AND WAIVER AGREEMENT
(a) | The Agent shall have received each of the following, in form and substance satisfactory to the Agent: |
(i) | counterparts of this Agreement duly executed by the Loan Parties, the Agent and Lenders which constitute Requisite Lenders; |
(ii) | for each Lender, a promissory note in the principal amount equal to such Lender’s Commitment Percentage of the Tranche A Commitment, executed by the Borrower and complying with the applicable requirements of Section 2.11. of the Credit Agreement, which note, together with the Tranche B Note in favor of such Lender shall amend and restate the promissory note of the Borrower delivered in connection with the Existing Credit Agreement; |
(iii) | for each Lender, a promissory note in the principal amount equal to such Lender’s Commitment Percentage of the Tranche A Commitment, executed by the Florida Borrower and complying with the applicable requirements of Section 2.11. of the Credit Agreement, which note shall amend and restate the promissory note of the Florida Borrower delivered in connection with the Existing Credit Agreement; |
(iv) | for each Lender, a promissory note in the principal amount of such Lender’s Commitment Percentage of the Tranche B Commitment, executed by the Tranche B Borrowers and complying with the applicable provisions of Section 2.11. of the Credit Agreement, which note, together with the Tranche A Borrower Note in favor of such Lender, shall amend and restate the promissory note of the Borrower delivered in connection with the Existing Credit Agreement; |
(v) | the Reaffirmation of Guaranty executed by the Loan Parties as of the Effective Date, which shall reaffirm and restate the guaranty delivered in connection with the Existing Credit Agreement; |
(vi) | an opinion or opinions of counsel to the Loan Parties, addressed to the Agent and the Lenders, addressing such matters as the Agent may reasonably require; |
(vii) | the articles of incorporation, articles of organization, certificate of limited partnership or other comparable organizational instrument (if any) of each Loan Party certified as of a recent date by the Secretary of State of the state of formation of such Loan Party; |
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(viii) | a certificate of good standing or certificate of similar meaning with respect to each Loan Party issued as of a recent date by the Secretary of State of the state of formation of each such Loan Party and certificates of qualification to transact business or other comparable certificates issued by each Secretary of State (or any state department of taxation, as applicable) of each state in which such Loan Party is required to be so qualified and where the failure to be so qualified could reasonably be expected to have a Material Adverse Effect; |
(ix) | a certificate of incumbency signed by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party with respect to each of the officers of such Loan Party authorized to execute and deliver this Agreement and the Loan Documents to which such Loan Party is a party, and in the case of the Borrower, the officers of the Borrower then authorized to deliver Notices of Revolving Borrowings, Notices of Borrowings, Notices of Continuation and Notices of Conversion and to request the issuance of Letters of Credit; |
(x) | copies certified by the Secretary or Assistant Secretary (or other individual performing similar functions) of each Loan Party of (i) the by-laws of such Loan Party, if a corporation, the operating agreement of such Loan Party, if a limited liability company, the partnership agreement of such Loan Party, if a limited or general partnership, or other comparable document in the case of any other form of legal entity and (ii) all corporate, partnership, member or other necessary action taken by such Loan Party to authorize the execution, delivery and performance of this Agreement and the Loan Documents to which it is a party that are executed in connection herewith; |
(xi) | a Borrowing Base Certificate calculated as of the Fifth Amendment Effective Date; |
(xii) | a Compliance Certificate calculated as of June 30, 2009 (giving pro forma effect to the financing contemplated by this Agreement and the use of the proceeds of the Loans to be funded on the Fifth Amendment Effective Date as if the reduction of Commitments and the repayment and restructuring of outstanding Loans on the Fifth Amendment Effective Date pursuant to this Agreement had occurred on June 30, 2009); |
(xiii) | a capital budget for each Property as required by Section 10.11.(b) of the Credit Agreement; |
(xiv) | the NY Mortgage duly executed by the NY Borrowers and recorded in the applicable land records, securing only the Obligations (including principal, interest and Reimbursement Obligations) with respect to the Tranche B Loans and Tranche B Letter of Credit Liabilities, together with evidence that all applicable mortgage recording taxes, stamp taxes, intangible taxes and other applicable taxes required for the recordation and/or enforcement of the NY Mortgage and the Obligations secured thereby have been paid; |
