issuing Bank
shall have made payment on any such draw, such Bank shall pay interest thereon
to such Issuing Bank for each such day from the date such payment should have
been made until the date repaid at a rate per annum equal to the Federal Funds
Rate for each such day. The Borrower hereby unconditionally and irrevocably
authorizes, empowers, and directs the Administrative Agent and the Banks to
record and otherwise treat each payment under a Letter of Credit not immediately
reimbursed by the Borrower as a Borrowing comprised of Prime Rate Advances to
the Borrower.
(d) Obligations Unconditional. The obligations of the Borrower under this
-------------------------
Agreement in respect of each Letter of Credit shall be unconditional and
irrevocable, and shall be paid strictly in accordance with the terms of this
Agreement under all circumstances, notwithstanding the following circumstances:
(i) any lack of validity or enforceability of any Letter of Credit
Documents;
(ii) any amendment or waiver of or any consent to departure from any
Letter of Credit Documents;
(iii) the existence of any claim, set-off, defense or other right
which the Borrower or any Bank or any other Person may have at any time
against any beneficiary or transferee of such Letter of Credit (or any
Persons for whom any such beneficiary or any such transferee may be
acting), the respective Issuing Bank or any other Person or entity, whether
-58-
in connection with this Agreement, the transactions contemplated in this
Agreement or in any Letter of Credit Documents or any unrelated
transaction;
(iv) any statement or any other document presented under such Letter
of Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any respect
to the extent the respective Issuing Bank would not be liable therefor
pursuant to the following paragraph (e);
(v) payment by the respective Issuing Bank under such Letter of
Credit against presentation of a draft or certificate which does not comply
with the terms of such Letter of Credit; or
(vi) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing.
(e) Liability of Issuing Banks. The Borrower assumes all risks of the acts
--------------------------
or omissions of any beneficiary or transferee of any Letter of Credit with
respect to its use of such Letter of Credit. No Issuing Bank, nor any other
Bank, nor any of their respective officers or directors shall be liable or
responsible for:
(i) the use which may be made of any Letter of Credit or any acts
or omissions of any beneficiary or transferee in connection therewith;
(ii) the validity, sufficiency or genuineness of documents, or of
any endorsement thereon, even if such documents should prove to be in any
or all respects invalid, insufficient, fraudulent or forged;
(iii) payment by such Issuing Bank against presentation of documents
which do not comply with the terms of a Letter of Credit, including failure
of any documents to bear any reference or adequate reference to the
relevant Letter of Credit; or
(iv) any other circumstances whatsoever in making or failing to make
payment under any Letter of Credit (including such Issuing Bank's own
negligence),
-59-
except that the Borrower shall have a claim against such Issuing Bank, and such
------
Issuing Bank shall be liable to, and shall promptly pay to, the Borrower, to the
extent of any direct, as opposed to consequential, damages suffered by the
Borrower which the Borrower proves were caused by (A) such Issuing Bank's
willful misconduct or gross negligence in determining whether documents
presented under a Letter of Credit comply with the terms of such Letter of
Credit or (B) such Issuing Bank's gross negligence in failing to make lawful
payment under any Letter of Credit after the presentation to it of a draft and
certificate strictly complying with the terms and conditions of such Letter of
Credit. In furtherance and not in limitation of the foregoing, any Issuing Bank
may accept documents that appear on their face to be in order, without
responsibility for further investigation.
Section 2.14 Determination of Borrowing Base. The Borrowing Base shall
-------------------------------
be determined by the Administrative Agent, as follows:
(a) Quarterly. On the 50th day following each calendar quarter the
---------
Administrative Agent shall determine the Borrowing Base upon receipt of a
Borrowing Base Certificate setting forth the components of the Borrowing Base
dated as of the last day of the immediately preceding calendar quarter.
(b) Property Adjustments. Following each addition or deletion of a Hotel
--------------------
Property as an Eligible Property (an "Adjustment Event"), and the Administrative
----------------
Agent's receipt of a Property Adjustment Report with respect thereto, the
Administrative Agent shall adjust the Borrowing Base accordingly.
(c) Reduction of Commitments. Following each reduction of the Commitments
------------------------
pursuant to the provisions of Section 2.04.
(d) Notice of Borrowing Base Change. Promptly following any date the
-------------------------------
Borrowing Base is redetermined in accordance with the preceding paragraphs, the
Administrative Agent shall give notice to the Banks and the Borrower of the new
Borrowing Base.
Section 2.15 Bank Replacement.
----------------
(a) Right to Replace. The Borrower shall have the right to replace each
----------------
Bank affected by a condition under Section 2.02(c)(v), 2.09, 2.11, or 2.12 for
more than 90 days (each such affected
-60-
Bank, an "Affected Bank") in accordance with the procedures in this Section 2.15
and provided that no reduction of the total Commitments occurs as a result
thereof.
(b) First Right of Refusal; Replacement.
-----------------------------------
(i) Upon the occurrence of any condition permitting the replacement
of a Bank, each Bank which is not an Affected Bank shall have the right,
but not the obligation, to elect to increase its respective Commitment by
an amount not to exceed the amount of the Commitments of the Affected
Banks, which election shall be made by written notice from each such Bank
to the Administrative Agent and the Borrower given within 30 days after the
date such condition occurs specifying the amount of such proposed increase
in such Bank's Commitment.
(ii) If the aggregate amount of the proposed increases in
Commitments of all such Banks making such an election is in excess of the
Commitments of the Affected Banks, (A) the Commitments of the Affected
Banks shall be allocated pro rata among such Banks based on the respective
amounts of the proposed increases to Commitments elected by each of such
Banks, and (B) the respective Commitments of such Banks shall be increased
by the respective amounts as so allocated so that after giving effect to
such termination and increases the aggregate amount of the Commitments of
the Banks will be the same as prior to such termination.
(iii) If the aggregate amount of the proposed increases to
Commitments of all Banks making such an election equals the Commitments of
the Affected Banks, the respective Commitments of such Banks shall be
increased by the respective amounts of their proposed increases, so that
after giving effect to such termination and increase the aggregate amount
of the Commitments of all of the Banks will be the same as prior to such
termination.
(iv) If the aggregate amount of the proposed increases to
Commitments of all Banks making such an election is less than the
Commitments of the Affected Banks, (A) the respective Commitments of such
Banks shall be increased by the respective amounts of their proposed
increases, and (B) the Borrower shall have the right to add additional
Banks which are Eligible Assignees to this Agreement to replace such
Affected Banks, which additional Banks would have aggregate Commitments no
greater than those of the Affected Banks minus the amounts thereof assumed
-----
by the other Banks pursuant to such increases.
-61-
(c) Procedure. Any assumptions of Commitments pursuant to this Section
---------
2.15 shall be (i) made by the purchasing Bank or Eligible Assignee and the
selling Bank entering into an Assignment and Assumption and by following the
procedures in Section 10.06 for adding a Bank. In connection with the increase
of the Commitments of any Bank pursuant to the foregoing paragraph (b), each
Bank with an increased Commitment shall purchase from the Affected Banks at par
such Bank's ratable share of the outstanding Advances of the Affected Banks and
assume such Bank's ratable share of the Affected Banks' Letter of Credit
Exposure.
Section 2.16 Sharing of Payments, Etc. If any Bank shall obtain any
------------------------
payment (whether voluntary, involuntary, through the exercise of any right of
set-off or otherwise) on account of its Advances or its share of Letter of
Credit Obligations in excess of its Pro Rata Share of payments on account of the
Advances or Letter of Credit Obligations obtained by all the Banks, such Bank
shall notify the Administrative Agent and forthwith purchase from the other
Banks such participations in the Advances made by them or Letter of Credit
Obligations held by them as shall be necessary to cause such purchasing Bank to
share the excess payment ratably in accordance with the requirements of this
Agreement with each of them; provided, however, that if all or any portion of
--------
such excess payment is thereafter recovered from such purchasing Bank, such
purchase from each Bank shall be rescinded and such Bank shall repay to the
purchasing Bank the purchase price to the extent of such Bank's ratable share
(according to the proportion of (a) the amount of the participation sold by such
Bank to the purchasing Bank as a result of such excess payment to (b) the total
amount of such excess payment) of such recovery, together with an amount equal
to such Bank's ratable share (according to the proportion of (a) the amount of
such Bank's required repayment to the purchasing Bank to (b) the total amount of
all such required repayments to the purchasing Bank) of any interest or other
amount paid or payable by the purchasing Bank in respect of the total amount so
recovered. The Borrower agrees that any Bank so purchasing a participation from
another Bank pursuant to this Section 2.16 may, to the fullest extent permitted
by Legal Requirement, unless and until rescinded as provided above, exercise all
its rights of payment (including the right of set-off) with respect to such
participation as fully as if such Bank were the direct creditor of the Borrower
in the amount of such participation.
-62-
ARTICLE III
CONDITIONS OF LENDING
Section 3.01 Conditions Precedent to initial Advance. The obligation of
---------------------------------------
each Bank to make its initial Advance as part of the initial Borrowing and of
the Issuing Bank to issue the initial Letter of Credit are subject to the
following conditions precedent being satisfied on or prior to February 28, 1998:
(a) Documentation. The Documentation Agent or the Administrative Agent
-------------
shall have received counterparts of this Agreement executed by the Borrower and
the Banks, and the following duly executed by all the parties thereto, in form
and substance satisfactory to the Agents, and, with respect to this Agreement,
all Guaranties and the Environmental Indemnity, in sufficient copies for each
Bank:
(i) the Notes, all Guaranties, and the Environmental Indemnity;
(ii) a certificate from the Chief Executive Officer, President or
Chief Financial Officer of the General Partner on behalf of the Borrower
dated as of the Effective Date stating that as of the Effective Date (A)
all representations and warranties of the Borrower set forth in this
Agreement and the Credit Documents are true and correct in all material
respects; (B) no Default has occurred and is continuing; (C) the conditions
in this Section 3.01 have been met or waived in writing; and (D) to the
best of the Borrower's knowledge there are no claims, defenses,
counterclaims or offsets against the Banks under the Credit Documents;
(iii) a certificate of the Secretary or an Assistant Secretary of the
General Partner on behalf of the Borrower and each Guarantor dated as of
the date of this Agreement certifying as of the date of this Agreement (A)
the names and true signatures of officers or authorized representatives of
the general partner of the Borrower and such Guarantor authorized to sign
the Credit Documents to which such Person is a party as general partner of
such Person, (B) resolutions of the Board of Directors or the members of
the general partner of such Person with respect to the transactions herein
contemplated, (C) either (x) the copies of the organizational documents of
the general partner of such Person delivered to the Banks are still true
and correct and have not been amended or modified since such date or
-63-
(y) copies of any modification or amendment to the organizational documents
of the general partner of such Person made since such date, (D) a true and
correct copy of the partnership agreement for such Person, (E) a true and
correct copy of all partnership authorizations necessary or desirable in
connection with the transactions herein contemplated and (F) a true and
correct copy of all Subordinate Credit Documents;
(iv) a certificate of the Secretary or an Assistant Secretary of the
Parent dated as of the date of this Agreement certifying as of the date of
this Agreement (A) resolutions of the Board of Directors of such Person
with respect to the transactions herein contemplated, and (B) the copies of
the charter and bylaws of the Parent and any modification or amendment to
the articles or certificate of incorporation or bylaws of the Parent made
since such date;
(v) (A) one or more favorable written opinions of Battle ▇▇▇▇▇▇
L.L.P., special counsel for the Borrower, the Parent, and their
Subsidiaries, substantially in the form of the attached Exhibit J, in each
case dated as of the Closing Date and with such changes as the Agents may
approve, (B) one or more favorable written opinions of Kane, Russell,
▇▇▇▇▇▇▇ & ▇▇▇▇▇, special Texas counsel for the Borrower, the Parent, and
the Manager and their Subsidiaries, in a form reasonably acceptable to the
Agents, in each case dated as of the Closing Date and with such changes as
the Agents may approve, and (C) such other legal opinions as either of the
Agents shall reasonably request, in each case dated as of the Closing Date
and with such changes as the Agents may approve;
(vi) a Borrowing Base Certificate dated as of the Closing Date, each
duly completed and executed by the Chief Financial Officer or Treasurer of
the General Partner on behalf of the Borrower; and
(vii) such other documents, governmental certificates, agreements,
lien searches as either Agent may reasonably request.
(b) Representations and Warranties. The representations and warranties
------------------------------
contained in Article IV hereof, the Guaranties, and the Environmental
Indemnities shall be true and correct in all material respects.
-64-
(c) Certain Payments. The Borrower shall have paid the fees required to be
----------------
paid as of the execution of this Credit Agreement pursuant to the Fee Letter.
(d) Subordinate Credit Agreement. The Subordinate Credit Documents shall
----------------------------
have been fully-executed.
Section 3.02 Conditions Precedent for each Borrowing or Letter of Credit.
-----------------------------------------------------------
The obligation of each Bank to fund an Advance on the occasion of each Borrowing
(other than the Conversion or continuation of any existing Borrowing) and of any
Issuing Bank to issue or increase or extend any Letter of Credit shall be
subject to the further conditions precedent that on the date of such Borrowing
or the issuance or increase or extension of such Letter of Credit:
(a) the following statements shall be true (and each of the giving of the
applicable Notice of Borrowing and the acceptance by the Borrower of the
proceeds of such Borrowing or the issuance or increase or extension of such
Letter of Credit shall constitute a representation and warranty by the Borrower
that on the date of such Borrowing or the issuance or increase or extension of
such Letter of Credit such statements are true):
(i) the representations and warranties contained in Article IV
hereof, the Guaranties, and the Environmental Indemnities and are correct
in all material respects on and as of the date of such Borrowing or the
issuance or increase or extension of such Letter of Credit, before and
after giving effect to such Borrowing or to the issuance or increase or
extension of such Letter of Credit and to the application of the proceeds
from such Borrowing, as though made on and as of such date; and
(ii) no Default has occurred and is continuing or would result from
such Borrowing or from the application of the proceeds therefrom;
(b) the Borrower shall have executed and delivered to the Administrative
Agent a Borrowing Base Certificate dated not earlier than the date 10 days prior
to the anticipated date of such Borrowing; and
(c) the Administrative Agent shall have received such other approvals,
opinions or documents deemed necessary or desirable by any Bank, the
Documentation Agent or the Administrative Agent as such party may reasonably
request.
-65-
Section 3.03 Conditions Precedent to a Hotel Property Qualifying as an
---------------------------------------------------------
Eligible Property. In order for an Initial Property or a Future Property to
-----------------
qualify initially and thereafter to continue to qualify as an Eligible Property,
the following conditions precedent must be satisfied and remain satisfied for
that Property:
(a) Title. Such Hotel Property (i) is Unencumbered, (ii) free of all
-----
material title defects, and (iii) either (A) owned (together with the land on
which it is located) in fee simple by the Borrower or its direct or indirect
Wholly-Owned Subsidiary or Non Wholly-Owned Subsidiary or (B) owned by the
Borrower or its direct or indirect Wholly-Owned Subsidiary or Non Wholly-Owned
Subsidiary and located on land leased to the Borrower or such Subsidiary
pursuant to a Ground Lease, all as evidenced by a copy of the most recent ALTA
Owner's Policy of Title Insurance (or commitment to issue such a policy to the
Borrower or its Subsidiary owning or to own such Hotel Property) relating to
such Hotel Property showing the identity of the fee titleholder thereto and all
matters of record as of its date.
(b) New Guarantor. In addition, if the Property Owner for such Hotel
-------------
Property is not the Borrower or a Guarantor, the following:
(i) The Property Owner shall be either a Wholly-Owned Subsidiary or
a Non Wholly-Owned Subsidiary of the Borrower whose sole asset is the
Future Property, who is not liable for any Indebtedness other than the
Obligations, who complies in all material respects with all of the
covenants and requirements of Guarantors under the Credit Documents and who
has delivered to the Documentation Agent either (A) an original Guaranty
and Environmental Indemnity executed by such Subsidiary or (B) an Accession
Agreement executed by such Subsidiary; and
(ii) a written opinion of the Borrower's counsel or counsels
covering such matters relating to the Property Owner as the Agents
reasonably require.
(c) Participating Lease. (i) Such Hotel Property is leased to a
-------------------
Participating Lessee pursuant to a Participating Lease, (ii) no material default
by the Participating Lessee or the Property Owner under the Participating Lease
exists beyond any applicable cured period (provided that for purposes of this
subsection (c) such cure period will be deemed to commence running when the
Borrower, the Parent or a Guarantor has knowledge of such default), (iii) the
Participating Lease remains in full force and effect, and (iv) any claims of the
Participating Lessee under a Participating
-66-
Lease against the Property Owner shall be subordinated to the Obligations in a
manner reasonably acceptable to the Documentation Agent.
(d) Management Agreement. Except for those Hotel Properties managed by
--------------------
Prime Hospitality pursuant to the Participating Lease for such Hotel Property,
(i) such Hotel Property is managed by a Manager pursuant to a Management
Agreement, and (ii) any claims of the Manager under Management Agreement against
the Property Owner shall be subordinated to the Obligations in a manner
reasonably acceptable to the Documentation Agent;
(e) Franchise Agreement. Except for the Ramada Inn - Danbury,
-------------------
Connecticut and Ramada Inn - Elmsford, New York which can continue to be
operated as Ramada Inns pursuant to a franchise or license agreement with Ramada
Inn, if at the time of acquisition of a Hotel Property such Hotel Property is
operated pursuant to a franchise or license agreement with a Person who is not a
Franchisor, then (i) with respect to any of the Ramada-branded Hotel Properties
contained within the Prime Hospitality portfolio (excluding Ramada Inn -
Danbury, CT and Ramada Inn - Elmsford, NY), such Hotel Property must be subject
to a Franchise Agreement within 18 months from the date of acquisition, and (ii)
with respect to any other Hotel Property, on or prior to the first anniversary
(18 months for a Hotel Property if with the other Hotel Properties which at such
time similarly need in excess of 12 months to convert to a Franchise Agreement
with a Franchisor all such Hotel Properties have an aggregate Cost Basis of less
than or equal to $100,000,000) of the acquisition thereof such Hotel Property is
converted to a Franchise Agreement with a Franchisor. If a Hotel Property is
subject to a Franchise Agreement and the Borrower has not provided written
notice to the Administrative Agent that such Hotel Property is one of the Hotel
Properties being converted to another Franchise Agreement as provided in the
preceding sentence, then (i) no material default by the franchisee under the
Franchise Agreement exists, and (ii) the Franchise Agreement remains in full
force and effect.
(f) Property Condition. Such Hotel Property is free of all material
------------------
structural defects, as evidenced by an Engineering Report.
(g) Environmental Condition. Such Hotel Property is (1) in compliance, in
-----------------------
all material respects, with all applicable Environmental Laws, and (2) not
subject to any material Environmental Claim, all as evidenced by an
Environmental Report.
-67-
(h) Rooms in Operation. Such Hotel Property is fully operating without any
------------------
guest rooms out of service (whether due to casualty loss or as a consequence of
repairs, alterations or additions or otherwise) except in connection with other
Eligible Properties as provided in clause (g) of the definition of Borrowing
Base Requirements; provided, however, that if the Property Owner is receiving
insurance proceeds under any business interruption (not property) insurance in
connection with such event, then such Hotel Property shall not become ineligible
as an Eligible Property because of such event though the Adjusted EBITDA for the
Person who owns or leases such Hotel Property will be adjusted downward to the
extent such proceeds result in a lower Adjusted EBITDA.
(i) Location. Such Hotel Property is located in the United States of
--------
America.
(j) Cost Basis. Except in the case of the Radisson Twin Towers -
----------
Orlando, Florida; Crowne Plaza - ▇▇▇▇▇▇▇▇▇, New Jersey; Doubletree - Clearwater,
Florida; Courtyard by Marriott -Lake Buena Vista, Florida; and the Holiday Inn
▇'▇▇▇▇ - ▇▇▇▇▇▇▇▇, Illinois, the Cost Basis in such Hotel Property does not
exceed $50,000,000 unless otherwise approved by the Majority Banks in their sole
and absolute discretion.
(k) Documents and Information. The Documentation Agent shall have
-------------------------
received each of the following executed by the Borrower, the Property Owner or
other appropriate person, in form and substance reasonably satisfactory to the
Agents:
(i) a copy of each of the following for such Hotel Property certified
as true and correct by the Borrower:
A. If the Hotel Property is subject to a Franchise Agreement, the
Franchise Agreement and any requirements or conditions imposed by the
Franchisor at such time in connection with the Franchise Agreement,
including without limitation any requirements with respect to Capital
Expenditures or expenditures for FF&E for the Hotel Property;
B. Management Agreement;
C. Participating Lease;
-68-
D. If the Hotel Property is subject to a Ground Lease, the Ground
Lease; and
E. The Property Owner's articles of incorporation, by-laws,
partnership agreements, as applicable, and certificates of existence,
good standing and authority to do business from each appropriate state
authority, and partnership or corporate, as applicable, authorizations
authorizing the execution, delivery and performance of the Accession
Agreement all certified to be true and complete by a duly authorized
officer of such Property Owner;
(ii) if the Borrower has received a survey of the Real Property, a
copy of such survey;
(iii) (A) a description of such Hotel Property, such description to
include the age, location and number of rooms or suites of such Hotel
Property, and (B) to the extent available, statistics with respect to the
occupancy of the Hotel Property, operating statements, and an analysis of
the revenue per available room, in each case for the prior Fiscal Year and
the completed Fiscal Quarters of the current Fiscal Year;
(iv) certificates and policies of insurance evidencing that the
Hotel Property is covered by the insurance required pursuant to Section
5.07 hereof, provided that for the required earthquake insurance for the
Initial Properties the policy or policies for such earthquake insurance
need only be delivered within 30 days of the date of this Agreement; and
(v) all other documents reasonably required by either Agent.
(l) Adverse Property Situation. Neither all nor any material portion of
--------------------------
the Hotel Property shall be the subject of any proceeding by a governmental
authority for the condemnation, seizure or appropriation thereof, nor the
subject of any negotiations for sale in lieu of condemnation, seizure or
appropriation.
(m) Ground Leases. In addition, if the Hotel Property is subject to a
-------------
Ground Lease, no default by the lessee under the Ground Lease exists and the
Ground Lease remains in full force and effect.
-69-
(n) Management Agreement Fees and Participating Lessee Net Income. The
-------------------------------------------------------------
Management Agreement and the Participating Lease shall be structured with the
intent that the sum of (i) the management fees payable to the Manager under the
Management Agreement for a Hotel Property whether payable by the Participating
Lessee or the Property Owner of such Hotel Property and (ii) the expected Net
Income for the Participating Lessee after deduction of management fees for such
Hotel Property shall not in the aggregate exceed 6% of the gross revenues for
such Hotel Property based upon the pro forma projections for such Hotel Property
made at the time of acquisition of such Hotel Property.
(o) Other Requirements. In addition, the following:
------------------
(i) As certified in writing by the Borrower to the Administrative
Agent and the Banks at least 10 Business Days prior to the date the
Borrower proposes such Hotel Property qualify as an Eligible Property, the
Hotel Property individually qualifies as an Eligible Property and the
addition of the Hotel Property as an Eligible Property shall not (A) cause
the Eligible Properties in the aggregate to violate the Borrowing Base
Requirements, (B) cause a Default, or (C) cause or result in the Borrower
or the Parent failing to comply with any of the financial covenants
contained herein; and
(ii) The Borrower shall have delivered to the Administrative Agent
and the Banks the Property Information for such Hotel Property 10 days
prior to the date the Borrower proposes such Hotel Property qualify as an
Eligible Property.
(p) Other Actions. Borrower shall have executed and acknowledged (or
-------------
caused to be executed and acknowledged) and delivered to the Documentation
Agent, on behalf of the Banks, all documents, and taken all actions reasonably
required by Agents from time to time to confirm the rights created or now or
hereafter intended to be created under the Credit Documents, or otherwise to
carry out the purposes of the Credit Documents, and the transactions
contemplated thereunder. The Agents shall have received all other evidence and
information that they may reasonably require.
Upon 10 days prior written notice from the Borrower to the Administrative Agent,
but no more often than once in any calendar month for a particular Hotel
Property, the Borrower can designate that a Hotel Property be added (subject to
the other requirements for a Hotel Property qualifying as an Eligible Property)
or deleted as an Eligible Property. Such notice shall be accompanied by a
-70-
Property Adjustment Report with respect to such addition or deletion and (a)
with respect to an addition, the certificate required under Section 3.03(o)(i)
and (b) with respect to a deletion, Borrower's certification in such detail as
reasonably required by the Administrative Agent that such deletion shall not (A)
cause the Eligible Properties in the aggregate to violate the Borrowing Base
Requirements, (B) cause a Default, or (C) cause or result in the Borrower or the
Parent failing to comply with any of the financial covenants contained herein.
Notwithstanding anything contained in this Agreement to the contrary, the
Majority Banks in their reasonable discretion may upon 30 days prior written
notice to the Borrower designate that a Hotel Property is no longer an Eligible
Property upon their determination that such Hotel Property does not satisfy the
Borrowing Base Requirements.
If no Default exists at such time, then in connection with any deletion of a
Hotel Property from qualifying as an Eligible Property, any Borrower's
Subsidiary which owned or leased such Hotel Property, but not any other Eligible
Property, shall be released from such Subsidiaries obligations under the
Guaranty.
Schedule 3.03 sets forth a list of conditions precedent to certain Hotel
Properties qualifying as Eligible Properties which have not been satisfied as of
the Effective Date. Such outstanding conditions precedent shall not prevent
each such Hotel Property from being deemed an Eligible Property as of and after
the Effective Date; provided that for any such Hotel Property the conditions
precedent listed on Schedule 3.03 for such Hotel Property are satisfied prior
to the satisfaction date stated for such condition precedent on Schedule 3.03.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
The Borrower represents and warrants as follows:
Section 4.01 Existence; Qualification; Partners; Subsidiaries.
------------------------------------------------
(a) The Borrower is a limited partnership duly organized, validly
existing, and in good standing under the laws of Delaware and in good standing
and qualified to do business in each jurisdiction where its ownership or lease
of property or conduct of its business requires such
-71-
qualification, except where the failure to so qualify would not have a material
adverse effect on the Borrower.
(b) The Parent is a corporation duly organized, validly existing, and in
good standing under the laws of Maryland and in good standing and qualified to
do business in each jurisdiction where its ownership or lease of property or
conduct of its business requires such qualification, except where the failure to
so qualify would not have a material adverse effect on the Parent. The Parent
owns 100% of the issued and outstanding shares of the General Partner and AGH
LP. The Parent has no first tier Subsidiaries (other than the General Partner
and AGH LP).
(c) The General Partner is the Borrower's sole general partner with full
power and authority to bind the Borrower. The General Partner is a corporation
duly organized, validly existing, and in good standing under the laws of Nevada
and in good standing and qualified to do business in each jurisdiction where its
ownership or lease of property or conduct of its business requires such
qualification, except where the failure to so qualify would not have a material
adverse effect on the General Partner.
(d) AGH LP is a limited partnership duly organized, validly existing, and
in good standing under the laws of Nevada and in good standing and qualified to
do business in each jurisdiction where its ownership or lease of property or
conduct of its business requires such qualification, except where the failure to
so qualify would not have a material adverse effect on AGH LP.
(e) As of the date of this Agreement, the General Partner owns a 1%
general partner interest in and AGH LP owns an approximately 83.83% limited
partnership interest in the Borrower.
(f) Each Subsidiary of the Borrower is a limited partnership, general
partnership or limited liability company duly organized, validly existing, and
in good standing under the laws of its jurisdiction of formation and in good
standing and qualified to do business in each jurisdiction where its ownership
or lease of property or conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse effect
on such Subsidiary. The Borrower has no Subsidiaries on the date of this
Agreement other than the Subsidiaries listed on the attached Schedule 4.01, and
Schedule 4.01 lists the jurisdiction of formation and the address of the
principal office of each such Subsidiary existing on the date of this Agreement.
As of the date of
-72-
this Agreement, the Borrower owns, directly or indirectly, at least 99% of the
interests in each such Subsidiary.
(g) To the knowledge of the Borrower, each Participating Lessee is a
limited partnership duly organized, validly existing, and in good standing under
the laws of the state of its creation and in good standing and qualified to do
business in each jurisdiction where its ownership or lease of property or
conduct of its business requires such qualification, except where the failure to
so qualify would not have a material adverse effect on the Participating Lessee.
To the knowledge of the Borrower, the sole general partner of AGH Leasing is
AGHL GP, Inc. As of the date of this Agreement, to the knowledge of Borrower,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ legally and beneficially own, directly
or indirectly, approximately 77% of the partnership interests in AGH Leasing.
As of the date of this Agreement, to the knowledge of Borrower, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ legally and beneficially own approximately
23% of the partnership interests in AGH Leasing. To the knowledge of the
Borrower, the sole general partner of TT Leasing is AGH Leasing. As of the date
of this Agreement, to the knowledge of Borrower, AGH Leasing legally and
beneficially owns, directly or indirectly, approximately 51% of the partnership
interests in TT Leasing.
(h) To the knowledge of Borrower, ▇▇▇▇ is a corporation duly organized,
validly existing, and in good standing under the laws of Texas and in good
standing and qualified to do business in each jurisdiction where its ownership
or lease of property or conduct of its business requires such qualification,
except where the failure to so qualify would not have a material adverse effect
on ▇▇▇▇. To the knowledge of the Borrower, as of the date of this Agreement,
▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ and ▇▇▇▇▇▇▇ ▇▇▇▇ legally and beneficially own, directly
or indirectly, approximately 79% of the outstanding shares of ▇▇▇▇ common stock.
To the knowledge of the Borrower, as of the date of this Agreement, ▇▇▇▇▇▇ ▇.
▇▇▇▇▇ and ▇▇▇▇▇ ▇. ▇▇▇▇▇ legally and beneficially own approximately 21% of the
outstanding shares of ▇▇▇▇ common stock.
Section 4.02 Partnership and Corporate Power. The execution, delivery,
-------------------------------
and performance by the Borrower, the Parent, and each Guarantor of the Credit
Documents to which it is a party and the consummation of the transactions
contemplated hereby and thereby (a) are within such Persons' partnership,
limited liability company and corporate powers, as applicable, (b) have been
duly authorized by all necessary corporate, limited liability company and
partnership action, as applicable, (c) do not contravene (i) such Person's
certificate or articles, as the case may be, of incorporation or by-laws,
operating agreement or partnership agreement, as applicable, or (ii) any law or
any
-73-
contractual restriction binding on or affecting any such Person, the
contravention of which could reasonably be expected to cause a Material Adverse
Change, and (d) will not result in or require the creation or imposition of any
Lien prohibited by this Agreement. At the time of each Borrowing, such Borrowing
and the use of the proceeds of such Borrowing will be within the Borrower's
partnership ▇▇▇▇▇▇, ▇▇▇▇ have been duly authorized by all necessary partnership
action, (a) will not contravene (i) the Borrower's partnership agreement or (ii)
any law or any contractual restriction binding on or affecting the Borrower, the
contravention of which could reasonably be expected to cause a Material Adverse
Change, and (b) will not result in or require the creation or imposition of any
Lien prohibited by this Agreement.
Section 4.03 Authorization and Approvals. No authorization or approval
---------------------------
or other action by, and no notice to or filing with, any Governmental Authority
is required for the due execution, delivery and performance by the Borrower, the
Parent, or any Guarantor of the Credit Documents to which it is a party or the
consummation of the transactions contemplated thereby. At the time of each
Borrowing, no authorization or approval or other action by, and no notice to or
filing with, any Governmental Authority will be required for such Borrowing or
the use of the proceeds of such Borrowing the absence of which could reasonably
be expected to cause a Material Adverse Change.
Section 4.04 Enforceable Obligations. This Agreement, the Notes, and the
-----------------------
other Credit Documents to which the Borrower is a party have been duly executed
and delivered by the Borrower; each Guaranty and the other Credit Documents to
which each Guarantor and the Parent is a party have been duly executed and
delivered by such Guarantor and the Environmental Indemnity has been duly
executed and delivered by the parties thereto. Each Credit Document is the
legal, valid, and binding obligation of the Borrower, the Parent, and each
Guarantor which is a party to it enforceable against the Borrower, the Parent,
and each such Guarantor in accordance with its terms, except as such
enforceability may be limited by any applicable bankruptcy, insolvency,
reorganization, moratorium, or similar law affecting creditors' rights generally
and by general principles of equity (whether considered in proceeding at law or
in equity).
Section 4.05 Parent Common Stock. The entire authorized capital stock of
-------------------
the Parent consists of 100,000,000 shares of Parent Common Stock of which
21,804,480 shares of Parent Common Stock are duly and validly issued and
outstanding, fully paid and nonassessable as of February 1, 1998. The issuance
and sale of such Parent Common Stock either (i) has been registered under
applicable federal and state securities laws or (ii) was issued pursuant to an
exemption therefrom. The Parent Common Stock shall at all times be duly listed
on the New York Stock Exchange, Inc. and the Parent shall use commercially
reasonable efforts to timely file all reports required to be filed by it with
the New York Stock
-74-
Exchange, Inc. and the Securities and Exchange Commission. The Parent qualifies
as a REIT.
Section 4.06 Financial Statements.
--------------------
The Consolidated balance sheet of the Parent and its Subsidiaries, and
the related Consolidated statements of operations, shareholders' equity and cash
flows, of the Parent and its Subsidiaries contained in the Financial Statements,
fairly present the financial condition in all material respects and reflects the
Indebtedness of the Parent and its Subsidiaries as of the dates indicated in the
Financial Statements and the results of the operations of the Parent and its
Subsidiaries for the periods indicated, and such balance sheet and statements
were prepared in accordance with GAAP, subject to year-end adjustments. Since
the date of such statements, no Material Adverse Change has occurred. The
Minority Interest Adjustment amount as of December 31, 1997 is approximately
$10,300,000.
Section 4.07 True and Complete Disclosure. No representation, warranty,
----------------------------
or other statement made by the Borrower (or on behalf of the Borrower) in this
Agreement or any other Credit Document contains any untrue statement of a
material fact or omits to state any material fact necessary to make the
statements contained therein not misleading in light of the circumstances in
which they were made as of the date of this Agreement. There is no fact known
to any Responsible Officer of the Borrower or the Parent on the date of this
Agreement that has not been disclosed to the Agents which could reasonably be
expected to cause a Material Adverse Change. All projections, estimates, and
pro forma financial information furnished by the Borrower and the Parent or on
behalf of the Borrower or the Parent were prepared on the basis of assumptions,
data, information, tests, or conditions believed to be reasonable at the time
such projections, estimates, and pro forma financial information were furnished.
No representation, warranty or other statement made in the Parent's latest 10K,
the 10Q or the annual report contains any untrue statement of material fact or
omits to state any material fact necessary to make the statements contained
therein not misleading in light of the circumstances in which they were made as
of the date same were made. Borrower and/or Parent have made all filings
required by the Exchange Act.
Section 4.08 Litigation. Except as set forth in the attached Schedule
----------
4.08, there is no pending or, to the best knowledge of the Borrower, threatened
action or proceeding affecting the Borrower, the Parent, the Manager, any
Participating Lessee or any of their respective Subsidiaries
-75-
before any court, Governmental Authority or arbitrator (provided that with
respect to the giving of this representation after the date of this Agreement,
the representation shall only be deemed to apply to those matters for which
Administrative Agent would have been entitled to notice under Section 5.05(n)).
Section 4.09 Use of Proceeds.
---------------
(a) Advances. The proceeds of the Advances have been, and will be used by
--------
the Borrower (i) to repay the Existing Lenders who are not Banks, (ii) to
refinance other existing Indebtedness secured by Hotel Properties, (iii) to make
investments permitted pursuant to the provisions of Section 6.07, (iv) to
finance the renovation, repair, restoration and expansion of Hotel Properties,
Capital Expenditures for and expenditures for FF&E for any Hotel Properties in
accordance with the provisions of Section 5.06 and as permitted pursuant to the
provisions of Sections 6.07 and 6.14, (v) for general corporate purposes of the
Borrower and its Subsidiaries, (vi) for costs incurred in connection with any
Capitalization Event done in compliance with this Agreement, and (vii) if no
Blockage Period is then in effect, then to repay Subordinate Indebtedness.
(b) Regulations. No proceeds of Advances will be used to purchase or
-----------
carry any margin stock in violation of Regulations G, T, U or X of the Federal
Reserve Board, as the same is from time to time in effect, and all official
rulings and interpretations thereunder or thereof. The Borrower is not engaged
in the business of extending credit for the purpose of purchasing or carrying
margin stock (within the meaning of Regulation U of the Federal Reserve Board).
Section 4.10 Investment Company Act. Neither the Borrower, the Parent
----------------------
nor any of their respective Subsidiaries is an "investment company" or a company
"controlled" by an "investment company" within the meaning of the Investment
Company Act of 1940, as amended.
Section 4.11 Taxes. All federal, state, local and foreign tax returns,
-----
reports and statements required to be filed (after giving effect to any
extension granted in the time for filing) by the Borrower, its Subsidiaries, or
any member of a Controlled Group have been filed with the appropriate
governmental agencies in all jurisdictions in which such returns, reports and
statements are required to be filed, and where the failure to file could
reasonably be expected to cause a Material Adverse Change, except where
contested in good faith and by appropriate proceedings; and all taxes and other
impositions due and payable (which are material in amount) have been timely paid
prior to the date on which any fine, penalty, interest, late charge or loss
(which are material in amount)
-76-
may be added thereto for non-payment thereof except where contested in good
faith and by appropriate proceedings. As of the date of this Agreement, neither
the Borrower nor any member of a Controlled Group has given, or been requested
to give, a waiver of the statute of limitations relating to the payment of any
federal, state, local or foreign taxes or other impositions. None of the
Property owned by the Borrower or any other member of a Controlled Group is
Property which the Borrower or any member of a Controlled Group is required to
be treated as being owned by any other Person pursuant to the provisions of
Section 168(f)(8) of the Code. Proper and accurate amounts have been withheld by
the Borrower and all members of each Controlled Group from their employees for
all periods to comply in all material respects with the tax, social security and
unemployment withholding provisions of applicable federal, state, local and
foreign law. Timely payment of all material sales and use taxes required by
applicable law have been made by the Borrower and all other members of each
Controlled Group, the failure to timely pay of which could reasonably be
expected to cause a Material Adverse Change. The amounts shown on all tax
returns to be due and payable have been paid in full or adequate provision
therefor is included on the books of the appropriate member of the applicable
Controlled Group.
Section 4.12 Pension Plans. All Plans are in compliance in all material
-------------
respects with all applicable provisions of ERISA. No Termination Event has
occurred with respect to any Plan, and each Plan has complied with and been
administered in all material respects in accordance with applicable provisions
of ERISA and the Code. No "accumulated funding deficiency" (as defined in
Section 302 of ERISA) has occurred and there has been no excise tax imposed
under Section 4971 of the Code. To the knowledge of any Responsible Officer of
the Borrower, no Reportable Event has occurred with respect to any Multiemployer
Plan, and each Multiemployer Plan has complied with and been administered in all
material respects with applicable provisions of ERISA and the Code. To the
knowledge of any Responsible Officer of the Borrower, neither the Borrower nor
any member of a Controlled Group has had a complete or partial withdrawal from
any Multiemployer Plan for which there is any material withdrawal liability. As
of the most recent valuation date applicable thereto, neither the Borrower nor
any member of a Controlled Group has received notice that any Multiemployer Plan
is insolvent or in reorganization.
Section 4.13 Condition of Hotel Property; Casualties; Condemnation.
-----------------------------------------------------
Except as disclosed in an Engineering Report, each Initial Property and any
Future Property except a Permitted Non-Eligible Property (a) is and will
continue to be in good repair, working order and condition, normal wear and tear
excepted, (b) is free of structural defects, (c) is not subject to material
deferred maintenance and (d) has and will have all building systems contained
therein and all other FF&E
-77-
in good repair, working order and condition, normal wear and tear excepted. None
of the Properties of the Borrower or of any of its Subsidiaries has been
materially and adversely affected as a result of any fire, explosion,
earthquake, flood, drought, windstorm, accident, strike or other labor
disturbance, embargo, requisition or taking of property or cancellation of
contracts, permits or concessions by a Governmental Authority, riot, activities
of armed forces or acts of God or of any public enemy. No condemnation or other
like proceedings that has had, or could reasonably be expected to result in, a
Material Adverse Effect, are pending and served nor, to the knowledge of the
Borrower, threatened against any Property in any manner whatsoever. No casualty
has occurred to any Property that could reasonably be expected to have a
Material Adverse Effect.
Section 4.14 Insurance. The Borrower and each of its Subsidiaries carry
---------
the insurance required pursuant to the provisions of Section 5.07.
Section 4.15 No Burdensome Restrictions; No Defaults.
---------------------------------------
(a) Except in connection with Indebtedness which is (i) either permitted
pursuant to the provisions of Section 6.02, or (ii) being repaid with the
proceeds of the initial Borrowing, neither the Borrower nor any of its
Subsidiaries is a party to any indenture, loan or credit agreement. Neither the
Borrower, the Parent nor any of their respective Subsidiaries is a party to any
agreement or instrument or subject to any charter or corporate restriction or
provision of applicable law or governmental regulation which could reasonably be
expected to cause a Material Adverse Change. Neither the Borrower, the Parent
nor any of their Subsidiaries is in default under or with respect to (i) any
contract, agreement, lease or other instrument which could reasonably be
expected to cause a Material Adverse Change or (ii) any Ground Lease,
Participating Lease, Franchise Agreement or Management Agreement except as
disclosed to the Administrative Agent in writing prior to the date such
representation is deemed given. Neither the Borrower, the Parent nor any of
their Subsidiaries has received any notice of default under any material
contract, agreement, lease or other instrument which is continuing and which, if
not cured, could reasonably be expected to cause a Material Adverse Change.
(b) No Default has occurred and is continuing (or with respect to the
giving of this representation after the date of this Agreement, as otherwise
disclosed to the Administrative Agent in writing after the date of this
Agreement and prior to the date such representation is deemed given).
-78-
Section 4.16 Environmental Condition.
-----------------------
(a) Except as disclosed in the Environmental Reports (or with respect to
the giving of this representation after the date of this Agreement, as otherwise
disclosed to the Administrative Agent in writing after the date of this
Agreement and prior to the date such representation is deemed given), to the
knowledge of the Borrower, the Borrower and its Subsidiaries (i) have obtained
all Environmental Permits material for the ownership and operation of their
respective Properties and the conduct of their respective businesses; (ii) have
been and are in material compliance with all terms and conditions of such
Environmental Permits and with all other requirements of applicable
Environmental Laws; (iii) have not received notice of any violation or alleged
violation of any Environmental Law or Environmental Permit; and (iv) are not
subject to any actual or contingent Environmental Claim.
(b) Except as set forth in the Environmental Reports or the surveys for
the Hotel Properties, to the knowledge of Borrower, none of the present or
previously owned or operated Property of the Borrower or of any of its present
or former Subsidiaries, wherever located, (i) has been placed on or proposed to
be placed on the National Priorities List, the Comprehensive Environmental
Response Compensation Liability Information System list, or their state or local
analogs, or have been otherwise investigated, designated, listed, or identified
as a potential site for removal, remediation, cleanup, closure, restoration,
reclamation, or other response activity under any Environmental Laws which could
reasonably be expected to cause a Material Adverse Change; (ii) is subject to a
Lien, arising under or in connection with any Environmental Laws, that attaches
to any revenues or to any Property owned or operated by the Borrower or any of
its Subsidiaries, wherever located; (iii) has been the site of any Release, use
or storage of Hazardous Substances or Hazardous Wastes from present or past
operations except for Permitted Hazardous Substances, which Permitted Hazardous
Substances have not caused at the site or at any third-party site any condition
that has resulted in or could reasonably be expected to result in the need for
Response or (iv) none of the Improvements are constructed on land designated by
any Governmental Authority having land use jurisdiction as wetlands.
Section 4.17 Legal Requirements, Zoning, Utilities, Access. Except as
---------------------------------------------
set forth on Schedule 4.17 attached hereto, the use and operation of each Hotel
Property as a commercial hotel with related uses constitutes a legal use under
applicable zoning regulations (as the same may be modified by special use
permits or the granting of variances) and complies in all material respects with
all Legal Requirements, and does not violate in any material respect any
material approvals,
-79-
material restrictions of record or any material agreement affecting any Hotel
Property (or any portion thereof). The Borrower and its Subsidiaries possess all
certificates of public convenience, authorizations, permits, licenses, patents,
patent rights or licenses, trademarks, trademark rights, trade names rights and
copyrights (collectively "Permits") required by Governmental Authority to own
and operate the Hotel Properties, except for those Permits if not obtained would
not cause a Material Adverse Change. The Borrower and its Subsidiaries own and
operate their business in material compliance with all applicable Legal
Requirements. To the extent necessary for the full utilization of each Hotel
Property in accordance with its current use, telephone services, gas, steam,
electric power, storm sewers, sanitary sewers and water facilities and all other
utility services are available to each Hotel Property, are adequate to serve
each such Hotel Property, exist at the boundaries of the Land and are not
subject to any conditions, other than normal charges to the utility supplier,
which would limit the use of such utilities. All streets and easements necessary
for the occupancy and operation of each Hotel Property are available to the
boundaries of the Land.
Section 4.18 Existing Indebtedness. Except for the Obligations, the only
---------------------
Indebtedness of the Borrower, the Parent or any of their respective Subsidiaries
existing as of the Effective Date is the Secured Non-Recourse Indebtedness,
Secured Recourse Indebtedness and Subordinate Indebtedness set forth on Schedule
4.18 attached hereto. No "default" or "event of default", however defined, has
occurred and is continuing under any such Indebtedness (or with respect to the
giving of this representation after the date of this Agreement, as otherwise
disclosed to the Administrative Agent in writing after the date of this
Agreement and prior to the date such representation is deemed given).
Section 4.19 Title; Encumbrances. With respect to the Initial
-------------------
Properties, the Borrower or any Guarantor, as the case may be, has (i) good and
marketable fee simple title to the Real Property (other than for Real Property
subject to a ground lease, as to which it has a valid leasehold or subleasehold
interest) and (ii) good and marketable title to the Personal Property (other
than Personal Property for any Hotel Property (A) which has been leased which
does not in the aggregate exceed the Hotel Operating Lease Limit or the Hotel
Capital Lease Limit, as applicable, for such Hotel Property and (B) for which
the Property Owner has a valid leasehold interest) free and clear of all Liens,
and there exists no Liens or other charges against such Property or leasehold
interest or any of the real or personal, tangible or intangible, Property of the
Borrower or any Guarantor (including without limitation statutory and other
Liens of mechanics, workers, contractors, subcontractors, suppliers, taxing
authorities and others; provided that certain Capital Expenditures have been
made to the Hotel Properties prior to the Effective Date for which the payment
is not past due), except (A)
-80-
Permitted Encumbrances and (B) the Personal Property (plus any replacements
thereof) owned by the Participating Lessee.
Section 4.20 Leasing Arrangements. The only material leases of Real
--------------------
Property for which either the Borrower or a Guarantor is a lessee are the Ground
Leases. The Property Owner for a Real Property subject to a Ground Lease is the
lessee under such Ground Lease and no consent is necessary to such Person being
the lessee under such Ground Lease which has not already been obtained. The
Ground Leases are in full force and effect and no defaults exist thereunder. The
only material leases burdening the Hotel Properties for which the lessee is
entitled to participate in the increased revenues of the Hotel Properties are
the Participating Leases. The Participating Leases are in full force and effect
and no defaults by the Borrower or any Subsidiary exist thereunder.
Section 4.21 Franchise Agreements. The only hotel franchise agreements
--------------------
burdening the Initial Properties (excluding the Permitted Non-Eligible
Properties) are the Franchise Agreements. The Participating Lessee for a Hotel
Property subject to a Franchise Agreement is the licensee under such Franchise
Agreement and no consent is necessary to such Person being the licensee under
such Franchise Agreement which has not already been obtained. The Franchise
Agreements are in full force and effect and no material defaults by the Borrower
or any Subsidiary exist thereunder (or with respect to the giving of this
representation after the date of this Agreement, as otherwise disclosed to the
Administrative Agent in writing after the date of this Agreement and prior to
the date such representation is deemed given). Schedule 4.21 sets forth, as of
the date of this Agreement, (a) which Franchise Agreements the Borrower expects
to terminate, (b) the expected date of such termination, (c) the expected fees,
if any, which will be owed to the Franchisor being terminated in connection with
such termination and (d) the expected replacement Franchisor and the material
terms of the expected replacement Franchise Agreement.
Section 4.22 Management Agreements. The only management agreements
---------------------
burdening the Initial Properties (excluding the Permitted Non-Eligible
Properties) are the Management Agreements. To the knowledge of the Borrower, the
Participating Lessee for a Hotel Property subject to a Management Agreement is
the owner under such Management Agreement and no consent is necessary to such
Person being the owner under such Management Agreement which has not already
been obtained. To the knowledge of the Borrower, the Management Agreements are
in full force and effect and no material defaults by the Participating Lessee
exist thereunder (or with respect to the giving of this representation after the
date of this Agreement, as otherwise disclosed
-81-
to the Administrative Agent in writing after the date of this Agreement and
prior to the date such representation is deemed given).
ARTICLE V
AFFIRMATIVE COVENANTS
So long as any Note or any amount under any Credit Document shall remain
unpaid, any Letter of Credit shall remain outstanding, or any Bank shall have
any Commitment hereunder, unless the Administrative Agent shall otherwise
consent in writing, the Borrower agrees to comply with the following covenants.
Section 5.01 Compliance with Laws, Etc. The Borrower will comply, and
-------------------------
cause each of its Subsidiaries to comply, in all material respects with all
Legal Requirements.
Section 5.02 Preservation of Corporate Existence; Corporate Separateness,
------------------------------------------------------------
Etc.
---
(a) The Borrower will preserve and maintain, and cause each of its
Subsidiaries to preserve and maintain, its partnership, limited liability
company or corporate (as applicable) existence, rights, franchises and
privileges in the jurisdiction of its formation, and qualify and remain
qualified, and cause each such Subsidiary to qualify and remain qualified, as a
foreign partnership or corporation as applicable in each jurisdiction in which
qualification is necessary or desirable in view of its business and operations
or the ownership of its properties, and, in each case, where failure to qualify
or preserve and maintain its rights and franchises could reasonably be expected
to cause a Material Adverse Change.
(b) The Borrower shall cause the Permitted Other Subsidiaries which have
Indebtedness and own a Hotel Property to, (i) maintain financial statements,
payroll records, accounting records and other corporate records and other
documents separate from each other and any other Person, (ii) maintain its own
bank accounts in its own name, separate from each other and any other Person,
(iii) pay its own expenses and other liabilities from its own assets and incur
(or endeavor to incur) obligations to other Persons based solely upon its own
assets and creditworthiness and not upon the creditworthiness of each other or
any other Person, and (iv) file its own tax returns or, if part of a
consolidated group, join in the consolidated tax return of such group as a
separate member thereof. The Borrower shall use reasonable efforts to correct
any known misunderstanding or
-82-
misrepresentation regarding the independence of the Permitted Other Subsidiaries
from the Borrower and the Borrower's other Subsidiaries.
(c) The Borrower shall, and shall cause the Permitted Other Subsidiaries
which have Indebtedness and own a Hotel Property to, take all actions necessary
to keep such Permitted Other Subsidiaries, separate from the Borrower and the
Borrower's other Subsidiaries, including, without limitation, (i) the taking of
action under the direction of the Board of Directors, members or partners, as
applicable, of such Permitted Other Subsidiaries and, if so required by the
Certificate of Incorporation or the Bylaws, operating agreement or partnership
agreement, as applicable, of such Permitted Other Subsidiaries or by any Legal
Requirement, the approval or consent of the stockholders, members or partners,
as applicable, of such Permitted Other Subsidiaries, (ii) the preparation of
corporate, partnership or limited liability company minutes for or other
appropriate evidence of each significant transaction engaged in by such
Permitted Other Subsidiaries, (iii) the observance of separate approval
procedures for the adoption of resolutions by the Board of Directors or consents
by the partners, as applicable, of such Permitted Other Subsidiaries, on the one
hand, and of the Borrower and the Borrower's other Subsidiaries, on the other
hand, (iv) the holding of the annual stockholders meeting, if applicable, of
such Permitted Other Subsidiaries, which are corporations on a date other than
the date of the annual stockholders' meeting of the General Partner or AGH LP,
and (v) preventing the cash, cash equivalents, credit card receipts or other
revenues of the Hotel Properties owned by such Permitted Other Subsidiaries or
any other assets of such Permitted Other Subsidiaries from being commingled with
the cash, cash equivalents, credit card receipts or other revenues collected by
the Borrower or the Borrower's other Subsidiaries.
(d) The Borrower shall, and shall cause the Permitted Other Subsidiaries
to, manage the business of and conduct the administrative activities of the
Permitted Other Subsidiaries independently from the business of the Borrower,
any of the Borrower's other Subsidiaries and any other Person. Any moneys earned
by the Permitted Other Subsidiaries on their assets or proceeds of the sale of
any of their assets shall be deposited in bank accounts separate from any of the
assets of the Borrower, any of the Borrower's other Subsidiaries and any other
Person, and no assets of the Permitted Other Subsidiaries shall become
commingled with assets of such Persons.
(e) The Borrower shall hold itself out, and shall continue to hold itself
out, to the public and to its creditors as a legal entity, separate and distinct
from all other entities, and shall continue to take all steps reasonably
necessary to avoid (i) misleading any other Person as to the identity of the
entity with which such Person is transacting business or (ii) implying that the
Borrower is,
-83-
directly or indirectly, absolutely or contingently, responsible for the
Indebtedness or other obligations of the Permitted Other Subsidiaries or any
other Person.
Section 5.03 Payment of Taxes, Etc. The Borrower will pay and discharge,
---------------------
and cause each of its Subsidiaries to pay and discharge, before the same shall
become delinquent (a) all taxes, assessments and governmental charges or levies
imposed upon it or upon its income or profits or Property that are material in
amount, prior to the date on which penalties attach thereto and (b) all lawful
claims that are material in amount which, if unpaid, might by Legal Requirement
become a Lien upon its Property; provided, however, that neither the Borrower
-------- -------
nor any such Subsidiary shall be required to pay or discharge any such tax,
assessment, charge, levy, or claim (a) which is being contested in good faith
and by appropriate proceedings, (b) with respect to which reserves in conformity
with GAAP have been provided, (c) such charge or claim does not constitute and
is not secured by any ▇▇▇▇▇▇ ▇▇▇▇ on any portion of any Hotel Property and no
portion of any Hotel Property is in jeopardy of being sold, forfeited or lost
during or as a result of such contest, (d) neither the Agents nor any Bank could
become subject to any civil fine or penalty or criminal fine or penalty, in each
case as a result of non-payment of such charge or claim and (e) such contest
does not, and could not reasonably be expected to, result in a Material Adverse
Change.
Section 5.04 Visitation Rights; Bank Meeting. At any reasonable time and
-------------------------------
from time to time and so long as any visit or inspection will not unreasonably
interfere with the Borrower's or any of its Subsidiaries' operations, upon
reasonable notice, the Borrower will, and will cause its Subsidiaries to, permit
the Agents and any Bank or any of its agents or representatives thereof, to
examine and make copies of and abstracts from the records and books of account
of, and visit and inspect at its reasonable discretion the properties of, the
Borrower and any such Subsidiary, to discuss the affairs, finances and accounts
of the Borrower and any such Subsidiary with any of their respective officers or
directors. Without in any way limiting the foregoing, the Borrower will, upon
the request of either Agent, participate in a meeting with the Agents and the
Banks once during each calendar year to be held at the Borrower's office in
Dallas, Texas (or such other location as may be agreed to by the Borrower and
the Agents) at such time as may be agreed to by the Borrower and the Agents.
Section 5.05 Reporting Requirements. The Borrower will furnish to the
----------------------
Administrative Agent and each Bank:
-84-
(a) Quarterly Financials. As soon as available and in any event not later
--------------------
than 50 days after the end of each Fiscal Quarter of the Parent, the unaudited
Consolidated balance sheets of the Parent and its Subsidiaries as of the end of
such quarter and the related unaudited statements of income, shareholders'
equity and cash flows of the Parent and its Subsidiaries for the period
commencing at the end of the previous year and ending with the end of such
Fiscal Quarter, and the corresponding figures as at the end of, and for, the
corresponding period in the preceding Fiscal Year, all duly certified with
respect to such statements (subject to year-end audit adjustments) by a
Responsible Officer of the Parent as having been prepared in accordance with
GAAP, together with (i) a Compliance Certificate duly executed by a Responsible
Officer of the Parent, (ii) a completed Borrowing Base Certificate duly executed
by a Responsible Officer of the Parent setting forth the components of the
Borrowing Base as of the last day of the immediately preceding Fiscal Quarter,
(iii) a certificate in form similar to the Borrowing Base Certificate duly
executed by a Responsible Officer of the Parent setting forth for those Hotel
Properties owned or leased by the Parent or any of its Subsidiaries except for
the Eligible Properties the Adjusted EBITDA for the Rolling Period just ended
and Cost Basis, separately totaled for those Hotel Properties which are
unencumbered, those Hotel Properties which secure Secured Recourse Indebtedness
and those Hotel Properties which secure Secured Non-Recourse Indebtedness, (iv)
written notice of any anticipated material variation to an operating budget
prepared pursuant to Section 5.05(e) and (v) a report certified by a Responsible
Officer of the Parent setting forth for each of the Hotel Properties owned or
leased by the Parent or any of its Subsidiaries for the Fiscal Quarter just
ended the average daily rate, the average occupancy, the RevPAR, the total gross
revenues, the total expenses and the Adjusted EBITDA for such Hotel Properties.
(b) Annual Financials. As soon as available and in any event not later
-----------------
than 95 days after the end of each Fiscal Year of the Parent, a copy of the
Consolidated balance sheets of the Parent and its Subsidiaries as of the end of
such Fiscal Year and the related Consolidated statements of income,
shareholders' equity and cash flows of the Parent and its Subsidiaries for such
Fiscal Year, and the corresponding figures as at the end of, and for, the
preceding Fiscal Year, and certified by Coopers & ▇▇▇▇▇▇▇ L.L.P. or other
independent certified public accountants of nationally recognized standing
reasonably acceptable to the Agents in an opinion, without qualification as to
the scope, and including, if requested by either Agent, any management letters
delivered by such accountants to the Parent in connection with such audit,
together with (i) a Compliance Certificate duly executed by a Responsible
Officer of the Parent, (ii) a completed Borrowing Base Certificate duly executed
by a Responsible Officer of the Parent setting forth the components of the
Borrowing Base as of the day
-85-
of such financial statements and (iii) the documents required in clauses (iii),
(iv) and (v) of the preceding Section 5.05(a).
(c) Manager Financials. As soon as available and in any event not later
------------------
than 120 days after the end of each Fiscal Year of ▇▇▇▇, as applicable, a copy
of the annual audit report for such year for ▇▇▇▇ and its Subsidiaries, if any,
including therein an audited Consolidated balance sheet of ▇▇▇▇ and its
Consolidated Subsidiaries as of the end of such Fiscal Year and the related
Consolidated statements of income, shareholders' equity and cash flows of ▇▇▇▇
and its Subsidiaries for such Fiscal Year, and the corresponding figures as at
the end of, and for, the preceding Fiscal Year, in each case certified by an
independent certified public accountant reasonably acceptable to the Agents and
including, if requested by either Agent, any management letters delivered by
such accountants to ▇▇▇▇ in connection with such audit.
(d) AGH Leasing Financials. As soon as available and in any event not
----------------------
later than 50 days after the end of each Fiscal Quarter of AGH Leasing, the
unaudited Consolidated balance sheets of AGH Leasing and its Subsidiaries as of
the end of such quarter and the related unaudited statements of income,
shareholders' equity and cash flows of AGH Leasing and its Subsidiaries for the
period commencing at the end of the previous year and ending with the end of
such Fiscal Quarter, and the corresponding figures as at the end of, and for,
the corresponding period in the preceding Fiscal Year, all duly certified with
respect to such statements (subject to year-end audit adjustments) by a
Responsible Officer of AGH Leasing as having been prepared in accordance with
GAAP. As soon as available and in any event not later than 120 days after the
end of each fiscal year of AGH Leasing, as applicable, (i) a copy of the annual
audit report for such year for AGH Leasing and its Subsidiaries, if any,
including therein audited Consolidated balance sheets of AGH Leasing and its
Consolidated Subsidiaries as of the end of such fiscal year and the related
Consolidated statements of income, shareholders' equity and cash flows of AGH
Leasing and its Subsidiaries for such fiscal year, and the corresponding figures
as at the end of, and for, the preceding fiscal year, in each case certified by
an independent certified public accountant reasonably acceptable to the Agents
and including, if requested by either Agent, any management letters delivered by
such accountants to AGH Leasing in connection with such audit.
(e) Annual Budgets. Prior to the start of each Fiscal Year, the
--------------
Consolidated annual operating budget of the Parent and its Subsidiaries for such
upcoming Fiscal Year in reasonable detail and duly certified by a Responsible
Officer of the Parent as the budgets presented or to be presented to the
Parent's Board of Directors for their review.
-86-
(f) Securities Law Filings. Promptly and in any event within 15 days after
----------------------
the sending or filing thereof, copies of all proxy material, reports and other
information which the Borrower, the Parent or any of their respective
Subsidiaries sends to or files with the United States Securities and Exchange
Commission or sends to all shareholders of the Parent or partners of the
Borrower.
(g) Defaults. As soon as possible and in any event within five days after
--------
the occurrence of each Default known to a Responsible Officer of the Borrower,
the Parent or any of their respective Subsidiaries, a statement of an authorized
financial officer or Responsible Officer of the Borrower setting forth the
details of such Default and the actions which the Borrower has taken and
proposes to take with respect thereto.
(h) ERISA Notices. As soon as possible and in any event (i) within 30 days
-------------
after the Borrower or any of a Controlled Group knows to know that any
Termination Event described in clause (a) of the definition of Termination Event
with respect to any Plan has occurred, (ii) within 10 days after the Borrower or
any of a Controlled Group knows that any other Termination Event with respect to
any Plan has occurred, a statement of the Chief Financial Officer of the
Borrower describing such Termination Event and the action, if any, which the
Borrower or such member of such Controlled Group proposes to take with respect
thereto; (iii) within 10 days after receipt thereof by the Borrower or any of a
Controlled Group from the PBGC, copies of each notice received by the Borrower
or any such member of such Controlled Group of the PBGC's intention to terminate
any Plan or to have a trustee appointed to administer any Plan; and (iv) within
10 days after receipt thereof by the Borrower or any member of a Controlled
Group from a Multiemployer Plan sponsor, a copy of each notice received by the
Borrower or any member of such Controlled Group concerning the imposition or
amount of withdrawal liability pursuant to Section 4202 of ERISA.
(i) Environmental Notices. Promptly upon the knowledge of any Responsible
---------------------
Officer of the Borrower of receipt thereof by the Borrower or any of its
Subsidiaries, a copy of any form of notice, summons or citation received from
the United States Environmental Protection Agency, or any other Governmental
Authority concerning (i) violations or alleged violations of Environmental Laws,
which seeks to impose liability therefor, (ii) any action or omission on the
part of the Parent or Borrower or any of their present or former Subsidiaries in
connection with Hazardous Waste or Hazardous Substances which, based upon
information reasonably available to the Borrower, could reasonably be expected
to cause a Material Adverse Change or an Environmental Claim in excess of
$1,000,000, (iii) any notice of potential responsibility under CERCLA, or (iv)
concerning the
-87-
filing of a Lien upon, against or in connection with the Parent, Borrower, their
present or former Subsidiaries, or any of their leased or owned Property,
wherever located.
(j) Other Governmental Notices or Actions. Promptly and in any event
-------------------------------------
within five Business Days after receipt thereof by the Borrower, the Parent or
any of their respective Subsidiaries, (i) a copy of any notice, summons,
citation, or proceeding seeking to adversely modify in any material respect,
revoke, or suspend any license, permit, or other authorization from any
Governmental Authority, which action could reasonably be expected to cause a
Material Adverse Change, and (ii) any revocation or involuntary termination of
any license, permit or other authorization from any Governmental Authority,
which revocation or termination could reasonably be expected to cause a Material
Adverse Change.
(k) Reports Affecting the Borrowing Base. On or prior to the 5th day
------------------------------------
following any Adjustment Event, a Property Adjustment Report with respect to
such Adjustment Event.
(l) Press Releases. Promptly and in any event within 5 days after the
--------------
sending or releasing thereof, copies of all press releases or other releases of
information to the public by the Borrower, the Parent or any of their respective
Subsidiaries or releases of information to the Parent's shareholders.
(m) Other Notices.
-------------
(i) Upon the request of either Agent, a certified rent roll listing
all of the Real Property of the Borrower and the Guarantors that are
subject to leases and containing such other information regarding such
leases that such Agent may reasonably request,
(ii) As soon as received, a copy of any notice of default or any
other material notice (including without limitation property condition
reviews) received by the Borrower or any Guarantor from any holder of any
Subordinate Indebtedness or any Franchisor, Manager, or any ground lessor
under a Ground Lease, and
(iii) Promptly following any merger or dissolution of any Subsidiary
of the Borrower which is permitted hereunder or event which would make any
of the representations in Section 4.01-4.04 untrue, notice thereof.
-88-
(n) Material Litigation. As soon as possible and in any event within five
-------------------
days of any Responsible Officer of the Borrower, the Parent or any of their
respective Subsidiaries having knowledge thereof, notice of any litigation,
claim or any other event which could reasonably be expected to cause a Material
Adverse Change.
(o) Preliminary Property Plan. Prior to making Capital Expenditures or
-------------------------
FF&E expenditures for the renovation or expansion of a Hotel Property, the
Preliminary Property Plan for such renovation or expansion in sufficient detail
as the Documentation Agent shall reasonably request.
(p) Other Information. Such other information respecting the business or
-----------------
Properties, or the condition or operations, financial or otherwise, of the
Borrower, the Parent or any of their respective Subsidiaries, as any Bank
through the Administrative Agent may from time to time reasonably request.
Section 5.06 Maintenance of Property and Required Work. The Borrower
-----------------------------------------
will, and will cause each of its Subsidiaries to, (a) maintain their owned,
leased, or operated Property in a manner consistent for hotel properties and
related property of the same quality and character and shall keep or cause to be
kept every part thereof and its other properties in good condition and repair,
reasonable wear and tear excepted, and make all reasonably necessary repairs,
renewals or replacements thereto as may be reasonably necessary to conduct the
business of the Borrower and its Subsidiaries, (b) not remove, demolish or
structurally alter, or permit or suffer the removal, demolition or structural
alteration of, any of the Improvements except for the renovation or expansion of
a Hotel Property (i) for which the Borrower has delivered a Preliminary Property
Plan to the Administrative Agent and (ii) complies with the limitations set
forth in this Agreement on the aggregate amount of renovations and expansions
the Borrower, the Parent and their Subsidiaries are permitted at any one time,
(c) not knowingly or willfully permit the commission of waste or other injury,
or the occurrence of pollution, contamination or any other condition in, on or
about any Hotel Property, (d) maintain and repair each Hotel Property as
required by any Franchise Agreement, Management Agreement or ground lease for
such Hotel Property, and (e) commence the Required Work for any Hotel Property
by a date which would allow a reasonable period of time to complete such work on
or prior to the deadline set for such Required Work in Schedule 5.06 or
otherwise agreed to by the Borrower and the Agents, (f) after any commencement
of any of work for any Hotel Property diligently perform such work (i) for the
Required Work, by the required deadline and as described in the Engineering
Reports and/or the Environmental Reports referred to in Schedule 5.06
-89-
or as otherwise described for any Future Property, (ii) in a good and
workmanlike manner and (iii) in compliance in all material respects with all
Legal Requirements. Except as may be required to maintain the Parent's status as
a REIT under the Code, any Capital Expenditures or expenditures or leases for
FF&E made for any Hotel Property shall be in the name of the Property Owner for
such Hotel Property.
Section 5.07 Insurance. The Borrower will maintain, and cause each of its
---------
Subsidiaries to maintain, the insurance required pursuant to Schedule 5.07.
Section 5.08 Casualty; Condemnation. Any proceeds collected (the
----------------------
"Proceeds") under any fire or other physical damage insurance policy described
in this Agreement pertaining to any Hotel Property (excluding the Permitted Non-
Eligible Properties) shall be disbursed as provided in this Section 5.08. If
such casualty would result in a decrease to the Borrowing Base which would
require a prepayment of the Obligations pursuant to the provisions of this
Agreement, then the Borrower shall deliver such Proceeds, up to the amount of
the required prepayment, to the Administrative Agent as a prepayment of the
Obligations. If the Proceeds do not need to be applied against the Obligations
pursuant to the foregoing sentence, then the Borrower is entitled to retain such
Proceeds.
Section 5.09 Supplemental Guaranties. The Borrower has requested and the
-----------------------
Agents have agreed that any partner of the Borrower except the General Partner,
AGH LP or any Guarantor may execute a Supplemental Guaranty. However, the
execution of or release of any Supplemental Guaranty shall not be construed as a
release or modification of any obligation of a Guarantor under a Guaranty or
Environmental Indemnity.
Section 5.10 Participating Leases. Upon knowledge of a material default
--------------------
by a Participating Lessee under a Participating Lease, the Borrower will send,
or will cause the Guarantor who is a party to such Participating Lease to send,
a notice of such default to such Participating Lessee as provided in the
document under which such default has occurred.
ARTICLE VI
NEGATIVE COVENANTS
So long as any Note or any amount under any Credit Document shall remain
unpaid, any Letter of Credit shall remain outstanding, or any Bank shall have
any Commitment, the Borrower
-90-
agrees, unless the Administrative Agent shall otherwise consent in writing, to
comply with the following covenants.
Section 6.01 Liens, Etc. The Borrower will not create, assume, incur or
----------
suffer to exist, or permit any of its Subsidiaries (except for Permitted Other
Subsidiaries) to create, assume, incur, or suffer to exist, any Lien on or in
respect of any of its Property whether now owned or hereafter acquired, or
assign any right to receive income, except that the Borrower and its
Subsidiaries may create, incur, assume or suffer to exist Liens:
(a) securing the Obligations;
(b) for taxes, assessments or governmental charges or levies on Property
of the Borrower or any Guarantor to the extent not required to be paid pursuant
to Sections 5.03;
(c) Liens imposed by law (such as landlords', carriers', warehousemen's
and mechanics' liens or otherwise arising from litigation) (a) which are being
contested in good faith and by appropriate proceedings, (b) with respect to
which reserves in conformity with GAAP have been provided, (c) which have not
resulted in any Hotel Property being in jeopardy of being sold, forfeited or
lost during or as a result of such contest, (d) neither the Agents nor any Bank
could become subject to any civil fine or penalty or criminal fine or penalty,
in each case as a result of non-payment of such charge or claim and (e) such
contest does not, and could not reasonably be expected to, result in a Material
Adverse Change;
(d) on leased personal property to secure solely the lease obligations
associated with such property;
(e) Liens securing Secured Recourse Indebtedness and Secured Non-Recourse
Indebtedness permitted pursuant to the provisions of Section 6.02; and
(f) Liens under the Permitted Non-Voting Stock Mortgages.
Section 6.02 Indebtedness. The Borrower, the Parent and their respective
------------
Subsidiaries will not incur or permit to exist any Indebtedness other than the
Obligations and the following:
-91-
(a) Subordinate Indebtedness for which the cumulative principal
outstanding prior to the Maturity Date is less than or equal to $125,000,000;
provided that no such Indebtedness may be repaid through the incurrence of other
--------
Indebtedness and provided further that once any such Indebtedness is repaid such
----------------
Indebtedness cannot be reborrowed;
(b) If all Subordinate Indebtedness is repaid in full and no more
Subordinate Indebtedness may be incurred pursuant to the provisions of the
preceding clause (a), then Indebtedness which is less than or equal to
$30,000,000;
(c) Secured Recourse Indebtedness and Secured Non-Recourse Indebtedness
incurred by Permitted Other Subsidiaries (and possibly guaranteed by the Parent)
to the extent (i) that the covenants contained in Article VII are complied with,
(ii) the Secured Recourse Indebtedness secured by a Hotel Property does not
exceed 65% of the market value of such Hotel Property and all Secured Recourse
Indebtedness in the aggregate secured by Hotel Properties does not exceed 65% of
the aggregate market value of such Hotel Properties, and (iii) the Secured Non-
Recourse Indebtedness secured by a Hotel Property does not exceed 70% of the
market value of such Hotel Property and all Secured Non-Recourse Indebtedness in
the aggregate secured by Hotel Properties does not exceed 70% of the aggregate
market value of such Hotel Properties;
(d) Indebtedness in the form of Capital Leases for any particular Hotel
Property which have over the term of such Capital Leases payments in the
aggregate for all such Capital Leases for such Hotel Property for an amount
which does not exceed the Hotel Capital Lease Limit for such Hotel Property;
(e) Indebtedness in the form of Interest Rate Agreements; provided that
(i) such agreements shall be unsecured, (ii) the dollar amount of indebtedness
subject to such agreements and the indebtedness subject to Interest Rate
Agreements in the aggregate shall not exceed the sum of the amount of the
Commitments and the amount of Subordinate Indebtedness, and (iii) the agreements
shall be at such interest rates and otherwise in form and substance reasonably
acceptable to the Agents.
(f) Any of the following Indebtedness incurred by the Parent:
(i) guaranties in connection with the Indebtedness secured by a
Hotel Property of (A) if the Hotel Property is subject to a ground lease,
the payment of rent under such
-92-
ground lease, (B) real estate taxes relating to such Hotel Property, (C)
capital reserves required under such Indebtedness, and (D) after a default
under such Indebtedness, the rent under the applicable Participating Lease
will be applied to such Indebtedness;
(ii) indemnities for certain acts of malfeasance, misappropriation
and misconduct and an environmental indemnity for the lender under
Indebtedness permitted under to this Agreement;
(iii) indemnities for certain acts of malfeasance, misappropriation
and misconduct by the Permitted Other Subsidiaries and environmental
indemnities, all for the benefit of the lenders of other Permitted Other
Subsidiary Indebtedness in connection with such Indebtedness; and
(iv) guaranties of the Franchise Agreements.
(g) extensions, renewals and refinancing of any of the Indebtedness
specified in paragraphs (b) - (f) above so long as the principal amount of such
Indebtedness is not thereby increased.
Notwithstanding anything in this Credit Agreement to the contrary, neither the
Borrower, the Parent, nor any of their respective Subsidiaries shall (a) amend
or modify the subordination or payment terms or financial covenants of any
Subordinated Indebtedness or (b) during any Blockage Period make any payments of
principal of and interest on any Subordinated Indebtedness or make any
redemptions of any Subordinated Indebtedness.
Section 6.03 Agreements Restricting Distributions From Subsidiaries. The
------------------------------------------------------
Borrower will not, nor will it permit any of its Subsidiaries (other than
Permitted Other Subsidiaries) to, enter into any agreement (other than a Credit
Document or the Subordinate Credit Documents) which limits distributions to or
any advance by any of the Borrower's Subsidiaries to the Borrower.
Section 6.04 Restricted Payments. Neither the Parent, the Borrower, nor
-------------------
any of their respective Subsidiaries, will make any Restricted Payment, except
that:
(a) provided no Default has occurred and is continuing or would result
therefrom, the Parent may in any Fiscal Quarter, based on the immediately
preceding Rolling Period, make cash
-93-
payments to its shareholders (including in connection with the repurchase of
Stock or Stock Equivalents) which with the previous such cash payments in the
three immediately preceding Fiscal Quarters are not in excess of the greater of
(i) the lesser of (A) ninety percent (90%) of the Funds From Operations of the
Parent during such Rolling Period or (B) one hundred percent (100%) of Free Cash
Flow of the Parent during such Rolling Period and (ii) the amount required for
the Parent to maintain its status as a REIT;
(b) provided no Default has occurred and is continuing or would result
therefrom, the Borrower shall be entitled to make cash distributions to its
partners and such partners shall be entitled to make cash distributions to the
Parent;
(c) a Subsidiary of the Borrower may make a Restricted Payment to the
Borrower,
(d) the limited partners of the Borrower shall be entitled to exchange
limited partnership interests in the Borrower for the Parent's stock;
(e) the Borrower shall be entitled to issue limited partnership interests
in the Borrower in exchange of ownership interests in Subsidiaries and
Unconsolidated Entities which own a Future Property to the extent such
Investment is permitted pursuant to the provisions of Section 6.07; and
(f) If no Blockage Period is in effect, the Borrower may repay the
Subordinate Indebtedness.
Section 6.05 Fundamental Changes; Asset Dispositions. Neither the
---------------------------------------
Parent, the Borrower, nor any of their respective Subsidiaries (other than the
Permitted Other Subsidiaries) will, (a) merge or consolidate with or into any
other Person, unless (i) a Guarantor is merged into the Borrower and the
Borrower is the surviving Person or a Subsidiary (other than a Permitted Other
Subsidiary which has Indebtedness other than the Obligations) is merged into any
Subsidiary (other than a Permitted Other Subsidiary which has Indebtedness other
than the Obligations), and (ii) immediately after giving effect to any such
proposed transaction no Default would exist; (b) sell, transfer, or otherwise
dispose of all or any of the such Person's material property except for a
Permitted Hotel Sale, dispositions or replacements of personal property in the
ordinary course of business, or Hotel Properties which are not Eligible
Properties; (c) enter into a lease (other than a Participating Lease) of all or
substantially all of any Eligible Property with any Person without the consent
of the Agents; (d) sell or otherwise dispose of any material shares of capital
stock, membership interests or
-94-
partnership interests of any Subsidiary (except for a Permitted Other
Subsidiary); (e) except for sales of ownership interests permitted under this
Agreement and the issuance of limited partnership interests in the Borrower in
exchange for ownership interests in Subsidiaries and Unconsolidated Entities to
the extent permitted pursuant to the provisions of Section 6.04, materially
alter the corporate, capital or legal structure of any such Person (except for a
Permitted Other Subsidiary); (f) liquidate, wind-up or dissolve itself (or
suffer any liquidation or dissolution) provided that nothing herein shall
prohibit the Borrower from dissolving any Subsidiary which has no assets on the
date of dissolution or (g) materially alter the character of their respective
businesses from that conducted as of the date of this Agreement.
Section 6.06 Personal Property Leases. For any Eligible Property, the
------------------------
Borrower will not, and will not permit any of its Subsidiaries to (a) enter into
leases of Personal Property which constitute Capital Leases in excess of the
Hotel Capital Lease Limit or (b) enter into leases of Personal Property which do
not constitute Capital Leases in excess of the Hotel Operating Lease Limit.
Section 6.07 Investments, Loans, Future Properties. Neither the Parent
-------------------------------------
nor the Borrower shall, or shall permit any of their respective Subsidiaries to,
acquire by purchase or otherwise all or substantially all the business, property
or fixed assets of any Person or any Hotel Property, make or permit to exist any
loans, advances or capital contributions to, or make any Investments in
(including without limitation, loans and advances to, and other Investments in,
Subsidiaries), or purchase or commit to purchase any evidences of indebtedness
of, stock or other securities, partnership interests, member interests or other
interests in any Person, except the following (provided that after giving effect
thereto there shall exist no Default):
(a) the purchase of Liquid Investments with any Person which qualifies as
an Eligible Assignee;
(b) trade and customer accounts receivable (including in connection with
the sale of used FF&E) which are for goods furnished or services rendered in the
ordinary course of business and are payable in accordance with customary trade
terms;
(c) a Future Property which qualifies as an Eligible Property or a
Permitted Non-Eligible Property;
-95-
(d) Investments in unimproved land that either (i) is under development
for operation of a Hotel Property or with respect to which such Hotel Property
development is planned to commence within twelve months of the acquisition of
such land or (ii) does not qualify under the preceding clause (i) and does not
in the aggregate have a Cost Basis which exceeds $20,000,000;
(e) Stock or Stock Equivalents (i) received in settlement of liabilities
created in the ordinary course of business, and (ii) if the Leverage Ratio on
the date of such Investment is less than or equal to 50%, then additional Stock
or Stock Equivalents of publicly-traded Unconsolidated Entities which in the
aggregate do not exceed $25,000,000;
(f) Stock, Stock Equivalents, and other Investments in Unconsolidated
Entities which are not publicly-traded Persons, and Permitted Non-Voting Stock
Investments, provided that the aggregate of all such Stock, Stock Equivalents,
Investments and Permitted Non-Voting Stock Investments shall not exceed
$50,000,000 in the aggregate without the approval of the Majority Banks;
(g) Indebtedness of a Person to the Borrower or to a Subsidiary of the
Borrower that is secured by a Lien on one or more Hotel Properties owned by such
Person, which Hotel Properties (A) were previously owned by the Borrower or a
Subsidiary of the Borrower or (B) the Borrower reasonably expects to acquire
(through trustee's sale, foreclosure, deed in lieu of foreclosure or otherwise),
provided, however, that the aggregate amount of all Investments permitted under
-------- -------
this clause (g) shall not at any time exceed an amount equal to five percent
(5%) of the Cost Basis in all the Parent's or the Parent's Subsidiaries Hotel
Properties;
(h) Investments in real estate other than Hotel Properties, provided that
--------
(i) excluding the Borrower's Investment in the office portion of the Marriott
Hotel in Houston, Texas, such Investments do not, in the aggregate, exceed five
percent (5%) of the Total Assets of the Parent or (ii) the Borrower intends to
convert such real estate into Hotel Properties, provided that the Borrower (A)
--------
so notifies the Administrative Agent within ninety (90) days after the date of
such acquisition and (B) commences construction of such conversion within twelve
(12) months after the date of such acquisition;
(i) a loan to a Participating Lessee in amount sufficient to allow such
Participating Lessee to purchase Personal Property from the Property Owners of
the Hotel Properties which qualify as either an Eligible Property or a Permitted
Non-Eligible Property so that the ownership of
-96-
Personal Property by such Property Owners does not cause the Parent to forfeit
the Parent's status as a REIT under the Code;
(j) receivables purchased in connection with the acquisition of a Hotel
Property; and
(k) other assets owned in the ordinary course of owning the Parent's and
the Parent's Subsidiaries' Hotel Properties.
Notwithstanding the foregoing, neither the Borrower, nor the Parent, nor their
respective Subsidiaries shall make an Investment which would (a) cause the
Eligible Properties in the aggregate to violate the Borrowing Base Requirements,
(b) cause the Parent Properties in the aggregate to violate in any material way
the Parent Property Requirements without the Agents' written consent, (c) cause
a Default, or (d) cause or result in the Borrower or the Parent failing to
comply with any of the financial covenants contained herein.
Section 6.08 Affiliate Transactions. Except for the Management
----------------------
Agreements, the Participating Lease Agreements, certain liquor license
agreements, the transactions described in Section 6.07(i) and the purchase by
the Borrower or one of its Subsidiaries of the Madison, Wisconsin Ramada at a
purchase price equal to or less than (a) the fair market value for such property
at the time of entering into such purchase agreement, as confirmed by an
appraisal plus (b) the costs of Capital Expenditures and FF&E for such property
incurred in connection with the major renovation of such property contemplated
by such agreement, the costs of financing such expenditures, and carrying costs
and pre-opening costs for such property during the period of construction, and
as expressly permitted elsewhere in this Agreement, the Borrower will not, and
will not permit any of its Subsidiaries to, make, directly or indirectly: (a)
any transfer, sale, lease, assignment or other disposal of any assets to any
Affiliate of the Borrower which is not a Guarantor or any purchase or
acquisition of assets from any such Affiliate except for sales of new Personal
Property (i) which in any calendar year do not exceed $1,000,000 in the
aggregate and (ii) for which the sales price is the actual cost to the party
selling; or (b) any arrangement or other transaction directly or indirectly with
or for the benefit of any such Affiliate (including without limitation,
guaranties and assumptions of obligations of an Affiliate), other than in the
ordinary course of business and at market rates.
Section 6.09 Sale and Leaseback. The Borrower will not, and will not
------------------
permit any of its Subsidiaries to, enter into any arrangement with any Person,
whereby in contemporaneous
-97-
transactions the Borrower or such Subsidiary sells essentially all of its right,
title and interest in a material asset and the Borrower or such Subsidiary
acquires or leases back the right to use such property.
Section 6.10 Sale or Discount of Receivables. The Borrower will not, and
-------------------------------
will not permit any of its Subsidiaries to, directly or indirectly, sell with
recourse, or discount or otherwise sell for less than the face value thereof,
any of its notes or accounts receivable.
Section 6.11 No Further Negative Pledges. Except for those restrictions
---------------------------
stated in the Subordinate Credit Agreement, the Borrower will not, and will not
permit any of its Subsidiaries to, enter into or suffer to exist any agreement
(other than this Agreement and the Credit Documents) (a) prohibiting the
creation or assumption of any Lien upon the Properties of the Borrower or any of
its Subsidiaries (except for the Permitted Other Subsidiaries), whether now
owned or hereafter acquired, or (b) requiring an obligation to be secured if
some other obligation is or becomes secured.
Section 6.12 Franchise Agreements. The Borrower will not, nor will it
--------------------
permit any of its Subsidiaries (other than Permitted Other Subsidiaries) or any
Participating Lessee (other than as a lessee of a Permitted Non-Eligible
Property) to enter into any termination, material modification or amendment of
any Franchise Agreement except in connection with the conversion of a Hotel
Property from a Franchise Agreement with one Franchisor to a Franchise Agreement
with another Franchisor.
Section 6.13 Material Documents. The Borrower will not, nor will it
------------------
permit any of its Subsidiaries (other than Permitted Other Subsidiaries) or any
Participating Lessee (other than as a lessee of a Permitted Non-Eligible
Property) to, enter into any termination, material modification or amendment of
any:
(a) Management Agreement;
(b) Participating Lease;
(c) Ground Lease; and
(d) Any other material agreement.
-98-
Any termination, modification or amendment prohibited under this Section 6.13
without the Administrative Agent's written consent shall, to the extent
permitted by applicable law, be void and of no force and effect.
Section 6.14 Limitations on Development, Construction, Renovation and
--------------------------------------------------------
Purchase of Hotel Properties. Neither the Parent nor the Borrower shall or
----------------------------
shall permit any of their respective Subsidiaries to engage in the development,
construction or expansion of any Hotel Properties with respect to which the cost
to complete the same shall at any time exceed $75,000,000 for all such
development, construction and expansion in the aggregate or enter into any
agreements to purchase Hotel Properties or other assets, unless the Parent, the
Borrower or such Subsidiary (as applicable) at all times has available sources
of capital equal to the total cost to complete such development or construction
and to pay in full the cost of the purchase of such Hotel Properties or other
assets (to the extent that the payment of such cost of purchase constitutes a
recourse obligation of the Parent, the Borrower or its Subsidiary), which
available sources of capital may include Advances to the extent that the
Borrower may borrow the same for the purposes required or other Indebtedness
permitted by the terms of this Agreement.
ARTICLE VII
FINANCIAL COVENANTS
So long as any Note or any amount under any Credit Document shall remain
unpaid, any Letter of Credit shall remain outstanding, or any Bank shall have
any Commitment hereunder, unless the Super Majority Banks shall otherwise
consent in writing, the Borrower agrees to comply and cause the Parent and the
Parent's Subsidiaries to comply with the following covenants.