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(xv) | a standard ALTA lender’s policy of title insurance in the amount of Tranche B Commitment, insuring that the lien of the NY Mortgage constitutes a first lien on the NY Properties subject only to (A) the existing $1.4 million mortgages on the respective NY Properties (each, an “Existing Mortgage”), which Existing Mortgage and related note has previously been assigned to the Agent, and (B) the matters of record as of the date of the recordation of the Existing Mortgage (to the extent the Agent previously approved such matters), together with a pending disbursements endorsement and such other endorsements as the Agent may require; |
(xvi) | appraisals for the NY Properties complying with the standards for Appraisals provided in the Credit Agreement, setting forth Appraised Values acceptable to the Agent, and otherwise in form and substance acceptable to the Agent, in the Agent’s sole discretion; |
(xvii) | an amendment to the mortgage encumbering the Florida Property, which currently secures the “Florida Sublimit” under the Existing Credit Agreement, amending such mortgage to provide that it secures the Tranche A Loans as well as the obligations of the Florida Borrower under the Guaranty, executed by the Florida Borrower and recorded in the applicable land records, together with evidence that all applicable mortgage recording taxes, stamp taxes, intangible taxes and other applicable taxes required for the recordation and/or enforcement of such mortgage as so amended have been paid; |
(xviii) | such other Security Documents and amendments to Security Documents as the Agent may reasonably request to perfect or continue the perfection of the Agent’s security interest in all Collateral in connection with the transactions contemplated by this Agreement. |
(b) | The Agent and Wells Fargo Securities, LLC (“Wells Fargo Securities”) shall have received all fees as required by the letter agreement (the “Fee Letter”) dated July 14, 2009 between the Borrower and Wells Fargo Securities; |
(c) | The Agent and its Affiliates shall have received reimbursement from the Borrower of all reasonable expenses of the Agent and its Affiliates, as required by this Agreement and the Credit Agreement; |
(d) | The Agent shall have received, for the benefit of each Lender that has executed and delivered this Agreement, an amendment fee equal to 0.50% of such Lender’s Commitments, after giving effect to the reduction of the Commitments on the effective date hereof, as contemplated by this Agreement; |
(e) | All fees, charges and disbursements of counsel to the Agent (including any local counsel) incurred in connection with the Loan Documents or the execution and delivery of this Agreement, to the extent invoiced prior to or on the date hereof, plus such additional amounts of such fees, charges and disbursements as shall constitute such counsel’s reasonable estimate of such fees, charges and disbursements incurred or to be incurred by it through the closing of this Agreement (provided that such estimate shall not thereafter preclude a final settling of such fees, charges and disbursements) shall have been paid in full; |
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(f) | The Borrower shall have made, or caused to be made, a principal payment on the Revolving Credit Facility in such amount as may be required so that the aggregate principal amount of all outstanding Loans converted into Tranche A Loans and Tranche B Loans plus the aggregate amount of all Letter of Credit Liabilities converted into Tranche A Letter of Credit Liabilities on the date hereof shall not exceed $35,000,000; |
(g) | No Default or Event of Default shall be existing, and all representations and warranties provided in this Agreement shall be true and correct in all material respects; |
(h) | All outstanding Swing Line Loans (as defined in the Existing Credit Agreement) shall have been indefeasibly repaid in full; and |
(i) | The Agent shall have received such other documents, instruments or certificates, and the Loan Parties shall have performed such other undertakings and provided such further assurances, as the Agent may deem necessary or desirable to consummate the transactions contemplated by this Agreement. |
2. | Acknowledgment of Existing Obligations under the Loan Documents. Each of the Loan Parties hereby confirms, ratifies and acknowledges the enforceability of the Loan Documents to which it is a party and its liability for all Obligations arising under each of the Loan Documents executed by such Loan Party (including without limitation the continuation of such Loan Party’s payment and performance obligations thereunder and grants of security interests or liens provided therein, in each case upon and after the effectiveness of this Agreement and the amendments contemplated hereby). | |
3. | Waiver of Certain Defaults under Existing Credit Agreement. |
(a) | To the extent that a Default or Event of Default existed for failure to comply, as of June 30, 2009, with Section 10.11.(a) (the maximum leverage ratio covenant) as in effect prior to this Agreement, the Lenders party to this Agreement hereby waive such Default and Event of Default. |
(b) | To the extent that a Default or Event of Default existed for failure to comply, for the period of four fiscal quarters ended June 30, 2009, withSection 10.11.(b) (the minimum fixed charge coverage ratio covenant) as in effect prior to this Agreement, the Lenders party to this Agreement hereby waive such Default and Event of Default. (The waivers set forth in clauses (a) and (b) of thisSection 3 are referred to collectively as the “Waiver.”) |
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The Waiver is granted only for the specific instances described herein and in no manner creates a course of dealing or otherwise impairs the future ability of the Agent or the Lenders to declare a Default or Event of Default under, or otherwise enforce the terms of, the Credit Agreement with respect to any other matters or with respect to any violation ofSection 10.11. occurring at any time after the date hereof or with respect to any fiscal period ended after June 30, 2009. | ||
4. | Amendments to Existing Credit Agreement. Subject to the terms and conditions set forth herein, the Existing Credit Agreement is hereby amended so that, as amended, it shall read as set forth in, and shall have the terms, covenants, conditions and other provisions of, the Consolidated Form Credit Agreement, the terms, covenants, conditions and other provisions of which Consolidated Form Credit Agreement are hereby incorporated by reference into this Agreement as if fully set forth herein. The parties hereto acknowledge and agree that each amendment to the Existing Credit Agreement reflected in the Consolidated Form Credit Agreement is and shall be effective as if individually specified in this Agreement (the parties further acknowledging that amending the Existing Credit Agreement by reference to the Consolidated Form Credit Agreement provides a convenience to the parties to permit the amended terms to be read in the context of the full Existing Credit Agreement), and that this Agreement isnot a novation of the Existing Credit Agreement or of any credit facility provided thereunder or in respect thereof. The signature pages contained in the Consolidated Form Credit Agreement and the Schedules and Exhibits may be left off;provided that, (i)Exhibit B,Exhibit C,Exhibit D,Exhibit E,Exhibit F-1,Exhibit F-2,Exhibit G,Exhibit H,Exhibit I,Exhibit R,Exhibit S andExhibit T which are attached to the Consolidated Form Credit Agreement, shall constitute an amendment and restatement of each such exhibit as is attached to the Existing Credit Agreement, (ii)Schedule 1.1.(B),Schedule 7.1.(b),Schedule 7.1.(d),Schedule 7.1.(f),Schedule 7.1.(g),Schedule 7.1.(h) andSchedule 7.1.(i)which are attached to the Consolidated Form Credit Agreement, shall be amended and restated as set forth therein as of the Fifth Amendment Effective Date, and (iii)Schedule 2.1.,Schedule 2.3.Schedule 7.1.(y),Schedule 10.1.(a),Schedule 10.2.(xiii),Schedule 10.4.(n) andSchedule 10.11.(b) which are attached to the Consolidated Form Credit Agreement, shall be added to the Existing Credit Agreement as set forth therein as of the Fifth Amendment Effective Date. Notwithstanding that the cover page of the Consolidated Form Credit Agreement is dated “as of October 6, 2006”, the changes to the Existing Credit Agreement affected by this Agreement shall be effective as of the satisfaction to the conditions to effectiveness of this Agreement set forth in Section 1 hereof. | |
5. | Consent to Amendments to Certain Operating Agreements. The Agent and the Lenders signatory to this Agreement hereby consent to the amendment of the Operating Agreement of each of the New York Borrowers, the Florida Borrower, Morgans/Delano Pledgor LLC, Madison Bar Company LLC, Royalton Pledgor LLC and 43rd Restaurant LLC, so that after giving effect to such amendment, each such Operating Agreement shall be in the respective forms attached hereto as Exhibit B-1, B-2, B-3, B-4, B-5, B-6 or B-7, as applicable. |
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6. | Representations and Warranties. In order to induce the Agent and the Lenders signatory hereto to enter into this Agreement, each Loan Party represents and warrants to the Agent and the Lenders as follows: |
(a) | Authorization. Each of the Borrowers, Holdings and each other Loan Party has the right and power, and has taken all necessary action to authorize it, to execute and deliver this Agreement and the other documents and amendments to Loan Documents executed in connection herewith (collectively with this Agreement, the “Amendment and Waiver Documents”) and to perform its obligations under the Amendment and Waiver Documents, in accordance with their respective terms. This Agreement and the other Amendment and Waiver Documents have been duly executed and delivered by a duly authorized officer of each of the Loan Parties that is a party thereto, and each of the Amendment and Waiver Documents is a legal, valid and binding obligation of each of the Loan Parties that is a party thereto, enforceable against each such Person in accordance with its respective terms except as the same may be limited by bankruptcy, insolvency, and other similar laws affecting the rights of creditors generally and the availability of equitable remedies for the enforcement of certain obligations (other than the payment of principal) contained herein or therein and as may be limited by equitable principles generally. |