7.01 Interest Coverage Ratio. The Parent shall maintain at the end of
-----------------------
each Rolling Period (a) for the Rolling Periods ending on March 31, 1998 through
December 31, 1998, an Interest Coverage Ratio of not less than 2.15 to 1.0 and
(b) for any Rolling Period thereafter, an Interest Coverage Ratio of not less
than 2.50 to 1.0.
7.02 Debt Service Coverage Ratio. The Parent shall maintain at the end of
---------------------------
each Rolling Period commencing with the Rolling Period ending on March 31, 1998,
a Debt Service Coverage Ratio of not less than 2.0 to 1.0.
-99-
7.03 Maintenance of Net Worth. The Parent shall at all times maintain an
------------------------
Adjusted Net Worth of not less than the Minimum Tangible Net Worth.
7.04 Limitations on Total Indebtedness. The Parent shall not on any date
---------------------------------
permit the Total Indebtedness (including, without limitation, the Obligations
and all Capitalized Lease Obligations) of the Parent to exceed the lesser of:
------
(a) the sum of (i) for Seasoned Properties, (A) Adjusted EBITDA (on a
Consolidated basis) of such Seasoned Properties for the preceding Rolling
Period multiplied by (B) for the Rolling Periods ending on or before
-------------
September 30, 1998, six (6), and for any Rolling Periods ending thereafter,
five (5); and (ii) for New Properties (including Hotel Properties to be
immediately acquired using the proceeds from any Indebtedness), (A) the
Cost Basis in such New Properties multiplied by (B) on or before September
-------------
30, 1998, sixty percent (60%), and for any date thereafter, fifty percent
(50%); and
(b) (i) the Parent Total Cost Basis (including Hotel Properties to be
immediately acquired using the proceeds from any Indebtedness) multiplied
----------
by (ii) on or before September 30, 1998, sixty percent (60%), and for any
--
date thereafter, fifty percent (50%);
provided that, in no event shall the Borrower or the Parent permit the Total
-------- ----
Indebtedness of the Parent to exceed the amount permitted under the Articles of
Incorporation of the Parent.
7.05 Limitations on Secured Recourse Indebtedness. The Parent shall not on
--------------------------------------------
any date on a Consolidated basis permit the Secured Recourse Indebtedness
(excluding the Obligations) of the Parent, to exceed the lesser of:
------
(a) the sum of (i) for Seasoned Properties, Adjusted EBITDA (on a
consolidated basis) of such Seasoned Properties for the preceding Rolling
Period multiplied by two (2), and (ii) for New Properties (including Hotel
Properties to be immediately acquired using the proceeds from any
Indebtedness), twenty percent (20%) of the Cost Basis in such New
Properties; and
(b) fifteen percent (15%) of the Parent Total Cost Basis (including
Hotel Properties to be immediately acquired using the proceeds from any
Indebtedness).
-100-
7.06 Limitations on Secured Non-Recourse Indebtedness. The Parent shall
------------------------------------------------
not on any date on a Consolidated basis permit the Secured Non-Recourse
Indebtedness of the Parent, to exceed the lesser of:
------
(a) the sum of (i) for Seasoned Properties, Adjusted EBITDA (on a
consolidated basis) of such Seasoned Properties for the preceding Rolling
Period multiplied by three (3), and (B) for New Properties (including Hotel
Properties to be immediately acquired using the proceeds from any
Indebtedness), thirty percent (30%) of the Cost Basis in such New
Properties; and
(b) thirty percent (30%) of the Parent Total Cost Basis (including
Hotel Properties to be immediately acquired using the proceeds from any
Indebtedness).
7.07 Limitations on Secured Indebtedness. The Parent shall not at any time
-----------------------------------
on a Consolidated basis permit the sum of the Parent's Secured Non-Recourse
Indebtedness and Secured Recourse Indebtedness to exceed thirty percent (30%) of
the Parent Total Cost Basis (including Hotel Properties to be immediately
acquired using the proceeds from any Indebtedness).
7.08 Permitted Non-Voting Stock Company Adjustment. If the Parent or any
---------------------------------------------
of its Subsidiaries have a Permitted Non-Voting Stock Investment, then (a) to
the extent not already included in the Adjusted EBITDA of the Parent and its
Subsidiaries the lesser of (i) the dividends and interest received by the Parent
or any of its Subsidiaries from a Permitted Non-Voting Stock Company and (ii)
the Adjusted EBITDA of the Hotel Properties owned or leased by such Permitted
Non-Voting Stock Company shall be included in Adjusted EBITDA for purposes of
the financial covenants in this Article VII, and (b) the Cost Basis of a Hotel
Property owned by such Permitted Non-Voting Stock Company shall be included, as
applicable, in those financial covenants in this Article VII which use Cost
Basis and Parent Total Cost Basis. Applicability for a particular test shall be
based upon whether a Hotel Property owned by such Permitted Non-Voting Stock
Company constitutes either a Seasoned Property or a New Property.
-101-
ARTICLE VIII
EVENTS OF DEFAULT; REMEDIES
Section 8.01 Events of Default. The occurrence of any of the following
-----------------
events shall constitute an "Event of Default" under any Credit Document:
(a) Principal or Letter of Credit Obligation Payment. The Borrower shall
------------------------------------------------
fail to pay any principal of any Note or any Letter of Credit Obligation when
the same becomes due and payable as set forth in this Agreement;
(b) Interest or Other Obligation Payment. The Borrower shall fail to pay
------------------------------------
any interest on any Note or any fee or other amount payable hereunder or under
any other Credit Document when the same becomes due and payable as set forth in
this Agreement, provided however that the Borrower will have a grace period of
five days after the payments covered by this Section 8.01(b) becomes due and
payable for the first two defaults under this Section 8.01(b) in every calendar
year;
(c) Representation and Warranties. Any representation or warranty made or
-----------------------------
deemed to be made (i) by the Borrower in this Agreement or in any other Credit
Document, (ii) by the Borrower (or any of its officers) in connection with this
Agreement or any other Credit Document, or (iii) by any Subsidiary in any Credit
Document shall prove to have been incorrect in any material respect when made or
deemed to be made;
(d) Covenant Breaches. (i) The Borrower shall fail to perform or observe
-----------------
any covenant contained in Sections 5.02, 5.03, or 5.08, ▇▇▇▇▇▇▇ ▇.▇▇ (▇), (▇),
(▇), (▇), (▇) or (n), Article VI or Article VII of this Agreement or the
Borrower shall fail to perform or observe, or shall fail to cause any Guarantor
to perform or observe any covenant in any Credit Document beyond any notice
and/or cure period for such default expressly provided in such Credit Document
or (ii) the Borrower or any Guarantor shall fail to perform or observe any term
or covenant set forth in any Credit Document which is not covered by clause (i)
above or any other provision of this Section 8.01, in each case if such failure
shall remain unremedied for 30 days after the earlier of the date written notice
of such default shall have been given to the Borrower or such Guarantor by the
Administrative Agent or any Bank or the date a Responsible Officer of the
Borrower or any Guarantor has actual knowledge of such default, unless such
default in this clause (ii) cannot be cured in such 30 day period and the
-102-
Borrower is diligently proceeding to cure such default, in which event the cure
period shall be extended to 90 days;
(e) Cross-Defaults.
--------------
(i) any "Event of Default" as defined in the Subordinate Credit
Agreement shall occur; or
(ii) with respect to (A) any Secured Non-Recourse Indebtedness which
is outstanding in a principal amount of at least $20,000,000 individually
or when aggregated with all such Secured Non-Recourse Indebtedness of the
Borrower, the Parent or any of their respective Subsidiaries or (B) any
other Indebtedness (but excluding Indebtedness evidenced by the Notes)
which is outstanding in a principal amount of at least $5,000,000
individually or when aggregated with all such Indebtedness of the Borrower,
the Parent or any of their respective Subsidiaries any of the following:
(1) any such Indebtedness shall be declared to be due and
payable, or required to be prepaid (other than by a regularly
scheduled required prepayment), prior to the stated maturity thereof,
(2) the Borrower, the Parent or any of their respective
Subsidiaries shall fail to pay any principal of or premium or interest
of any of such Indebtedness (whether by scheduled maturity, required
prepayment, acceleration, demand or otherwise), and such failure shall
continue after the applicable grace period, if any, specified in the
agreement or instrument relating to such Indebtedness, or
(3) any other event shall occur or condition shall exist under
any agreement or instrument relating to such Indebtedness, and shall
continue after the applicable grace period, if any, specified in such
agreement or instrument, if the effect of such event or condition is
to permit the holders of such Indebtedness to accelerate the maturity
of such Indebtedness;
(f) Insolvency. The Borrower, the Parent, any of their respective
----------
Subsidiaries, or the Participating Lessee (except for Prime Hospitality) for
four (4) or more Eligible Properties shall generally not pay its debts as such
debts become due, or shall admit in writing its inability to pay its
-103-
debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Borrower, the
Parent, any of their respective Subsidiaries, or the Participating Lessee
(except for Prime Hospitality) for four (4) or more Eligible Properties seeking
to adjudicate it a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or composition of
it or its debts under any law relating to bankruptcy, insolvency or
reorganization or relief of debtors, or seeking the entry of an order for relief
or the appointment of a receiver, trustee or other similar official for it or
for any substantial part of its property and, in the case of any such proceeding
instituted against the Borrower, the Parent, any of their respective
Subsidiaries, or the Participating Lessee (except for Prime Hospitality) for
four (4) or more Eligible Properties, either such proceeding shall remain
undismissed for a period of 60 days or any of the actions sought in such
proceeding shall occur; or the Borrower, the Parent, any of their respective
Subsidiaries, or the Participating Lessee (except for Prime Hospitality) for
four (4) or more Eligible Properties shall take any corporate action to
authorize any of the actions set forth above in this paragraph (f);
(g) Judgments. Any judgment or order for the payment of money in excess of
---------
$5,000,000 (reduced for purposes of this paragraph for the amount in respect of
such judgment or order that a reputable insurer has acknowledged being payable
under any valid and enforceable insurance policy) shall be rendered against the
Borrower, the Parent or any of their respective Subsidiaries which, within 30
days from the date such judgment is entered, shall not have been discharged or
execution thereof stayed pending appeal;
(h) ERISA. (i) Any Person shall engage in any "prohibited transaction" (as
-----
defined in Section 406 of ERISA or Section 4975 of the Code) involving any Plan,
(ii) any "accumulated funding deficiency" (as defined in Section 302 of ERISA),
whether or not waived, shall exist with respect to any Plan, (iii) a Reportable
Event shall occur with respect to, or proceedings shall commence to have a
trustee appointed, or a trustee shall be appointed, to administer or to
terminate, any Plan, which Reportable Event or commencement of proceedings or
appointment of a trustee is likely to result in the termination of such Plan for
purposes of Title IV of ERISA, unless such Reportable Event, proceedings or
appointment are being contested by the Borrower in good faith and by appropriate
proceedings. (iv) any Plan shall terminate for purposes of Title IV of ERISA,
(v) the Borrower or any member of a Controlled Group shall incur any liability
in connection with a withdrawal from a Multiemployer Plan or the insolvency
(within the meaning of Section 4245 of ERISA) or reorganization (within the
meaning of Section 4241 of ERISA) of a Multiemployer Plan, unless such liability
is being contested by the Borrower in good faith and by appropriate
-104-
proceedings, or (vi) any other event or condition shall occur or exist, with
respect to a Plan; and in each case in clauses (i) through (vi) above, such
event or condition, together with all other such events or conditions, if any,
could subject the Borrower or any Guarantor to any tax, penalty or other
liabilities in the aggregate exceeding $10,000,000;
(i) Guaranty. Any provision of any Guaranty except a Supplemental Guaranty
--------
shall for any reason cease to be valid and binding on any Guarantor or any
Guarantor shall so state in writing;
(j) Environmental Indemnity. Any Environmental Indemnity shall for any
-----------------------
reason cease to be valid and binding on any Person party thereto or any such
Person shall so state in writing;
(k) Invalidity of Subordination Provisions. The provisions or documents
--------------------------------------
which provide for the subordination of any claims by a Participating Lessee
under the Participating Leases against the applicable Property Owner to the
Obligations or the Subordinate Indebtedness shall be invalidated or otherwise
cease to be in full force and effect;
(l) Franchise Agreement. With respect to any Hotel Properties owned or
-------------------
leased by the Parent or any of its Subsidiaries (i) any of the Ramada-branded
Hotel Properties contained within the Prime Hospitality portfolio (excluding
Ramada Inn - Danbury, CT and Ramada Inn - Elmsford, NY) fail to be subject to a
Franchise Agreement within 18 months from the date of acquisition, (ii) if at
the time of acquisition of any other Hotel Property such Hotel Property is
operated pursuant to a franchise or license agreement with a Person who is not a
Franchisor, then on or prior to the first anniversary (18 months for Hotel
Properties which in the aggregate at any one time have a Cost Basis of less than
or equal to $100,000,000) of the acquisition thereof such Hotel Property fails
to be converted to a Franchise Agreement with a Franchisor, and (iii) any four
(4) Franchise Agreements shall be in default at the same time;
(m) Default Under Ground Lease. The occurrence of a default under any
--------------------------
Ground Lease (other than a Ground Lease affecting a Permitted Non-Eligible
Property) which has not been cured or waived (i) 10 days prior to the date the
ground lessor under such Ground Lease would have the right to terminate such
Ground Lease and (ii) in any event within 30 days of the occurrence of such
default;
(n) Manager. The Participating Lessee of a Hotel Property other than a
-------
Permitted Non-Eligible Property shall not have replaced the Manager with a
reputable, nationally known, third party
-105-
manager acceptable to the Agents within 120 days of the occurrence of any of the
following: Any Management Agreement shall have been terminated except in
connection with an Asset Disposition, or any Manager shall generally not pay its
debts as such debts become due, or shall admit in writing its inability to pay
its debts generally, or shall make a general assignment for the benefit of
creditors; or any proceeding shall be instituted by or against the Manager or
any of its Subsidiaries seeking to adjudicate it a bankrupt or insolvent, or
seeking liquidation, winding up, reorganization, arrangement, adjustment,
protection, relief, or composition of it or its debts under any law relating to
bankruptcy, insolvency or reorganization or relief of debtors, or seeking the
entry of an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and, in the
case of any such proceeding instituted against the Manager or any of its
Subsidiaries, either such proceeding shall remain undismissed for a period of 60
days or any of the actions sought in such proceeding shall occur; or the Manager
or any of its Subsidiaries shall take any corporate action to authorize any of
the actions set forth above in this paragraph (n);
(o) Parent's REIT Status. There shall be a determination from the
--------------------
applicable Governmental Authority from which no appeal can be taken that the
Parent's tax status as a REIT has been lost;
(p) Parent Common Stock; Capitalization Event The Parent at any time
-----------------------------------------
hereafter fails to (a) cause the Parent Common Stock to be duly listed on the
New York Stock Exchange, Inc. and (b) file timely all reports required to be
filed by the Parent with the New York Stock Exchange, Inc. and the Securities
and Exchange Commission and, with respect to a failure under clause (b), such
failure remains uncured on the date which is the earlier of (i) the date 30 days
following the initial occurrence of such failure and (ii) the date specified by
the New York Stock Exchange, Inc. or the Securities and Exchange Commission as
the date such failure needs to be cured by. Upon the receipt by the Parent of
any Net Cash Proceeds from a Capitalization Event, (a) the Parent fails to
immediately make a capital contribution to the Borrower in the aggregate amount
of such Net Cash Proceeds or (b) the Borrower fails to apply such Net Cash
Proceeds in accordance with this Agreement and the Subordinate Credit Documents
either (i) to repay any outstanding principal of the Notes, and accrued and
unpaid interest thereon and other amounts payable by the Borrower in respect
thereof, (ii) to repay any Subordinate Indebtedness or (iii) to make Investments
permitted by this Agreement;
(q) Changes in Ownership and Control. Any of the following occur without
--------------------------------
the written consent of the Agents: (a) the Parent owns less than 100% of the
stock and beneficial ownership
-106-
interest in the General Partner and AGH LP; (b) the General Partner and AGH LP
(i) amend the Borrower's partnership agreement in any material respect, (ii)
admit a new general partner to the Borrower, or (iii) own less than 51% of the
partnership interests in and beneficial ownership of the Borrower; (c) the
General Partner resigns as general partner of the Borrower; (d) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇ ▇. ▇▇▇▇▇ and their respective Associates legally and beneficially own less
than 20% of the outstanding shares of the Manager common stock; (e) ▇▇▇▇▇▇ ▇.
▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ or any of their respective Associates sells or assigns
either the legal or beneficial interest in any outstanding shares of the Manager
common stock except to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇ or any of their
respective Associates; (f) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, and ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
and their respective Associates legally and beneficially owns less than 20% of
the partnership interests in AGH Leasing; (g) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇,
▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or any of their respective Associates sells or assigns either
the legal or beneficial interest in any partnership interests in AGH Leasing
except to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or any of their
respective Associates; (h) ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ or ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or any of their
respective Associates sells or assigns either the legal or beneficial interest
in the Parent or the Borrower except (1) to their respective Associates and (2)
in connection with a Permitted Officer Assignment; (i) the Parent shall cease to
employ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇ as the president and chief executive officer of the
Parent and, within 180 days following the termination of such employment of ▇▇.
▇▇▇▇▇ for any reason, another person acceptable to the Majority Banks in their
sole discretion is not employed as the president and chief executive officer of
the Parent; (j) the Parent shall cease to employ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ as the chief
financial officer of the Parent and, within 180 days following the termination
of such employment of ▇▇. ▇▇▇▇ for any reason, another person acceptable to the
Majority Banks in their sole discretion is not employed as the chief financial
officer of the Parent; (k) unless TT Leasing is no longer a Participating Lessee
or has been merged into AGH Leasing, AGH Leasing sells or assigns either the
legal or beneficial interest in any partnership interests in TT Leasing except
to ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇ or any of their respective
Associates or (l) AGH Leasing, ▇▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇ ▇. ▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
or any of their respective Associates is no longer the sole general partner of
TT Leasing, provided, however, TT Leasing can be merged into AGH Leasing; or
(r) Participating Lessee. Either (i) a material default by the
--------------------
Participating Lessee shall occur under any Participating Lease related to four
(4) or more Eligible Properties which shall remain uncured following any notice
and cure period under such document, (ii) with respect to four (4) or more
Eligible Properties, the Participating Lease for any Hotel Property is
terminated, or (iii) the Participating Lessee enters into a Participating Lease
or other material agreement except those directly related to a Hotel Property
owned by the Borrower or any of the Borrower's Subsidiaries.
-107-
Section 8.02 Optional Acceleration of Maturity. If any Event of Default
---------------------------------
(other than an Event of Default pursuant to paragraph (f) of Section 8.01) shall
have occurred and be continuing, then, and in any such event,
(a) the Administrative Agent (i) shall at the request, or may with the
consent, of the Super Majority Banks, by notice to the Borrower, declare the
obligation of each Bank to make Advances and the obligation of each Issuing Bank
to issue, increase, or extend Letters of Credit to be terminated, whereupon the
same shall forthwith terminate, and (ii) shall at the request, or may with the
consent, of the Super Majority Banks, by notice to the Borrower, declare the
Notes, all interest thereon, the Letter of Credit Obligations, and all other
amounts payable under this Agreement to be forthwith due and payable, whereupon
the Notes, all such interest, all such Letter of Credit Obligations and all such
amounts shall become and be forthwith due and payable in full, without
presentment, demand, protest or further notice of any kind (including, without
limitation, any notice of intent to accelerate or notice of acceleration), all
of which are hereby expressly waived by the Borrower,
(b) the Borrower shall, on demand of the Administrative Agent at the
request or with the consent of the Super Majority Banks, deposit with the
Administrative Agent into the Cash Collateral Account an amount of cash equal to
the Letter of Credit Exposure as security for the Obligations to the extent the
Letter of Credit Obligations are not otherwise paid at such time, and
(c) the Administrative Agent shall at the request of, or may with the
consent of, the Super Majority Banks proceed to enforce its rights and remedies
under the Credit Documents for the ratable benefit of the Banks by appropriate
proceedings.
Section 8.03 Automatic Acceleration of Maturity. If any Event of Default
----------------------------------
pursuant to paragraph (f) of Section 8.01 shall occur,
(a) the obligation of each Bank to make Advances and the obligation of each
Issuing Bank to issue, increase, or extend Letters of Credit shall immediately
and automatically be terminated and the Notes, all interest on the Notes, all
Letter of Credit Obligations, and all other amounts payable under this Agreement
shall immediately and automatically become and be due and payable in full,
without presentment, demand, protest or any notice of any kind (including,
without limitation, any notice of intent to accelerate or notice of
acceleration), all of which are hereby expressly waived by the Borrower and
-108-
(b) to the extent permitted by law or court order, the Borrower shall
deposit with the Administrative Agent into the Cash Collateral Account an amount
of cash equal to the outstanding Letter of Credit Exposure as security for the
Obligations to the extent the Letter of Credit Obligations are not otherwise
paid at such time.
Section 8.04 Cash Collateral Account.
-----------------------
(a) Pledge. The Borrower hereby pledges, and grants to the Administrative
------
Agent for the benefit of the Banks, a security interest in all funds held in the
Cash Collateral Account from time to time and all proceeds thereof, as security
for the payment of the Obligations, including without limitation all Letter of
Credit Obligations owing to any Issuing Bank or any other Bank due and to become
due from the Borrower to any Issuing Bank or any other Bank under this Agreement
in connection with the Letters of Credit.
(b) Application against Letter of Credit Obligations. The Administrative
------------------------------------------------
Agent may, at any time or from time to time apply funds then held in the Cash
Collateral Account to the payment of any Letter of Credit Obligations owing to
any Issuing Bank, in such order as the Administrative Agent may elect, as shall
have become or shall become due and payable by the Borrower to any Issuing Bank
under this Agreement in connection with the Letters of Credit.
(c) Duty of Care. The Administrative Agent shall exercise reasonable care
------------
in the custody and preservation of any funds held in the Cash Collateral Account
and shall be deemed to have exercised such care if such funds are accorded
treatment substantially equivalent to that which the Administrative Agent
accords its own property, it being understood that the Administrative Agent
shall not have any responsibility for taking any necessary steps to preserve
rights against any parties with respect to any such funds.
Section 8.05 Non-exclusivity of Remedies. No remedy conferred upon the
---------------------------
Administrative Agent or the Banks is intended to be exclusive of any other
remedy, and each remedy shall be cumulative of all other remedies existing by
contract, at law, in equity, by statute or otherwise.
Section 8.06 Right of Set-off. Upon (a) the occurrence and during the
----------------
continuance of any Event of Default and (b) the making of the request or the
granting of the consent, if any, specified by Section 8.02 to authorize the
Administrative Agent to declare the Notes and any other amount payable hereunder
due and payable pursuant to the provisions of Section 8.02 or the automatic
-109-
acceleration of the Notes and all amounts payable under this Agreement pursuant
to Section 8.03, each Bank is hereby authorized at any time and from time to
time, to the fullest extent permitted by law, to set off and apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Bank to or for the credit
or the account of the Borrower against any and all of the obligations of the
Borrower now or hereafter existing under this Agreement, the Note held by such
Bank, and the other Credit Documents, irrespective of whether or not such Bank
shall have made any demand under this Agreement, such Note, or such other Credit
Documents, and although such obligations may be unmatured. Each Bank agrees to
promptly notify the Borrower after any such set-off and application made by such
Bank, provided that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Bank under this
Section are in addition to any other rights and remedies (including, without
limitation, other rights of set-off) which such Bank may have.
ARTICLE IX
AGENCY AND ISSUING BANK PROVISIONS
Section 9.01 Authorization and Action. Each Bank hereby appoints and
------------------------
authorizes each Agent to take such action as Agent on its behalf and to exercise
such powers under this Agreement and the other Credit Documents as are delegated
to such Agent by the terms hereof and of the other Credit Documents, together
with such powers as are reasonably incidental thereto. As to any matters not
expressly provided for by this Agreement or any other Credit Document
(including, without limitation, enforcement or collection of the Notes), the
Agents shall not be required to exercise any discretion or take any action, but
shall be required to act or to refrain from acting (and shall be fully protected
in so acting or refraining from acting) upon the instructions of the Majority
Banks, and such instructions shall be binding upon all Banks and all holders of
Notes; provided, however, that neither Agent shall be required to take any
--------
action which exposes such Agent to personal liability or which is contrary to
this Agreement, any other Credit Document, or applicable law. The functions of
the Agents are administerial in nature and in no event shall the Agents have a
fiduciary or trustee relation in respect of any Bank by reason of this Agreement
or any other Credit Document. Within 5 Business Days of the Administrative
Agent receiving actual notice (without any duty to investigate) of a Default,
the Administrative Agent will provide written notice of such Default to the
Banks.
-110-
Section 9.02 Agents' Reliance, Etc. Neither the Agents nor any of their
---------------------
respective directors, officers, agents or employees shall be liable for any
action taken or omitted to be taken (including such Person's own negligence) by
it or them under or in connection with this Agreement or the other Credit
Documents, except for its or their own gross negligence or willful misconduct.
Without limitation of the generality of the foregoing, each Agent: (a) may
treat the payee of any Note as the holder thereof until such Agent receives
written notice of the assignment or transfer thereof signed by such payee and in
form satisfactory to the Administrative Agent; (b) may consult with legal
counsel (including counsel for the Borrower), independent public accountants and
other experts selected by it and shall not be liable for any action taken or
omitted to be taken in good faith by it in accordance with the advice of such
counsel, accountants or experts; (c) makes no warranty or representation to any
Bank and shall not be responsible to any Bank for any statements, warranties or
representations made in or in connection with this Agreement or the other Credit
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of this
Agreement or any other Credit Document on the part of the Borrower or its
Subsidiaries or to inspect the property (including the books and records) of the
Borrower or its Subsidiaries; (e) shall not be responsible to any Bank for the
due execution, legality, validity, enforceability, genuineness, sufficiency or
value of this Agreement or any other Credit Document; and (f) shall incur no
liability under or in respect of this Agreement or any other Credit Document by
acting upon any notice, consent, certificate or other instrument or writing
(which may be by telecopier, telegram, cable or telex) believed by it to be
genuine and signed or sent by the proper party or parties.
Section 9.03 Each Agent and Its Affiliates. With respect to its
-----------------------------
Commitment, the Advances made by it and the Notes issued to it, each Agent shall
have the same rights and powers under this Agreement as any other Bank and may
exercise the same as though it were not an Agent. The term "Bank" or "Banks"
shall, unless otherwise expressly indicated, include each Agent in its
individual capacity. Each Agent and its Affiliates may accept deposits from,
lend money to, act as trustee under indentures of, and generally engage in any
kind of business with, the Borrower or any of its Subsidiaries, and any Person
who may do business with or own securities of the Borrower or any such
Subsidiary, all as if such Agent were not an Agent hereunder and without any
duty to account therefor to the Banks.
Section 9.04 Bank Credit Decision. Each Bank acknowledges that it has,
--------------------
independently and without reliance upon either Agent or any other Bank and based
on the financial statements referred to in Section 4.06 and such other documents
and information as it has deemed appropriate,
-111-
made its own credit analysis and decision to enter into this Agreement. Each
Bank also acknowledges that it will, independently and without reliance upon
either Agent or any other Bank and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement.
Section 9.05 Indemnification. The Banks severally agree to indemnify
---------------
each Agent and each Issuing Bank (to the extent not reimbursed by the Borrower),
according to their respective Pro Rata Shares 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 such Agent or such Issuing Bank in
any way relating to or arising out of this Agreement or any action taken or
omitted by such Agent or such Issuing Bank under this Agreement or any other
Credit Document (including such Agent's or such Issuing Bank's own negligence),
provided that no Bank shall be liable for any portion of such liabilities,
obligations, losses, damages, penalties, actions, judgments, suits, costs,
expenses or disbursements resulting from such Agent's or such Issuing Bank's
gross negligence or willful misconduct. Without limitation of the foregoing,
each Bank agrees to reimburse each Agent promptly upon demand for its Pro Rata
Share of any out-of-pocket expenses (including counsel fees) incurred by such
Agent in connection with the preparation, execution, delivery, administration,
modification, amendment or enforcement (whether through negotiations, legal
proceedings or otherwise) of, or legal advice in respect of rights or
responsibilities under, this Agreement or any other Credit Document, to the
extent that such Agent is not reimbursed for such expenses by the Borrower.
Section 9.06 Successor Agent and Issuing Banks. Either Agent or any
---------------------------------
Issuing Bank may resign at any time by giving written notice thereof to the
Banks and the Borrower and may be removed at any time with cause by the Super
Majority Banks upon receipt of written notice from the Super Majority Banks to
such effect. Upon receipt of notice of any such resignation or removal, the
Super Majority Banks shall have the right to appoint a successor Agent or
Issuing Bank. If no successor Agent or Issuing Bank shall have been so
appointed, and shall have accepted such appointment, within 30 days after the
retiring Agent's or Issuing Bank's giving of notice of resignation or the Super
Majority Banks' removal of the retiring Agent or Issuing Bank, then the retiring
Agent or Issuing Bank may, on behalf of the Banks and the Borrower, appoint a
successor Agent or Issuing Bank, which shall be a commercial bank meeting the
financial requirements of an Eligible Assignee and, in the case of an Issuing
Bank, a Bank. Upon the acceptance of any appointment as Agent or Issuing Bank
by a successor Agent or Issuing Bank, such successor Agent or Issuing Bank shall
thereupon succeed to and become vested with all the rights, powers, privileges
-112-
and duties of the retiring Agent or Issuing Bank, and the retiring Agent or
Issuing Bank shall be discharged from its duties and obligations under this
Agreement and the other Credit Documents, except that the retiring Issuing Bank
shall remain an Issuing Bank with respect to any Letters of Credit issued by
such Issuing Bank and outstanding on the effective date of its resignation or
removal and the provisions affecting such Issuing Bank with respect to such
Letters of Credit shall inure to the benefit of the retiring Issuing Bank until
the termination of all such Letters of Credit. After any retiring Agent's or
Issuing Bank's resignation or removal hereunder as Documentation Agent,
Administrative Agent or Issuing Bank, the provisions of this Article IX shall
inure to its benefit as to any actions taken or omitted to be taken by it while
it was such Agent or Issuing Bank under this Agreement and the other Credit
Documents.
Section 9.07 Arranger, Syndication Agent and Managing Agents. The Bank
-----------------------------------------------
of Nova Scotia and ▇▇▇▇▇ Fargo Bank, National Association shall each be named a
Managing Agent under the Credit Documents, but the Managing Agents shall have no
right or duty to act as agent on behalf of the Banks. Societe Generale,
Southwest Agency shall be named Arranger and Syndication Agent under the Credit
Documents, but the Arranger and the Syndication Agent shall have no right or
duty to act as agent on behalf of the Banks in such capacities; provided that
the provisions of this sentence shall in no way effect Societe Generale,
Southwest Agency's rights or duties as Documentation Agent on behalf of the
Banks.
ARTICLE X
MISCELLANEOUS
Section 10.01 Amendments, Etc. No amendment or waiver of any provision of
---------------
this Agreement, the Notes, or any other Credit Document, nor consent to any
departure by the Borrower or any Guarantor therefrom, shall in any event be
effective unless the same shall be in writing and signed by the Documentation
Agent, the Administrative Agent or the Agents, as specified in the particular
provisions of the Credit Documents, and the Borrower, and then such waiver or
consent shall be effective only in the specific instance and for the specific
purpose for which given; provided, however, that no amendment shall increase the
--------
Commitment of any Bank without the written consent of such Bank, and no
amendment, waiver or consent shall, unless in writing and signed by all the
Banks, do any of the following: (a) increase the aggregate Commitments of the
Banks, (b) reduce the principal of, or interest on, the Notes or any fees or
other amounts payable hereunder or under any other Credit Document or otherwise
release the Borrower from any Obligations,
-113-
(c) postpone any date fixed for any payment of principal of, or interest on, the
Notes or any fees or other amounts payable hereunder, (d) change the number of
Banks which shall be required for the Banks or any of them to take any action
hereunder or under any other Credit Document, (e) amend this Section 10.01, (f)
amend the definition of "Majority Banks" or "Super Majority Banks", (g) amend
the definition of "Borrowing Base", "Hotel Value", "Subordinate Indebtedness",
or "Adjusted EBITDA", but not the definitions that are used in such definitions,
or (h) release the Parent from its obligations under the Guaranty; and provided,
--------
further, that no amendment, waiver or consent shall, unless in writing and
signed by the Documentation Agent, the Administrative Agent, or any Issuing Bank
in addition to the Banks required above to take such action, affect the rights
or duties of the Documentation Agent, the Administrative Agent, or such Issuing
Bank, as the case may be, under this Agreement or any other Credit Document. In
addition, none of the following decisions shall be made without the written
consent of the Super Majority Banks:
(a) release any Guarantor except the Parent from its obligations under
any of the Guaranties (provided that the Administrative Agent can (i)
release any Supplemental Guarantor from its obligations under any of the
Supplemental Guaranties and (ii) if no Default then exists, release any
Subsidiary of the Borrower which no longer is a Property Owner of an
Eligible Property);
(b) release any Person from its obligations under any of the
Environmental Indemnities;
(c) any determination to make a Borrowing after the occurrence and
during the continuance of an Event of Default;
(d) increases the maximum duration of Interest Periods permitted under
this Agreement;
(e) any waiver for a period of more than 60 days of, or any material
amendment to, the financial covenants contained in Article VII of this
Agreement;
(f) any material waiver of the covenants contained in Sections 6.01,
6.02 or 6.04;
-114-
(g) amends any of the definitions that are used in the definition of
"Borrowing Base";
(h) any amendment, supplement or modification to, or waiver of, the
provisions of Section 8.01 of this Agreement;
(i) any determination to send notice to the Borrower of, or otherwise
declare, an Event of Default pursuant to Section 8.01 of this Agreement;
(j) any determination to accelerate the Obligations pursuant to
Section 8.02 of this Agreement; and
(k) any exercise remedies under any Credit Document, provided,
however, that if an Event of Default has occurred and is continuing and the
Super Majority Banks cannot agree on a course of action within 60 days
following the occurrence of such Event of Default, the Administrative Agent
shall commence exercising remedies against the Borrower, the Parent and the
other Guarantors.
In addition, none of the following decisions shall be made without the written
consent of the Majority Banks:
(a) any waiver for more than 30 days of, or any material amendment to,
of the reporting requirements set forth in clauses (a)-(f) or (h) of
Section 5.05 of this Agreement;
(b) any material waiver of, or any material amendment to any section
of Article VI not previously referenced in this Section 10.01;
(c) any approval pursuant to subsection 3.03 of this Agreement of a
Hotel Property as a possible Eligible Property;
(d) any material waiver of the conditions to a Hotel Property
qualifying as either an Eligible Property or a Permitted Non-Eligible
Property; and
-115-
(e) any material decision regarding the operation, maintenance, sale
or other disposition of any Property after the foreclosure upon such
Property, provided that Administrative Agent shall be able to take any
action it determines necessary to preserve or maintain any such Property
and provided further that if the Majority Banks cannot agree on the sale or
disposition of such Property, the Administrative Agent shall not sell or
dispose of such Property, but shall continue to hold such Property for the
benefit of the Banks.
Any amendment to a covenant of the Parent or any of its Subsidiaries or
amendment to a definition shall require the Borrower's written consent.
Section 10.02 Notices, Etc. All notices and other communications shall be
------------
in writing (including telecopy or telex) and mailed, telecopied, telexed, hand
delivered or delivered by a nationally recognized overnight courier, if to the
Borrower, at its address at ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇
▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. ▇▇▇▇▇; if to any Bank at its Domestic Lending
Office specified opposite its name on Schedule 10.02; if to the Documentation
Agent, at its address at 4900 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center, ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇,
▇▇▇▇▇ ▇▇▇▇▇, Attention: ▇▇▇▇▇▇ ▇. Day, Vice President (telecopy: (214) 979-
2727; telephone: (▇▇▇) ▇▇▇-▇▇▇▇); if to Bank One, Texas, N.A., in its capacity
as Administrative Agent or an Issuing Bank, at its office at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇,
▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇, Attention: Commercial Real Estate Department -
▇▇▇▇ ▇▇▇▇▇, Vice President (telecopy: (▇▇▇) ▇▇▇-▇▇▇▇; telephone: (214) 290-
2385); or, as to each party, at such other address or teletransmission number as
shall be designated by such party in a written notice to the other parties. All
such notices and communications shall, when mailed, telecopied, telexed or hand
delivered or delivered by overnight courier, be effective three days after
deposited in the mails, when telecopy transmission is completed, when confirmed
by telex answer-back or when delivered, respectively, except that notices and
communications to the Administrative Agent pursuant to Article II or Article IX
shall not be effective until received by the Administrative Agent.
Section 10.03 No Waiver; Remedies. No failure on the part of any Bank,
-------------------
any Agent, or any Issuing Bank to exercise, and no delay in exercising, any
right hereunder or under any Note shall operate as a waiver thereof; nor shall
any single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies provided in
this Agreement and the other Credit Documents are cumulative and not exclusive
of any remedies provided by law.
-116-
Section 10.04 Costs and Expenses. The Borrower agrees to pay on demand
------------------
all out-of-pocket costs and expenses of the Agents in connection with the
preparation, execution, delivery, administration, modification and amendment of
this Agreement, the Notes and the other Credit Documents and syndication
(syndication costs shall not exceed $5,000 per Eligible Assignee) of the
Obligations including, without limitation, (a) the reasonable fees and out-of-
pocket expenses of ▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, L.L.P., counsel for the Documentation
Agent, and, with respect to advising either Agent as to its rights and
responsibilities under this Agreement, the Agents, (b) the reasonable fees and
out-of-pocket expenses of ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, P.C., counsel for the
Administrative Agent, and (c) all reasonable out-of-pocket costs and expenses,
if any, of each Agent, each Issuing Bank, and each Bank (including, without
limitation, reasonable counsel fees and expenses of each Agent, such Issuing
Bank, and each Bank) in connection with the enforcement (whether through
negotiations, legal proceedings or otherwise) of this Agreement and the other
Credit Documents, and (d) to the extent not included in the foregoing, the costs
of any local counsel, travel expenses, Engineering Reports, Environmental
Reports, mortgage and intangible taxes (if any), and any title or Uniform
Commercial Code search costs, any flood plain search costs, insurance consultant
costs and other costs usual and customary in connection with a credit facility
of this type.
Section 10.05 Binding Effect. This Agreement shall become effective when
--------------
it shall have been executed by the Borrower and the Agents, and when the
Documentation Agent shall have, as to each Bank, either received a counterpart
hereof executed by such Bank or been notified by such Bank that such Bank has
executed it and thereafter shall be binding upon and inure to the benefit of the
Borrower, each Agent, each Issuing Bank, and each Bank and their respective
successors and assigns, except that the Borrower shall not have the right to
assign its rights or delegate its duties under this Agreement or any interest in
this Agreement without the prior written consent of each Bank.
Section 10.06 Bank Assignments and Participations.
-----------------------------------
(a) Assignments. Any Bank may assign to one or more banks or other
-----------
entities all or any portion of its rights and obligations under this Agreement
(including, without limitation, all or a portion of its Commitment, the Advances
owing to it, the Notes held by it, and the participation interest in the Letter
of Credit Obligations held by it); provided, however, that (i) each such
-------- -------
assignment shall be of a constant, and not a varying, percentage of all of such
Bank's rights and obligations under this Agreement and shall involve a ratable
assignment of such Bank's Commitment and such Bank's Advances, (ii) the amount
of the resulting Commitment and Advances of the
-117-
assigning Bank (unless it is assigning all its Commitment) and the assignee Bank
pursuant to each such assignment (determined as of the date of the Assignment
and Acceptance with respect to such assignment) shall in no event be less than
$10,000,000 and shall be an integral multiple of $1,000,000, (iii) each such
assignment shall be to an Eligible Assignee, (iv) the parties to each such
assignment shall execute and deliver to the Administrative Agent, for its
acceptance and recording in the Register, an Assignment and Acceptance, together
with the Notes subject to such assignment, (v) the Agents shall consent to such
assignment, which consent shall not be unreasonably withheld or delayed, and
(vi) each Eligible Assignee (other than the Eligible Assignee of either Agent or
an Eligible Assignee which is an Affiliate of the assigning Bank) shall pay to
the Administrative Agent a $2,500 administrative fee. Upon such execution,
delivery, acceptance and recording, from and after the effective date specified
in each Assignment and Acceptance, which effective date shall be at least three
Business Days after the execution thereof, (A) the assignee thereunder shall be
a party hereto for all purposes and, to the extent that rights and obligations
hereunder have been assigned to it pursuant to such Assignment and Acceptance,
have the rights and obligations of a Bank hereunder and (B) such Bank thereunder
shall, to the extent that rights and obligations hereunder have been assigned by
it pursuant to such Assignment and Acceptance, relinquish its rights and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all or the remaining portion of such Bank's
rights and obligations under this Agreement, such Bank shall cease to be a party
hereto). Notwithstanding anything herein to the contrary, any Bank may assign,
as collateral or otherwise, any of its rights under the Credit Documents to any
Federal Reserve Bank.
(b) Term of Assignments. By executing and delivering an Assignment and
-------------------
Acceptance, the Bank thereunder and the assignee thereunder confirm to and agree
with each other and the other parties hereto as follows: (i) other than as
provided in such Assignment and Acceptance, such Bank makes no representation or
warranty and assumes no responsibility with respect to any statements,
warranties or representations made in or in connection with this Agreement or
the execution, legality, validity, enforceability, genuineness, sufficiency of
value of this Agreement or any other instrument or document furnished pursuant
hereto; (ii) such Bank makes no representation or warranty and assumes no
responsibility with respect to the financial condition of the Borrower or the
Guarantors or the performance or observance by the Borrower or the Guarantors of
any of their obligations under this Agreement or any other instrument or
document furnished pursuant hereto; (iii) such assignee confirms that it has
received a copy of this Agreement, together with copies of the financial
statements referred to in Sections 4.06 and 5.05, if applicable, and such other
documents and information as it has deemed appropriate to make its own credit
analysis and decision
-118-
to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon either Agent, such Bank or any other
Bank and based on such documents and information as it shall deem appropriate at
the time, continue to make its own credit decisions in taking or not taking
action under this Agreement; (v) such assignee appoints and authorizes each
Agent to take such action as agent on its behalf and to exercise such powers
under this Agreement as are delegated to such Agent by the terms hereof,
together with such powers as are reasonably incidental thereto; and (vi) such
assignee agrees that it will perform in accordance with their terms all of the
obligations which by the terms of this Agreement are required to be performed by
it as a Bank.
(c) The Register. The Administrative Agent shall maintain at its address
------------
referred to in Section 10.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Banks and the Commitments of, and principal amount of the
Advances owing to, each Bank from time to time (the "Register"). The entries in
the Register shall be conclusive and binding for all purposes, absent manifest
error, and the Borrower, each Agent, the Issuing Banks, and the Banks may treat
each Person whose name is recorded in the Register as a Bank hereunder for all
purposes of this Agreement. The Register shall be available for inspection by
the Borrower or any Bank at any reasonable time and from time to time upon
reasonable prior notice.
(d) Procedures. Upon its receipt of an Assignment and Acceptance executed
----------
by a Bank and an Eligible Assignee, together with the Note subject to such
assignment, the Administrative Agent shall, if such Assignment and Acceptance
has been completed and is in substantially the form of the attached Exhibit B,
(i) accept such Assignment and Acceptance, (ii) record the information contained
therein in the Register, and (iii) give prompt notice thereof to the Borrower.
Within five Business Days after its receipt of such notice, the Borrower, at its
own expense, shall execute and deliver to the Administrative Agent in exchange
for the surrendered Note, a new Note payable to the order of such Eligible
Assignee in amount equal to, respectively, the Commitment and the outstanding
Advances assumed by it pursuant to such Assignment and Acceptance, and if the
assigning Bank has retained any Commitment hereunder, a new Note payable to the
order of such Bank in an amount equal to, respectively, the Commitment and the
outstanding Advances retained by it hereunder. Such new Note shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of the attached Exhibit A.
-119-
(e) Participations. Each Bank may sell participations to one or more banks
--------------
or other entities in or to all or a portion of its rights and obligations under
this Agreement (including, without limitation, all or a portion of its
Commitment, the Advances owing to it, its participation interest in the Letter
of Credit Obligations, and the Notes held by it); provided, however, that (i)
-------- -------
such Bank's obligations under this Agreement (including, without limitation, its
Commitment to the Borrower hereunder) shall remain unchanged, (ii) such Bank
shall remain solely responsible to the other parties hereto for the performance
of such obligations, (iii) such Bank shall remain the holder of any such Note
for all purposes of this Agreement, (iv) the Borrower, each Agent, and the
Issuing Banks and the other Banks shall continue to deal solely and directly
with such Bank in connection with such Bank's rights and obligations under this
Agreement, (v) such Bank shall not require the participant's consent to any
matter under this Agreement, except for change in the principal amount of any
Note in which the participant has an interest, reductions in fees or interest,
or extending the Maturity Date except as permitted in this Agreement, and (vi)
such Bank shall give prompt notice to the Borrower of each such participation
sold by such Bank. The Borrower hereby agrees that participants shall have the
same rights under Sections 2.08, 2.09, 2.11(c), and 10.07 hereof as the Bank to
the extent of their respective participations.
(f) Confidentiality. Each Bank may furnish any information concerning the
---------------
Borrower and its Subsidiaries in the possession of such Bank from time to time
to assignees and participants (including prospective assignees and
participants); provided that, prior to any such disclosure, the assignee or
--------
participant or proposed assignee or participant shall agree in writing to
preserve the confidentiality of any confidential information relating to the
Borrower and its Subsidiaries received by it from or on behalf of such Bank.
Such Bank shall promptly deliver a signed copy of any such confidentiality
agreement to the Borrower.
Section 10.07 Indemnification. The Borrower shall indemnify each Agent,
---------------
the Banks (including any lender which was a Bank hereunder prior to any full
assignment of its Commitment), the Issuing Banks, and each affiliate thereof and
their respective directors, officers, employees and agents from, and discharge,
release, and hold each of them harmless against, any and all losses,
liabilities, claims or damages to which any of them may become subject, insofar
as such losses, liabilities, claims or damages arise out of or result from (i)
any actual or proposed use by the Borrower or any Affiliate of the Borrower of
the proceeds of any Advance, (ii) any breach by the Borrower or any Guarantor of
any provision of this Agreement or any other Credit Document, (iii) any
investigation, litigation or other proceeding (including any threatened
investigation or proceeding) relating to the foregoing, or (iv) any
Environmental Claim or requirement of
-120-
Environmental Laws concerning or relating to the present or previously-owned or
operated properties, or the operations or business, of the Borrower or any of
its Subsidiaries, and the Borrower shall reimburse each Agent, each Issuing
Bank, and each Bank, and each affiliate thereof and their respective directors,
officers, employees and agents, upon demand for any reasonable out-of-pocket
expenses (including legal fees) incurred in connection with any such
investigation, litigation or other proceeding; and expressly including any such
losses, liabilities, claims, damages, or expense incurred by reason of the
Person being indemnified's own negligence, but excluding any such losses,
liabilities, claims, damages or expenses incurred by reason of the gross
negligence or willful misconduct of the Person to be indemnified.
THE BORROWER ACKNOWLEDGES AND AGREES THAT CERTAIN OF ITS OBLIGATIONS AND
INDEMNITIES UNDER THIS AGREEMENT INCLUDE ANY CLAIMS RESULTING FROM THE
NEGLIGENCE OR ALLEGED NEGLIGENCE OF THE DOCUMENTATION AGENT, THE ADMINISTRATIVE
AGENT, THE BANKS, OR ANY OTHER PERSON BEING INDEMNIFIED.
Section 10.08 Execution in Counterparts. This Agreement may be executed
-------------------------
in any number of counterparts and by different parties hereto in separate
counterparts, each of which when so executed shall be deemed to be an original
and all of which taken together shall constitute one and the same agreement.
Section 10.09 Survival of Representations, Indemnifications, etc. All
--------------------------------------------------
representations, warranties contained in this Agreement or made in writing by or
on behalf of the Borrower in connection herewith shall survive the execution and
delivery of this Agreement and the Credit Documents, the making of the Advances
and any investigation made by or on behalf of the Banks, none of which
investigations shall diminish any Bank's right to rely on such representations
and warranties. All obligations of the Borrower provided for in Sections 2.08,
2.09, 2.11(c), 9.05 and 10.07 shall survive any termination of this Agreement
and repayment in full of the Obligations.
Section 10.10 Severability. In case one or more provisions of this
------------
Agreement or the other Credit Documents shall be invalid, illegal or
unenforceable in any respect under any applicable law, the validity, legality
and enforceability of the remaining provisions contained herein or therein shall
not be affected or impaired thereby.
-121-
Section 10.11 Business Loans. The Borrower warrants and represents that
--------------
the Advances evidenced by the Notes are and shall be for business, commercial,
investment or other similar purposes and not primarily for personal, family,
household or agricultural use, as such terms are used in Chapter One of the
Texas Credit Code. For purposes of determining the Maximum Rate under the
applicable laws of the State of Texas, the applicable rate ceiling shall be the
indicated rate ceiling computed in accordance with Article 5069-1H of the Texas
Revised Civil Statutes, if applicable, and, if Article 5069-1H is not
applicable, then Article 5069-1D of the Texas Revised Civil Statutes; provided
that, to the extent permitted by applicable laws and subject to any notice or
other requirements under applicable laws, the Administrative Agent may from time
to time change the rate ceiling; and provided, further, that the "Maximum Rate"
for purposes of this Agreement shall not be limited to the applicable rate
ceiling under Article 5069-1D or Article 5069-1H if the United States federal
law or Texas law now or hereafter in effect and applicable to this Agreement
(and the interest contracted for, charged and collected hereunder) shall permit
a higher rate of interest.
Section 10.12 Usury Not Intended. It is the intent of the Borrower and
------------------
each Bank in the execution and performance of this Agreement and the other
Credit Documents to contract in strict compliance with applicable usury laws,
including conflicts of law concepts, governing the Advances of each Bank
including such applicable laws of the State of Texas and the United States of
America from time to time in effect. In furtherance thereof, the Banks and the
Borrower stipulate and agree that none of the terms and provisions contained in
this Agreement or the other Credit Documents shall ever be construed to create a
contract to pay, as consideration for the use, forbearance or detention of
money, interest at a rate in excess of the Maximum Rate and that for purposes
hereof "interest" shall include the aggregate of all charges which constitute
interest under such laws that are contracted for, charged or received under this
Agreement; and in the event that, notwithstanding the foregoing, under any
circumstances the aggregate amounts taken, reserved, charged, received or paid
on the Advances, include amounts which by applicable law are deemed interest
which would exceed the Maximum Rate, then such excess shall be deemed to be a
mistake and each Bank receiving same shall credit the same on the principal of
its Notes (or if such Notes shall have been paid in full, refund said excess to
the Borrower). In the event that the maturity of the Notes is accelerated by
reason of any election of the holder thereof resulting from any Event of Default
under this Agreement or otherwise, or in the event of any required or permitted
prepayment, then such consideration that constitutes interest may never include
more than the Maximum Rate and excess interest, if any, provided for in this
Agreement or otherwise shall be canceled automatically as of the date of such
acceleration or prepayment and, if theretofore paid, shall be credited on the
applicable Notes (or, if the applicable Notes shall have been paid in full,
refunded to the Borrower). The
-122-
provisions of this Section shall control over all other provisions of this
Agreement or the other Credit Documents which may be in apparent conflict
herewith.
Section 10.13 Certain Office and Retail Space. The Banks acknowledge and
-------------------------------
agree that the office portion of the Houston, Texas Marriott and the retail
portion of the St. Tropez hotel in Las Vegas, Nevada (a) will or may not be
subject to a Participating Lease, Franchise Agreement or Management Agreement,
(b) will, if complying with the other requirements for qualifying as an Eligible
Property, be included in the calculation of the Borrowing Base, and (c) may be
sold or transferred separately from the hotel portion of such Hotel Property in
accordance with the requirements of a Permitted Hotel Sale. If in connection
with any such sale or transfer, the office or retail, as applicable, portions
and hotel portions of such Hotel Property need to enter into any agreements
pertaining to the joint use of facilities, such agreements will be subject to
the reasonable approval of the Documentation Agent.
Section 10.14 Florida Liens. The Banks and the Agents agree that the
-------------
Administrative Agent will release the Florida Liens or deposit releases of the
Florida Liens with any Person designated by the Borrower within 5 Business Days
of written request by the Borrower which the Borrower can make in its sole and
absolute discretion. In addition, if no Default then exists, the Banks and the
Agents agree to cooperate with the Borrower in connection with a written request
by the Borrower to assign all or a portion of the Florida Liens to another
Person; provided that the deletion of Eligible Properties in connection with
such assignment will not result in a Borrowing Base deficiency for which the
Borrower has insufficient funds to cure, taking into account the net proceeds
raised by the Borrower in connection with such assignment. Without limitation
of the foregoing, (a) the Banks and the Agents agree to sell without recourse a
portion of the Notes to the Person directed by the Borrower in connection with
such an assignment, (b) the Banks and the Agents agree to temporarily reduce the
Banks' respective Commitments Pro Rata by the portion of the Notes sold, (c) the
Banks, the Agents and the Borrower agree to cause the portion of the Notes sold
to be converted into term notes which are independent of this Credit Agreement,
(d) the Banks, the Agents and the Borrower agree to immediately thereafter cause
the Banks' respective Commitments to be increased to the amounts which existed
prior to such assignment, and (e) the Banks, the Agents and the Borrower agree
to execute such documents as are necessary or desirable to accomplish the
foregoing, all in form and substance reasonably acceptable to the Agents and the
Borrower.
Section 10.15 Governing Law. This Agreement, the Notes and the other
-------------
Credit Documents shall be governed by, and construed and enforced in accordance
with, the laws of the State of Texas.
-123-
Section 10.16 Consent to Jurisdiction. The Borrower hereby irrevocably
-----------------------
submits to the jurisdiction of any Texas state or federal court sitting in
Dallas, Texas in any action or proceeding arising out of or relating to this
Agreement, the Notes and the other Credit Documents, and the Borrower hereby
irrevocably agrees that all claims in respect of such action or proceeding may
be heard and determined in such court. The Borrower hereby irrevocably waives,
to the fullest extent it may effectively do so, any right it may have to the
defense of an inconvenient forum to the maintenance of such action or
proceeding. The Borrower hereby agrees that service of copies of the summons
and complaint and any other process which may be served in any such action or
proceeding may be made by mailing or delivering a copy of such process to the
Borrower at its address specified in Section 10.02. The Borrower agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section shall affect the rights of any Bank,
the Documentation Agent, or the Administrative Agent to serve legal process in
any other manner permitted by the law or affect the right of any Bank, the
Documentation Agent or the Administrative Agent to bring any action or
proceeding against the Borrower or its Property in the courts of any other
jurisdiction.
Section 10.17 Knowledge of Borrower. For purposes of this Agreement,
---------------------
"knowledge of the Borrower" means the actual knowledge of any of the executive
officers and all other Responsible Officers of the Parent or the general manager
of each Hotel Property except the general manager for those Hotel Properties for
which Prime Hospitality is the Participating Lessee.
Section 10.18 Banks Not in Control. None of the covenants or other
--------------------
provisions contained in the Credit Documents shall or shall be deemed to, give
the Banks the rights or power to exercise control over the affairs and/or
management of the Borrower, any of its Subsidiaries or any Guarantor, the power
of the Banks being limited to the right to exercise the remedies provided in the
Credit Documents; provided, however, that if any Bank becomes the owner of any
stock, or other equity interest in, any Person whether through foreclosure or
otherwise, such Bank shall be entitled (subject to requirements of law) to
exercise such legal rights as it may have by being owner of such stock, or other
equity interest in, such Person.
Section 10.19 Headings Descriptive. The headings of the several Sections
--------------------
and paragraphs of the Agreement are inserted for convenience only and shall not
in any way affect the meaning or construction of any provision of this
Agreement.
-124-
Section 10.20 Time is of the Essence. Time is of the essence under the
----------------------
Credit Documents.
SECTION 10.21 WAIVERS OF JURY TRIAL. THE BORROWER, THE AGENTS AND THE
---------------------
BANKS HEREBY IRREVOCABLY AND UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL
PROCEEDING RELATING TO THIS AGREEMENT OR THE NOTES OR ANY OTHER CREDIT DOCUMENT
OR TO ANY COUNTERCLAIM THEREIN.
SECTION 10.22 ENTIRE AGREEMENT. PURSUANT TO SECTION 26.02 OF THE TEXAS
----------------
BUSINESS AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT INVOLVED IN THE
LOAN AGREEMENT EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE LOAN
AGREEMENT IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S
AUTHORIZED REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE
PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY FROM THE WRITTEN LOAN AGREEMENT,
AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED
INTO THE LOAN AGREEMENT. THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS
DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
THE BORROWER ACKNOWLEDGES AND AGREES THAT CERTAIN OF ITS OBLIGATIONS AND
INDEMNITIES UNDER THIS AGREEMENT INCLUDE ANY CLAIMS RESULTING FROM THE
NEGLIGENCE OR ALLEGED NEGLIGENCE OF THE DOCUMENTATION AGENT, THE ADMINISTRATIVE
AGENT, THE BANKS, OR ANY OTHER PERSON BEING INDEMNIFIED.
[REMAINDER OF PAGE INTENTIONALLY LEFT BLANK]
-125-
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
EXECUTED as of the date first referenced above.
BORROWER:
--------
AMERICAN GENERAL HOSPITALITY
OPERATING PARTNERSHIP, L.P.
By: AGH GP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
-----------------------------
Title: EXECUTIVE VICE PRESIDENT
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
BANK ONE, TEXAS, N.A., individually and as
Administrative Agent
/s/ ▇▇▇▇ ▇▇▇▇▇
----------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Vice President
---------------------------------
SOCIETE GENERALE, SOUTHWEST AGENCY,
individually and as Arranger, Syndication
Agent, and Documentation Agent
________________________________________
By:_____________________________________
Title:__________________________________
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
BANK ONE, TEXAS, N.A., individually and as
Administrative Agent
________________________________________
By: ____________________________________
Title:__________________________________
SOCIETE GENERALE, SOUTHWEST AGENCY,
individually and as Arranger, Syndication
Agent, and Documentation Agent
/s/ ▇▇▇▇▇▇ ▇. Day
----------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. Day
------------------------------------
Title: Vice President
---------------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, individually and as
Managing Agent
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-----------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------
Title: VICE PRESIDENT
----------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
THE BANK OF NOVA SCOTIA, individually and as
Managing Agent
/s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------------
By: /s/ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
---------------------------------
Title: Relationship Manager
------------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
NATIONSBANK OF TEXAS, N.A.
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-----------------------------------
By: /s/ ▇▇▇▇▇ ▇▇▇▇▇▇
-------------------------------
Title: Vice President
----------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
BANKERS TRUST COMPANY
/s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
-------------------------------
Title: Vice President
----------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
BANKBOSTON, N.A.
/s/ ▇▇▇▇▇▇ ▇▇▇▇▇
----------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇▇▇▇▇
------------------------------------
Title: Vice President
---------------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
AMSOUTH BANK
/s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
----------------------------------------
By: /s/ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇
------------------------------------
Title: Vice President
---------------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
DRESDNER BANK, AG, NEW YORK BRANCH
AND GRAND CAYMAN BRANCH
/s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
----------------------------------
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇
------------------------------
Title: Assistant Vice President
---------------------------
/s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
----------------------------------
By: /s/ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
------------------------------
Title: Vice President
---------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
FIRST AMERICAN BANK TEXAS, S.S.B
/s/ ▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------
By: /s/ ▇▇▇▇▇ ▇. ▇▇▇▇
----------------------------
Title: VICE PRESIDENT
-------------------------
[SIGNATURE PAGE OF SENIOR UNSECURED CREDIT AGREEMENT]
FIRST NATIONAL BANK OF COMMERCE
/s/ ▇▇▇▇▇ ▇▇▇▇▇▇▇
-------------------------------
By: ▇▇▇▇▇ ▇▇▇▇▇▇▇
---------------------------
Title: Vice President
-------------------------
EXHIBIT A
FORM OF NOTE
$__________ ___________, 1998
For value received, the undersigned American General Hospitality Operating
Partnership L.P., a Delaware limited partnership ("Borrower"), hereby promises
to pay to the order of _________________________ ("Bank") the principal amount
of _______________ and ____/100 Dollars ($__________) or, if less, the aggregate
outstanding principal amount of each Advance (as defined in the Credit Agreement
referred to below) made by the Bank to the Borrower, together with interest on
the unpaid principal amount of each such Advance from the date of such Advance
until such principal amount is paid in full, at such interest rates, and at such
times, as are specified in the Credit Agreement.
This Note is one of the Notes referred to in, and is entitled to the
benefits of, and is subject to the terms of, the Amended and Restated Senior
Unsecured Credit Agreement dated as of February 13, 1998 (as the same may be
amended or modified from time to time, the "Credit Agreement"), among the
Borrower, the Banks, Bank One, Texas, N.A., as Administrative Agent, Societe
Generale, Southwest Agency, as Arranger, Syndication Agent, and Documentation
Agent, the Bank of Nova Scotia, as Managing Agent, and ▇▇▇▇▇ Fargo Bank,
National Association, as Managing Agent. Capitalized terms used in this Note
that are defined in the Credit Agreement and not otherwise defined in this Note
have the meanings assigned to such terms in the Credit Agreement. The Credit
Agreement, among other things, (a) provides for the making of Advances by the
Bank to the Borrower from time to time in an aggregate amount not to exceed at
any time outstanding the Dollar amount first above mentioned, the indebtedness
of the Borrower resulting from each such Advance being evidenced by this Note
and (b) contains provisions for acceleration of the maturity of this Note upon
the happening of certain events stated in the Credit Agreement and for
prepayments of principal prior to the maturity of this Note upon the terms and
conditions specified in the Credit Agreement.
Both principal and interest are payable in lawful money of the United
States of America to the Administrative Agent at ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, P.O. Box
655415, ▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ (or at
such other location or address as may be specified by the Administrative Agent
to the Borrower) in same day funds. The Bank shall record all Advances and
payments of principal made under this Note, but no
failure of the Bank to make such recordings shall affect the Borrower's
repayment obligations under this Note.
Except as specifically provided in the Credit Agreement, the Borrower
hereby waives presentment, demand, protest, notice of intent to accelerate,
notice of acceleration, and any other notice of any kind. No failure to
exercise, and no delay in exercising, any rights hereunder on the part of the
holder of this Note shall operate as a waiver of such rights.
This Note shall be governed by, and construed and enforced in accordance
with, the laws of the state of Texas (except that Chapter 346 of the Texas
Finance Code, which regulates certain revolving credit loan accounts shall not
apply to this Note).
AMERICAN GENERAL HOSPITALITY OPERATING
PARTNERSHIP, L.P.
By: AGH GP, Inc., its general partner
By:_______________________________
Name:_____________________________
Title:____________________________
-2-
EXHIBIT B
ASSIGNMENT AND ACCEPTANCE
Dated ______, 19
Reference is made to the Subordinate Unsecured Credit Agreement dated as of
February 13, 1998 (as the same may be amended or modified from time to time, the
"Credit Agreement") among American General Hospitality Operating Partnership,
L.P., a Delaware limited partnership (the "Borrower"), the Banks, Bank One,
Texas, N.A., as Administrative Agent, Societe Generale, Southwest Agency, as
Arranger, Syndication Agent, and Documentation Agent (the "Documentation
Agent"), the Bank of Nova Scotia, as Managing Agent, and ▇▇▇▇▇ Fargo Bank,
National Association, as Managing Agent. Capitalized terms not otherwise defined
in this Assignment and Acceptance shall have the meanings assigned to them in
the Credit Agreement.
Pursuant to the terms of the Credit Agreement, __________ wishes to assign
and delegate ___%/1/ of its rights and obligations under the Credit Agreement.
Therefore, _________________ ("Assignor"), ___________________ ("Assignee"), and
the Administrative Agent agree as follows:
1. As of the Effective Date (as defined below), the Assignor hereby sells
and assigns and delegates to the Assignee, and the Assignee hereby purchases and
assumes from the Assignor, without recourse to the Assignor and without
representation or warranty except for the representations and warranties
specifically set forth in clauses (i), (ii), and (iii) of Section 2, a ____%
interest in and to all of the Assignor's rights and obligations under the Credit
Agreement in connection with its Commitment, including, without limitation, such
percentage interest in the Assignor's Commitment and the Advances owing to the
Assignor, the participation interest in the Letter of Credit Obligations held by
the Assignor, and the Note held by the Assignor.
2. The Assignor (i) represents and warrants that, prior to executing this
Assignment and Acceptance, its Commitment is $____________________, the
aggregate outstanding principal amount of Advances owed to it by the Borrower is
$___________________, and its Pro Rata Share of the Letter of Credit Exposure is
___________________
/1/ Specify percentage in no more than 5 decimal points.
$_________________; (ii) represents and warrants that it is the legal and
beneficial owner of the interest being assigned by it hereunder and that such
interest is free and clear of any adverse claim; (iii) makes no representation
or warranty and assumes no responsibility with respect to any statements,
warranties, or representations made in or in connection with the Credit
Agreement or any other Credit Document or the execution, legality, validity,
enforceability, genuineness, sufficiency, or value of the Credit Agreement or
any other Credit Document or any other instrument or document furnished pursuant
thereto; (iv) makes no representation or warranty and assumes no responsibility
with respect to the financial condition of the Borrower or any Guarantor or the
performance or observance by the Borrower or any Guarantor of any of its
obligations under the Credit Agreement or any other Credit Document or any other
instrument or document furnished pursuant thereto; and (v) attaches the Note
referred to in paragraph 1 above and requests that the Administrative Agent
exchange such Note for a new Note dated ____________, 19__ in the principal
amount of $_____________, payable to the order of the Assignee, [and a new Note
dated ___________, 19__ in the principal amount of $_________________, payable
to the order of Assignor].
3. The Assignee (i) confirms that it has received a copy of the Credit
Agreement, together with copies of the financial statements referred to in
Section 4.06 thereof and such other documents and information as it has deemed
appropriate to make its own credit analysis and decision to enter into this
Assignment and Acceptance; (ii) agrees that it will, independently and without
reliance upon the Documentation Agent, the Administrative Agent, either of the
Managing Agents, the Assignor, or any other Bank and based on such documents and
information as it shall deem appropriate at the time, continue to make its own
credit decisions in taking or not taking action under the Credit Agreement or
any other Credit Document; (iii) appoints and authorizes the Administrative
Agent to take such action as administrative agent on its behalf and to exercise
such powers under the Credit Agreement and any other Credit Document as are
delegated to the Administrative Agent by the terms thereof, together with such
powers as are reasonably incidental thereto; (iv) appoints and authorizes the
Documentation Agent to take such action as documentation agent on its behalf and
to exercise such powers under the Credit Agreement and any other Credit Document
as are delegated to the Documentation Agent by the terms thereof, together with
such powers as are reasonably incidental thereto; (v) agrees that it will
perform in accordance with their terms all of the obligations which by the terms
of the Credit Agreement or any other Credit Document are required to be
performed by it as a Bank; (vi) specifies as its Domestic
-2-
Lending Office (and address for notices) and LIBOR Lending Office the offices
set forth beneath its name on the signature pages hereof; (vii) attaches the
forms prescribed by the Internal Revenue Service of the United States certifying
as to the Assignee's status for purposes of determining exemption from United
States withholding taxes with respect to all payments to be made to the Assignee
under the Credit Agreement and its Note or such other documents as are necessary
to indicate that all such payments are subject to such rates at a rate reduced
by an applicable tax treaty/2/, and (viii) represents that it is an Eligible
Assignee.
4. The effective date for this Assignment and Acceptance shall be
________________ (the "Effective Date")/3/ and following the execution of this
Assignment and Acceptance, the Administrative Agent will record it.
5. Upon such recording, and as of the Effective Date, (i) the Assignee
shall be a party to the Credit Agreement for all purposes, and, to the extent
provided in this Assignment and Acceptance, have the rights and obligations of a
Bank thereunder and (ii) the Assignor shall, to the extent provided in this
Assignment and Acceptance, relinquish its rights (other than rights against the
Borrower pursuant to Sections 2.09, 2.11(c) and 9.07 of the Credit Agreement,
which shall survive this assignment) and be released from its obligations under
the Credit Agreement.
6. Upon such recording, from and after the Effective Date, the
Administrative Agent shall make all payments under the Credit Agreement and the
Notes in respect of the interest assigned hereby (including, without limitation,
all payments of principal, interest, and commitment fees) to the Assignee. The
Assignor and Assignee shall make all appropriate adjustments in payments under
the Credit Agreement and the Notes for periods prior to the Effective Date
directly between themselves.
7. This Assignment and Acceptance shall be governed by, and construed and
enforced in accordance with, the laws of the State of Texas.
______________________
/2/ If the Assignee is organized under the laws of a jurisdiction outside the
United States.
/3/ See Section 9.06. Such date shall be at least three Business Days after
the execution of this Assignment and Acceptance.
-3-
The parties hereto have caused this Assignment and Acceptance to be duly
executed as of the date first above written.
[ASSIGNOR]
By:____________________________
Name:__________________________
Title:_________________________
Address: _____________________
_____________________
Attention:_____________________
Telecopy:______________________
Telephone:_____________________
[ASSIGNEE]
By:____________________________
Name:__________________________
Title:_________________________
Domestic Lending Office:
Address: _____________________
_____________________
Attention:_____________________
Telecopy:______________________
Telephone:_____________________
-4-
LIBOR Lending Office:
Address: ______________________
______________________
Attention:______________________
Telecopy:_______________________
Telephone:______________________
Bank One, Texas, N.A.,
as Administrative Agent
By:_____________________________
▇▇▇▇ ▇▇▇▇▇
Vice President
Address: ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
P.O. Box 655415
Commercial Real ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇▇▇ ▇▇▇▇▇
Telecopy: ▇▇▇-▇▇▇-▇▇▇▇
Telephone: ▇▇▇-▇▇▇-▇▇▇▇
-5-
EXHIBIT C
FORM OF BORROWING BASE CERTIFICATE
This Borrowing Base Certificate is executed this 11th day of February, 1998
and is prepared pursuant to Section 2.14 of that certain Amended and Restated
Senior Unsecured Credit Agreement (the "Agreement") between AMERICAN GENERAL
HOSPITALITY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"Borrower"), SOCIETE GENERALE, SOUTHWEST AGENCY, as Arranger, Syndication Agent
and Documentation Agent, BANK ONE, TEXAS, N.A., as Administrative Agent, THE
BANK OF NOVA SCOTIA, as Co-Agent, AND ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as
Co-Managers, and the Banks party to the Credit Agreement. Capitalized terms used
herein but not otherwise defined herein shall have the meanings specified by the
Agreement:
1. Aggregate Hotel Value of all Eligible Properties $ 910,667,288
-------------
2. Line 1 above multiplied by 50% $ 455,333,644
-------------
3. The Rolling Period Borrowing Base Adjusted EBITDA
generated by the Eligible Properties $ 82,001,777
-------------
4. Line 3 above multiplied by five (5) $ 410,008,884
-------------
5. Borrowing Base (before Subordinate Indebtedness)
(Lesser of Lines 2 and 4) $ 410,008,884
-------------
6. Subordinate Indebtedness counted for Borrowing Base calculation $ ___________
7. BORROWING BASE (Line 5 minus Line 6) $ 410,008,884
-------------
The Borrower has caused this Borrowing Base Certificate to be executed this
11th day of February, 1998.
AMERICAN GENERAL HOSPITALITY
OPERATING PARTNERSHIP, L.P.
By: AGH GP, Inc., its general partner
By: /s/ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
--------------------------------------
Name: ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
------------------------------------
Title: Executive Vice President
-----------------------------------
1. Holiday Inn, ▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
2. ▇▇▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇, ▇▇
3. Hilton Hotel, Toledo, OH
4. Holiday Inn-N.O. Airport, Kenner, LA
5. Crowne Plaza, Madison, WI
6. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇, ▇▇
7. Wyndham, Albuquerque, NM
8. Hotel ▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇▇, ▇▇
▇. Hampton Inn, Ocean City, MD
10. Holiday Inn, Mission Valley, San Diego, CA
11. Wyndham Hotel, San Jose, CA
12. ▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
13. Holiday Inn Resort, Monterey, CA
14. Durham Hilton, Durham, NC
15. Wyndham Gardens, Marietta, GA
16. Westin Resort, Key Largo, FL
17. Holiday Inn, Phoenix, AZ
18. Hilton Hotel, Grand Rapids, MI
19. Marriott West Loop, Houston, TX
▇▇▇ .▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
20. Radisson Twin Towers, Orlando, FL
21. Hilton Hotel, Cocoa Beach, FL
22. Holiday Inn, Bucks County, FL
23. St. Tropez Hotel, Las Vegas, NV
▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇, ▇▇
25. Sheraton Crossroads, Mahwah, NJ
26. Ramada Inn, Mahwah, NJ
27. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇, ▇▇
▇▇. Courtyard by Marriott, Durham, NC
SCHEDULE 1.01(c)
ENGINEER REPORT
SCOPE OF SERVICES
PROPERTY CONDITION REVIEW
(PCR)
ASSIGNMENT OBJECTIVES
---------------------
The purpose of the Property Condition Review (PCR) is: To determine the existing
conditions of the building(s) and its systems including structural, plumbing,
heating and ventilating, air conditioning, electrical, fire protection, finish
materials, exterior facades, roof, and site amenities. To identify any areas of
materials which may require repair or corrective action due to deferred
maintenance or present deficient conditions. To identify and list any
outstanding code violations against the property on file with the various
Municipal and Federal agencies, including the local building department, fire
department, etc. To evaluate the adequacy of the capacities of the HVAC and
electrical systems. To perform an Americans with Disabilities Act (ADA) survey
of the existing building(s) and property to determine compliance with the
legislation. To estimate the cost of the required remedial work indicated by any
of the preceding determinations. Note: The Property Condition Review (PCR)
assignment does not include any work with environmental issues, but Consultant
should be generally aware of and note any obvious existing or potential
conditions. Consultant shall utilize personnel having the appropriate
professional designations for those tasks outlined above (at a minimum, an ALA
and PE).
The Property Condition Review (PCR) assignment should include, at a minimum, a
review and description of the following aspects of the Project:
1. A description of the site and all improvements thereon, based upon field
observations as well as a review of all available documents.
2. Determine the general conformance of visible construction of the building
and site development to the construction documents, soils report, and
industry standards for such construction.
3. Consultant shall list all codes, regulations and public sector criteria
with which the Project must comply, including special permits, zoning,
development orders and other actions of local, state, and federal
authorities. Copies of the actual documents (building permits,
certificates of occupancy, etc.) should be included in the report.
4. Review of existing conditions of the building including exterior, roof,
interior spaces, MEP systems, structural members (including seismic
conditions, where applicable), site drainage, parking, landscaping and site
utilities; with conclusions and recommendations for conceivable repairs and
deficiencies along with cost estimates for the suggested repairs.
Estimates should be provided in the following format: IMMEDIATE, SHORT-
TERM (1-5 years), and LONG-TERM REPAIRS (1-10 years).
Exhibit "D"
COMPLIANCE CERTIFICATE
----------------------
This Compliance Certificate is executed this ____ day of ___________,
__________, and is prepared pursuant to that certain Senior Unsecured Credit
Agreement (the "Agreement") between AMERICAN GENERAL HOSPITALITY OPERATING
---------
PARTNERSHIP, L.P., a Delaware limited partnership (the "Borrower"), SOCIETE
--------
GENERALE, SOUTHWEST AGENCY, as Arranger, Syndication Agent and Documentation
Agent. BANK ONE, TEXAS, N.A., as Administrative Agent, THE BANK OF NOVA SCOTIA
and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, a Managing Agents, and the Banks
parties to the Agreement. Capitalized terms used herein but not otherwise
defined herein shall have the meanings specified by the Agreement.
1. Representations, Covenants, Defaults: Borrower hereby certifies to
------------------------------------
the Agents and the Banks, effective as of the date of execution of
this Compliance Certificate, as follows:
1.1 Covenants. All covenants of Borrower set forth in Articles V and
---------
VI of the Agreement required to be performed as of the date
hereof have been performed and maintained in all material
respects, and such Covenants continue to be performed and
maintained as of the execution date of this certificate, except
as follows:
______________________ [specify]
______________________
1.2 Representations and Warranties. All representations and
------------------------------
warranties of Borrower set forth in Article IV of the Agreement
are true and correct in all material respects as of the execution
date of this certificate, except as follows:
______________________ [specify]
______________________
1.3 Event of Default. There exists no Event of Default except as
----------------
follows:
______________________ [specify]
______________________
COMPLIANCE CERTIFICATE - Page 1 of 17
----------------------
2. Operating Covenants. Borrower hereby certifies to the Agents and the
-------------------
Banks, effective as of the calendar quarter ending _______, ___, that
the amounts and calculations made hereunder pursuant to Article VII of
the Agreement are true and correct. Borrower acknowledges that if the
Parent or any of its Subsidiaries have a Permitted Preferred Stock
Investment, then (a) the Permitted Preferred Stock Percentage of the
Adjusted EBITDA of the Hotel Properties owned by such Permitted
Preferred Stock Company shall be included, as applicable, in those
calculations herein which use Adjusted EBITDA, and (b) the Cost Basis
of a Hotel Property owned by such Permitted Preferred Stock Company
shall be included, as applicable in those calculations herein which
use Cost Basis or Parent Total Cost Basis.
2.1 Parent Interest Coverage Ratio (Section 7.01 of the Agreement).
------------------------------
The Interest Coverage Ratio for the Parent, as of the Rolling
Period ending on __________, ___, is as set forth in (c) below,
based on the ratio of:
(a) Adjusted EBITDA, to $__________
(b) Interest Expense $__________
(c) Interest Coverage Ratio of (a) to (b) above,
maintained by the Parent for the stated
Rolling equals: __________
Required by the Agreement:
For any Rolling Period ending on March 31, 1998
through December 31, 1998, a ratio of not less
than 2.15 to 1.0 2.15 to 1.0
For any Rolling Period thereafter, a ratio of not
less than 2.50 to 1.0 2.50 to 1.0
2.2 Parent Debt Service Coverage Ratio (Section 7.02 of the
----------------------------------
Agreement).
The Debt Service Coverage Ratio for the Parent, as
of the Rolling Period ending on ________, ___, is
as set forth in (c) below, based on the ratio of:
(a) Adjusted EBITDA, to $__________
COMPLIANCE CERTIFICATE - Page 2 of 17
----------------------
(b) Debt Service $__________
(c) Debt Service Coverage Ratio maintained by the
Parent for the stated Rolling Period equals: $__________
Required by the Agreement:
For any Rolling Period commencing with the Rolling
Period ending on March 31, 1998, a ratio of not less
than 2.0 to 1.0 2.1 to 1.0
2.3 Maintenance of Net Worth (Section 7.03 of the Agreement).
------------------------
The Adjusted Net Worth for the Parent, as of the
Rolling Period ending on _________, ___, is as set forth
in (c) below, based on the sum of:
(a) Net Worth (determined in accordance with GAAP) $__________
(b) Minority Interest Adjustment $__________
(c) Adjusted Net Worth for the Parent equals
(a) + (b) $__________
The Minimum Tangible Net Worth for the Parent is of
the Rolling Period ending on ________, ___, is as
set forth in (d) below, based on the sum of:
(a) $450,000, plus $450,000.00,
(b) 75% of aggregate net proceeds received by
Parent or any of its Subsidiaries after the
date of the Agreement in connection with any
offering of Stock or Stock Equivalents of the
Parent or its Subsidiaries taken as a whole,
plus $__________
COMPLIANCE CERTIFICATE - Page 3 of 17
----------------------
(c) 75% of the consideration for any partnership
interests in Borrower issued after the date of
the Agreement for the acquisition of a Hotel
Property or any interest in a Hotel Property
permitted under the Agreement. $________
(d) The Minimum Tangible Net Worth of Parent
equals
(a) + (b) + (c) above
$________
Required by the Agreement:
The Parent shall at all times maintain an Adjusted
Net Worth of not less than the Minimum Tangible
Net Worth.
2.4 Limitations on Total Indebtedness of Parent (Section 7.04 of the
-------------------------------------------
Agreement).
Required by the Agreement:
Total Indebtedness (including, without limitation,
the Obligations and all Capitalized Lease
Obligations) of the Parent shall not exceed at any
time the Lesser of the (a) and (b) below:
------
(a) The sum of:
(i) for Seasoned Properties, (A) Adjusted EBITDA
(on a Consolidated basis) of such Seasoned
Properties for the preceding Rolling Period
multiplied by (B) for the Rolling Periods
-------------
ending on or before September 30, 1998, six
(6), and for any Rolling period ending
thereafter, five (5); and
COMPLIANCE CERTIFICATE - Page 4 of 17
----------------------
..................................... $__________
(ii) for New Properties (including Hotel
Properties to be immediately
acquired using the proceeds from any
Indebtedness). (A) the Cost Basis in
such New Properties multiplied by (B)
-------------
for the Rolling Periods ending on or
before September 30, 1998, sixty
percent (60%), or (B) for any Rolling
Periods ending thereafter, fifty
percent (50%):
..................................... $__________
(iii) Total of (ii) and (iii) above........ $__________
OR
(b) The Parent Total Cost Basis
(including Hotel Properties to be
immediately acquired using the
proceeds from any Indebtedness)
multiplied by, for the Rolling
Periods ending on or before September
30, 1998, sixty percent (60%), and
for any Rolling Periods ending
thereafter, fifty (50%) based upon
the following calculation:
(A) $__________ (Minority
Interest Adjustment)
(B) Cost Basis of all Hotel
Properties which meet the
Parent Property Requirements
(C) Parent Total Cost Basis
equals the sum of (A) + (B)
above = $__________
multiplied by ___% which is $__________
(c) Lesser of (a) and (b) above.......... $__________
COMPLIANCE CERTIFICATE - Page 5 of 17
----------------------
Required by the Agreement:
-------------------------
In no event shall the Borrower or the Parent
permit the Total Indebtedness of the Parent
to exceed the amount permitted under the
Articles of Incorporation of the Parent.
THE TOTAL INDEBTEDNESS OF PARENT, BASED UPON
THE FOREGOING CALCULATION, AS OF THE DATE OF
EXECUTION OF THIS COMPLIANCE CERTIFICATE
EQUALS: $__________
2.5 Limitations on Secured Recourse Indebtedness of Parent (Section
------------------------------------------------------
7.05 of the Agreement).
Required by the Agreement:
The Secured Recourse Indebtedness (excluding
the Obligations) of the Parent shall not at
any time on a Consolidated basis, exceed the
lesser of (a) or (b) below:
(a) The sum of:
(i) for Seasoned Properties, Adjusted
EBITDA (on a Consolidated basis)
of such Seasoned Properties for
the preceding Rolling Period
multiplied by two (2); and
....................................... $__________
(ii) for New Properties (including
Hotel Properties to be immediately
acquired using the proceeds from
any Indebtedness), twenty percent
(20%) of the Cost Basis in such
New Properties;
....................................... $__________
(iii) Total of (i) and (ii) above............ $__________
OR
COMPLIANCE CERTIFICATE - Page 6 of 17
----------------------
(b) Fifteen percent (15%) of the
Parent Total Cost Basis
(including Hotel Properties
to be immediately acquired
using the proceeds from any
Indebtedness);
....................................... $__________
THE SECURED RECOURSE INDEBTEDNESS OF PARENT
AS OF THE DATE OF EXECUTION OF THIS
COMPLIANCE CERTIFICATE EQUALS: $__________
2.6 Limitations on Secured Non-Recourse Indebtedness of Parent
----------------------------------------------------------
(Section 7.06 of the Agreement).
Required by the Agreement:
The Secured Non-Recourse Indebtedness of the
Parent shall not at any time on a Consolidated
basis, exceed the lesser of (a) or (b) below:
(a) The sum of:
(i) for Seasoned Properties, Adjusted
EBITDA (on a Consolidated basis)
of such Seasoned Properties for
the preceding Rolling Period
multiplied by three (3); and
.................................... $__________
(ii) for New Properties (including
Hotel Properties to be
immediately acquired using the
proceeds from any Indebtedness),
thirty percent (30%) of the Cost
Basis in such New Properties
.................................... $__________
(iii) Total of (i) and (ii) above......... $__________
OR
COMPLIANCE CERTIFICATE - Page 7 of 17
----------------------
(b) Thirty percent (30%) of the Parent
Total Cost Basis (including Hotel
Properties to be immediately
acquired using the proceeds from
any Indebtedness)
.................................. $ _________
THE SECURED NON-RECOURSE INDEBTEDNESS
OF PARENT AS OF THE DATE OF EXECUTION
OF THIS COMPLIANCE CERTIFICATE EQUALS: $ _________
2.7 Limitations on Secured Indebtedness of Parent (Section 7.07 of
---------------------------------------------
the Agreement).
Required by the Agreement:
The Parent shall not at any time on a Consolidated
basis permit the sum of the Parent's Secured Non-
Recourse Indebtedness and Secured Recourse to
exceed thirty percent (30%) of the Parent Total
Cost Basis (including Hotel Properties to be
immediately acquired using the proceeds from any
Indebtedness).
Calculation of Parent Total Cost Basis:
(a) 10,420,273 $ 10,420,273.00
(b) The sum of the Cost Basis of all
Hotel Properties which meet the
--------------
Parent Property Requirements. $ _________
----------------------------
(c) Parent Total Cost Basis equals the
sum of (a) and (b) above: $ _________
(d) 30% of Parent Total Cost Basis: $ _________
(e) Secured Non-Recourse Indebtedness: $ _________
(f) Secured Recourse Indebtedness: $ _________
(g) Sum of (e) + (f) $ _________
COMPLIANCE CERTIFICATE - Page 8 of 17
----------------------
2.8 Borrowing Limitation (Section 2.01 of the Agreement)
Required by the Agreement:
The maximum aggregate amount outstanding under the
facility (for Advances and Letters of Credit) shall
not exceed the Borrowing Base
(a) The Borrowing Base for the Rolling Period
ending on ___________, ______ equals $ ________
(b) Actual amount outstanding under the
facility (for Advances and Letters of
Credit) $ ________
2.9 Total Availability (Section 2.01 of the
Subordinate Agreement)
Required by the Subordinate Agreement:
The aggregate amount of all outstanding advances
under the Subordinate Credit Agreement at any one
time may not exceed the lesser of the aggregate
Commitments under the Subordinate Credit
Agreement at such time or the Total Availability
at such time.