(b) | Compliance with Laws, etc. The execution and delivery by each of the Loan Parties of the Amendment and Waiver Documents to which it is a party and the performance by each such Loan Party of such Amendment and Waiver Documents, in accordance with their respective terms, do not and will not, by the passage of time, the giving of notice or otherwise: (i) require any Government Approvals or violate any Applicable Laws relating to such Loan Party; (ii) conflict with, result in a breach of or constitute a default under such Loan Party’s organizational documents or any indenture, agreement or other instrument to which such Loan Party is a party or by which it or any of its properties may be bound; or (iii) result in or require the creation or imposition of any Lien upon or with respect to any property now owned or hereafter acquired by such Loan Party other than Permitted Liens. |
(c) | Guarantors. The Persons appearing as Guarantors on the signature pages to this Agreement constitute all Persons who are required to be Guarantors pursuant to the terms of the Credit Agreement and the other Loan Documents, including without limitation all Persons who became Subsidiaries or were otherwise required to become Guarantors after the Closing Date, and each of such Persons has become and remains a party to a Guaranty as a Guarantor; |
(d) | No Default. No Default or Event of Default has occurred and is continuing as of the date hereof nor will exist immediately after giving effect to this Agreement. |
(e) | Claims and Defenses. No Loan Party has any claims, counterclaims, rights of setoff or defenses with respect to this Agreement or the Loan Documents, to any of its Obligations, or to the Agent’s exercise of any right or remedy available to it under the terms of the Loan Documents, this Agreement or applicable law. |
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(f) | Representations and Warranties in Loan Documents. All of the representations and warranties of the Loan Parties set forth in the Credit Agreement and the other Loan Documents are true and correct as of the date hereof in all material respects with the same force and effect as if such representations and warranties were set forth in this Agreement in full, except to the extent that such representations and warranties expressly relate solely to an earlier specified date (in which case such representations and warranties are true and correct in all material respects on and as of such earlier date). |
7. | Post-Closing Covenants. The Loan Parties hereby agree that from and after the Fifth Amendment Effective Date, they shall use commercially reasonable efforts to deliver, or cause to be delivered to the Agent, on or before September 4, 2009, (a) a fully-executed subordination and attornment agreement in substantially the same form as set forth on Exhibit C attached hereto between Base USA, Inc. as tenant and the Florida Borrower as landlord, (b) fully-executed subordination, non-disturbance and attornment agreements in substantially the same form as set forth on Exhibit D attached hereto between each of (i) SC Collins LLC as tenant and the Florida Borrower as landlord and (ii) SC Madison LLC as tenant and Morgans Holdings LLC as landlord and (c) executed tenant estoppel certificates in substantially the same form as set forth on Exhibit E attached hereto for each of (i) Base USA, Inc. as tenant under a lease with the Florida Borrower as landlord, (ii) SC Collins LLC as tenant under a lease with the Florida Borrower as landlord and (iii) SC Madison LLC as tenant under a lease with Morgans Holdings LLC as landlord. | |
8. | Acknowledgements and Agreements. In order to induce the Agent and the Lenders signatory hereto to enter into this Agreement, each Loan Party acknowledges and agrees with the Agent and the Lenders as follows: |
(a) | No Waiver of Defaults. Neither the Agent nor any Lender has waived any Defaults which may occur in the future, or any of its rights to payment of the Loans or any Loan Party’s performance of the Obligations as set forth in any Loan Document, as amended by this Agreement, or otherwise with respect to any Loan, Letter of Credit, Treasury Management Services Agreement or Swap Agreement; and nothing herein shall be construed as any such waiver. |
(b) | Reliance by Agent and Lenders. All of the Loan Parties’ agreements, acknowledgments, warranties and representations contained in this Agreement are material to willingness of the Agent and each Lender signatory hereto to enter into this Agreement. |
9. | Full Force and Effect of Credit Agreement. Except as hereby specifically amended, modified or supplemented, each party hereto hereby acknowledges and agrees that the Existing Credit Agreement and all of the other Loan Documents are hereby confirmed and ratified in all respects and shall remain in full force and effect according to their respective terms. |
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10. | Counterparts.This Agreement may be executed in one or more counterparts, each of which shall be deemed an original but all of which together shall constitute one and the same instrument. Delivery of an executed counterpart of a signature page of this Agreement by telecopy or electronic format (including .pdf) shall be effective as delivery of a manually executed original counterpart of this Agreement. |