The Adjusted Net Worth as of the date of this
Compliance Certificate is as set forth in (f)
below, based on the following calculation:
(a) The Parent's and the Parent's Subsidiaries
Consolidated Adjusted EBITDA for the Rolling
Period ending equals $ ________
(b) Line (a) above multiplied by (i) on or
before December 31, 1998, six (6) and (ii)
after December 31, 1998, five (5) equals $ ________
COMPLIANCE CERTIFICATE - Page 9 of 17
----------------------
(c) All Indebtedness of the Parent and
its Subsidiaries outstanding as of
such date, including without
limitation, the Senior Obligations,
Secured Recourse Indebtedness and
Secured Non-Recourse Indebtedness
equals $
(d) Line (b) above minus Line (c) above
equals $
(e) The aggregate face amount of all
Letters of Credit issued under the
Agreement equals $
(f) Total Availability equals Line (d)
above minus Line (e) above $
3. Other Covenants. Borrower hereby certifies to the Agents and the
---------------
Banks, effective as of the Rolling Period ending _________, ___, that
the following amounts and calculations made pursuant to the Agreement
are true and correct.
3.1 Leverage Ratio (Article 1 of the Agreement)
--------------
The Leverage Ratio for the Parent, as of the
Rolling Period ending on __________, _____, is
as set forth in (c) below, based on the ratio of:
(a) Parent's Total Indebtedness: $ ________
to
(b) Hotel Value of Hotel Properties owned
by the Parent and Parent's Subsidiaries
which meet the Parent Property
------------------------------
Requirements: $ ________
------------
(c) The Leverage Ratio based on the ratio
------------------
of (a) to (b) above, maintained by the
Parent for the stated Rolling Period
equals: $ ________
COMPLIANCE CERTIFICATE - Page 10 of 17
----------------------
3.2 Status: Applicable Margin (Article 1 of the Agreement)
-------------------------
Pursuant to Article 1 of the Agreement, the Status
applicable to the loan facility is __________, based upon a
Leverage Ratio of _________ (as calculated above). Based on
the foregoing, the Applicable Margin for each subsequent
Advance is as follows:
Prime Rate Advances: $__________
LIBOR Rate Advances: $__________
Unused Commitment Fee: $__________
3.3 Parent Property Requirements (Article 1 of the Agreement)
Attach schedule with detail for each Parent Property
(a) The Cost Basis for any of the Parent Properties located in one
state shall not exceed 20% (except Florida which shall not exceed
35%) of the Cost Basis for all of the Parent Properties:
(i) Highest Cost Basis for
all Parent Properties
in any one state. $
(ii) Total Cost Basis for all Parent Properties $
(iii) Ratio of (i) to (ii) above
(iv) Cost Basis of Parent Properties in Florida $
(b) The Cost Basis for all of the Parent
Properties which are limited service
hotels or extended stay hotels (Marriott
Courtyards shall not be deemed limited
service hotels) shall not exceed, in the
aggregate 20% of the Cost Basis for all
of the Parent Properties:
COMPLIANCE CERTIFICATE - Page 11 of 17
----------------------
(i) Cost Basis for Parent Properties which are limited
service of extended stay hotels $
(ii) Cost Basis of all of the Parent Properties $
(iii) Ratio of (i) to (ii) above
(c) The Cost Basis for Hotel Properties which do not
have franchise or license agreements shall not
exceed 15% of the Cost Basis for all Parent Properties:
(i) Cost Basis for Parent Properties which do not have
franchise or license agreements $
(ii) Cost Basis of all Parent Properties $
(iii) Ratio of (i) to (ii) above
(d) The cost for Hotel Properties which are subject to a
ground lease shall not exceed 22.5% of the Cost Basis
for all of the Parent Properties or 22.5% of the total
guest rooms for all Parent Properties:
(i) Cost Basis of all Parent Properties which are
subject to aground lease $
(ii) Total guest rooms for all Parent Properties
(iii) Cost Basis for all of the Parent Properties $
COMPLIANCE CERTIFICATE - Page 12 of 17
----------------------
(iv) Ratio of (iii) to (i) above
(v) Ratio of (iii) to (ii) above
3.4 Parent Total Cost Basis (Article 1 of the Agreement)
Parent Total Cost Basis, as of the Rolling Period ending
on ______, ____, is as set forth in (c) below, based on
the sum of:
(a) Cost Basis of all Parent Properties which meet
the Parent Property Requirements $
(b) Minority Interest Adjustment $
(c) Sum of (a) and (b) above $
3.4 Restricted Liens (Section 6.01 of the Agreement)
Required by the Agreement:
Borrower will not create, assume, incur or suffer to
exist, or permit any of its Subsidiaries (except for
Permitted Other Subsidiaries) to create, assume,
incur, or suffer to exist, any Lien, except as
permitted under Section 6.01 of the Agreement.
Indicate whether Borrower is in compliance with
Section 6.01 of the Agreement. If not, explain why
and provide detail.
3.5 Indebtedness (Section 6.02 of the Agreement)
Required by the Agreement:
Borrower, Parent and their respective Subsidiaries
will not incur or permit to exist any Indebtedness
other than the Obligations and the following:
COMPLIANCE CERTIFICATE - Page 13 of 17
----------------------
(a) Subordinate Indebtedness for which the
cumulative principal outstanding prior
to the Maturity Date is less than or equal
to $125,000.000
Actual principal balance of Subordinate
Indebtedness as of the date of this Compliance
Certificate $
(b) If all of the Subordinate Indebtedness is
repaid in full and no more Subordinate
Indebtedness may be incurred pursuant to (a)
above, then Indebtedness which is less than
or equal to $30,000.000
Actual other Indebtedness incurred in accordance
with (b) above $
(c) Secured Recourse Indebtedness and Secured
Non-Recourse Indebtedness incurred by Permitted
Other Subsidiaries to the extent (i) the covenants
in Article VII of the Agreement are complied
with (ii) the Secured Recourse Indebtedness
secured by a Hotel Property does not exceed 65%
of the market value of such Hotel Property, (iii)
all Secured Recourse Indebtedness in the aggregate
secured by Hotel Properties does not exceed 65% of
the aggregate market value of such Hotel Properties,
and (iv) the Secured Non-Recourse Indebtedness secured
by a Hotel Property does not exceed 70% of the market
value of such Hotel Property, (iii) all Secured Recourse
Indebtedness in the aggregate secured by Hotel Properties
does not exceed 70% of the aggregate market value of such
Hotel Properties
COMPLIANCE CERTIFICATE - Page 14 of 17
----------------------
Indicate whether Borrower is in compliance with the foregoing and
attach schedule of values and Indebtedness. If not, explain why
and provide detail.
(d) Certain other restrictions detailed in Section 6.02(d)
through (g) of the Agreement
Indicate whether Borrower is in compliance with the foregoing
restrictions. If not, explain why and provide detail.
3.6 Agreements Regarding Distributions From Subsidiaries (Section
6.03 of the Agreement)
Required by the Agreement:
Borrower will not, nor will it permit any of its Subsidiaries
(other than Permitted Other Subsidiaries) to, enter into any
agreement (other than a Credit Document) which limits
distributions to or any advance by an of the Borrower's
Subsidiaries to Borrower
Indicated whether Borrower is in compliance with the foregoing
restriction. If not, explain why and provide detail.
3.7 Restricted Payments (Section 6.04 of the Agreement)
Required by the Agreement:
Neither the Parent, Borrower, nor any of their respective
Subsidiaries, will make any Restricted Payment, except as
provided in Section 6.04 of the Agreement.
COMPLIANCE CERTIFICATE - Page 15 of 17
----------------------
Parent may, if no Default has occurred and is continuing or
would result therefrom make payments to its shareholders
(including in connection with the repurchase of Stock or
Stock Equivalents) which with the previous such cash
payments in the three immediately preceding Fiscal Quarters
are not in excess of the greater of (i) the lesser of (A)
ninety percent (90%) of the Funds From Operations of the
Parent during such Rolling Period or (B) one hundred percent
(100%) of Free Cash Flow of the Parent during such Rolling
Period and (ii) the amount required for the Parent to
maintain its status as a REIT:
(a) Payments to Shareholders during the Rolling
Period ending on
$
(b) Funds From Operations of the Parent during the
Rolling Period ending on
$
(C) Ratio of Payments from Funds From Operations
(d) Free Cash Flow of the Parent during the Rolling
Period ending on
$
Certain other restrictions detailed in Section 6.04(b)
through (e) of the Agreement
Indicate whether Borrower is in compliance with
the foregoing restrictions. If not, explain why and
provide detail.
3.8 Other Restrictions and Covenants (Article 6 of the
Agreement)
Indicate whether Borrower is in compliance with the
covenants and restrictions set forth in Sections 6.05
through 6.14 of the Agreement. If not, explain why and
provide detail.
COMPLIANCE CERTIFICATE -Page 16 of 17
----------------------
EXHIBIT "E"
FORM OF ENVIRONMENTAL INDEMNIFICATION AGREEMENT
This Environmental Indemnification Agreement (this "Agreement") is made
and entered into effective for all purposes as of the 13th day of February,
1998, by the parties signatory hereto or to an Accession Agreement (as
hereinafter defined) (collectively, the "Indemnitor" whether one or more), to
and for the benefit of BANK ONE, TEXAS, N.A., as Administrative Agent (the
"Administrative Agent"), SOCIETE GENERALE, SOUTHWEST AGENCY, as Arranger,
Syndication Agent, and Documentation Agent (the "Documentation Agent"), THE BANK
OF NOVA SCOTIA and ▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Managing Agents
(the "Managing Agents"), and the banks and other lenders named in the Credit
Agreement herein described.
INTRODUCTION
WHEREAS, this Agreement is given in connection with that certain Amended
and Restated Senior Unsecured Credit Agreement dated as of February 13, 1998
("Credit Agreement"), among AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "Borrower"), Administrative Agent,
Documentation Agent, Managing Agents and the banks and other lenders party
thereto (collectively the "Banks") pursuant to which the Banks are considering
making a loan in an amount up to $500,000,000.00 (the "Loan") to Borrower as
more specifically described therein;
WHEREAS, the Borrower and Subsidiaries of the Borrower now or hereafter
will own certain Hotel Properties which include without limitation the Initial
Properties, the Future Properties, the Permitted Non-Eligible Properties and the
properties owned by the Permitted Other Subsidiaries (said properties together
with all property owned by the Participating Lessees in connection with such
Hotel Properties, all rights and appurtenances to such Hotel Properties and all
improvements presently located or hereafter constructed on such Hotel Properties
are hereinafter collectively called the "Properties");
WHEREAS, the Borrower is the principal financing entity for capital
requirements of its Subsidiaries, and from time to time the Borrower has made
and will continue to make capital contributions and advances to its
Subsidiaries, including the Subsidiaries which are parties hereto. Other than
the Parent, each Indemnitor is a direct or indirect subsidiary of the Borrower.
Each Indemnitor will derive substantial direct and indirect benefit from the
transactions contemplated by the Credit Agreement; and
WHEREAS, the Banks have required the execution and delivery of this
Agreement as a condition precedent to the execution of the Credit Agreement.
The Banks would not be willing to execute the Credit Agreement in the absence of
the execution and delivery by Indemnitor of this Agreement.
AGREEMENT
---------
NOW, THEREFORE, Indemnitor, as an inducement to the Banks to make the Loan,
hereby covenants and agrees to and for the benefit of the Banks as follows:
1. Defined Terms. All terms used in this Agreement, but not defined
-------------
herein, shall have the meaning given such terms in the Credit Agreement.
2. Hazardous Material. As used in this Agreement, the term "Hazardous
------------------
Materials" shall mean any flammable explosives, radioactive materials, hazardous
wastes, hazardous materials, hazardous or toxic substances, or related materials
as defined in the Comprehensive Environmental Response, Compensation and
Liability Act of 1980, as amended (42 U.S.C. (S) 9601 et. seq.), the Hazardous
Materials Transportation Act, as amended (49 U.S.C. (S) 1801 et seq.), the
Resource Conservation and Recovery Act, as amended (42 U.S.C. (S) 6901 et seq.),
and in the regulations adopted and publications promulgated pursuant thereto,
and all friable asbestos, petroleum derivatives, polychlorinated biphenyls, and
materials defined as hazardous materials under any federal, state or local laws,
ordinances, codes, rules, orders, regulations or policies governing the use,
storage, treatment, transportation, manufacture, refinement, handling,
production or disposal thereof (collectively, "Environmental Laws").
3. Representation. Except as set forth in the Environmental Reports,
--------------
Indemnitor warrants and represents to the Banks that it has no knowledge of (a)
the presence of any Hazardous Materials on any of the Properties except for
Permitted Hazardous Substances; or (b) any material spills, releases, discharges
or disposal of Hazardous Materials that have occurred or are presently occurring
off any of the Properties as a result of any construction on or operation and
use of any of the Properties. In connection with the operation and use of any
of the Properties, Indemnitor warrants and represents that, as of the date of
this Agreement, it has no knowledge of any failure to comply in all material
respects with all applicable law, state and federal environmental laws,
regulations, ordinances and administrative and judicial orders relating to the
generation, recycling, reuse, sale, storage, handling, transport and disposal of
any Hazardous Materials other than as set forth in the Environmental Reports.
-2-
4. Covenant. Indemnitor covenants and agrees not to cause or permit the
--------
presence, use, generation, release, discharge, storage, disposal or
transportation of any Hazardous Materials on, under, in, about, to or from any
of the Properties except for Permitted Hazardous Substances.
5. Indemnification. Indemnitor shall exonerate, indemnify, pay and
---------------
protect, defend (with counsel approved pursuant to the Credit Agreement) and
save the Administrative Agent, the Documentation Agent, the Managing Agents, the
Banks, and their respective directors, trustees, beneficiaries, officers,
shareholders, employees and agents of the Banks (collectively, the "Indemnified
Parties"), harmless from and against any claims (including, without limitation,
third party claims for personal injury or real or personal Properties damage),
actions, administrative proceedings (including informal proceedings), judgments,
damages, punitive damages, penalties, fines, costs, taxes, assessments,
liabilities (including, without limitation, sums paid in settlements of claims),
interest or losses, including reasonable attorneys' fees and expenses
(including, without limitation, any such reasonable fees and expenses incurred
in enforcing this Agreement or collecting any sums due hereunder), consultant
fees, and expert fees, together with all other reasonable costs and expenses of
any kind or nature (collectively, the "Costs") that arise directly or indirectly
in connection with the presence, suspected presence, release or suspected
release of any Hazardous Materials in or into the air, soil, ground water,
surface water or improvements at, on, about, under or within any of the
Properties, or any portion thereof, or elsewhere in connection with the
transportation of Hazardous Materials to or from any of the Properties (any such
release being referred to herein as a "Release"; provided however that
Indemnitor shall not be so liable for any Costs arising because of the gross
negligence or wilful misconduct of an Indemnified Party or Costs arising because
of a Release for a Property after the Administrative Agent or the Administrative
Agent's nominee acquires title to such Property. INDEMNITOR'S OBLIGATION TO SO
INDEMNIFY THE INDEMNIFIED PARTIES SHALL INCLUDE INDEMNIFICATION FOR ANY OF SUCH
MATTERS CAUSED IN WHOLE OR IN PART BY THE NEGLIGENCE OF ANY OF THE INDEMNIFIED
PARTIES. The indemnification provided in this Section shall specifically apply
to and include claims or actions brought by or on behalf of tenants or employees
of Indemnitor; Indemnitor hereby expressly waives (with respect to any claims of
the Indemnified Parties arising under this Agreement) any immunity to which
Indemnitor may otherwise be entitled under any industrial or worker's
compensation laws. In the event any of the Indemnified Parties shall suffer or
incur any such Costs, Indemnitor shall pay to the Administrative Agent for the
benefit of the Indemnified Party the total of all such Costs suffered or
incurred by such Indemnified Party within ten (10) days after demand therefor,
such payment to be disbursed by the Administrative Agent in accordance with the
Credit Agreement. Without limiting the generality of the foregoing, the
indemnification provided by this Section 5 shall specifically cover Costs,
including, without limitation, capital, operating and maintenance costs,
incurred in connection with any investigation or monitoring of site conditions,
any clean-up, containment, remedial, removal or restoration work
-3-
Section 5.06
PCR REQUIRED WORK
----------------------------------------------------------------------------------------------------
AMERICAN GENERAL HOSPITALITY TRUST
----------------------------------------------------------------------------------------------------
PROPERTY CONDITION REVIEW (PCR)
----------------------------------------------------------------------------------------------------
REQUIRED REPAIRS
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
FIRM REPORT DATE
----------------------------------------------------------------------------------------------------
PROPERTY NAME LOCATION NAME DATE DESCRIPTION REQ'D
------------- -------- ---- ---- ----------- -----
None required
----------------------------------------------------------------------------------------------------
7. Permitted Contests. Notwithstanding any provision of this Agreement
------------------
to the contrary, Indemnitor may contest by appropriate action any Remedial Work
requirement imposed by any Governmental Agency provided that (a) if the Loan
then remains outstanding, no "Event of Default" has occurred and is continuing
under the Credit Agreement or any Credit Documents, (b) Indemnitor has given the
Banks written notice that Indemnitor is contesting or shall contest and
Indemnitor does in fact contest the application, interpretation or validity of
the law, regulation, order or agreement pertaining to the Remedial Work by
appropriate legal or administrative proceedings conducted in good faith and with
due diligence and dispatch, (c) such contest shall not subject any of the
Indemnified Parties nor any assignee of all or any portion of the Banks'
interest in the Loan nor any of the Properties to civil or criminal liability
and does not jeopardize any such party's lien upon or interest in any of the
Properties and (d) if the estimated cost of the Remedial Work is greater than
$2,500,000, Indemnitor shall give such security or assurances as may be
reasonably required by the Banks as determined pursuant to the Credit Agreement
to ensure ultimate compliance with all legal or contractual requirements
pertaining to the Remedial Work (and payment of all costs, expenses, interest
and penalties in connection therewith) and to prevent any sale, forfeiture or
loss by reason of nonpayment or noncompliance.
8. Reports and Claims. Indemnitor shall deliver to the Banks copies of
------------------
any reports, analyses, correspondence, notices, licenses, approvals, orders or
other written materials relating to the environmental condition of any of the
Properties promptly upon receipt, completion or delivery thereof. Indemnitor
shall give notice to the Banks of any claim, action, administrative proceeding
(including, without limitation, informal proceedings) or other demand by any
governmental agency or other third party involving Costs or Remedial Action at
the time such claim or other demand first becomes known to Indemnitor. Receipt
of any such notice shall not be deemed to create any obligation on the Banks to
defend or otherwise respond to any claim or demand. All notices, approvals,
consents, requests and demands upon the respective parties hereto shall be in
writing, including telegraphic communication and delivered or teletransmitted to
the Administrative Agent, as set forth in the Credit Agreement and to each
Indemnitor, at the address set forth beneath such Indemnitor's signature or in
the Accession Agreement executed by such Indemnitor, or to such other address as
shall be designated by any Indemnitor or the Administrative Agent in written
notice to the other parties. All such notices and other communications shall be
effective when delivered or teletransmitted to the above addresses.
9. Banks as Owner. If for any reason, the Administrative Agent or any
--------------
of the Banks (or any successor or assign of such parties) becomes the fee owner
of any of the Properties and any claim, action, notice, administrative
proceeding (including, without limitation, informal proceedings) or other demand
is made by any governmental agency or other third party which implicate Costs or
Remedial Work, Indemnitor shall cooperate with such party in any defense or
other appropriate
-5-
response to any such claim or other demand; provided however that Indemnitor
shall not be so liable for any Costs arising because of the gross negligence or
wilful misconduct of an Indemnified Party. Indemnitor's duty to cooperate and
right to participate in the defense or response to any such claim or demand
shall not be deemed to limit or otherwise modify Indemnitor's obligations under
this Agreement. Any party subject to a claim or other proceeding referenced in
the first sentence of this Section 9 shall give notice to Indemnitor of any
claim or demand governed by this Section 9 at the time such claim or other
demand first becomes known to such party.
10. Subrogation of Indemnity Rights. If Indemnitor fails to fully perform
-------------------------------
its obligations under Sections 5 and 6 above, the Indemnified Parties shall be
subrogated to any rights or claims Indemnitor may have against any present,
future or former owners, tenants or other occupants or users of any of the
Properties, any portion thereof or any adjacent or proximate properties,
relating to the recovery of Costs or the performance of Remedial Work.
11. Assignment by Agents and Banks. No consent by Indemnitor shall be
------------------------------
required for any assignment or reassignment of the rights of the Administrative
Agent, the Documentation Agent, the Managing Agents or the Banks under this
Agreement to any successor of such party or a purchaser of the Loan or any
interest in or portion of the Loan including participation interests.
12. Merger, Consolidation or Sale of Assets. In the event Indemnitor is
---------------------------------------
dissolved, liquidated or terminated or all or substantially all the assets of
Indemnitor are sold or otherwise transferred to one or more persons or other
entities, the surviving entity or transferee or assets, as the case may be, (i)
shall be formed and existing under the laws of a state, (ii) shall deliver to
the Banks an acknowledged instrument in recordable form assuming all
obligations, covenants and responsibilities of Indemnitor under this Agreement.
13. Independent Obligations; Survival. The obligations of Indemnitor
---------------------------------
under this Agreement shall survive the consummation of the Loan transaction
described above and the repayment of the Loan. The obligations of Indemnitor
under this Agreement are separate and distinct from the obligations of
Indemnitor under the Credit Documents. This Agreement may be enforced by the
Banks without regard to or affecting any rights and remedies the Administrative
Agent and/or the Banks may have against Indemnitor under the Credit Documents
and without regard to any limitations on the Administrative Agent's or Banks'
recourse for recovery of the Loan as may be provided in the Credit Documents.
Enforcement of this Agreement is not and shall not be deemed to constitute an
action for recovery of the indebtedness of the Loan.
14. Default Interest. In addition to all other rights and remedies of the
----------------
Banks against Indemnitor as provided herein, or under applicable law, Indemnitor
shall pay to the Administrative
-6-
Agent, immediately upon demand therefor, Default Interest (as defined below) on
any Costs and other payments required to be paid by Indemnitor to the Banks
under this Agreement which are not paid within ten (10) days after demand
therefor, such payments to be disbursed by the Administrative Agent in
accordance with the Credit Agreement. Default Interest shall be paid by
Indemnitor from the date such payment becomes delinquent through and including
the date of payment of such delinquent sums. "Default Interest" shall mean a per
annum interest rate equal to three points above the Adjusted Prime Rate or
reference rate for the then current calendar month, as of the first day of such
calendar month, which is publicly announced from time to time by the
Administrative Agent.
15. Contribution. As a result of the transactions contemplated by the
------------
Credit Agreement, each of the Indemnitors will benefit, directly and indirectly,
from the Obligations and in consideration thereof desire to enter into a
contribution agreement among themselves as set forth in this Section 15 to
allocate such benefits among themselves and to provide a fair and equitable
arrangement to make contributions in the event any payment is made by any
Indemnitor hereunder to the Administrative Agent, the Documentation Agent, the
Managing Agents or the Banks (such payment being referred to herein as a
"Contribution," and for purposes of this Agreement, includes any exercise of
recourse by the Administrative Agent against any Property of a Contributor
designated as collateral under any Credit Document and application of proceeds
of such collateral in satisfaction of such Indemnitor's obligations under this
Agreement). The Indemnitors hereby agree as follows:
15.01 Calculation of Contribution. In order to provide for just and
---------------------------
equitable contribution among the Indemnitors in the event any Contribution
is made by a Indemnitor (a "Funding Indemnitor"), such Funding Indemnitor
shall be entitled to a contribution from certain other Indemnitors for all
payments, damages and expenses incurred by that Funding Indemnitor in
discharging any of the obligations under this Agreement (the
"Obligations"), in the manner and to the extent set forth in this Section.
The amount of any Contribution under this Agreement shall be equal to the
payment made by the Funding Indemnitor to the Administrative Agent or any
other beneficiary pursuant to this Agreement and shall be determined as of
the date on which such payment is made.
15.02 Benefit Amount Defined. For purposes of this Agreement, the
----------------------
"Benefit Amount" of any Indemnitor as of any date of determination shall be
the net value of the benefits to such Indemnitor and all of its
Subsidiaries (including any Subsidiaries which may be Indemnitors) from
extensions of credit made by the Banks to the Borrower under the Credit
Agreement; provided, that in determining the contribution liability of any
Indemnitor which is a Subsidiary to its direct or indirect parent
corporation or of any Indemnitor to its
-7-
direct or indirect Subsidiary, the Benefit Amount of such Subsidiary and
its Subsidiaries, if any, shall be subtracted in determining the Benefit
Amount of the parent corporation. Such benefits shall include benefits of
funds constituting proceeds of Advances made to the Borrower by the Banks
which are in turn advanced or contributed by the Borrower to such
Indemnitor or its Subsidiaries and benefits of Letters of Credit issued
pursuant to the Credit Agreement on behalf of, or the proceeds of which are
advanced or contributed or otherwise benefit, directly or indirectly, such
Indemnitor and its Subsidiaries (collectively, the "Benefits"). In the case
of any proceeds of Advances or Benefits advanced or contributed to a Person
(an "Owned Entity") any of the equity interests of which are owned directly
or indirectly by a Indemnitor, the Benefit Amount of a Indemnitor with
respect thereto shall be that portion of the net value of the benefits
attributable to Advances or Benefits equal to the direct or indirect
percentage ownership of such Indemnitor in its Owned Entity.
15.03 Contribution Obligation. Each Indemnitor shall be liable to a
-----------------------
Funding Indemnitor in an amount equal to the greater of (A) the (i) ratio
of the Benefit Amount of such Indemnitor to the total amount of
Obligations, multiplied by (ii) the amount of Obligations paid by such
Funding Indemnitor and (B) 95% of the excess of the fair saleable value of
the property of such Indemnitor over the total liabilities of such
Indemnitor (including the maximum amount reasonably expected to become due
in respect of contingent liabilities) determined as of the date on which
the payment made by a Funding Indemnitor is deemed made for purposes of
this Agreement (giving effect to all payments made by other Funding
Indemnitors as of such date in a manner to maximize the amount of such
contributions).
15.04 Allocation. In the event that at any time there exists more
----------
than one Funding Indemnitor with respect to any Contribution (in any such
case, the "Applicable Contribution"), then payment from other Indemnitors
pursuant to this Agreement shall be allocated among such Funding
Indemnitors in proportion to the total amount of the Contribution made for
or on account of the Borrower by each such Funding Indemnitor pursuant to
the Applicable Contribution. In the event that at any time any Indemnitor
pays an amount under this Agreement in excess of the amount calculated
pursuant to clause (A) of Subsection 15.03 above, that Indemnitor shall be
deemed to be a Funding Indemnitor to the extent of such excess and shall be
entitled to contribution from the other Indemnitors in accordance with the
provisions of this Section.
15.08 Subsidiary Payment. The amount of contribution payable under
------------------
this Section by any Indemnitor shall be reduced by the amount of any
contribution paid hereunder by a Subsidiary of such Indemnitor.
-8-
15.06 Equitable Allocation. If as a result of any reorganization,
--------------------
recapitalization, or other corporate change in the Borrower or any of its
Subsidiaries, or as a result of any amendment, waiver or modification of
the terms and conditions of other Sections of this Agreement or the
Obligations, or for any other reason, the contributions under this Section
become inequitable as among the Indemnitors, the Indemnitors shall promptly
modify and amend this Section to provide for an equitable allocation of
contributions. Any of the foregoing modifications and amendments shall be
in writing and signed by all Indemnitors.
15.07 Asset of Party to Which Contribution is Owing. The Indemnitors
---------------------------------------------
acknowledge that the right to contribution hereunder shall constitute an
asset in favor of the Indemnitor to which such contribution is owing.
15.08 Subordination. No payments payable by a Indemnitor pursuant to
-------------
the terms of this Section 15 shall be paid until all amounts then due and
payable by the Borrower to the Administrative Agent, the Documentation
Agent, the Managing Agents or any Bank, pursuant to the terms of the Credit
Documents, are paid in full in cash. Nothing contained in this Section 15
shall affect the obligations of any Indemnitor to the Administrative Agent,
the Documentation Agent, the Managing Agents or any Bank under the Credit
Agreement or any other Credit Documents.
16. Miscellaneous. If there shall be more than one Indemnitor hereunder,
-------------
or pursuant to any other indemnification of Banks relating to Hazardous
Materials arising out of or in connection with the Loan ("Other Indemnitor"),
each Indemnitor and Other Indemnitor agrees that (a) the obligations of the
Indemnitor hereunder, and each Other Indemnitor, are joint and several, (b) a
release of any one or more Indemnitors or Other Indemnitors or any limitation of
this Agreement in favor of or for the benefit of one or more Indemnitors or
Other Indemnitors shall not in any way be deemed a release of or limitation in
favor of or for the benefit of any other Indemnitor or Other Indemnitor and (c)
a separate action hereunder may be brought and prosecuted against any or all
Indemnitors or Other Indemnitors. If any term of this Agreement or any
application thereof shall be invalid, illegal or unenforceable, the remainder of
this Agreement and any other application of such term shall not be affected
thereby. No delay or omission in exercising any right hereunder shall operate
as a waiver of such right or any other right. This Agreement shall be binding
upon, inure to the benefit of and be enforceable by Indemnitor and the Banks,
and their respective successors and assigns, including (without limitation) any
assignee or purchaser of all or any portion of the Banks' interest in (i) the
Loan, (ii) the Credit Documents, or (iii) any of the Properties.
17. Governing Law. This Agreement shall be governed by, and construed and
-------------
enforced in accordance with, the laws of the State of Texas. Each Indemnitor
hereby irrevocably submits to
-9-
the jurisdiction of any Texas state or federal court sitting in Dallas, Texas in
any action or proceeding arising out of or relating to this Agreement and the
other Credit Documents, and such Indemnitor hereby irrevocably agrees that all
claims in respect of such action or proceeding may be heard and determined in
such court. Each Indemnitor hereby irrevocably waives, to the fullest extent it
may effectively do so, any right it may have to the defense of an inconvenient
forum to the maintenance of such action or proceeding. Each Indemnitor hereby
agrees that service of copies of the summons and complaint and any other process
which may be served in any such action or proceeding may be made by mailing or
delivering a copy of such process to such Indemnitor at its address specified
below. Each Indemnitor agrees that a final judgment in any such action or
proceeding shall be conclusive and may be enforced in other jurisdictions by
suit on the judgment or in any other manner provided by law. Nothing in this
Section shall affect the rights of any of the Banks to serve legal process in
any other manner permitted by the law or affect the right of any of the Banks to
bring any action or proceeding against any Indemnitor or its Property in the
courts of any other jurisdiction.
18. Waivers of Jury Trials. EACH INDEMNITOR HEREBY IRREVOCABLY AND
----------------------
UNCONDITIONALLY WAIVES TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OTHER CREDIT DOCUMENT OR TO ANY COUNTERCLAIM
THEREIN.
19. Amendments/Accession Agreement. No waiver of any provision of this
-------------------------------
Agreement nor consent to any departure by any Indemnitor therefrom shall be
effective unless the same shall be in writing and signed by the Administrative
Agent and the Majority Banks, and no amendment of this Agreement shall be
effective unless the same shall be in writing and signed by the Administrative
Agent, with the consent of the Majority Banks; provided that any amendment or
--------
waiver releasing any Indemnitor from any liability hereunder shall be signed by
all the Banks; and provided further that any waiver or consent shall be
----------------
effective only in the specific instance and for the specific purpose for which
given. Notwithstanding the foregoing, in the event that any Subsidiary or
Affiliate of the Borrower hereafter is required in accordance with the terms of
the Credit Agreement or otherwise agrees to become a Indemnitor under this
Agreement, then such Subsidiary or Affiliate may become a party to this
Agreement by executing an Accession Agreement ("Accession Agreement") in the
form attached hereto as Annex 1, and each Indemnitor and the Administrative
-------
Agent hereby agrees that upon such Subsidiary's or Affiliate's execution of such
Accession Agreement, this Agreement shall be deemed to have been amended to make
such Person an Indemnitor hereunder for all purposes and a party hereto and no
signature is required on behalf of the other Indemnitors or the Administrative
Agent to make such an amendment to this Agreement effective.
-10-
[INTENTIONALLY BLANK]
-11-
IN WITNESS WHEREOF, Indemnitor has caused this Agreement to be executed as
of the day and year first written above.
INDEMNITORS:
AMERICAN GENERAL HOSPITALITY
CORPORATION, a Maryland corporation
By:_________________________________________
Name:_______________________________________
Title:______________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
AGH UPREIT, LLC, a Delaware limited liability company
By: American General Hospitality Corporation, member
By:____________________________________
Name:__________________________________
Title:_________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-12-
3100 GLENDALE JOINT VENTURE,
an Ohio general partnership
By: AGH UPREIT, LLC, its partner
By: American General Hospitality
Corporation, member
By:___________________________________
Name:_________________________________
Title:________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., its general partner
By:__________________________________
Name:________________________________
Title:_______________________________
By: American General Hospitality Operating
Partnership, L.P., its partner
By: AGH GP, Inc., general partner
By:___________________________________
Name:_________________________________
Title:________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-13-
MDV LIMITED PARTNERSHIP,
a Texas limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality Corporation,
member
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-14-
MADISON MOTEL ASSOCIATES,
a Wisconsin general partnership
By: AGH UPREIT, LLC, its partner
By: American General Hospitality
Corporation, member
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., its general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., its partner
By: AGH GP, Inc., general partner
By:___________________________________
Name:_________________________________
Title:________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-15-
183 HOTEL ASSOCIATES, LTD.,
a Texas limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality Corporation,
member
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LTD., a Texas limited
partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality Corporation,
member
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-17-
2929 ▇▇▇▇▇▇▇▇ LIMITED LIABILITY COMPANY, a Delaware
limited liability company
By: AGH UPREIT, LLC, its member
By: American General Hospitality
Corporation, member
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., its member
By: AGH GP, Inc., general partner
By:______________________________________
Name:____________________________________
Title:___________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ PARTNERS, LTD.,
a Florida limited partnership
By: AGH UPREIT LLC, general partner
By: American General Hospitality
Corporation, member
By:______________________________________
Name:____________________________________
Title:___________________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:_________________________________
Name:_______________________________
Title:______________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-19-
BCHI ACQUISITION, L.L.C.,
a Delaware limited liability company
By: AGH UPREIT LLC, its member
By: American General Hospitality
Corporation, member
By:_____________________________________
Name:___________________________________
Title:__________________________________
By: American General Hospitality
Operating Partnership, L.P., member
By: AGH GP, Inc., general partner
By:________________________________
Name:______________________________
Title:_____________________________
By: American General Hospitality Operating
Partnership, L.P., its member
By: AGH GP, Inc., general partner
By:________________________________
Name:______________________________
Title:_____________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-20-
COCOA BEACH HOTELS, LTD.,
a Florida limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality
Corporation, Member
By:_________________________________
Name:_______________________________
Title:______________________________
By: American General Hospitality
Operating Partnership, L.P., Member
By: AGH GP, INC., its general
partner
By:____________________________
Name:__________________________
Title:_________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇ ▇-▇▇ LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality
Corporation, Member
By:_________________________________
Name:_______________________________
Title:______________________________
By: American General Hospitality
Operating Partnership, L.P., Member
By: AGH GP, INC., its general
partner
By:____________________________
Name:__________________________
Title:_________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-22-
ANNEX 1
Environmental Indemnification Agreement
ACCESSION AGREEMENT
____________ [NAME OF ENTITY], a [limited partnership/corporation] (the
"Company"), hereby agrees with (i) BANK ONE, TEXAS, N.A., as Administrative
Agent (the "Administrative Agent") under the Amended and Restated Senior
Unsecured Credit Agreement dated as of February 13, 1998 (the "Credit
Agreement") among AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership, as the Borrower, BANK ONE, TEXAS, N.A., as
Administrative Agent, SOCIETE GENERALE, SOUTHWEST AGENCY, as Arranger,
Syndication Agent, and ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION, as Managing Agents and the Banks; (ii) the parties
to the Environmental Indemnity Agreement (the "Environmental Indemnity") dated
as of February 13, 1998 executed in connection with the Credit Agreement, (iii)
the parties to the Guaranty and Contribution Agreement (the "Guaranty") dated as
of February 13, 1998 executed in connection with the Credit Agreement, as
follows:
The Company hereby agrees and confirms that, as of the date hereof, it (a)
intends to be a party to the Environmental Indemnity and the Guaranty and
undertakes to perform all the obligations expressed therein, respectively, of an
Indemnitor and a Guarantor (as defined in the Environmental Indemnity and the
Guaranty, respectively), (b) agrees to be bound by all of the provisions of the
Environmental Indemnity and the Guaranty as if it had been an original party to
such agreements, (c) confirms that the representations and warranties set forth
in the Environmental Indemnity and the Guaranty, respectively, with respect to
the Company, a party thereto, are true and correct in all material respects as
of the date of this Accession Agreement and (d) has received and reviewed copies
of each of the Environmental Indemnity and the Guaranty.
For purposes of notices under the Environmental Indemnity and the Guaranty
the address for the Company is as follows:
_____________________________________________
_____________________________________________
Attention:___________________________________
Telephone:___________________________________
Telecopy:____________________________________
This Accession Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
IN WITNESS WHEREOF this Accession Agreement was executed and delivered as
of the ___ day of _________, 19__.
[NAME OF ENTITY]
_____________________________________________
By:__________________________________________
Title:_______________________________________
EXHIBIT "F"
FORM OF GUARANTY AND CONTRIBUTION AGREEMENT
This Guaranty and Contribution Agreement (this "Agreement") is made and
entered into effective for all purposes as of the 13th day of February, 1998, by
the parties signatory hereto or to an Accession Agreement (as hereinafter
defined) (collectively, the "Guarantor" whether one or more) to and for the
benefit of BANK ONE, TEXAS, N.A., as Administrative Agent (the "Administrative
Agent"), SOCIETE GENERALE, SOUTHWEST AGENCY, as Arranger, Syndication Agent,
and Documentation Agent (the "Documentation Agent"), THE BANK OF NOVA SCOTIA and
▇▇▇▇▇ FARGO BANK, NATIONAL ASSOCIATION, as Managing Agents (the "Managing
Agents"), and the banks and other lenders named in the Credit Agreement herein
described.
INTRODUCTION
WHEREAS, this Agreement is given in connection with that certain Amended
and Restated Senior Unsecured Credit Agreement dated as of February 13, 1998
("Credit Agreement"), among AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP,
L.P., a Delaware limited partnership (the "Borrower"), Administrative Agent,
Documentation Agent, the Managing Agents and the banks and other lenders party
thereto (collectively the "Banks");
WHEREAS, pursuant to the Credit Agreement the Banks are considering making
a loan (the "Loan") to Borrower as more specifically described therein;
WHEREAS, the Borrower is the principal financing entity for capital
requirements of its Subsidiaries, and from time to time the Borrower has made
and will continue to make capital contributions and advances to its
Subsidiaries, including the Subsidiaries which are parties hereto. Other than
the Parent, each Guarantor is a direct or indirect subsidiary of the Borrower.
Each Guarantor will derive substantial direct and indirect benefit from the
transactions contemplated by the Credit Agreement; and
WHEREAS, the Banks have required the execution and delivery of this
Agreement as a condition precedent to the execution of the Credit Agreement.
The Banks would not be willing to execute the Credit Agreement in the absence of
the execution and delivery by Guarantor of this Agreement.
AGREEMENT
---------
NOW, THEREFORE, in order to induce the Banks to make the Advances and the
Issuing Bank to issue its Letters of Credit, each Guarantor hereby agrees as
follows:
Section 1. Defined Terms. All terms used in this Agreement, but not
-------------
defined herein, shall have the meaning given such terms in the Credit Agreement.
Section 2. Guaranty. Each Guarantor hereby unconditionally and
--------
irrevocably guarantees (a) the punctual payment when due, whether at stated
maturity, by acceleration or otherwise, of all obligations of the Borrower now
or hereafter existing under the Credit Agreement, the Notes and any other Credit
Document, whether for principal, interest, fees, expenses, or otherwise and (b)
the payment and performance of the lessor's obligations under the Participating
Leases (such obligations being the "Guaranteed Obligations") and any and all
expenses (including reasonable counsel fees and expenses) incurred by the
Administrative Agent, the Documentation Agent, the Managing Agents or any Bank
in enforcing any rights under this Agreement. Each Guarantor agrees that its
guaranty obligation under this Agreement is a guarantee of payment, not of
collection and that such Guarantor is primarily liable for the payment of the
Guaranteed Obligations.
Section 3. Limit of Liability. Each Guarantor that is a Subsidiary of
------------------
the Borrower shall be liable under this Agreement with respect to the Guaranteed
Obligations only for amounts aggregating up to the largest amount that would not
render its guaranty obligation hereunder subject to avoidance under Section 548
of the United States Bankruptcy Code or any comparable provisions of any state
law.
Section 4. Guaranty Absolute. Each Guarantor guarantees that the
-----------------
Guaranteed Obligations will be paid and performed strictly in accordance with
the terms of the Credit Agreement, the other Credit Documents and the
Participating Leases, as applicable, regardless of any law, regulation, or order
now or hereafter in effect in any jurisdiction affecting any of such terms or
the rights of the Administrative Agent, the Documentation Agent, the Managing
Agents, the Banks or the Participating Lessees with respect thereto. The
liability of each Guarantor under this Agreement shall be absolute and
unconditional irrespective of:
(a) any lack of validity or enforceability of the Credit Agreement, any
other Credit Document, any Participating Lease or any other agreement or
instrument relating thereto;
(b) any change in the time, manner, or place of payment of, or in any other
term of, any of the Guaranteed Obligations, or any other amendment or waiver of
or any consent to departure from the Credit Agreement, any Credit Document or
any Participating Lease;
-2-
(c) any exchange, release, or nonperfection of any collateral, if
applicable, or any release or amendment or waiver of or consent to departure
from any other agreement or guaranty, for any of the Guaranteed Obligations; or
(d) any other circumstances which might otherwise constitute a defense
available to, or a discharge of the Borrower or a Guarantor.
Section 5. Continuation and Reinstatement, Etc. Each Guarantor agrees
------------------------------------
that, to the extent that the Borrower makes payments to the Administrative
Agent, the Documentation Agent, the Managing Agents or any Bank or the
Administrative Agent, the Documentation Agent, the Managing Agents or any Bank
receives any proceeds of any property of Borrower or any Guarantor and such
payments or proceeds or any part thereof are subsequently invalidated, declared
to be fraudulent or preferential, set aside, or otherwise required to be repaid,
then to the extent of such repayment the Guaranteed Obligations shall be
reinstated and continued in full force and effect as of the date such initial
payment or collection of proceeds occurred. The Guarantor shall defend and
indemnify the Administrative Agent, the Documentation Agent, the Managing Agents
and each Bank from and against any claim or loss under this Section 5 (including
reasonable attorneys' fees and expenses) in the defense of any such action or
suit.
Section 6. Certain Waivers.
---------------
6.01. Notice. Each Guarantor hereby waives promptness, diligence, notice
------
of acceptance, notice of acceleration, notice of intent to accelerate and any
other notice with respect to any of the Guaranteed Obligations and this
Agreement.
6.02. Other Remedies. Each Guarantor hereby waives any requirement that
--------------
the Administrative Agent, the Documentation Agent, the Managing Agents or any
Bank protect, secure, perfect, or insure any Lien or any Property subject
thereto or exhaust any right or take any action against the Borrower or any
other Person or any collateral, if any, including any action required by Chapter
34 of the Texas Business and Commerce Code.
6.03. Waiver of Subrogation.
---------------------
(a) Each Guarantor hereby irrevocably waives, until payment in full of all
Guaranteed Obligations and termination of all Commitments, any claim or other
rights which it may acquire against the Borrower that arise from such
Guarantor's obligations under this Agreement or any other Credit Document,
including, without limitation, any right of subrogation (including, without
limitation, any statutory rights of subrogation under Section 509 of the
Bankruptcy Code, 11 U.S.C.
-3-
(S) 509, or otherwise), reimbursement, exoneration, contribution,
indemnification, or any right to participate in any claim or remedy of the
Administrative Agent, the Documentation Agent, the Managing Agents or any Bank
against the Borrower or any collateral which the Administrative Agent, the
Documentation Agent, the Managing Agents or any Bank now has or acquires. If any
amount shall be paid to any Guarantor in violation of the preceding sentence and
the Guaranteed Obligations shall not have been paid in full and all of the
Commitments terminated, such amount shall be held in trust for the benefit of
the Administrative Agent, the Documentation Agent, the Managing Agents or any
Bank and shall promptly be paid to the Administrative Agent for the benefit of
Administrative Agent, the Documentation Agent, the Managing Agents and the Banks
to be applied to the Guaranteed Obligations, whether matured or unmatured, as
the Administrative Agent may elect. Each Guarantor acknowledges that it will
receive direct and indirect benefits from the financing arrangements
contemplated by the Credit Agreement and that the waiver set forth in this
Section 6.03(a) is knowingly made in contemplation of such benefits.
(b) Each Guarantor further agrees that it will not enter into any
agreement providing, directly or indirectly, for any contribution,
reimbursement, repayment, or indemnity by the Borrower or any other Person on
account of any payment by such Guarantor to the Administrative Agent, the
Documentation Agent, the Managing Agents or the Banks under this Agreement.
6.04. California Waivers.
------------------
(a) Guarantor understands and agrees that the waivers contained in this
Section 6.04 are waivers of substantive rights and defenses to which Guarantor
might otherwise be entitled under state and federal law. The rights and
defenses waived include, without limitation, those provided by California laws
of suretyship and guaranty, antideficiency laws, and the Uniform Commercial
Code. Guarantor acknowledges that Guarantor has provided these waivers of
rights and defenses with the intention that they be fully relied upon by the
Banks and/or Agents.
(b) Guarantor waives Guarantor's rights of subrogation, reimbursement,
indemnity and contribution, and any other rights and defenses available to
Guarantor by reason of Sections 2787 to 2855, inclusive, of the California Civil
Code, as amended or recodified from time to time, including without limitation
(i) any defenses Guarantor may have to the Guaranteed Obligations by reason of
an election of remedies by the Banks and/or Agents, and (ii) any rights or
defenses Guarantor may have by reason of protection afforded to Borrower with
respect to the Guaranteed Obligations pursuant to the antideficiency or other
laws of the State of California limiting or discharging Borrower's indebtedness,
including, without limitation, Sections 580a, 580b, 580d, or 726 of the
California Code of Civil Procedure, as amended or recodified from time to time.
-4-
(c) If and to the extent such waivers of Guarantor's rights of
subrogation, reimbursement, indemnity and contribution, and any other rights and
defenses waived by Guarantor hereunder are unenforceable, Guarantor hereby
agrees that all such rights shall be junior and subordinate to the rights of the
Banks and/or Agents to obtain payment and performance of the Guaranteed
Obligations and to all rights of the Banks and/or Agents in and to any property,
including the Property, which now or hereafter serves or could serve as
collateral security for the Guaranteed Obligations.
(d) The above waivers include, but are not limited to, the waiver by
Guarantor of:
(i) all rights and defenses arising out of an election of remedies
by the Banks and/or Agents, even though that election of remedies has
destroyed Guarantor's rights or subrogation and/or reimbursement against
Borrower by the operation of Section 580d of the California Code of Civil
Procedure or otherwise;
(ii) all rights and protections of any kind which Guarantor may have
for any reason which would affect or limit the amount of any recovery by
the Banks and/or Agents from Guarantor including, without limitation, the
right to any fair market value hearing pursuant to Section 580a of the
California Code of Civil Procedure.
(iii) any and all benefits available to sureties and creditors which
might otherwise be available to Guarantor under California Civil Code
Sections 2809 (reduction of surety's obligation where larger than
principal's), 2810 (liability of surety when principal is not liable), 2815
(revocation of continuing guaranty), 2819 (exoneration of surety), 2839
(performance of principal obligation or offer of performance), 2845
(requiring creditor to proceed against principal), 2849 (security for
performance of principal obligation), 2850 (hypothecation of surety's
property), 2899 (order of resort to property), and 3433 (creditor's
entitlement to satisfy claim from several funds), as amended or recodified
from time to time; and
(e) Guarantor shall not be discharged, released or exonerated, in any way,
from its absolute, unconditional and independent liabilities hereunder, even
though any rights or defenses which Guarantor may have against Borrower, the
Banks, the Agents or others may be destroyed, diminished or otherwise affected,
by:
(i) Any declaration by the Banks and/or Agents of a default in
respect of any of the Guaranteed Obligations;
(ii) The exercise by the Banks and/or Agents of any rights or
remedies against Borrower or any other person;
-5-
(iii) The failure of the Banks and/or Agents to exercise any rights or
remedies against Borrower or any other person; or
Section 7. Representations and Warranties. Each Guarantor hereby
------------------------------
represents and warrants as follows:
7.01 Corporate Authority. Such Guarantor is either a corporation, limited
-------------------
liability company or limited partnership duly organized, validly existing and in
good standing under the laws of the jurisdiction of its organization. The
execution, delivery and performance by such Guarantor of this Agreement are
within such Guarantor's organizational powers, have been duly authorized by all
necessary organizational action and do not contravene (a) such Guarantor's
organizational authority or (b) any law or material contractual restriction
affecting such Guarantor or its Property.
7.02 Government Approval. No authorization or approval or other action by
-------------------
and no notice to or filing with, any Governmental Authority is required for the
due execution, delivery and performance by such Guarantor of this Agreement.
7.03 Binding Obligations. This Agreement is the legal, valid and binding
-------------------
obligation of such Guarantor enforceable against such Guarantor in accordance
with its terms subject to the effect of any applicable bankruptcy, insolvency,
reorganization, moratorium, or similar law affecting creditors' rights (whether
considered in a proceeding at law or in equity).
Section 8. Covenants. Each Guarantor will comply with all covenant
---------
provisions of Article V and Article VI of the Credit Agreement to the extent
such provisions are applicable.
8.01 Additional Covenant. As soon as possible and in any event within five
-------------------
days after the incurrence of any Indebtedness by the Parent or any Subsidiary of
the Parent other than the Obligations or any other Indebtedness permitted under
the Credit Agreement, the Parent shall notify the Administrative Agent in
writing of such incurrence.
Section 9. Contribution. As a result of the transactions contemplated
------------
by the Credit Agreement, each of the Guarantors will benefit, directly and
indirectly, from the Guaranteed Obligations and in consideration thereof desire
to enter into a contribution agreement among themselves as set forth in this
Section 9 to allocate such benefits among themselves and to provide a fair and
equitable arrangement to make contributions in the event any payment is made by
any Guarantor hereunder to the Administrative Agent, the Documentation Agent,
the Managing Agents or the Banks (such payment being referred to herein as a
"Contribution," and for purposes of this Agreement, includes any exercise of
recourse by the Administrative Agent against any Property of
-6-
a Contributor and application of proceeds of such Property in satisfaction of
such Guarantor's obligations under this Agreement). The Guarantors hereby agree
as follows:
9.01. Calculation of Contribution. In order to provide for just and
---------------------------
equitable contribution among the Guarantors in the event any Contribution is
made by a Guarantor (a "Funding Guarantor"), such Funding Guarantor shall be
entitled to a contribution from certain other Guarantors for all payments,
damages and expenses incurred by that Funding Guarantor in discharging any of
the Guaranteed Obligations, in the manner and to the extent set forth in this
Section. The amount of any Contribution under this Agreement shall be equal to
the payment made by the Funding Guarantor to the Administrative Agent or any
other beneficiary pursuant to this Agreement and shall be determined as of the
date on which such payment is made.
9.02. Benefit Amount Defined. For purposes of this Agreement, the "Benefit
----------------------
Amount" of any Guarantor as of any date of determination shall be the net value
of the benefits to such Guarantor and all of its Subsidiaries (including any
Subsidiaries which may be Guarantors) from extensions of credit made by the
Banks to the Borrower under the Credit Agreement and the benefit of entering
into the Participating Leases; provided, that in determining the contribution
liability of any Guarantor which is a Subsidiary to its direct or indirect
parent corporation or of any Guarantor to its direct or indirect Subsidiary, the
Benefit Amount of such Subsidiary and its Subsidiaries, if any, shall be
subtracted in determining the Benefit Amount of the parent corporation. Such
benefits shall include benefits of funds constituting proceeds of Advances made
to the Borrower by the Banks which are in turn advanced or contributed by the
Borrower to such Guarantor or its Subsidiaries and benefits of Letters of Credit
issued pursuant to the Credit Agreement on behalf of, or the proceeds of which
are advanced or contributed or otherwise benefit, directly or indirectly, such
Guarantor and its Subsidiaries (collectively, the "Benefits"). In the case of
any proceeds of Advances or Benefits advanced or contributed to a Person (an
"Owned Entity") any of the equity interests of which are owned directly or
indirectly by a Guarantor, the Benefit Amount of a Guarantor with respect
thereto shall be that portion of the net value of the benefits attributable to
Advances or Benefits equal to the direct or indirect percentage ownership of
such Guarantor in its Owned Entity.
9.03. Contribution Obligation. Each Guarantor shall be liable to a Funding
-----------------------
Guarantor in an amount equal to the greater of (A) the (i) ratio of the Benefit
Amount of such Guarantor to the total amount of Guaranteed Obligations,
multiplied by (ii) the amount of Guaranteed Obligations paid by such Funding
Guarantor and (B) 95% of the excess of the fair saleable value of the property
of such Guarantor over the total liabilities of such Guarantor (including the
maximum amount reasonably expected to become due in respect of contingent
liabilities) determined as of the date on which the payment made by a Funding
Guarantor is deemed made for purposes of this Agreement (giving effect to all
payments made by other Funding Guarantors as of such date in a manner to
maximize the amount of such contributions).
-7-
9.04. Allocation. In the event that at any time there exists more than one
----------
Funding Guarantor with respect to any Contribution (in any such case, the
"Applicable Contribution"), then payment from other Guarantors pursuant to this
Agreement shall be allocated among such Funding Guarantors in proportion to the
total amount of the Contribution made for or on account of the Borrower by each
such Funding Guarantor pursuant to the Applicable Contribution. In the event
that at any time any Guarantor pays an amount under this Agreement in excess of
the amount calculated pursuant to clause (A) of Subsection 9.03 above, that
Guarantor shall be deemed to be a Funding Guarantor to the extent of such excess
and shall be entitled to contribution from the other Guarantors in accordance
with the provisions of this Section.
9.05. Subsidiary Payment. The amount of contribution payable under this
------------------
Section by any Guarantor shall be reduced by the amount of any contribution paid
hereunder by a Subsidiary of such Guarantor.
9.06. Equitable Allocation. If as a result of any reorganization,
--------------------
recapitalization, or other corporate change in the Borrower or any of its
Subsidiaries, or as a result of any amendment, waiver or modification of the
terms and conditions of other Sections of this Agreement or the Guaranteed
Obligations, or for any other reason, the contributions under this Section
become inequitable as among the Guarantors, the Guarantors shall promptly modify
and amend this Section to provide for an equitable allocation of contributions.
Any of the foregoing modifications and amendments shall be in writing and signed
by all Guarantors.
9.07. Asset of Party to Which Contribution is Owing. The Guarantors
---------------------------------------------
acknowledge that the right to contribution hereunder shall constitute an asset
in favor of the Guarantor to which such contribution is owing.
9.08. Subordination. No payments payable by a Guarantor pursuant to the
-------------
terms of this Section 9 shall be paid until all amounts then due and payable by
the Borrower to any Bank, pursuant to the terms of the Credit Documents, are
paid in full in cash. Nothing contained in this Section 9 shall affect the
obligations of any Guarantor to any Bank under the Credit Agreement or any other
Credit Documents.
Section 10. Miscellaneous.
-------------
10.01. Addresses for Notices. All notices and other communications provided
---------------------
for hereunder shall be in writing, including telegraphic communication and
delivered or teletransmitted to the Administrative Agent, as set forth in the
Credit Agreement and to each Guarantor, at the address set forth under such
Guarantor's signature hereto or in the Accession Agreement executed by such
Guarantor, or to such other address as shall be designated by any Guarantor or
the Administrative
-8-
Agent in written notice to the other parties. All such notices and other
communications shall be effective when delivered or teletransmitted to the above
addresses.
10.02. Amendments, Etc. No waiver of any provision of this Agreement nor
----------------
consent to any departure by any Guarantor therefrom shall be effective unless
the same shall be in writing and signed by the Administrative Agent, the
Majority Banks and the Borrower and no amendment of this Agreement shall be
effective unless the same shall be in writing and signed by each Guarantor and
the Administrative Agent, with the consent of the Majority Banks; provided that
--------
any amendment or waiver releasing any Guarantor from any liability hereunder
shall be signed by all the Banks; and provided further that any waiver or
----------------
consent shall be effective only in the specific instance and for the specific
purpose for which given. Notwithstanding the foregoing, in the event that any
Subsidiary or Affiliate of the Borrower hereafter is required in a accordance
with the terms of the Credit Agreement or otherwise agrees to become a guarantor
of the Borrower's obligations under the Credit Documents, then such Subsidiary
or Affiliate may become a party to this Agreement by executing an Accession
Agreement ("Accession Agreement") in the form attached hereto as Annex 1 and
-------
each Guarantor and the Administrative Agent hereby agrees that upon such
Subsidiary's or Affiliate's execution of such Accession Agreement, this
Agreement shall be deemed to have been amended to make such Person a Guarantor
hereunder for all purposes and a party hereto and no signature is required on
behalf of the other Guarantors or the Administrative Agent to make such an
amendment to this Agreement effective.
10.03. No Waiver; Remedies. No failure on the part of Administrative Agent,
-------------------
the Documentation Agent, the Managing Agents or any Bank to exercise, and no
delay in exercising, any right hereunder shall operate as a waiver thereof; nor
shall any single or partial exercise of any right hereunder preclude any other
or further exercise thereof or the exercise of any other right. The remedies
herein provided are cumulative and not exclusive of any remedies provided by
law.
10.04. Right of Set-Off. Upon the occurrence and during the continuance of
----------------
any Event of Default, the Administrative Agent, the Documentation Agent, the
Managing Agents and the Banks are hereby authorized at any time, to the fullest
extent permitted by law, to set off and apply any deposits (general or special,
time or demand, provisional or final) and other indebtedness owing by the
Administrative Agent, the Documentation Agent, the Managing Agents or the Banks
to the account of any Guarantor against any and all of the obligations of such
Guarantor under this Agreement, irrespective of whether or not the
Administrative Agent, the Documentation Agent, the Managing Agents or the Banks
shall have made any demand under this Agreement and although such obligations
may be contingent and unmatured. The Administrative Agent, the Documentation
Agent, the Managing Agents and the Banks agree promptly to notify each Guarantor
affected by any such set-off after any such set-off and application made by the
Administrative Agent, the Documentation Agent, the Managing Agents or the Banks
provided that the failure to give such
-9-
notice shall not affect the validity of such set-off and application. The rights
of the Administrative Agent, the Documentation Agent, the Managing Agents and
the Banks under this Section 10.05 are in addition to other rights and remedies
(including, without limitation, other rights of set-off) which the
Administrative Agent, the Documentation Agent, the Managing Agents and the Banks
may have.
10.05. Continuing Guaranty; Transfer of Interest. This Agreement shall
-----------------------------------------
create a continuing guaranty and shall (a) remain in full force and effect until
payment in full and termination of the Guaranteed Obligations, (b) be binding
upon each Guarantor, its successors and assigns, and (c) inure, together with
the rights and remedies of the Administrative Agent hereunder, to the benefit of
the Administrative Agent, the Documentation Agent, the Managing Agents, the
Banks and their respective successors, transferees and assigns. Without
limiting the generality of the foregoing clause, when any Bank assigns or
otherwise transfers any interest held by it under the Credit Agreement or other
Credit Document to any other Person pursuant to the terms of the Credit
Agreement or other Credit Document, that other Person shall thereupon become
vested with all the benefits held by such Bank under this Agreement. Upon the
payment in full and termination of the Guaranteed Obligations, the guaranties
granted hereby shall terminate and all rights hereunder shall revert to each
Guarantor to the extent such rights have not been applied pursuant to the terms
hereof. Upon any such termination, the Administrative Agent will, at each
Guarantor's expense, execute and deliver to such Guarantor such documents as
such Guarantor shall reasonably request and take any other actions reasonably
requested to evidence or effect such termination.
10.06. Governing Law. This Agreement shall be governed by and construed and
-------------
enforced in accordance with, the laws of the State of Texas. Each Guarantor
hereby irrevocably submits to the jurisdiction of any Texas state or federal
court sitting in Dallas, Texas in any action or proceeding arising out of or
relating to this Agreement and the other Credit Documents and such Guarantor
hereby irrevocably agrees that all claims in respect of such action or
proceeding may be heard and determined in such court. Each Guarantor hereby
irrevocably waives, to the fullest extent it may effectively do so, any right it
may have to the defense of an inconvenient forum to the maintenance of such
action or proceeding. Each Guarantor hereby agrees that service of copies of the
summons and complaint and any other process which may be served in any such
action or proceeding may be made by mailing or delivering a copy of such process
to such Guarantor at its address specified below. Each Guarantor agrees that a
final judgment in any such action or proceeding shall be conclusive and may be
enforced in other jurisdictions by suit on the judgment or in any other manner
provided by law. Nothing in this Section shall affect the rights of any Bank,
the Documentation Agent or the Administrative Agent to serve legal process in
any other manner permitted by the law or affect the right of any Bank, the
Documentation Agent or the Administrative Agent to bring any action or
proceeding against any Guarantor or its Property in the courts of any other
jurisdiction.
-10-
10.07 WAIVERS OF JURY TRIAL. THE GUARANTORS HEREBY IRREVOCABLY AND
---------------------
UNCONDITIONALLY WAIVE TRIAL BY JURY IN ANY LEGAL PROCEEDING RELATING TO THIS
AGREEMENT OR THE NOTES OR ANY OTHER CREDIT DOCUMENT OR TO ANY COUNTERCLAIM
THEREIN.
10.08. ENTIRE AGREEMENT. PURSUANT TO SECTION 26.02 OF THE TEXAS BUSINESS
----------------
AND COMMERCE CODE, A LOAN AGREEMENT IN WHICH THE AMOUNT INVOLVED IN THE LOAN
AGREEMENT EXCEEDS $50,000 IN VALUE IS NOT ENFORCEABLE UNLESS THE LOAN AGREEMENT
IS IN WRITING AND SIGNED BY THE PARTY TO BE BOUND OR THAT PARTY'S AUTHORIZED
REPRESENTATIVE.
THE RIGHTS AND OBLIGATIONS OF THE PARTIES TO AN AGREEMENT SUBJECT TO THE
PRECEDING PARAGRAPH SHALL BE DETERMINED SOLELY FROM THE WRITTEN LOAN AGREEMENT
AND ANY PRIOR ORAL AGREEMENTS BETWEEN THE PARTIES ARE SUPERSEDED BY AND MERGED
INTO THE LOAN AGREEMENT. THIS WRITTEN AGREEMENT AND THE CREDIT DOCUMENTS, AS
DEFINED IN THIS AGREEMENT, REPRESENT THE FINAL AGREEMENT AMONG THE PARTIES AND
MAY NOT BE CONTRADICTED BY EVIDENCE OF PRIOR, CONTEMPORANEOUS, OR SUBSEQUENT
ORAL AGREEMENTS OF THE PARTIES.
[INTENTIONALLY BLANK]
-11-
Each Guarantor has caused this Agreement to be duly executed as of the date
first above written.
GUARANTORS:
AMERICAN GENERAL HOSPITALITY
CORPORATION, a Maryland corporation
By:________________________________
Name:______________________________
Title:_____________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-12-
AGH UPREIT, LLC, a Delaware limited liability company
By: American General Hospitality Corporation, member
By:______________________________________
Name:____________________________________
Title:___________________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-13-
3100 GLENDALE JOINT VENTURE,
an Ohio general partnership
By: AGH UPREIT, LLC, its partner
By: American General Hospitality
Corporation, member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., its general partner
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., its partner
By: AGH GP, Inc., general partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-14-
MDV LIMITED PARTNERSHIP,
a Texas limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality Corporation,
member
By:_______________________________
Name:_____________________________
Title:____________________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:_______________________________
Name:_____________________________
Title:____________________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-15-
MADISON MOTEL ASSOCIATES,
a Wisconsin general partnership
By: AGH UPREIT, LLC, its partner
By: American General Hospitality
Corporation, member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., its general partner
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., its partner
By: AGH GP, Inc., general partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-16-
183 HOTEL ASSOCIATES, LTD.,
a Texas limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality Corporation,
member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇▇ ASSOCIATES, LTD.,
a Texas limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality Corporation,
member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc.,
general partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-18-
2929 ▇▇▇▇▇▇▇▇ LIMITED LIABILITY COMPANY, a
Delaware limited liability company
By: AGH UPREIT, LLC, its member
By: American General Hospitality
Corporation, member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., general partner
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality Operating
Partnership, L.P., its member
By: AGH GP, Inc., general partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ PARTNERS, LTD.,
a Florida limited partnership
By: AGH UPREIT LLC, general partner
By: American General Hospitality
Corporation, member
By:______________________
Name:____________________
Title:___________________
By: American General Hospitality Operating
Partnership, L.P., member
By: AGH GP, Inc., general partner
By:______________________
Name:____________________
Title:___________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-20-
BCHI ACQUISITION, L.L.C.,
a Delaware limited liability company
By: AGH UPREIT LLC, its member
By: American General Hospitality
Corporation, member
By:______________________
Name:____________________
Title:___________________
By: American General Hospitality
Operating Partnership, L.P., member
By: AGH GP, Inc., general partner
By:______________________
Name:____________________
Title:___________________
By: American General Hospitality Operating
Partnership, L.P., its member
By: AGH GP, Inc., general partner
By:______________________
Name:____________________
Title:___________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇., ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-21-
COCOA BEACH HOTELS, LTD.,
a Florida limited partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality
Corporation, Member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality
Operating Partnership, L.P., Member
By: AGH GP, INC., its general
partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-▇▇-
▇▇▇▇▇▇ ▇-▇▇ LIMITED
PARTNERSHIP, a Delaware limited
partnership
By: AGH UPREIT LLC, its general partner
By: American General Hospitality
Corporation, Member
By:__________________________
Name:________________________
Title:_______________________
By: American General Hospitality
Operating Partnership, L.P., Member
By: AGH GP, INC., its general
partner
By:__________________________
Name:________________________
Title:_______________________
Address: ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Facsimile: (▇▇▇) ▇▇▇-▇▇▇▇
-23-
ANNEX 1
Guaranty and Contribution Agreement
ACCESSION AGREEMENT
_______________________ [NAME OF ENTITY], a [limited partnership/corporation]
(the "Company"), hereby agrees with (i) BANK ONE, TEXAS, N.A., as Administrative
Agent (the "Administrative Agent") under the Amended and Restated Senior
Unsecured Credit Agreement dated as of February 13, 1998 (the "Credit
Agreement") among AMERICAN GENERAL HOSPITALITY OPERATING PARTNERSHIP, L.P., a
Delaware limited partnership, as the Borrower, BANK ONE, TEXAS, N.A., as
Administrative Agent, SOCIETE GENERALE, SOUTHWEST AGENCY, as Arranger,
Syndication Agent, and ▇▇▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ and ▇▇▇▇▇ FARGO
BANK, NATIONAL ASSOCIATION, as Managing Agents and the Banks; (ii) the parties
to the Environmental Indemnity Agreement (the "Environmental Indemnity") dated
as of February 13, 1998 executed in connection with the Credit Agreement, (iii)
the parties to the Guaranty and Contribution Agreement (the "Guaranty") dated as
of February 13, 1998 executed in connection with the Credit Agreement, as
follows:
The Company hereby agrees and confirms that, as of the date hereof, it (a)
intends to be a party to the Environmental Indemnity and the Guaranty and
undertakes to perform all the obligations expressed therein, respectively, of an
Indemnitor and a Guarantor (as defined in the Environmental Indemnity and the
Guaranty, respectively), (b) agrees to be bound by all of the provisions of the
Environmental Indemnity and the Guaranty as if it had been an original party to
such agreements, (c) confirms that the representations and warranties set forth
in the Environmental Indemnity and the Guaranty, respectively, with respect to
the Company, a party thereto, are true and correct in all material respects as
of the date of this Accession Agreement and (d) has received and reviewed copies
of each of the Environmental Indemnity and the Guaranty.
For purposes of notices under the Environmental Indemnity and the Guaranty
the address for the Company is as follows:
______________________________________
______________________________________
Attention:____________________________
Telephone:____________________________
Telecopy:_____________________________
This Accession Agreement shall be governed by and construed in accordance
with the laws of the State of Texas.
IN WITNESS WHEREOF this Accession Agreement was executed and delivered as
of the ___ day of ___________________, 19__.
[NAME OF ENTITY]
____________________________
By:_________________________
Title:______________________
EXHIBIT G
FORM OF NOTICE OF BORROWING
_________, ▇▇__
▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.,
as Administrative Agent under the Credit Agreement herein described
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
P.O. Box 655415
Commercial Real ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, American General Hospitality Operating Partnership, L.P., a
Delaware limited partnership (the "Borrower"), refers to the Amended and
Restated Senior Unsecured Credit Agreement dated as of February 13, 1998 (as the
same may be amended or modified from time to time, the "Credit Agreement," the
defined terms of which are used in this Notice of Borrowing unless otherwise
defined in this Notice of Borrowing) among the Borrower, the Banks, the
Arranger, Syndication Agent and Documentation Agent, the Administrative Agent
and the Managing Agents, and hereby gives you irrevocable notice pursuant to
Section 2.02(a) of the Credit Agreement that the undersigned hereby requests a
Borrowing, and in connection with that request sets forth below the information
relating to such Borrowing (the "Proposed Borrowing") as required by Section
2.02(a) of the Credit Agreement:
(a) Business Day of the Proposed Borrowing is _____________, 19_____.
(b) The Proposed Borrowing will be a Borrowing composed of [Prime Rate
Advances] [LIBOR Rate Advances].
(c) The aggregate amount of the Proposed Borrowing is $____________.
(d) The Interest Period for each LIBOR Rate Advance made as part of the
Proposed Borrowing is [_____ month[s]].
Bank One, Texas. N.A.
[Date]
Page 2
The undersigned hereby certifies that the following statements are true on the
date hereof, and will be true on the date of the Proposed Borrowing:
(a) the representations and warranties contained in the Credit Agreement
and the other Credit Documents are correct in all material respects, before
and after giving effect to the Proposed Borrowing and the application of
the proceeds therefrom, as though made on the date of the Proposed
Borrowing; and
(b) no Default has occurred and remains uncured, or would result from such
Proposed Borrowing or from the application of the proceeds therefrom.
Very truly yours,
AMERICAN GENERAL HOSPITALITY OPERATING
PARTNERSHIP, L.P.
By: AGH GP, Inc., its general partner
By:__________________________________
Name:________________________________
Title:_______________________________
EXHIBIT H
FORM OF NOTICE OF CONVERSION OR CONTINUATION
[Date]
Bank One, Texas, N.A.,
as Administrative Agent under the Credit Agreement herein described
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
P.O. Box 655415
Real Estate Department
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attention: ▇▇. ▇▇▇▇ ▇▇▇▇▇
Ladies and Gentlemen:
The undersigned, American General Hospitality Operating Partnership, L.P., a
Delaware limited partnership (the "Borrower"), refers to the Amended and
Restated Senior Unsecured Credit Agreement dated as of February 13, 1998 (as the
same may be amended or modified from time to time, the "Credit Agreement," the
defined terms of which are used in this Notice of Conversion or Continuation
unless otherwise defined in this Notice of Conversion or Continuation), among
the Borrower, the Banks, the Arranger, Syndication Agent and Documentation
Agent, the Administrative Agent, and the Managing Agents, and hereby gives you
irrevocable notice pursuant to Section 2.02(b) of the Credit Agreement that the
undersigned hereby requests a Conversion or continuation of an outstanding
Borrowing, and in connection with that request sets forth below the information
relating to such Conversion or continuation (the "Proposed Borrowing") as
required by Section 2.02(b) of the Credit Agreement:
(a) The Business Day of the Proposed Borrowing is _______________, 19 ____.
(b) The Proposed Borrowing will be composed of [Prime Rate Advances] [LIBOR
Rate Advances].
(c) The aggregate amount of the Borrowing to be Converted or continued is $
_______ and consists of [Prime Rate Advances] [LIBOR Rate Advances].
Bank One, Texas, N.A.
[Date]
Page 2
(d) The Proposed Borrowing consists of [a Conversion to [Prime Rate
Advances] [LIBOR Rate Advances]] [a continuation of [Prime Rate Advances]
[LIBOR Rate Advances]].
(e) The Interest Period for each LIBOR Rate Advance made as part of the
Proposed Borrowing is [____ month[s]].
Very truly yours,
AMERICAN GENERAL HOSPITALITY OPERATING
PARTNERSHIP, L.P.
By: AGH GP, Inc., its general partner
By:_______________________________
Name:_____________________________
Title:____________________________
EXHIBIT I
FORM OF PROPERTY ADJUSTMENT REPORT
This Property Adjustment Report is executed this ___ day of _____________,
1998 and is prepared pursuant to Section 2.14 of that certain Amended and
Restated Senior Unsecured Credit Agreement (the "Agreement") between AMERICAN
GENERAL HOSPITALITY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership
(the "Borrower"), SOCIETE GENERALE, SOUTHWEST AGENCY, as Arranger, Syndication
Agent and Documentation Agent, BANK ONE, TEXAS, N.A., as Administrative Agent,
THE BANK OF NOVA SCOTIA, as Co-Agent, AND ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION, as Co-Managers, and the Banks party to the Credit Agreement.
Capitalized terms used herein but not otherwise defined herein shall have the
meanings specified by the Agreement:
Borrowing Base as
of last Borrowing Property Adjusted
Base Certificate Adjustment Borrowing Base
1. Aggregate Hotel Value of all
Eligible Properties $_________ $_________ $_________
2. Line 1 above multiplied by 50% $_________ $_________ $_________
3. The Rolling Period Borrowing
Base Adjusted EBITDA
generated by the Eligible
Properties $_________ $_________ $_________
4. Line 3 above multiplied by five
(5) $_________ $_________ $_________
5. Borrowing Base (before
Subordinate Indebtedness)
(Lesser of Lines 2 and 4) $_________ $_________ $_________
6. Subordinate Indebtedness counted
for Borrowing Base calculation $_________ $_________ $_________
7. BORROWING BASE (Line 5 minus
Line 6) $_________ $_________ $_________
The Borrower has caused this Property Adjustment Report to be executed this
____ day of _________, 19__.
AMERICAN GENERAL HOSPITALITY
OPERATING PARTNERSHIP, L.P.
By: AGH GP, Inc., its general partner
By:_______________________________
Name:_____________________________
Title:____________________________
-2-
[LETTERHEAD APPEARS HERE]
February 13, 1998
Societe Generale
Southwest Agency
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Bank One, Texas, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 4th Floor
Commercial Real Estate Department Lending
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
The Banks and the other financial
institutions party to the hereinafter
described Credit Agreement
Re: Amended and Restated Senior Unsecured Credit Agreement dated of
even date herewith (the "CREDIT AGREEMENT") by and between
American General Hospitality Operating Partnership, L.P., a
Delaware limited partnership (the "BORROWER") and Societe
Generale, a French banking corporation acting through its
Southwest Agency as arranger, syndication agent and documentation
agent; Bank One, Texas N.A., as administrative agent, The Bank of
Nova Scotia and ▇▇▇▇▇ Fargo Bank, National Association, as co-
agents and other financial institutions party thereto dated as of
even date herewith (the "BANKS")
----------------------
Battle ▇▇▇▇▇▇ LLP Page
2
Ladies and Gentlemen:
We have acted as counsel to the Borrower in connection with the Credit
Agreement. This opinion is being furnished pursuant to Section 3.01(a)(v) of
the Credit Agreement. Capitalized terms used herein and not defined herein
shall have the meanings ascribed to such terms in the Credit Agreement.
In connection with this opinion, we have examined the following
materials:
(a) the Credit Agreement and the other documents executed and
delivered in connection therewith identified on Schedule I hereto (collectively
----------
referred to herein as the "CREDIT DOCUMENTS");
(b) the certificate of limited partnership, as amended (the "BORROWER
PARTNERSHIP CERTIFICATE"), of the Borrower, as certified by the Secretary of
State of the State of Delaware, as being as a true and correct copy of such
document as filed in the office of the Secretary of State;
(c) the amended and restated agreement of limited partnership (the
"OPERATING PARTNERSHIP AGREEMENT") of the Borrower, dated as of July 31, 1996,
as certified by the Secretary of AGH GP, Inc., a Nevada corporation ("AGH GP"),
as general partner of the Borrower, on the date hereof as being complete,
correct and in effect;
(d) the amended and restated articles of incorporation (the
"CHARTER") of American General Hospitality Corporation (the "COMPANY"), as
certified by the State Department of Assessments and Taxation of the State of
Maryland as being a true and complete copy of such document as filed in the
office of the State Department of Assessments and Taxation (the "SDAT");
(e) the Bylaws of the Company as certified by the Secretary of the
Company and as the case may be, as of the date hereof as being complete, correct
and in effect;
(f) the certificate of limited partnership (the "DURHAM PARTNERSHIP
CERTIFICATE") of Durham I-8 Limited Partnership, a Delaware limited partnership
("DURHAM" and together with AGH GP, the Company and the Borrower, each a "LOAN
PARTY" and, collectively, the "LOAN PARTIES"), as certified by the Secretary of
State of the State of Delaware, as being as a true and correct copy of such
document as filed in the office of the Secretary of State;
(g) the amended and restated agreement of limited partnership (the
"DURHAM PARTNERSHIP AGREEMENT") of Durham, dated as of November 30, 1997, as
certified by the Secretary of AGH UPREIT LLC ("UPREIT") as general partner of
Durham on the date hereof as being complete, correct and in effect;
Battle ▇▇▇▇▇▇ LLP Page
3
(h) certificates of good standing issued by the State of
incorporation or formation, as applicable, of each Loan Party;
(i) a certificate of the Secretary of the Company and a certificate
of the Secretary of AGH GP, each dated as of the date hereof, as to the
incumbency and signatures of certain officers of the Company and AGH GP,
respectively;
(j) an executed copy of each of the Credit Documents; and
(k) the other instruments and documents delivered at today's closing,
including certificates or telegrams of public officials as to matters set forth
therein and certificates of representatives of the Borrower as to matters set
forth therein.
In rendering this opinion, we have assumed the capacity to sign and
the genuineness of all signatures of all persons executing agreements,
instruments or documents examined or relied upon by us, the authenticity of all
agreements, instruments or documents submitted to us as originals and the
conformity with the original agreements, instruments or documents of all
agreements, instruments or documents submitted to us as copies.
We have also assumed that as to all parties other than the Loan
Parties the due authorization, execution, acknowledgment as indicated thereon
and delivery of documents referred to herein, and the validity, binding effect
and enforceability thereof against all parties thereto other than the Loan
Parties and that each of the Agents and each of the Banks has full power,
authority and legal right, under its charter and other governing documents and
all applicable laws to execute, deliver and perform their respective obligations
under the Credit Agreement, the other Credit Documents and the other documents
referred to therein and herein to which it is a party.
With respect to matters of fact, we have relied upon the written
statements and certificates of officers of AGH GP (on behalf of the Borrower),
or UPREIT (on behalf of Durham) and authorized representatives of the Company
(including, without limitation, in the certificate attached hereto as Exhibit A
---------
and referred to herein as the "OFFICERS CERTIFICATE"), representations made by
the Borrower in the Credit Documents, and certificates of public officials.
Where matters are stated to be "to the best of our knowledge" or "known to us,"
our knowledge is limited to the actual knowledge of those attorneys in our
office who have directly participated in this engagement, their review of
documents provided to us by the Loan Parties in connection with this engagement
and inquiries of officers of AGH GP, UPREIT and the Company, the results of
which are reflected in the Officers Certificate. We have not independently
verified the accuracy of the matters set forth in the written statements or
certificates upon which we have relied, including the organization, existence,
good standing, assets, business or affairs of the Loan Parties.
Battle ▇▇▇▇▇▇ LLP Page
4
Insofar as our opinion relates to matters of (i) Maryland law, we have
relied upon the opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & Ingersoll, LLP addressed to
us, dated the date hereof, a copy of which is attached hereto as Exhibit B and
---------
(ii) Nevada law, we have relied exclusively upon the opinion ▇▇▇▇▇▇▇▇ Carano
▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ & ▇▇▇▇▇ LLP, a copy of which is attached hereto
as Exhibit C.
---------
Except for the opinions set forth in paragraphs (1) through (3) below,
we express no opinions and no opinions should be implied.
We are not admitted to practice law in any jurisdiction other than the
State of New York and we do not express any opinion as to the laws of any states
or jurisdictions except as to New York law, the Delaware General Corporation
Law, the Delaware Revised Uniform Limited Partnership Act, the Delaware Limited
Liability Company Act and the Federal law of the United States of America.
Upon the basis of and subject to the foregoing and solely in reliance
thereon, we are of the opinion that:
1. Each of the Borrower and Durham is a limited partnership duly
formed validly existing and in good standing under the laws of its jurisdiction
of formation with full partnership power and authority to own, lease and operate
its properties and to conduct its business as currently conducted and to execute
and perform its obligations under the Credit Documents to which it is a party.
2. The execution and delivery of, and the performance by each of the
Borrower and Durham of its obligations under, the Credit Documents to which it
is a party have been duly and validly authorized.
3. Each of the Credit Documents has been duly executed and delivered
by each Loan Party which is a party thereto.
This opinion is being rendered to you and the other Banks and the
Bank's respective counsel for your and their sole use and may not be made
available to or relied upon by any other person, firm or entity without our
express prior written consent except for future Banks or participants in the
Credit Agreement.
Very truly yours,
/s/ Battle ▇▇▇▇▇▇ LLP
BATTLE ▇▇▇▇▇▇ LLP
SCHEDULE I
----------
CREDIT DOCUMENTS
----------------
1. Notes in the aggregate amount of $500,000,000 executed by the Borrower in
favor of Bank One, SG, Co-Agents and the banks;
2. Environmental Indemnification Agreement by the Company and certain of its
subsidiaries in favor of the Agents and the banks; and
3. Guaranty and Contribution Agreement by the Company and certain of its
subsidiaries in favor of the Agents and the banks.
Exhibit A
---------
OFFICER'S CERTIFICATE
Exhibit B
---------
[Opinion of ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & ▇▇▇▇▇▇▇▇▇, LLP]
Exhibit C
---------
[Opinion of ▇▇▇▇▇▇▇▇ Carano as to Nevada law]
SCHEDULE I
----------
CREDIT DOCUMENTS
----------------
1. Notes in the aggregate amount of $500,000,000 executed by the Borrower in
favor of Bank One, SG Co-Agents and the banks;
2. Environmental Indemnification Agreement by the Company and certain of its
subsidiaries in favor of the Agents and the banks; and
3. Guaranty and Contribution Agreement by the Company and certain of its
subsidiaries in favor of the Agents and the banks.
Schedule 4.01
SUBSIDIARIES
NAME STATE OF FORMATION PRINCIPAL OFFICE
---- ------------------ ----------------
2929 ▇▇▇▇▇▇▇▇ Limited Liability Company Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
BCHI Acquisition, L.L.C. Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3100 Glendale Joint Venture Ohio ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
MDV Limited Partnership Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Madison Motel Associates Wisconsin ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
183 Hotel Associates, Ltd. Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
455 Meadowlands Associates, Ltd.* Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
DFW South Limited Partnership* Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Richmond Williamsburg Associates, Ltd. Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
AGH UPREIT LLC Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
OFFICERS' CERTIFICATE
The undersigned, ▇▇▇▇▇▇▇ ▇. ▇▇▇▇, on behalf of AMERICAN GENERAL
HOSPITALITY CORPORATION, a Maryland corporation ("AGHC"). AMERICAN GENERAL
HOSPITALITY OPERATING PARTNERSHIP, L.P., a Delaware limited partnership (the
"BORROWER"), AGH GP, INC., a Nevada corporation ("AGH GP"), and Durham I-95
Limited Partnership, a Delaware limited liability company ("DURHAM"), (AGHC,
the Borrower, AGH GP, and Durham are each an "ENTITY" and collectively the
"ENTITIES"), hereby certifies on behalf of each of the Entities as follows:
1. This certificate (the "CERTIFICATE") is being delivered in
connection with (i) that certain Amended and Restated Senior Unsecured Credit
Agreement by and between the Borrower and Societe Generale, a French banking
corporation acting through its Southwest Agency as manager, syndication agent
and documentation agent; Bank One, Texas N.A., as administrative agent. The Bank
of Nova Scotia and ▇▇▇▇▇ Fargo Bank, National Association, as co-agents and
other financial institutions party thereto dated as of even date herewith (the
"CREDIT AGREEMENT"), (ii) the legal opinion of Battle ▇▇▇▇▇▇ LLP, dated the date
hereof, rendered pursuant to Section 3.01(a)(v) of the Credit Agreement, and
(iii) the legal opinions of local counsel identified on Schedule A hereto (the
----------
"LOCAL COUNSEL"). The undersigned understands that Battle ▇▇▇▇▇▇ LLP and each
Local Counsel will be relying upon this Certificate in rendering such opinions
and that this Certificate may be referred to in any such opinions and delivered
in connection therewith and each of the undersigned hereby consents to such
reliance, delivery, and use. Except as otherwise expressly set forth below, the
undersigned has personal knowledge of all facts certified or referred to herein,
and is authorized to execute and deliver this Certificate on behalf of each of
the Entities. All capitalized terms used herein but not defined herein shall
have the meanings ascribed to such terms, respectively, in the legal opinion of
Battle ▇▇▇▇▇▇ LLP referred to above.
2. Attached hereto as Exhibit 2 is a true and correct copy of the
---------
Second Articles of Amendment and Restatement of AGHC. Such Second Articles of
Amendment and Restatement of AGHC is in full force and effect on the date
hereof; no amendment thereto has been adopted since the date thereof or is
contemplated and no action has been taken or is contemplated which, with the
passage of time or the giving of notice, or both, would result in the winding up
or dissolution of AGHC.
3. Attached hereto as Exhibit 3 is a true and correct copy of the
---------
By-laws of each of the Entities which are corporations (the "Corporate
Entities"), as amended to date. Such By-laws are in full force and effect on the
date hereof; no amendment thereto has been adopted since the date thereof or is
contemplated; and no action has been taken or is contemplated which, with the
passage of time or the giving of notice, or both, would result in the winding up
or dissolution of any of the Corporate Entities.
4. Attached hereto are all of the resolutions, minutes, telephonic
resolutions and authorizations by the board of directors, partners or members,
and written consents of stockholders, as the case may be, for each of the
Entities, other than ▇▇▇▇, since February 11, 1997 as follows:
A. AGHC: Exhibit 4A;
----------
B. AGH GP on behalf of AGH OP: Exhibit 4B;
----------
C. AGH GP: Exhibit 4C;
----------
D. AGH LP: Exhibit 4D;
----------
E. UPREIT: Exhibit 4E;
----------
F. AGHL: Exhibit 4F;
----------
G. AGHL on behalf of Lessee: Exhibit 4G;
----------
H. 2929: Exhibit 4H;
----------
I. 3100: Exhibit 4I;
----------
J. MDV: Exhibit 4J;
----------
▇. ▇▇▇▇▇▇▇: Exhibit 4K;
----------
L. 183: Exhibit 4L;
----------
▇. ▇▇▇▇▇▇▇▇: Exhibit 4M;
----------
N. Buena Vista: Exhibit 4N;
----------
O. TT Leaving: Exhibit 4O
----------
P. BCHI: Exhibit 4P
----------
Such resolutions, minutes, written consents of the stockholders and
telephonic resolutions of the Entities have not been amended or modified, are in
full force and effect in the form adopted and are the only resolutions adopted
by the board of directors, or stockholders, as the case may be, or by any
committee of or designated by the board of directors, partners or members of any
of the Entities, as the case may be since February 11, 1997.
5. Attached hereto as Exhibit 5 is a true and correct copy of the
---------
article or certificate of incorporation or certificate of limited partnership or
certificate of formation of each of the Entities, as the case may be, each of
which is in full force and effect on the date hereof.
6. Attached hereto as Exhibit 6 are true, correct and complete
---------
copies of the partnership agreements, as amended, of each of the Entities which
are general partnerships.
7. Attached hereto as Exhibit 7 are the partnership agreements, as
---------
amended, of each of the Entities which are limited partnerships.
-2-
8. Attached hereto as Exhibit 8 are the operating agreements, as
---------
amended, of each of the Entities which are limited liability companies.
9. Each of the Entities has filed all reports and paid all franchise
taxes and other amounts due, through to the date hereof, to the following
States: Arizona, California, Delaware, Florida, Georgia, Louisiana, Maryland,
Michigan, Nevada, New Jersey, New Mexico, North Carolina, Ohio, Pennsylvania,
Texas, Virginia, and Wisconsin (the "States").
10. The minute books and records of each of the Entities relating to
all proceedings of the stockholders, partners, members, and board of directors,
as the case may be, made available to Battle ▇▇▇▇▇▇ LLP and the Local Counsel
are the original minute books and records of each of the Entities, or are true,
correct and complete copies thereof in all material respects, with respect to
all proceedings of said stockholders, partners, members, and board of directors
since the date of incorporation or formation, as the case may be, of each of the
Entities. The minute books, records and other documents (including partnership
agreements) of each of the Entities made available to Battle ▇▇▇▇▇▇ LLP and the
Local Counsel were true, correct and complete in all respects and accurately
reflect all actions taken by the board of directors, partners, members and
stockholders of each of the Entities, respectively. There have been no changes,
additions or alterations in said minute books, records and other documents that
have not been disclosed to Battle ▇▇▇▇▇▇ LLP and the Local Counsel in writing.
11. All of the representations and warranties of each of the Entities
contained in the Loan Documents are true and correct.
12. To the best of the knowledge of the undersigned, the execution,
delivery or performance of the Loan Documents nor the consummation of the
transactions contemplated thereby by the Entities, as applicable, conflicts or
will conflict with or constitutes or will constitute a breach of, or a default
under, any agreement, indenture, lease or other instrument to which any of the
Entities is a party or by which any of them or any of their respective
properties may be bound, or violates or will violate any statute, law,
regulation or filing or judgment, injunction, order or decree applicable to any
of the Entities, any of their respective properties, or will result in the
creation or imposition of any lien, charge or encumbrance upon any property or
assets of any of such entities (other than as contemplated by the Loan
Documents) pursuant to the terms of any agreement or instrument, to which any of
them is a party or by which any of them may be bound or to which any of the
property or assets of any of them is subject.
13. There are no United States governmental or regulatory body
proceedings, no legal actions, suits or court proceedings, pending or threatened
relating to the revocation or modification of any authorization, approval,
certificate or permit (including, without limitation, those having jurisdiction
over environmental matters), which, individually or in the aggregate, if the
subject of an unfavorable decision, ruling or finding, would materially
adversely affect the business, operations or condition, financial or otherwise,
of any of the Entities, or any of their respective partners, directors or
officers in their capacity as such, or any of the Hotels, or materially
adversely affect the ability of any of the Entities, or any of their respective
partners, directors or officers in their capacity as such, or any of the Hotels,
to consummate or fulfill its respective obligations under and as contemplated by
the Loan Documents.
-3-
14. The undersigned has reviewed the Form of Battle ▇▇▇▇▇▇ LLP's and
the Local Counsel's Legal Opinions (the "Opinions"), attached hereto as Exhibit
-------
9. The Opinions do not contain an untrue statement of material fact or omit to
-
state a material fact necessary in order to make the statements therein, in
light of the circumstances under which they are made, not misleading. The
Opinions, as of the date hereof, neither contain nor are anticipated to contain
an untrue statement of a material fact or omitted, or omits, or is anticipated
to omit a material fact necessary in order to make the statements therein not
misleading.
15. Exhibit 10 hereto is a list of certain of the officers of each of
----------
the Entities other than ▇▇▇▇; the signatures set forth opposite each of their
names are their genuine signatures; and said officers are duly elected officers
of each of such Entities, respectively, holding the offices set forth opposite
their respective names, and were duly elected or appointed, qualified and acting
as such officer at the respective times of the signing and delivery of each
document delivered at the Closing, in connection with the Loan Increase.
16. There exist only two general partners of Madison, which are AGH
OP, a 99% general partner, and the UPREIT, a 1% general partner.
17. The undersigned is the Executive Vice President, of AGHC, ▇▇▇▇,
AGH GP, AGH LP, UPREIT and AGHL.
_____________________________________
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
Dated as of June __, 1998.
-4-
EXHIBIT B
---------
[OPINION OF ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ & INGERSOLL]
EXHIBIT C
---------
[OPINION OF ▇▇▇▇▇▇▇▇ CARANO AS TO NEVADA LAW]
SENIOR UNSECURED CREDIT AGREEMENT
Schedule 1.01(a)
BANK COMMITMENT
---- ----------
Societe Generale, Southwest Agency $76,500,000.00
Bank One, Texas, N.A. $76,500,000.00
▇▇▇▇▇ Fargo Bank, National Association $61,000,000.00
The Bank of Nova Scotia $61,000,000.00
NationsBank of Texas, N.A. $40,000,000.00
Bankers Trust Company $35,000,000.00
BANKBOSTON, N.A. $35,000,000.00
AmSouth Bank $35,000,000.00
Dresdner Bank, AG, New York Branch
And Grand Cayman Branch $35,000,000.00
First American Bank Texas, S.S.B. $25,000,000.00
First National Bank of Commerce $20,000,000.00
--------------
TOTAL $500,000,000.00
===============
------------------------------------------------------------------------------------------------------------------------------------
Type of Service Total Rooms Hotel Eligible
Hotel Properties Owned by the Parent (Limited/Extended Number of Out of Acquisition Yes - Y EBITDA
at Parent Subsidiaries Stay/Full) Rooms Service Date No - N
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Eligible Properties
------------------------------------------------------------------------------------------------------------------------------------
1. Holiday Inn, DFW West, Full Service 243 31-Jul-95 Y $ 1,735,673
Bedford, TX
------------------------------------------------------------------------------------------------------------------------------------
2. Hampton Inn - Richmond, VA Limited Service 124 39 31-Jul-95 Y 1,216,570
------------------------------------------------------------------------------------------------------------------------------------
3. Hilton Hotel - Toledo, OH Full Service 213 31-Jul-95 Y 1,045,298
------------------------------------------------------------------------------------------------------------------------------------
4. Holiday Inn - N.O. Full Service 304 31-Jul-95 Y 3,525,305
Airport, Kenner, LA
------------------------------------------------------------------------------------------------------------------------------------
5. Crowne Plaza - Madison, WI Full Service 227 31-Jul-95 Y 2,651,247
------------------------------------------------------------------------------------------------------------------------------------
6. Holiday Inn - San Jose, CA Full Service 239 31-Jul-95 Y 2,952,221
------------------------------------------------------------------------------------------------------------------------------------
7. Wyndham Hotel - Full Service 276 31-Jul-96 Y 1,349,379
Albuquerque, NM
------------------------------------------------------------------------------------------------------------------------------------
8. Hotel Maison de Ville - Full Service 23 31-Jul-96 Y 448,717
New Orleans, LA
------------------------------------------------------------------------------------------------------------------------------------
9. Hampton Inn - Ocean City, Limited Service 168 31-Jul-96 Y 1,115,369
MD
------------------------------------------------------------------------------------------------------------------------------------
10. Holiday Inn - San Siego, Ca Full Service 317 48 31-Jul-96 Y 2,392,816
------------------------------------------------------------------------------------------------------------------------------------
11. Wyndham Hotel - San ▇▇▇▇, Full Service 356 31-Jul-96 Y 3,495,516
CA
------------------------------------------------------------------------------------------------------------------------------------
12. Durham ▇▇▇▇▇▇ - ▇▇▇▇▇▇, Full Service 184 08-Jan-97 Y 1,718,195
N.C.
------------------------------------------------------------------------------------------------------------------------------------
13. Holiday Inn Resort - Full Service 204 82 21-Nov-95 Y 1838,117
Monteray, CA
------------------------------------------------------------------------------------------------------------------------------------
14. Wyndham LBV - Orlando, FL Full Service 480 22-Oct-95 Y 3,484,016
------------------------------------------------------------------------------------------------------------------------------------
15. Westin Resort - Key Largo, Full Service 200 17-Mar-97 Y 2,889,885
FL
------------------------------------------------------------------------------------------------------------------------------------
16. Wyndham Gardens - Full Service 219 17-Mar-97 Y 1,280,857
Marletta, GA
------------------------------------------------------------------------------------------------------------------------------------
17. Holiday Inn - Phoenix, AZ Full Service 249 2 04-Apr-97 Y 1,445,743
------------------------------------------------------------------------------------------------------------------------------------
18. Hilton Hotel - Grand Full Service 226 18-Apr-97 Y 1,855,801
Rapids, MI
------------------------------------------------------------------------------------------------------------------------------------
19. Marriott West Loop - Full Service 302 25-Jun-97 Y 2,651,985
Houston, TX
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - 25-Jun-97 935,583
Houston, TX
------------------------------------------------------------------------------------------------------------------------------------
20. Ralison Twin Towers - Full Service 742 25-Jun-97 Y 8,383,761
Orlando, FL
------------------------------------------------------------------------------------------------------------------------------------
21. Hilton Hotel - Coral Full Service 285 54 27-Jun-97 Y 2,802,481
Beach, FL
------------------------------------------------------------------------------------------------------------------------------------
22. Holiday Inn - Bucks Full Service 215 20-Jun-97 Y 2,399,851
County, PA
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Adjusted Adjusted EBITDA
Hotel Properties Owned by the Parent Adjusted EBITDA EBITDA Divided by 10% Cost Basis All Hotels Cost Basis New
at Parent Subsidiaries Seasoned Seasoned Hotels
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Eligible Properties
------------------------------------------------------------------------------------------------------------------------------------
1. Holiday Inn, DFW West, $ 1,487,024 $1,487,024 $14,870,240 $13,650,714 $ -
Bedford, TX
------------------------------------------------------------------------------------------------------------------------------------
2. Hampton Inn - Richmond, VA 1,111,794 - - 8,165,545 8,165,545
------------------------------------------------------------------------------------------------------------------------------------
3. Hilton Hotel - Toledo, OH 792,323 792,323 7,923,228 10,868,248 -
------------------------------------------------------------------------------------------------------------------------------------
4. Holiday Inn - N.O. 3,173,783 3,173,763 31,737,828 28,435,480 -
Airport, Kenner, LA
------------------------------------------------------------------------------------------------------------------------------------
5. Crowne Plaza - Madison, WI 2,327,254 2,327,254 23,272,540 23,280,637 -
------------------------------------------------------------------------------------------------------------------------------------
6. Holiday Inn - San Jose, CA 2,589,050 - - 21,163,741 21,153,741
------------------------------------------------------------------------------------------------------------------------------------
7. Wyndham Hotel - 1,097,097 - - 10,028,914 19,028,994
Albuquerque, NM
------------------------------------------------------------------------------------------------------------------------------------
8. Hotel Maison de Ville - 360,105 380,195 3,801,946 3,289,203 -
New Orleans, LA
------------------------------------------------------------------------------------------------------------------------------------
9. Hampton Inn - Ocean City, 1,013,522 - - 9,962,732 9,952,732
MD
------------------------------------------------------------------------------------------------------------------------------------
10. Holiday Inn - San Siego, Ca 2,091,858 - - 22,437,436 22,437,438
------------------------------------------------------------------------------------------------------------------------------------
11. Wyndham Hotel - San ▇▇▇▇, 3,017,111 - - 30,001,018 30,006,018
CA
------------------------------------------------------------------------------------------------------------------------------------
12. Durham ▇▇▇▇▇▇ - ▇▇▇▇▇▇, 1,492,107 - - 15,471,747 15,471,747
N.C.
------------------------------------------------------------------------------------------------------------------------------------
13. Holiday Inn Resort - 1,578,204 - - 17,676,654 17,376,651
Monteray, CA
------------------------------------------------------------------------------------------------------------------------------------
14. Wyndham LBV - Orlando, FL 3,009,225 - - 44,617,816 41,647,995
------------------------------------------------------------------------------------------------------------------------------------
15. Westin Resort - Key Largo, 2,493,768 - - 20,340,011 29,340,000
FL
------------------------------------------------------------------------------------------------------------------------------------
16. Wyndham Gardens - 1,104,095 - - 18,050,129 16,680,129
Marletta, GA
------------------------------------------------------------------------------------------------------------------------------------
17. Holiday Inn - Phoenix, AZ 1,205,534 - - 21,121,039 21,121,038
------------------------------------------------------------------------------------------------------------------------------------
18. Hilton Hotel - Grand 1,849,394 - - 17,070,985 17,070,918
Rapids, MI
------------------------------------------------------------------------------------------------------------------------------------
19. Marriott West Loop - 2,368,847 - - 28,910,433 26,810,443
Houston, TX
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - 843,338 - - 12,893,005 12,893,808
Houston, TX
------------------------------------------------------------------------------------------------------------------------------------
20. Ralison Twin Towers - 7,382,733 - - 80,870,002 80,570,092
Orlando, FL
------------------------------------------------------------------------------------------------------------------------------------
21. Hilton Hotel - Coral 2,560,017 - - 23,794,328 23,794,328
Beach, FL
------------------------------------------------------------------------------------------------------------------------------------
22. Holiday Inn - Bucks 2,076,030 - 21,847,142 21,87,142
County, PA
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Cost Basis Cost Basis Cost Basis Cost Basis
Hotel Properties Owned by the (Limited/Extended Non-Wholly Non-Franchised Ground Leases
at Parent Subsidiaries Stay) Owned
------------------------------------------------------------------------------------------------------------------------------------
------------------------------------------------------------------------------------------------------------------------------------
Eligible Properties
------------------------------------------------------------------------------------------------------------------------------------
1. Holiday Inn, DFW West, $ - $ - $ -
Bedford, TX
------------------------------------------------------------------------------------------------------------------------------------
2. Hampton Inn - Richmond, VA 8,165,545 - 10,888,248
------------------------------------------------------------------------------------------------------------------------------------
3. Hilton Hotel - Toledo, OH - - -
------------------------------------------------------------------------------------------------------------------------------------
4. Holiday Inn - N.O. - - -
Airport, Kenner, LA
------------------------------------------------------------------------------------------------------------------------------------
5. Crowne Plaza - Madison, WI - -
------------------------------------------------------------------------------------------------------------------------------------
6. Holiday Inn - San Jose, CA - - -
------------------------------------------------------------------------------------------------------------------------------------
7. Wyndham Hotel - - - 19,028,991
Albuquerque, NM
------------------------------------------------------------------------------------------------------------------------------------
8. Hotel Maison de Ville - - 3,288,203 -
New Orleans, LA
------------------------------------------------------------------------------------------------------------------------------------
9. Hampton Inn - Ocean City, 9,952,732 - -
MD
------------------------------------------------------------------------------------------------------------------------------------
10. Holiday Inn - San Siego, Ca - - -
------------------------------------------------------------------------------------------------------------------------------------
11. Wyndham Hotel - San ▇▇▇▇, - - 30,006,016
CA
------------------------------------------------------------------------------------------------------------------------------------
12. ▇▇▇▇▇▇ ▇▇▇▇▇▇ - ▇▇▇▇▇▇, - - -
▇.▇.
------------------------------------------------------------------------------------------------------------------------------------
13. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇ - - - -
▇▇▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
14. Wyndham LBV - Orlando, FL - - -
------------------------------------------------------------------------------------------------------------------------------------
15. Westin Resort - Key Largo, - - -
FL
------------------------------------------------------------------------------------------------------------------------------------
16. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ - - - -
▇▇▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
17. Holiday Inn - Phoenix, AZ - - -
------------------------------------------------------------------------------------------------------------------------------------
18. Hilton Hotel - Grand - - -
Rapids, MI
------------------------------------------------------------------------------------------------------------------------------------
19. ▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - - - -
▇▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
▇▇▇. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ - - - -
▇▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
20. ▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ - - - -
▇▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
21. Hilton Hotel - Coral - - -
Beach, FL
------------------------------------------------------------------------------------------------------------------------------------
22. ▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇ - - -
▇▇▇▇▇▇, ▇▇
------------------------------------------------------------------------------------------------------------------------------------
AMERICAN GENERAL HOSPITALITY CORPORATION
BORROWING BASE COMPLIANCE CERTIFICATE
OCTOBER 31, 1997
------------------------------------------------------------------------------------------------------------------------------
Hotel Properties Owned by Type of Service Total Rooms Hotel Eligible
the Parent at Parent's (Limited/Extended Number Out of Acquisition Yes - Y Adjusted
Subsidiaries Stay/Full) of Rooms Service Date No - N EBITDA EBITDA
Eligible Properties
------------------------------------------------------------------------------------------------------------------------------
31. St. Tropez - Las Vegas, NV Full Service 149 08-Jan-96 Y 2,492,283 2,314,683
------------------------------------------------------------------------------------------------------------------------------
32. Ramada Place - Meriden, CT Full Service 150 08-Jan-96 Y 1,256,418 1,045,649
------------------------------------------------------------------------------------------------------------------------------
33. Tampa Airport Hotel - Full Service 495 13-Feb-96 Y 2,381,327 1,951,714
Tampa, FL
------------------------------------------------------------------------------------------------------------------------------
34. Radisson Inn - Rochester, Full Service 171 13-Feb-96 Y 701,922 525,558
NY
------------------------------------------------------------------------------------------------------------------------------
35. Courtyard By Marriott - Full Service 276 13-Feb-96 Y 2,670,662 2,625,052
Marina del Ray, CA
------------------------------------------------------------------------------------------------------------------------------
36. Courtyard By Marriott - Full Service 134 13-Feb-96 Y 1,822,118 1,839,538
Century City, CA
------------------------------------------------------------------------------------------------------------------------------
37. Holiday Inn - Madeira Full Service 149 13-Feb-96 Y 709,406 641,687
Beach, FL
------------------------------------------------------------------------------------------------------------------------------
38. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Resort - Limited Service 100 13-Feb-96 Y 1,228,204 1,122,877
Key Largo, FL
------------------------------------------------------------------------------------------------------------------------------
39. Holiday Inn - Ft. Full Service 240 13-Feb-96 Y 2,037,728 1,776,859
Lauderdale, FL
------------------------------------------------------------------------------------------------------------------------------
40. Courtyard By Marriott LBV Full Service 323 13-Feb-96 Y 4,024,708 3,458,819
- Orlando, FL
------------------------------------------------------------------------------------------------------------------------------
41. Clearwater Beach Resort - Full Service 428 13-Feb-96 Y 6,216,622 4,514,218
Clearwater FL
------------------------------------------------------------------------------------------------------------------------------
Total Borrowing Base Pool 9,858 225 $ 94,803,697 $ 12,001,177
------------------------------------------------------------------------------------------------------------------------------
2.3%
------------------------------------------------------------------------------------------------------------------------------
42. Holiday Inn - St. Louis, MO Full Service 120 13-Feb-96 N 814,269 698,688
------------------------------------------------------------------------------------------------------------------------------
43. Holiday Inn - Richmond, VA Full Service 280 13-Feb-96 N 1,291,114 1,074,008
------------------------------------------------------------------------------------------------------------------------------
44. Ramada Inn Gulfview - Full Service 789 13-Feb-96 N 1,913,602 1,718,928
Clearwater, FL
------------------------------------------------------------------------------------------------------------------------------
45. Lodge At The Seaport - Limited Service 77 13-Feb-96 N 584,428 610,911
Mystic, CT
------------------------------------------------------------------------------------------------------------------------------
46. Four Points Hotel - Mt. Full Service 124 08-Jan-96 N 612,599 435,455
Arlington, NJ
------------------------------------------------------------------------------------------------------------------------------
47. Holiday Inn DFW South, Full Service 409 31-Jul-96 N 3,421,916 2,955,108
Irving TX
------------------------------------------------------------------------------------------------------------------------------
48. Courtyard By Marriott - Full Service 165 31-Jul-96 N 2,003,049 1,768,258
Secaucus, NJ
------------------------------------------------------------------------------------------------------------------------------
49. Radisson Hotel, Arlington Full Service 201 24-Feb-97 N 1,380,060 1,161,033
Heights, IL
------------------------------------------------------------------------------------------------------------------------------
50. Double Tree Galaria, Full Service 165 28 17-Mar-97 N 1,406,902 1,818,142
Atlanta, GA
------------------------------------------------------------------------------------------------------------------------------
51. Holiday Inn, Chicago, IL Full Service 507 03-Feb-96 N 5,117,452 4,146,141
------------------------------------------------------------------------------------------------------------------------------
52. Crowne Plaza, Portland, OR Full Service 161 08-Jan-96 N 2,176,725 1,947,995
------------------------------------------------------------------------------------------------------------------------------
53. Ramada Plaza Hotel, Full Service 155 08-Jan-96 N 2,451,228 2,212,342
Shallon, CT
------------------------------------------------------------------------------------------------------------------------------
Total Parent 12,699 254 $117,668,626 $101,849,075
------------------------------------------------------------------------------------------------------------------------------
1.0%
------------------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------------------------------
Hotel Properties Owned by Adjusted Adjusted EBITDA Cost Cost Cost Basis
the Parent at Parent's EBITDA Divided by 10% Basis Basis (Limited/
Subsidiaries Seasoned Seasoned All Hotels New Hotels Extended Stay)
Eligible Properties
--------------------------------------------------------------------------------------------------------------------
31. St. Tropez - Las Vegas, NV - - 26,355,000 28,355,000 -
--------------------------------------------------------------------------------------------------------------------
32. Ramada Place - Meriden, CT - - 9,785,000 1,785,000 -
--------------------------------------------------------------------------------------------------------------------
33. Tampa Airport Hotel - - - 23,045,408 23,845,408 -
Tampa, FL
--------------------------------------------------------------------------------------------------------------------
34. Radisson Inn - Rochester, - - 7,216,181 7,216,181 -
NY
--------------------------------------------------------------------------------------------------------------------
35. Courtyard By Marriott - - - 27,213,151 27,241,161 -
Marina del Ray, CA
--------------------------------------------------------------------------------------------------------------------
36. Courtyard By Marriott - - - 19,180,537 18,160,537 -
Century City, CA
--------------------------------------------------------------------------------------------------------------------
37. Holiday Inn - Madeira - - 15,240,767 16,240,787 -
Beach, FL
--------------------------------------------------------------------------------------------------------------------
38. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Resort - - - 15,245,449 15,245,449 15,245,449
Key Largo, FL
--------------------------------------------------------------------------------------------------------------------
39. Holiday Inn - Ft. - - 19,738,782 19,798,782 -
Lauderdale, FL
--------------------------------------------------------------------------------------------------------------------
40. Courtyard By Marriott LBV - - 46,979,146 46,979,145 -
- Orlando, FL
--------------------------------------------------------------------------------------------------------------------
41. Clearwater Beach Resort - - - 52,075,112 12,076,112 -
Clearwater FL
--------------------------------------------------------------------------------------------------------------------
Total Borrowing Base Pool $8,140,878 $81,408,782 $ 806,787,837 $ 620,261,606 $42,137,901
--------------------------------------------------------------------------------------------------------------------
4.6%
--------------------------------------------------------------------------------------------------------------------
42. Holiday Inn - St. Louis, MO - - 6,657,600 4,067,500 -
--------------------------------------------------------------------------------------------------------------------
43. Holiday Inn - Richmond, VA - - 9,742,000 9,742,500 -
--------------------------------------------------------------------------------------------------------------------
44. Ramada Inn Gulfview - - - 21,619,687 21,619,687 -
Clearwater, FL
--------------------------------------------------------------------------------------------------------------------
45. Lodge At The Seaport - - - 5,582,800 5,582,600 5,682,500
Mystic, CT
--------------------------------------------------------------------------------------------------------------------
46. Four Points Hotel - Mt. - - 4,700,000 4,700,000 -
Arlington, NJ
--------------------------------------------------------------------------------------------------------------------
47. Holiday Inn DFW South, - - 27,914,872 27,914,612 -
Irving TX
--------------------------------------------------------------------------------------------------------------------
48. Courtyard By Marriott - 1,768,258 17,681,158 8,167,886 - -
Secaucus, NJ
--------------------------------------------------------------------------------------------------------------------
49. Radisson Hotel, Arlington - - 12,241,000 12,241,000 -
Heights, IL
--------------------------------------------------------------------------------------------------------------------
50. Double Tree Galaria, - - 21,083,487 21,883,487 -
Atlanta, GA
--------------------------------------------------------------------------------------------------------------------
51. Holiday Inn, Chicago, IL - - 65,600,000 65,600,000 -
--------------------------------------------------------------------------------------------------------------------
52. Crowne Plaza, Portland, OR - - 24,875,000 24,875,000 -
--------------------------------------------------------------------------------------------------------------------
53. Ramada Plaza Hotel, - - 14,525,000 14,525,000 -
Shallon, CT
--------------------------------------------------------------------------------------------------------------------
Total Parent $8,905,834 $99,081,331 $1,128,787,070 $1,044,102,862 $47,730,401
--------------------------------------------------------------------------------------------------------------------
4.2%
--------------------------------------------------------------------------------------------------------------------
--------------------------------------------------------------------------------------------
Hotel Properties Owned by Cost Basis Cost Basis Cost Basis
the Parent at Parent's Non-Wholly Non- Ground
Subsidiaries Owned Franchised Leases
Eligible Properties
--------------------------------------------------------------------------------------------
31. St. Tropez - Las Vegas, NV 28,355,000 -
--------------------------------------------------------------------------------------------
32. Ramada Place - Meriden, CT - -
--------------------------------------------------------------------------------------------
33. Tampa Airport Hotel - 23,945,406 -
Tampa, FL
--------------------------------------------------------------------------------------------
34. Radisson Inn - Rochester, - 7,216,191
NY
--------------------------------------------------------------------------------------------
35. Courtyard By Marriott - - -
Marina del Ray, CA
--------------------------------------------------------------------------------------------
36. Courtyard By Marriott - - -
Century City, CA
--------------------------------------------------------------------------------------------
37. ▇▇▇▇▇▇▇ ▇▇▇ - ▇▇▇▇▇▇▇ - -
▇▇▇▇▇, ▇▇
--------------------------------------------------------------------------------------------
38. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Resort - - -
Key Largo, FL
--------------------------------------------------------------------------------------------
39. Holiday Inn - Ft. - -
Lauderdale, FL
--------------------------------------------------------------------------------------------
40. Courtyard By Marriott LBV - 46,978,146
- Orlando, FL
--------------------------------------------------------------------------------------------
41. Clearwater Beach Resort - 62,076,112 52,075,112
Clearwater FL
--------------------------------------------------------------------------------------------
Total Borrowing Base Pool $ - $105,553,721 $161,173,709
--------------------------------------------------------------------------------------------
0.0% 11.7% 10.3%
--------------------------------------------------------------------------------------------
42. Holiday Inn - St. Louis, MO 8,657,600 - -
--------------------------------------------------------------------------------------------
43. Holiday Inn - Richmond, VA 9,742,600 - -
--------------------------------------------------------------------------------------------
44. Ramada Inn Gulfview - 21,619,687 - -
Clearwater, FL
--------------------------------------------------------------------------------------------
45. Lodge At The Seaport - 6,592,600 6,692,500
Mystic, CT
--------------------------------------------------------------------------------------------
46. Four Points Hotel - Mt. - 4,790,000
Arlington, NJ
--------------------------------------------------------------------------------------------
47. Holiday Inn DFW South, - -
Irving TX
--------------------------------------------------------------------------------------------
48. Courtyard By Marriott - - 8,187,880
Secaucus, NJ
--------------------------------------------------------------------------------------------
49. ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ - -
▇▇▇▇▇▇▇, ▇▇
--------------------------------------------------------------------------------------------
50. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇, - -
▇▇▇▇▇▇▇, ▇▇
--------------------------------------------------------------------------------------------
51. Holiday Inn, Chicago, IL - -
--------------------------------------------------------------------------------------------
52. Crowne Plaza, Portland, OR - -
--------------------------------------------------------------------------------------------
53. ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, - -
▇▇▇▇▇▇▇, ▇▇
--------------------------------------------------------------------------------------------
Total Parent $ 43,312,111 $111,246,221 $178,131,888
--------------------------------------------------------------------------------------------
3.8% 9.8% 10.9%
--------------------------------------------------------------------------------------------
SCHEDULE 1.01(c)
ENGINEER REPORT
SCOPE OF SERVICES
PROPERTY CONDITION REVIEW
(PCR)
ASSIGNMENT OBJECTIVES
---------------------
The purpose of the Property Condition Review (PCR) is: To determine the existing
conditions of the building(s) and its systems including structural, plumbing,
heating and ventilating, air conditioning, electrical, fire protection, finish
materials, exterior facades, roof, and site amenities. To identify any areas of
materials which may require repair or corrective action due to deferred
maintenance or present deficient conditions. To identify and list any
outstanding code violations against the property on file with the various
Municipal and Federal agencies, including the local building department, fire
department, etc. To evaluate the adequacy of the capacities of the HVAC and
electrical systems. To perform an Americans with Disabilities Act (ADA) survey
of the existing building(s) and property to determine compliance with the
legislation. To estimate the cost of the required remedial work indicated by any
of the preceding determinations. Note: The Property Condition Review (PCR)
assignment does not include any work with environmental issues, but Consultant
should be generally aware of and note any obvious existing or potential
conditions. Consultant shall utilize personnel having the appropriate
professional designations for those tasks outlined above (at a minimum, an ALA
and PE).
The Property Condition Review (PCR) assignment should include, at a minimum, a
review and description of the following aspects of the Project:
1. A description of the site and all improvements thereon, based upon field
observations as well as a review of all available documents.
2. Determine the general conformance of visible construction of the building
and site development to the construction documents, soils report, and
industry standards for such construction.
3. Consultant shall list all codes, regulations and public sector criteria
with which the Project must comply, including special permits, zoning,
development orders and other actions of local, state, and federal
authorities. Copies of the actual documents (building permits,
certificates of occupancy, etc.) should be included in the report.
4. Review of existing conditions of the building including exterior, roof,
interior spaces, MEP systems, structural members (including seismic
conditions, where applicable), site drainage, parking, landscaping and site
utilities; with conclusions and recommendations for conceivable repairs and
deficiencies along with cost estimates for the suggested repairs. Estimates
should be provided in the following format: IMMEDIATE, SHORT-TERM (1-5
years), and LONG-TERM REPAIRS (1-10 years).
SCHEDULE 1.01(e)
ENVIRONMENTAL REPORT
SCOPE OF SERVICES
PHASE I ENVIRONMENTAL SITE ASSESSMENT
(ESA)
ASSIGNMENT OBJECTIVES
---------------------
The Phase I Environmental Site Assessment (ESA) survey is for the determination
of the condition of the Property (building(s) and site) as it relates to any
existing and potential hazardous waste materials or situations. The Scope of
the ESA should address and comply with the current ASTM Environmental Assessment
standards or the standards set forth below, whichever is more stringent.
The ESA assignment should include at a minimum a review and description of the
following aspects of the Property:
1. Identify project name, legal description, geographic coordinates, local
address, city, county and state for each site.
2. Provide a general description of the Property and site improvements,
including acres, square footages and age of improvements.
3. Identify the inspection date and consultant performing the inspection.
Describe the qualifications of the individual conducting the inspection.
4. Conduct and review a fifty-year recorded Chain of Title search. Identify
and review historical and current property uses/ownership's. Use ▇▇▇▇▇▇▇
maps and local directories when available and appropriate.
5. Review historical and current aerial photographs, and provide in the report
at least two original aerials (one from pre-1975, and one after 1985).
Provide a narrative discussion of the aerial photo review. Aerial
photographs should show the subject Property and surrounding areas.
6. Perform an on-site environmental inspection of the subject Property.
Interview on-site personnel and adjacent property owners where appropriate,
and provide records of all such communications. Review the available on-
site environmental records, including the compliance history of the subject
Property, if any.
7. Review and discuss ground water and surface water characteristics. Include
a general direction of the gradient as well as depth to potable and shallow
groundwater. Include a description of groundwater uses and surface water
bodies on-site. Discuss any available existing data on water quality.
Consultant should have someone with Hydrology or Hydro-Geology credentials
specifically comment on this matter.
8. Review and discus area geology and soil characteristics. Identify the
general soil permeability and corrosiveness tendencies. Discuss any
available data on soil conditions.
1
SCHEDULE 1.01(d)
APPROVED ENGINEERS
SOCIETE GENERALE
U.S. REAL ESTATE GROUP
May 30, 1997
APPROVED LIST OF CONSULTANTS
PROPERTY CONDITION REVIEW (P? & DOCUMENT AND CONSTRUCTION REVIEW (DCR)
-----------------------------------------------------------------------
▇▇▇▇▇▇▇ CONSULTANTS, INC. CONSTRUCTION ASSET ADVISORS, INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
THE BENTLEY GROUP WOZGROUP
The Lincoln Building ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ FAX
EMJ CONSTRUCTION CONSULTANTS INC. ▇▇▇▇▇▇ & ▇▇▇▇▇▇▇, INC.
▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇ FAX (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ & ▇▇▇▇▇▇, INC. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ & ASSOC., INC.
▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
HNTB CORPORATION ▇▇▇▇/▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ Denver, CO
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇ T. ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇, ▇▇▇▇▇▇▇ & PARTNERS, INC. LAW ENGINEERING
▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Park Central I, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇ INTERNATIONAL
▇▇▇ ▇. ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇/▇▇▇ ▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
SCHEDULE 1.01(e)
ENVIRONMENTAL REPORT
SCOPE OF SERVICES
PHASE I ENVIRONMENTAL SITE ASSESSMENT
(ESA)
ASSIGNMENT OBJECTIVES
---------------------
The Phase I Environmental Site Assessment (ESA) survey is for the determination
of the condition of the Property (building(s) and site) as it relates to any
existing and potential hazardous waste materials or situations. The Scope of
the ESA should address and comply with the current ASTM Environmental Assessment
standards or the standards set forth below, whichever is more stringent.
The ESA assignment should include at a minimum a review and description of the
following aspects of the Property:
1. Identify project name, legal description, geographic coordinates, local
address, city, county and state for each site.
2. Provide a general description of the Property and site improvements,
including acres, square footages and age of improvements.
3. Identify the inspection date and consultant performing the inspection.
Describe the qualifications of the individual conducting the inspection.
4. Conduct and review a fifty-year recorded Chain of Title search. Identify
and review historical and current property uses/ownership's. Use ▇▇▇▇▇▇▇
maps and local directories when available and appropriate.
5. Review historical and current aerial photographs, and provide in the report
at least two original aerials (one from pre-1975, and one after 1985).
Provide a narrative discussion of the aerial photo review. Aerial
photographs should show the subject Property and surrounding areas.
6. Perform an on-site environmental inspection of the subject Property.
Interview on-site personnel and adjacent property owners where appropriate,
and provide records of all such communications. Review the available on-
site environmental records, including the compliance history of the subject
Property, if any.
7. Review and discuss ground water and surface water characteristics. Include
a general direction of the gradient as well as depth to potable and shallow
groundwater. Include a description of groundwater uses and surface water
bodies on-site. Discuss any available existing data on water quality.
Consultant should have someone with Hydrology or Hydro-Geology credentials
specifically comment on this matter.
8. Review and discus area geology and soil characteristics. Identify the
general soil permeability and corrosiveness tendencies. Discuss any
available data on soil conditions.
1
9. Identify and describe any hazardous materials used or stored on-site,
significant spills, dumping, emissions, evidence of contaminated soils or
water. Specifically,
a) Describe uses for hazardous materials; identify all wastestreams
generated at the site; and describe handling the disposal methods and
waste management handling, storage, and disposal areas. Also include a
discussion about areas previously used for thee purposes, if any.
b) List permits and authorization held, and describe permitted activities,
operating restrictions, and compliance reports, inspections, and
orders.
c) Discuss whether on-site electrical equipment contains PCBs, and
identify the party with compliance responsibility.
d) Describe in detail the observed on-site conditions of waters, soils,
vegetation, and production and waste management areas.
e) Review records of spills and release events, and describe materials and
area involved, remediation activities, and regulatory agency
involvement, if any.
f) Consultant should address all environmental concerns, including but not
limited to special statutory issues, lead paint, lead in drinking
water and wetlands.
10. Perform and discuss a one mile area reconnaissance, and describe all
adjacent site usages. Identify all potential sources of off-site
contamination and the impact of these findings, including landfills,
gasoline stations, industrial facilities, tank terminals, airports and
military bases or installations.
11. Review and provide all applicable local, state and federal regulatory
agency inquire (EPA, DERM, TWC, etc.) results for the site - as well as for
properties contained within a one mile radius of the site. Specifically
discuss: The NPL List, CERCLIS, ▇▇▇▇ Title III, RCRA Notifiers List, TSD
List, UST List, LUST List, and Landfill List. For Properties found on
these lists, identify distance, direction and any potential impact to the
subject site.
12. For LUST's UST's and AST's on-site or within one mile radius - identify the
number of tanks, registration, size, age, tank contents and tank material
for each. For offsite tanks, identify distance, direction and subsurface
gradient direction from site for each. Describe former UST's on-site and
also the compliance status of current on-site UST's.
13. Review and provide local government and municipal inquiry results. Include
at least the following: the electric company, water/sewer authorities,
city/county health department and local fire ▇▇▇▇▇▇▇▇'▇ office. Provide a
record of these communications.
14. If applicable, a sufficient number of asbestos, lead (paint, water), and
radon samples should be taken, analyzed, and discussed to provide a
representative sampling. The number of samples may vary, but the rationale
for determining the number and location of the samples should be described.
Provide information on: methods of analysis and laboratory used, sample
collection method, and certification of the inspectors, as per the attached
Exhibit A (for asbestos only). Describe and locate on plan the locations
and materials sampled.
15. Provide a color topographical area site map, with scale, nothing the
subject site.
2
16. If available, describe the circumstances of any known citizen complaints in
the area, the nature of the facility's relationship with its neighbors and
citizens, etc.
17. Provide a professionally prepared and detailed site map of the project,
noting all adjacent properties, location of any LUST's UST's AST's, drums,
transformers, areas of contamination, waste management areas, etc.
18. Provide a minimum of eight color labeled photographs depicting the site and
adjacent sites.
19. A copy of all records of communications (ROC's) should be provided in the
report for each including: date and time of a conversation, name and title
of person, name of company and a brief summary of the topic discussed.
Also provide a copy of all related permits, available soil and water data,
and any available enforcement records and documents.
20. Provide a list of any and all published references utilized.
21. Provide a statement of qualifications on the firm conducting the
assessment, and evidence of all required insurance coverage's (naming
Societe Generale, Southwest Agency, as additional insured).
22. Two original reports are required for this assignment, and should follow,
in general, the outline on the last page of this document.
3
EXHIBIT "A"
ASBESTOS SURVEY
The asbestos survey shall be performed by appropriately trained personnel,
trained in accordance with the most recent federal, state and local
requirements, including but not limited to AHERA. The personnel shall determine
if suspect ACM is present. Suspect friable ACM shall be reported on and sampled
according to the following scope. Suspect non-friable ACM shall be reported on
according to the following scope, but without sampling.
The consultant's report shall include the following:
---------------------------------------------------
- The date(s) the inspections/sampling was performed.
- A general description of construction, mechanical, and electrical
systems at the property based on the site visit and a cursory review of
construction documents (drawings, specifications, change orders, etc.), if
available.
- A description of the history of the property, including the dates of
original construction and the dates and scopes of major remodeling work.
- A description of any prior asbestos abatement work that was performed
at the property and on evaluation of the work's compliance with governing codes,
statutes, regulations and ordinances.
- A review of the suspect materials throughout the property and a
description of the sampling strategy. A sufficient number of samples should be
obtained in order to conclude the specific results required.
- An evaluation of the condition of any and all positive material found
at the property in accordance with a hazard ranking system. Note material
locations with respect to building occupants, potential for disturbance and air
flow.
- A description of the process for inspection and representative
sampling for asbestos-containing materials.
- A summary of testing results and graphic representation of the
locations from which the samples were taken indicating which samples are
positive.
- An estimate of the total quantity of ACM (friable and non-friable)
within the entire facility, including each tenant space, mechanical area, office
area, maintenance area and common area. Provide an estimate of probable costs
to correct or remove ACM's identified from the positive sampling process and
survey.
- A list of tenants at the property, by name and space number, the
materials sampled and the results of the analysis and the quantity of asbestos
found.
- The signature of the responsible individual. The individual shall
certify that the sampling and report has been conducted and prepared according
to the licensing requirements of the state in which the property is located.
4
SAMPLE OUTLINE REPORT FORMAT
PHASE I ENVIRONMENTAL SITE ASSESSMENT
1. Executive Summary
2. Objectives
3. Site Overview
4. Site Background/Operating History
a) Current Ownership
b) Prior Ownership
c) Review of Aerial Photographs
d) Historical City Directories/Fire Insurance Maps
5. Environmental Setting
a) Surface Water Characteristics
b) Ground Water Characteristics
c) Soils/Geology
6. Results of the On-Site Inspection
a) Observations
b) Hazardous Substance Identification/Inventory
c) Area Reconnaissance
d) Sampling Results (Asbestos) (Radon)
7. Regulatory/Governmental Agency Inquiries
a) Federal and State Regulatory Agency Inquires
b) City Government Inquiries
8. Conclusions
9. Recommendations
a) Additional Studies (File Review, Phase 2, etc.)
b) O & M Program
10. References
11. Appendices
a) Recorded Chain of Title
b) Aerial Photographs
c) Photographs
d) Permits/Records
12. Tables
a) Asbestos, Lead, and Radon Sampling Results
5
SCHEDULE 1.01(f)
APPROVED LIST OF CONSULTANTS
ENVIRONMENTAL SITE ASSESSMENTS
------------------------------
DAMES & ▇▇▇▇▇ LAW ENGINEERING
▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇ ▇. ▇▇▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ Ft. ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (817) 740-1177
▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ & ▇▇▇▇, INC.
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇ O'Sick
(▇▇▇) ▇▇▇-▇▇▇▇
FUGRO/ENSR GROUNDWATER TECHNOLOGY
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
San Francisco, CA (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
EMG
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇., ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇ ENGINEERS, INC. G.M.T. ENVIRONMENTAL
▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
G. ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇/▇▇▇▇▇▇ ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
ENVIRONMENTAL SITE ASSESSMENTS (ESA)(Continued)
-----------------------------------------------
ATEC ASSOCIATES, INC. MAXIM ENGINEERS, INC.
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇-▇▇▇▇ ▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇ ▇. ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇ (▇▇▇) ▇▇▇-▇▇▇▇
FLOUR ▇▇▇▇▇▇ GTI
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ ▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇ ▇▇▇▇▇▇▇
KERAMIDA ENVIRONMENTAL,INC.
▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇▇ Keramida/▇▇▇▇▇ ▇▇▇▇▇▇▇▇
APPRAISAL ASSIGNMENT REPORT (AAR)
---------------------------------
(See Scope of Services)
STRUCTUAL ENGINEERS
-------------------
▇▇▇▇▇▇ AND ▇▇▇▇▇▇-TECHNI STRUCTURES
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇ ▇▇-▇
▇▇▇▇▇▇, ▇▇ ▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
K.S. ▇▇▇▇▇▇▇▇▇▇▇ (Raja)
▇▇▇ ▇▇▇▇▇▇
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇▇▇ ▇▇▇▇▇
TMBP
(▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇▇
SCHEDULE 1.01(g)
Existing Letters of Credit
--------------------------
Letter of Credit No. Expiration Date Beneficiary Amount
------------------- --------------- ----------- ------
ST108121 6/1/98 ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, wife of/and ▇▇▇▇▇ ▇. $250,000.00
▇▇▇▇▇▇
ST106704 9/30/98 Virtual Hospitality, Inc. $500,000.00
▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇, ▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇
▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇ ▇. ▇▇▇▇▇
▇▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇
▇▇▇ ▇. ▇▇▇▇▇
Bank ▇▇▇, ▇▇▇▇▇▇▇▇▇
▇▇▇▇▇▇▇▇ 5/31/98 Zeta Bloomington Hotel, Inc. $750,000.00
c/o Battle ▇▇▇▇▇▇, LLP
SCHEDULE 1.01(h)
Franchisors
Brand or Affiliation Considerations for AGIIC Future Acquisitions
DoubleTree Hotels Corporation DoubleTree Hotel or Resort
DoubleTree Club Hotel
DoubleTree Guest Suites Hotel
Hilton Hotels Corporation Hilton Hotel, Inn or Resort
Hilton Suites Hotel
Hilton Garden Inn
Holiday Inn Worldwide Crowne Plaza Hotel or Resort
Holiday Inn
Holiday Inn Express
Holiday Inn Hotel & Suites
Holiday Inn Select
Holiday Inn Sunspree Resort
Hyatt Hotels Corporation Hyatt Regency Hotel or Resort
Hyatt Hotel
ITT Sheraton Corporation Sheraton Hotel or Resort
Sheraton Suites Hotel
Four Points Hotel
Marriott Corporation Marriott Hotel or Resort
Marriott Suites Hotel
Residence Inn
Fairfield Inn, Inn & Suites
Courtyard by Marriott
Omni Hotels Omni Hotel or Resort
Promus Hotel Corporation Embassy Suites Hotel or Resort
Homewood Suites
Hampton Inn, Inn & Suites
Radisson Hotels Worldwide Radisson Hotel, Plaza Hotel or Resort
Radisson Inn
Radisson Suite Hotel
Westin Hotels & Resorts Westin Hotel or Resort
Wyndham Hotels and Resorts Wyndham Hotel or Resort
Wyndham Garden Hotel
Possible (If franchising becomes
available) Renaissance Hotels & Resorts
Red Lion Hotels & Inns
▇▇▇▇-▇▇▇▇▇▇▇
Inter-Continental
Four Seasons
?????
Nikko
Le Meridian/Fo?t
AmeriSuites
Vista/Hilton International
Fairmont
▇▇▇▇'▇ ▇▇▇▇
SCHEDULE 1.01(i)
Ground Leases
-------------
ALBUQUERQUE, NEW MEXICO
That certain ground lease by and between the City of Albuquerque, New
Mexico and ▇▇▇▇ ▇▇▇▇▇▇, Inc. dated November 10, 1969 as amended by the
First Supplemental Lease Agreement dated May 17, 1971 and the Second
Supplemental Lease Agreement dated October 2, 1972.
NOTE: Ground Lessee may not assign or mortgage its interest without the
consent of Ground Lessor .
NEW ORLEANS, LOUISIANA
That certain Sublease Agreement between ▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇▇, as sub-lessor,
and Grantor, as sublessee, dated July 8, 1994 and recorded in ▇▇▇ ▇▇▇,
▇▇▇▇▇ ▇▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ of that certain Lease of Commercial
Property granted by Mon-Tay Enterprises, Inc., as owner, and ▇▇▇▇▇
▇▇▇▇▇▇▇▇, as lessee, dated December 11, 1985 recorded in COB ▇▇▇▇, ▇▇▇▇▇
▇▇, ▇▇▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇.
SAN JOSE, CALIFORNIA
That certain Sublease dated as of February 1, 1973 executed by and between
Claitor Properties Co. and Hotel Circle, Inc. and recorded on February 7,
1973 in Book 0225, Page 727 of the Official Records, as assigned to ▇▇▇▇
▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ Company, as recorded on June 14, 1976 in Book C080, Page
157 in the Official Records, as further assigned to The Chase Manhattan
Bank (National Association), and recorded on September 17, 1976 in Book
C288, Page 36, as further assigned to North First-▇▇▇▇ Corporation, as
recorded on September 17, 1976 in Book C288, Page 45, as amended by that
certain Amendment to Sublease dated December 1, 1978 by and between Claitor
Properties Co. and North First-▇▇▇▇ Corporation and recorded on March 13,
1979 in Book E340, Page 285, as further assigned to ▇▇ ▇▇▇▇▇ Hotels, Inc.
and recorded on March 13, 1979 in Book E341, Page 258, and as further
amended by that certain Consent to Amendment of Sublease and Release of
Reserved Right dated April 11, 1980 executed by and between ▇▇▇▇▇▇▇ ▇.
▇▇▇▇▇▇▇▇ and
▇▇▇▇▇▇▇ ▇. ▇▇▇▇, as Trustees, ▇▇ ▇▇▇▇▇ Hotels, Inc. and The Chase Manhattan
Bank, N.A. and recorded on April 29, 1980 in Book F298, Page 632 of the
Official Records.
TOLEDO, OHIO
That certain Lease by and among the State of Ohio, acting by and through
the Department of Administrative Services, the Medical College of Ohio at
Toledo, an Ohio College of Medicine authorized and created by Section
3350.01, Ohio Revised Code ("MCO"), and Toledo Hotel Investors Limited
Partnership, an Ohio limited partnership ("Original Lessee"), recorded at
Recorder's Number 86-0812A01 of the records of the ▇▇▇▇▇ County Recorder,
under which State and MCO leased to Original Lessee a certain unimproved
approximately 8.781 acre tract of land located on the campus of MCO in
Toledo, Lucas County, Ohio; as modified by an Affidavit dated November 15,
1986, recorded December 16, 1986, at Recorder's Number 86-1943A08 of the
records of the ▇▇▇▇▇ County Recorder; as further amended by First Amendment
to Lease by and among State, MCO, and Original Lessee, recorded March 24,
1988, at Recorder's Number 88-332C11 of the records of the ▇▇▇▇▇ County
Recorder; as further amended by Second Amendment to Lease by and among
State, MCO, and Original Lessee, recorded October 30, 1992, at Recorder's
Number 92-3155C04 of the records of the ▇▇▇▇▇ County Recorder; as further
affected by that certain Cooperating Agreement dated May 23, 1986, by and
between MCO and Original Lessee.
NOTE: Leasehold Mortgage requires consent of Ground Lessor. Ground Lessor
is not required to enter into a new lease with Leasehold Mortgagee upon
foreclosure.
LAKE BUENA VISTA, FLORIDA
That certain Lease Agreement dated September 28, 1971, between Buena Vista
Land Company, Inc. and ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Company (Inc.) ("HJC"); as amended by
that certain Amendment to Lease dated August 15, 1978 between Lake Buena
Vista Communities, Inc. (f/k/a Buena Vista Land Company, Inc.) ("LBV") and
HJC; that certain Amendment to Lease dated December 18, 1986 between LBV
and Southeast Hotel Associates ("SHA"); that certain Amendment to Lease
dated November 6, 1989 between LBV and SHA; and that certain Fourth
Amendment to Lease effective as of September 5, 1996, between LBV and FSA
ZETA LBV Hotel, Inc.
Note: Ground Lessee's interest may be assigned only to a subsidiary.
Mortgage of the Leasehold Estate requires the consent of Ground Lessor
which shall not be unreasonably withheld so long as certain criteria are
met (including, Leasehold Mortgagee must be a
-2-
financial institution with a good reputation, insurance requirements,
Ground Lease not in default).
CLEARWATER BEACH, FLORIDA
That certain Ground Lease dated as of February 14, 1980, by and among ▇▇▇▇
▇. ▇▇▇▇▇▇, III, ▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇, H. ▇▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ and ▇▇▇▇▇ ▇▇▇▇▇▇▇, and ▇.▇. ▇▇▇▇▇▇▇ Properties,
Inc., a Georgia corporation.
ROCHESTER, NEW YORK
That certain Lease dated as of January 1, 1971, between Rochester Institute
of Technology ("RIT") and Inn Camp, Inc. ("IC") as amended by that certain
Lease Amendment I dated November 8, 1971 between RIT and IC; that certain
Lease Amendment II dated as of April 30, 1981, between RIT and Rochilt
Associates; and that certain Lease Amendment III dated as of November 10,
1988, between RIT and Hotel Partners of Rochester.
-3-
SCHEDULE 1.01(j)
Guarantors
----------
American General Hospitality Corporation, a Maryland corporation
AGH UPREIT, LLC, a Delaware limited liability company
3100 Glendale Joint Venture, an Ohio general partnership
MDV Limited Partnership, a Texas limited partnership
Madison Motel Associates, a Wisconsin general partnership
183 Hotel Associates, Ltd., a Texas limited partnership
Richmond Williamsburg Associates, Ltd., a Texas limited partnership
2929 ▇▇▇▇▇▇▇▇ Limited Liability Company, a Delaware limited liability company
Lake Buena Vista Partners, Ltd., a Florida limited partnership
BCHI Acquisition, L.L.C., a Delaware limited liability company
Cocoa Beach Hotels, Ltd., a Florida limited partnership
Durham I-85 Limited Partnership, a Delaware limited partnership
Schedule 1.01 (k)
Participating Leases
1. Lease Agreement between American General Hospitality Operating Partnership,
L.P. ("Borrower") and AGH Leasing, L.P. (the "Lessee") with respect to
Holiday Inn Select Mission Valley, CA, dated July 31, 1996.
2. Lease Agreement between Borrower and Lessee with respect to Hampton Inn
Ocean City, dated July 31, 1996.
3. Lease Agreement between Borrower and Lessee with respect to Courtyard by
Marriott-Secaucus, NJ, dated July 31, 1996.
4. Lease Agreement between Borrower and Lessee with respect to Wyndham Hotel-
San Jose, CA, dated July 31, 1996.
5. Lease Agreement between Borrower and Lessee with respect to Wyndham
Albuquerque Hotel, dated July 31, 1996.
6. Lease Agreement between 2929 ▇▇▇▇▇▇▇▇ Limited Liability Company and Lessee
with respect to Holiday Inn Select New Orleans Airport Kenner, dated July
31, 1996.
7. Lease Agreement between 3100 Glendale Joint Venture and Lessee with respect
to Hilton Hotel Toledo, dated July 31, 1996
8. Lease Agreement between MDV Limited Partnership and Lessee with respect to
Hotel Maison de Ville, dated July 31, 1996.
9. Lease Agreement between Madison Motel Associates and Lessee with respect to
Crowne Plaza Madison, dated July 31, 1996.
10. Lease Agreement between 183 Hotel Associates, Ltd. And Lessee with respect
to Holiday Inn Dallas DFW Airport West, dated July 31, 1996.
11. Lease Agreement between Richmond Williamsburg Associates, Ltd. and Lessee
with respect to Hampton Inn - Richmond Airport, dated July 31, 1996.
12. Lease Agreement between Borrower and Lessee with respect to the Wyndham
Safari Hotel, Lake Buena Vista, FL, dated October 22, 1996.
13. Lease Agreement between 2780 Atlanta Limited Partnership, L.P. and Lessee
with respect to Doubletree Guest Suites Hotel-Atlanta, GA, dated March 17,
1997.
14. Lease Agreement between Borrower and Lessee with respect to Hilton Hotel -
Durham, dated January 6, 1997.
15. Lease Agreement between Borrower and Lessee with respect to Holiday Inn
Select DFW South, dated July 31, 1996.
16. Lease Agreement between Borrower and Lessee with respect to Grand Rapids
Hilton dated April 18, 1997.
17. Lease Agreement between Borrower and Lessee with respect to Crowne Plaza
Phoenix, dated April 1, 1997.
18. Lease Agreement between Lessee and Manager with respect to Holiday Inn
Resort - Monterey, dated November 20, 1996.
19. Lease Agreement between 75 Arlington Heights Limited Partnership, L.P. and
Lessee with respect to Radisson Hotel - Arlington Heights, dated February
28, 1997.
20. Lease Agreement between Borrower and Lessee with respect to Westin Key
Largo Resort, dated March 17, 1997.
21. Lease Agreement between Borrower and Lessee with respect to Wyndham Garden
Hotel-Marietta, GA, dated March, 17, 1997.
22. Lease Agreement between BCHI Acquisitions, L.L.C and Lessee with respect
to Holiday Inn Select-Bucks County, PA, dated June 20, 1997.
23. Lease Agreement between Borrower and Lessee with respect to Radisson Twin
Tower-Orlando, FL, dated June 25, 1997.
24. Lease Agreement between Borrower and Lessee with respect to Marriott West
Loop-Houston, TX, dated June 25, 1997.
25. Lease Agreement between Cocoa Beach Hotels, Ltd. and Lessee with respect
to Hilton Hotel-Cocoa Beach, FL, dated June 27, 1997.
26. Lease Agreement between Borrower and Lessee with respect to Courtyard by
Marriott-Durham, NC, dated November 26, 1997.
27. Lease Agreement between Borrower and Clinton Holding Corp. with respect to
Ramada Hotel-Mahwah, NJ, dated January 8, 1998.
28. Lease Agreement between Borrower and Mahwah Holding Corp. with respect to
Sheraton Crossroads-Mahwah, NJ, dated January 8, 1998.
29. Lease Agreement between Borrower and Clinton Holding Corp. with respect to
Ramada Plaza-Meriden, CT, dated January 8, 1998.
30. Lease Agreement between Portland/Shelton LLC and Fairfield Holding Corp.
with respect to Ramada Plaza-Shelton, CT, dated January 8, 1998.
31. Lease Agreement between Portland/Shelton LLC and Fairfield Holding Corp.
with respect to Crowne Plaza-Portland, OR, dated January 8, 1998.
32. Lease Agreement between Borrower and Clinton Holding Corp. with respect to
Crowne Plaza Suites-Las Vegas, NV, dated January 8, 1998.
33. Lease Agreement between Borrower and Clinton Holding Corp. with respect to
St. Tropez Suites-Las Vegas, NV, dated January 8, 1998.
34. Lease Agreement between Mt. Arlington New Jersey, LLC and Clinton Holding
Corp. with respect to Four Points-Mt. Arlington, NJ, dated January 8, 1998.
35. Lease Agreement between Borrower and Lessee with respect to Holiday Inn
Express-Hanover, MD, dated January 22, 1998.
36. Lease Agreement between Borrower and Lessee with respect to Holiday Inn-
Annapolis, MD, dated January 22, 1998.
37. Lease Agreement between Borrower and Lessee with respect to Ramada Hotel
Old Town-Alexandria, VA, dated January 22, 1998.
38. Lease Agreement between Borrower and Lessee with respect to Holiday Inn &
Suites-Alexandria, VA, dated January 22, 1998.
39. Lease Agreement between AGH ▇'▇▇▇▇ International LLC and Lessee with
respect to the Holiday Inn-▇'▇▇▇▇ International, Rosemont, IL, dated
February 3, 1998.
40. Lease Agreement between Borrower and Lessee with respect to Doubletree
Resort-Clearwater Beach, FL, dated February 13, 1998.
41. Lease Agreement between Borrower and Lessee with respect to Courtyard by
Marriott-Lake Buena Vista, FL, dated February 13, 1998.
42. Lease Agreement between Borrower and Lessee with respect to Doubletree
Hotel, Tampa, FL, dated February 13, 1998.
43. Lease Agreement between Borrower and Lessee with respect to Courtyard by
Marriott-Marina del Rey, CA, dated February 13, 1998.
44. Lease Agreement between Borrower and Lessee with respect to Holiday Inn-
Ft. Lauderdale, FL, dated February 13, 1998.
45. Lease Agreement between Borrower and Lessee with respect to Ramada Inn-
Clearwater Beach, FL, dated February 13, 1998.
46. Lease Agreement between Borrower and Lessee with respect to Courtyard by
Marriott-Century City, CA, dated February 13, 1998.
47. Lease Agreement between Borrower and Lessee with respect to Holiday Inn-
Madeira Beach, FL, dated February 13, 1998.
48. Lease Agreement between Borrower and Lessee with respect to ▇▇▇▇▇▇ ▇▇▇▇▇▇▇-
Key Largo, FL, dated February 13, 1998.
49. Lease Agreement between Borrower and Lessee with respect to Holiday Inn-
Richmond, VA, dated February 13, 1998.
50. Lease Agreement between Borrower and Lessee with respect to Holiday Inn-
St. Louis, MO, dated February 13, 1998.
51. Lease Agreement between Borrower and Lessee with respect to Radisson
Hotel-▇▇▇▇▇▇▇▇▇, NY, dated February 13, 1998.
52. Lease Agreement between Borrower and Lessee with respect to Mystic Hotel-
Mystic, CT, dated February 13, 1998.
53. Lease Agreement between Borrower and Lessee with respect to Select Inn-
Bloomington, MN, dated February 13, 1998.
SCHEDULE 3.03
CONDITIONS PRECEDENT
1. Within two (2) days of Closing, the Borrower will return to the Issuing
Bank all outstanding letters of credit under the Existing Credit Agreement
except the Existing Letters of Credit.
Schedule 4.01
SUBSIDIARIES
NAME STATE OF FORMATION PRINCIPAL OFFICE
---- ------------------ ----------------
2929 ▇▇▇▇▇▇▇▇ Limited Liability Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
Company ▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
BCHI Acquisition, L.L.C. Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
3100 Glendale Joint Venture Ohio ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
MDV Limited Partnership Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Madison Motel Associates Wisconsin ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
183 Hotel Associates, Ltd. Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
455 Meadowlands Associates, Ltd.* Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
DFW South Limited Partnership* Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Richmond Williamsburg Associates, Ltd. Texas ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
AGH UPREIT LLC Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
AGH Secaucus LLC* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
AGH DFW South LLC* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Lake Buena Vista Partners, Ltd. Florida ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Cocoa Beach Hotels, Ltd. Florida ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Durham I-85 Limited Partnership Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Portland/Shelton LLC* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Mt. Arlington New Jersey, LLC* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
AGH ▇'▇▇▇▇ International, LLC* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
-2-
75 Arlington Heights Limited Partnership, L.P.* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
2780 Atlanta Limited Partnership, L.P.* Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
AGH PSS I, Inc. Delaware ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇ ▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
___________________________
*Permitted other subsidiary
SCHEDULE 4.08
AMERICAN GENERAL HOSPITALITY CORPORATION
----------------------------------------
(LISTING OF ALL PENDING OR THREATENED LEGAL PROCEEDINGS, WHETHER OR NOT COVERED
-------------------------------------------------------------------------------
BY INSURANCE, TO WHICH THE AGHC, THE LESSEE, THE OPERATING PARTNERSHIP OR ANY
-----------------------------------------------------------------------------
SUBSIDIARY IS A PARTY OR WHICH MAY AFFECT THEIR RESPECTIVE PROPERTIES OR
------------------------------------------------------------------------
BUSINESS.)
----------
▇▇▇▇▇ ▇▇▇▇▇▇▇▇ VS. AMERICAN GENERAL HOSPITALITY, INC.; HOLIDAY INNS, INC.;
HOLIDAY INNS B.V.; HOLIDAY INN PARK CENTER PLAZA; PARK CENTER HOTEL COMPANY
COURT: SUPERIOR COURT OF CALIFORNIA, COUNTY OF SANTA ▇▇▇▇▇
CASE NUMBER CV768996
Date of Service:
10/20/97
Date of Incident:
9/26/96
Hotel Address:
Courtyard by Marriott
▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇.
▇▇▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇▇
▇▇. ▇▇▇▇▇▇▇▇ reported that a headboard fell on his head. The Chief Maintenance
Engineer examined the headboard and noted that the brackets were secure
suggesting the event may not have occurred as described by the Plaintiff. ▇▇.
▇▇▇▇▇▇▇▇ retained legal counsel immediately after the event. The amount the
Plaintiff is seeking is not specified in the Complaint. There will be no cost
to the Company for this event. There is a zero deductible insurance program
through Fireman's Fund Insurance Company for the first 2 million and a $10,000
deductible for the next 50 million of insurance. This is presently being
monitored by the Fraud Unit at Fireman's Fund.
MILES ▇▇▇▇▇▇▇▇ VS. RED ▇▇▇▇▇, ▇▇▇▇▇, INC., DAYS HOTEL, AMERICAN GENERAL CORP,
ABC-XYZ CORPORATION & ▇▇▇▇ ▇▇▇-▇▇▇▇▇▇▇ ▇▇▇ (A SERIES OF FICTITIOUS NAMES)
COURT: SUPERIOR COURT OF NEW JERSEY
LAW DIVISION: ▇▇▇▇▇▇ COUNTY
DOCKET NUMBER : HUD-L-8048-97
Date of Service: 9/30/97
Date of Incident: 10/18/96
The Plaintiff alleges his slip and fall in the restaurant, Red ▇▇▇▇▇ was a
result of not taking certain actions to alleviate the dangerous condition of the
property. The Date of Service was our first notice of this event. It is our
intention to seek a dismissal from this litigation since at the time of the
event Red ▇▇▇▇▇ was operated as a separate business entity which assumed all
responsibility for occurrences within the restaurant area. The
responsible parties for this law suit should be Magic Restaurant, Inc. and Red
▇▇▇▇▇. The Plaintiff Attorney has been advised of such. The amount of damages
the Plaintiff is seeking is no specified in the Complaint. Until dismissed from
this matter Fireman's Fund insurance company will defend and indemnify American
General Hospitality Corporation with the limits noted above. We seek a Voluntary
Discontinuance.
VISTANA DEVELOPMENT, LTD, A FLORIDA LIMITED PARTNERSHIP VS. LAKE BUENA VISTA
PARTNERS, LTD., A FLORIDA LIMITED PARTNERSHIP
COURT: CIRCUIT COURT OF THE NINTH JUDICIAL CIRCUIT IN AND FOR
ORANGE COUNTY, FL
CASE NO. = CI 97-7023
Date of Service: 8/20/97
Date of Incident: 8/20/97
Temporarily prohibited from evicting the Plaintiff from the leased premises. The
Plaintiff wants to remain at the information service desk or booth for the
purpose of providing guests of the Hotel with information on timeshare resort
sales and tours, and all related tourist information, etc. They will remain on
the premises until this matter is resolved. The Plaintiff continues to pay
rent. So, there is no fiscal loss to the Company.
February 3, 1998
▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇, ARM
Director, Risk and Insurance Services
▇▇▇-▇▇▇-▇▇▇▇
SCHEDULE 4.17
Legal Requirements; Zoning; Utilities; Access
None
SCHEDULE 4.18
NAME OF PROPERTY NAME OF MORTGAGE HOLDER OUTSTANDING BALANCE
---------------- ----------------------- -------------------
Radisson-Arlington Heights Farmers Bank $ 8,218,755.05
Holiday Inn Select-DFW South Midland Loan Services $13,674,675.29
Courtyard by Marriott-Secaucus Fleet Bank $ 4,406,056.95
Doubletree-Atlanta First Union $ 9,346,513.06
Crowne Plaza-Portland Bank One Mortgage $ 5,296,995.61
Ramada Plaza-Shelton Bank One Mortgage $ 4,919,417.54
Holiday Inn-▇'▇▇▇▇ International Travelers Insurance Co. $21,756,299.16
LIST OF FRANCHISORS
NAME OF PROPERTY NAME OF FRANCHISOR TERM
▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇, ▇▇ Holiday Inn 10 years
Holiday Inn Select Mission Valley-San Diego, CA Holiday Inn Select 10 years
Hampton Inn-Ocean City, MD Hampton Inn 12 years
Wyndham Hotel-San Jose, CA Wyndham Hotel 12 years
Courtyard by Marriott/Meadowlands Courtyard by Marriott 12 years
Wyndham Albuquerque Hotel-Albuquerque, NM Wyndham Hotel 12 years
Holiday Inn Select New Orleans Airport-Kenner, LA Holiday Inn Select 10 years
Hilton Hotel-Toledo, OH Hilton Hotel 10 years
Hotel Maison de Ville-New Orleans, LA Small Luxury Hotels 12 years
Crowne Plaza Hotel-Madison, WI Crowne Plaza 10 years
Holiday Inn DFW West-Bedford, TX Holiday Inn 10 years
Hampton Inn-Richmond Airport Hampton Inn 12 years
Wyndham Royal Safari LBV-Orlando, FL Wyndham Royal Safari 12 years
Doubletree Guest Suites-Atlanta, GA Doubletree Guest Suites 12 years
Hilton Hotel-Durham, NC Hilton Hotel 12 years
Holiday Inn Select DFW South Holiday Inn Select 10 years
Hilton Hotel-Grand Rapids, MI Hilton Hotel 12 years
Crowne Plaza-Phoenix, AZ Crowne Plaza 10 years
Holiday Inn Resort-Monterey, CA Holiday Inn Resort 10 years
Radisson Hotel-Arlington Heights, IL Radisson Hotel 12 years
Westin Resort-Key Largo, FL Westin Resort 12 years
Wyndham Garden Hotel-Marietta, GA Wyndham Garden Hotel 12 years
Holiday Inn Select-Bucks County, PA Holiday Inn Select 10 years
Radisson Twin Towers-Orlando, FL Radisson 12 years
Marriott West Loop-Houston, TX Marriott 20 years
Hilton Hotel-Cocoa Beach, FL Hilton 12 years
Courtyard by Marriott-Durham, NC Courtyard by Marriott 20 years
Holiday Inn Express-Hanover, MD Holiday Inn Express 10 years
Ramada Old Town-Alexandria, VA Ramada Hotel Old Town 10 years
Holiday Inn-Alexandria, VA Holiday Inn 10 years
Holiday Inn-Annapolis, MD Holiday Inn 10 years
Holiday Inn-▇'▇▇▇▇ International Holiday Inn 10 years
Doubletree Hotel-Tampa, Fl Doubletree 10 years
Holiday Inn-St. Louis, MO Holiday Inn 10 years
Radisson Hotel-Rochester, NY Radisson 10 years
Holiday Inn-Richmond, VA Holiday Inn 10 years
Ramada Inn-Clearwater Beach, FL Ramada Inn 15 years
Courtyard by Marriott-Marina del Rey, CA Courtyard by Marriott 20 years
Courtyard by Marriott-Century City, CA Courtyard by Marriott 20 years
Holiday Inn-Madeira Beach, FL Holiday Inn 10 years
▇▇▇▇▇▇ ▇▇▇▇▇▇▇ Resort-Key Largo, FL ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ 1 year
Holiday Inn-Ft. Lauderdale, FL Holiday Inn 10 years
Courtyard by Marriott-Lake Buena Vista, FL Courtyard by Marriott 20 years
Doubletree Resort-Clearwater Beach, FL Doubletree 10 years
Schedule 4.22
MANAGEMENT AGREEMENTS
1. ▇▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇-▇▇▇ ▇▇▇▇, ▇▇ - Management Agreement between
AGH Leasing, L.P. ("Lessee") and American General Hospitality, Inc.
("Manager"), dated July 31, 1996.
2. Holiday Inn Select Mission Valley-San Diego, CA - Management Agreement
between Lessee and Manager, dated July 31, 1996.
3. Hampton Inn-Ocean City, MD - Management Agreement between Lessee and
Manager, dated July 31, 1996.
4. Wyndham Hotel-San Jose, CA - Management Agreement between Lessee and
Manager, dated July 31, 1996.
5. Courtyard by Marriott/Meadowlands-Secaucus, NJ - Management Agreement
between Lessee and Manager, dated July 31, 1996.
6. Wyndham Albuquerque Hotel-Albuquerque, NM - Management Agreement between
Lessee and Manager, dated July 31, 1996.
7. Holiday Inn Select New Orleans Airport-Kenner, LA - Management Agreement
between Lessee and Manager, dated July 31, 1996.
8. Hilton Hotel-Toledo, OH - Management Agreement between Lessee and Manager,
dated July 31, 1996
9. Hotel Maison de Ville-New Orleans, LA - Management Agreement between Lessee
and Manager, dated July 31, 1996.
10. Crowne Plaza Hotel-Madison, WI - Management Agreement between Lessee and
Manager, dated July 31, 1996.
11. Holiday Inn DFW West-Bedford, TX - Management Agreement between Lessee and
Manager, dated July 31, 1996.
12. Hampton Inn-Richmond Airport - Management Agreement between Lessee and
Manager, dated July 31, 1996.
13. Wyndham Royal Safari Lake Buena Vista, FL - Management Agreement between
Lessee and Manager, dated October 22, 1996.
14. Doubletree Guest Suites-Atlanta, GA - Management Agreement between Lessee
and Manager, dated March 17, 1997.
15. Hilton Hotel-Durham, NC - Management Agreement between Lessee and Manager,
dated January 8, 1997.
16. Holiday Inn Select DFW South - Management Agreement between Lessee and
Manager, dated July 31, 1996.
17. Grand Rapids Hilton Hotel - Management Agreement between Lessee and
Manager, dated April 18, 1997.
18. Crowne Plaza-Phoenix, AZ - Management Agreement between Lessee and
Manager, dated April 1, 1997.
19. Holiday Inn Resort-Monterey, CA - Management Agreement between Lessee and
Manager, dated November 20, 1996.
20. Radisson Hotel-Arlington Heights, IL - Management Agreement between Lessee
and Manager, dated February 28, 1997.
21. Westin Resort-Key Largo - Management Agreement between Lessee and Manager,
dated March 17, 1997.
22. Wyndham Garden Hotel-Marietta, GA - Management Agreement between Lessee
and Wyndham Management Corporation, dated March, 17, 1997.
23. Holiday Inn Select-Bucks County, PA - Management Agreement between Lessee
and Manager, dated June 20, 197.
24. Marriott Hotel West Loop-Houston, TX - Management Agreement between Lessee
and Manager, dated June 25, 1997.
25. Radisson Twin Towers-Orlando, FL - Management Agreement between Lessee and
Manager, dated June 25, 1997.
26. Hilton Hotel-Cocoa Beach, FL - Management Agreement between Lessee and
Manager dated June 27, 1997.
27. Courtyard by Marriott-Durham, NC - Management Agreement between Lessee and
Manager dated November 26, 1997.
28. Holiday Inn Express-Hanover, MD - Management Agreement between Lessee and
Manager dated January 22, 1998.
29. Holiday Inn-Annapolis, MD - Management Agreement between Lessee and
Manager dated January 22, 1998.
30. Ramada Hotel Old Town-Alexandria, VA - Management Agreement between
Lessee and Manager dated January 22, 1998.
31. Holiday Inn Hotel & Suites-Alexandria, VA - Management Agreement between
Lessee and Manager dated January 22, 1998.
32. Holiday Inn-▇'▇▇▇▇ International-Rosemont, IL - Management Agreement
between Lessee and Manager dated February 3, 1998.
33. Doubletree Resort-Clearwater Beach, FL - Management Agreement between
Lessee and Manager dated February 13, 1998.
34. Courtyard by Marriott-Lake Buena Vista, FL - Management Agreement between
Lessee and Manager dated February 13, 1998.
35. Doubletree Hotel-Tampa, FL - Management Agreement between Lessee and
Manager dated February 13, 1998.
36. Courtyard by Marriott-Marina del Rey, CA - Management Agreement between
Lessee and Manager dated February 13, 1998.
37. Holiday Inn-Ft. Lauderdale, FL - Management Agreement between Lessee and
Manager dated February 13, 1998.
38. Ramada Inn-Clearwater Beach, FL - Management Agreement between Lessee and
Manager dated February 13, 1998.
39. Courtyard by Marriott-Century City, CA - Management Agreement between
Lessee and Manager dated February 13, 1998.
40. Holiday Inn-Madeira Beach, FL - Management Agreement between Lessee and
Manager dated February 13, 1998.
41. ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇-Key Largo, FL - Management Agreement between Lessee
and Manager dated February 13, 1998.
42. Holiday Inn-Richmond, VA - Management Agreement between Lessee and Manager
dated February 13, 1998.
43. Holiday Inn-St. Louis, MO - Management Agreement between Lessee and
Manager dated February 13, 1998.
44. Radisson Hotel-▇▇▇▇▇▇▇▇▇, NY - Management Agreement between Lessee and
Manager dated February 13, 1998.
45. Mystic Hotel-Mystic, CT - Management Agreement between Lessee and Manager
dated February 13, 1998.
46. Select Inn-Bloomington, MN - Management Agreement between Lessee and
Manager dated February 13, 1998.
Section 5.05
ESA REQUIRED WORK
----------------------------------------------------------------------------------------------------
AMERICAN GENERAL HOSPITALITY TRUST
----------------------------------------------------------------------------------------------------
ENVIRONMENTAL SITE ASSESSMENT (ESA)
----------------------------------------------------------------------------------------------------
REQUIRED ITEMS
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
FIRM REPORT DATE
----------------------------------------------------------------------------------------------------
PROPERTY NAME LOCATION NAME DATE DESCRIPTION REQ'D
------------- -------- ---- ---- ----------- -----
Wyndham Lake Orlando, FL ATEC 10/21/96 Annual testing and quarterly 5/14/98
----------------------------------------------------------------------------------------------------
Buena Vista reporting on the status of the
----------------------------------------------------------------------------------------------------
nearby Texaco an ▇-▇▇ ▇▇▇.
▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇ ENSR 1/6/98 Semi-annual reporting on 8/13/98
----------------------------------------------------------------------------------------------------
status of ongoing
----------------------------------------------------------------------------------------------------
remediation efforts/site
----------------------------------------------------------------------------------------------------
closure by Ford.
Ramada Inn Clearwater Dames 12/8/97 Provide documentation on 5/14/98
----------------------------------------------------------------------------------------------------
Gulfview Beach, FL & the former on-site UST's
----------------------------------------------------------------------------------------------------
▇▇▇▇▇ removal in November of
----------------------------------------------------------------------------------------------------
1997.
Holiday Inn Madeira Dames 12/15/97 Obtain NFA status for the 5/14/98
----------------------------------------------------------------------------------------------------
Beach, FL & site from the Pinellas
----------------------------------------------------------------------------------------------------
▇▇▇▇▇ County Health
----------------------------------------------------------------------------------------------------
Department.
Lodge at the Mystic, CT Dames 12/5/97 Confirm and provide 5/14/98
----------------------------------------------------------------------------------------------------
Seaport & documentation on the
----------------------------------------------------------------------------------------------------
▇▇▇▇▇ integrity of the two on-site
----------------------------------------------------------------------------------------------------
UST's.
----------------------------------------------------------------------------------------------------
Section 5.06
PCR REQUIRED WORK
----------------------------------------------------------------------------------------------------
AMERICAN GENERAL HOSPITALITY TRUST
----------------------------------------------------------------------------------------------------
PROPERTY CONDITION REVIEW (PCR)
----------------------------------------------------------------------------------------------------
REQUIRED REPAIRS
----------------------------------------------------------------------------------------------------
----------------------------------------------------------------------------------------------------
FIRM REPORT DATE
----------------------------------------------------------------------------------------------------
PROPERTY NAME LOCATION NAME DATE DESCRIPTION REQ'D
------------- -------- ---- ---- ----------- -----
None required
----------------------------------------------------------------------------------------------------
SCHEDULE 5.07
INSURANCE
(a) INSURANCE POLICIES REQUIRED. While any obligation of the Borrower or
---------------------------
any Guarantor under any Credit Document remains outstanding, the Borrower shall
procure and maintain or shall cause to be procured and maintained continuously
in effect policies of insurance in form and amounts and issued by companies,
associations or organizations licensed to do business in the states the Hotel
Properties are located, with a Best's Rating of no less than A, XI and otherwise
satisfactory to the Agents covering such casualties, risks, perils, liabilities
and other hazards required by Agents. All original policies, or certificates
thereof, and endorsements and renewals thereof shall be delivered to and
retained by the Administrative Agent unless the Administrative Agent waives this
requirement in writing. Without limiting the generality of the foregoing, the
Borrower shall provide or cause to be provided the following types of insurance
coverage:
i. until repayment of the Notes and satisfaction of all obligations
under the Credit Documents: (i) property insurance on an "all risks" full
replacement cost basis without deduction for depreciation (or fire,
extended coverage and difference in conditions basis), including flood,
earthquake (for any Hotel Property located in the State of California, or
in any other location that, according to determination by the appropriate
agency of the United States Government, has an above average risk of
seismic activity) and sinkhole coverages in an amount equal to the
replacement cost of the Improvements (except for earthquake insurance which
for each required Hotel Property shall be in an amount which is equal to or
greater than the maximum probable loss determined pursuant to a written
report by a seismic engineer, which report and engineer are acceptable to
the Agents, provided, however, that the aggregate amount of such earthquake
-------- -------
insurance coverage and the deductibles thereunder may be modified at the
request of the Borrower based upon industry standards, subject to approval
of the Agents); (ii) Comprehensive General Liability Insurance (including
contractual liability, owners and contractors protective coverages,
products & completed operations, personal & advertising injury liability,
fire damage legal liability and alienated premises coverage) and
Comprehensive Auto Liability Insurance in a minimum amount of $50,000,000
each occurrence; (iii) Statutory Workers' Compensation and Employer's
Liability Insurance in the minimum amounts of $1,000,000 each accident,
$1,000,000 each employee - disease, $1,000,000 policy limit - disease; and
(iv) Rent loss insurance against loss of income by reason of any hazard
covered under the insurance required under this subparagraph (a) in an
amount sufficient to avoid any co-insurance penalty, but in any event for
not less than two (2) years gross receipts from all sources of income from
the Hotel Property. Each such policy of property insurance shall contain a
replacement cost
endorsement and such other endorsements as are sufficient to prevent the
Borrower, the Agents and/or the Borrower's Subsidiaries from becoming a co-
insurer with respect to such buildings and improvements.
ii. During the renovation or expansion of any Hotel Property the
Borrower will additionally provide: (i) Builder's Risk Insurance on an "all
risks" basis including flood, earthquake (if required pursuant to the
provisions of and in the amount stated in clause (a)) and sinkhole
coverages, and also including Stored Materials and materials while in
transit, and (ii) Statutory Workers' Compensation and Employer's Liability
Insurance in the minimum amounts of $1,000,000 each accident, $1,000,000
each employee - disease, $1,000,000 policy limit - disease, covering each
contractor and all other contractors or subcontractors who may have
occasion to be at the job site.
iii Such additional insurance as may be reasonably required by the
Administrative Agent from time to time in the event that any Hotel Property
is exposed to hazards and risks with respect to which the Administrative
Agent deems the existing insurance inadequate to properly protect its
interests.
All policies of liability insurance shall name the Agents, the Banks and
their respective directors, officers, representatives, agents and employees (the
"Banks' Parties") as additional insureds. The Borrower shall furnish the
Administrative Agent with a certified copy of an original or a certificate of
insurance of all policies of insurance required. All policies or certificates,
as the case may be, of insurance shall set forth the coverage, the limits of
liability, the name of the carrier, the policy number, the Best's Rating of the
carrier and the period of coverage. In addition, all policies of insurance
required under the terms hereof shall contain an endorsement or agreement by the
insurer that any loss shall be payable in accordance with the terms of such
policy notwithstanding any act or negligence of the Borrower, the Participating
Lessee, the Manager or any party holding under any such Person which might
otherwise result in a forfeiture of said insurance and the further agreement of
the insurer waiving all rights of setoff, counterclaim or deductions against the
Borrower. At least 15 days prior to the expiration of each required policy, the
Borrower shall deliver to the Administrative Agent evidence of the renewal or
replacement of such policy, continuing such insurance in the form as required by
this Agreement. All such policies shall contain a provision that notwithstanding
any contrary agreement between the Borrower and the applicable insurance
company, such policies will not be canceled, allowed to lapse without renewal,
surrendered or amended (which provision shall include any reduction in the scope
or limits of coverage) without at least 15 days' prior written notice to the
Administrative Agent.
-2-
SENIOR UNSECURED CREDIT AGREEMENT
SCHEDULE 10.02
Notices
-------
DOMESTIC LENDING OFFICE LIBOR LENDING OFFICE
----------------------- --------------------
SOCIETE GENERALE, SOUTHWEST AGENCY SOCIETE GENERALE, SOUTHWEST
AGENCY
4900 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center 4900 ▇▇▇▇▇▇▇▇ ▇▇▇▇ Center
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. Day Attn: ▇▇. ▇▇▇▇▇▇ ▇. Day
Vice President Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANK ▇▇▇, ▇▇▇▇▇, ▇.▇. ▇▇▇▇ ▇▇▇, ▇▇▇▇▇, N.A.
▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: Commercial Real Estate Attn: Commercial Real Estate
Department Department
▇▇. ▇▇▇▇ ▇▇▇▇▇ ▇▇. ▇▇▇▇ ▇▇▇▇▇
Vice President Vice President
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST NATIONAL BANK OF COMMERCE FIRST NATIONAL BANK OF COMMERCE
▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ Floor ▇▇▇ ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇
▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Relationship Manager Relationship Manager
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇
▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ 94119 ▇▇▇ ▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
▇▇▇▇▇ FARGO BANK, NATIONAL ▇▇▇▇▇ FARGO BANK, NATIONAL
ASSOCIATION ASSOCIATION
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇. ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇ Attn: ▇▇▇▇ ▇▇▇▇▇▇/▇▇▇▇▇
▇▇▇-Izumi
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: ▇▇▇ ▇▇▇▇▇▇: (310)
335-9472
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ ▇▇▇▇▇ ▇▇▇-Izumi:
(▇▇▇)▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANKERS TRUST COMPANY BANKERS TRUST COMPANY
▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇▇
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇▇ ▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
FIRST AMERICAN BANK, S.S.B. FIRST AMERICAN BANK TEXAS, S.S.B.
▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇▇▇
▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇ ▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇▇▇▇ ▇▇▇▇ Attn: ▇▇▇▇▇ ▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-2-
AMSOUTH BANK AMSOUTH BANK
▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇ Sonat Tower AmSouth Sonat Tower
▇▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III Attn: ▇▇. ▇▇▇▇▇▇ ▇. ▇▇▇▇▇▇▇, III
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
BANKBOSTON, N.A. BANKBOSTON, N.A.
115 Perimeter Center Northeast, 115 Perimeter Center Northeast,
Suite 500 Suite 500
Atlanta, Georgia 30346 ▇▇▇▇▇▇▇, ▇▇▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
NATIONSBANK OF TEXAS, N.A. NATIONSBANK OF TEXAS, N.A.
▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, 51st Floor ▇▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇ ▇▇▇▇▇▇ & ▇▇▇▇
▇. ▇▇▇▇, III ▇. ▇▇▇▇, III
Real Estate Administration Officer Real Estate Administration
Officer
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
DRESDNER BANK, AG, NEW YORK DRESDNER BANK, AG, NEW YORK
BRANCH AND GRAND CAYMAN BRANCH AND GRAND CAYMAN
BRANCH BRANCH
▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇ ▇▇ ▇▇▇▇ ▇▇▇▇▇▇, ▇▇▇▇ ▇▇▇▇▇
▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇ ▇▇▇ ▇▇▇▇, ▇▇ ▇▇▇▇▇
Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇ Attn: ▇▇. ▇▇▇▇▇▇▇ ▇▇▇▇▇
Telephone: (▇▇▇) ▇▇▇-▇▇▇▇ Telephone: (▇▇▇) ▇▇▇-▇▇▇▇
Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇ Telecopy: (▇▇▇) ▇▇▇-▇▇▇▇
-3-