11. | Entire Agreement. This Agreement, together with all other Amendment and Waiver Documents, the Fee Letter and all the Loan Documents (collectively, the “Relevant Documents”), sets forth the entire understanding and agreement of the parties hereto in relation to the subject matter hereof and supersedes any prior negotiations and agreements among the parties relating to such subject matter. No promise, condition, representation or warranty, express or implied, not set forth in the Relevant Documents shall bind any party hereto, and no such party has relied on any such promise, condition, representation or warranty. Each of the parties hereto acknowledges that, except as otherwise expressly stated in the Relevant Documents, no representations, warranties or commitments, express or implied, have been made by any party to the other in relation to the subject matter hereof or thereof. None of the terms or conditions of this Agreement may be changed, modified, waived or canceled orally or otherwise, except in writing in accordance withSection 13.6. of the Credit Agreement. |
12. | Governing Law. This Agreement shall in all respects be governed by, and construed in accordance with, the laws of the State of New York, and shall be further subject to the provisions ofSections 13.4. of the Credit Agreement. |
13. | Enforceability. Should any one or more of the provisions of this Agreement be determined to be illegal or unenforceable as to one or more of the parties hereto, all other provisions nevertheless shall remain effective and binding on the parties hereto. |
14. | Successors and Assigns. This Agreement shall be binding upon and inure to the benefit of the Agent, each of the Lenders, and each of the Borrowers and Loan Parties and their respective successors, legal representatives, and assignees to the extent such assignees are permitted assignees as provided inSection 13.5. of the Credit Agreement. |
15. | Expenses. Without limiting the provisions ofSection 13.2. of the Credit Agreement, the Company and each Borrower agree to pay all reasonable out of pocket costs and expenses (including without limitation reasonable legal fees and expenses) incurred before, on or after the date hereof by the Agent and its Affiliates in connection with the preparation, negotiation, execution, delivery and administration of this Agreement. |
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16. | Waiver of Defenses. As an inducement to the Agent or any Lender to enter into this Agreement, each Loan Party waives and affirmatively agrees not to allege, assert or otherwise pursue any claim, defense, affirmative defense, counterclaim, cause of action, setoff or other right that they may have, as of the date hereof, against the Agent, any sub-agent thereof, Wells Fargo Securities, Citigroup Global Markets, any Lender, whether known or unknown, including but not limited to any contest of (i) the enforceability, applicability or validity of any provisions of the Loan Documents, or the enforcement or validity of the terms and provisions set forth herein, (ii) the Agent’s security interest and lien (for the benefit of the Lenders) in all Collateral and all rents, issues, profits, products and proceeds from the Collateral, (iii) the existence, validity, enforceability or perfection of security interests and liens granted to the Agent (for the benefit of the Lenders) in the Loan Documents in any of the Collateral, whether tangible or intangible property, or any right or other interest, now or hereafter arising, (iv) the conduct of the Agent or any Lender, in administering the financial arrangements between any Borrower or any other Loan Party and any Lender or (v) any legal fees and expenses incurred by the Agent or any Lender and charged to any Borrower or any other Loan Party under this Agreement or any Loan Document in connection with enforcing the Agent’s or any Lender’s rights hereunder or under any Loan Document. | |
17. | General Release. As an inducement to the Agent and the Lenders signatory hereto to enter into this Agreement, and for other good and valuable consideration, the receipt and sufficiency of which are hereby acknowledged, each of the undersigned Loan Parties (collectively, the “Releasors”) for: (i) themselves, (ii) any parent, affiliate or subsidiary thereof, (iii) any partnership or joint venture of which any person or entity comprising any of the Releasors (or any parent, affiliate or subsidiary thereof) is a partner, (iv) any person or entity owning the beneficial interest in the trust, any parent, affiliate or subsidiary thereof or any partnership or joint venture of which such person or entity (or any parent, affiliate or subsidiary thereof), is a partner, and (v) the respective partners, officers, directors, shareholders, heirs, legal representatives, legatees, successors and assigns of all of the foregoing persons and entities, hereby release and forever discharge the Agent, any sub-agent, Wells Fargo Securities, Citigroup Global Markets, and each Lender (whether or not signatory hereto), and each of their respective past, present and future shareholders, successors, assigns, officers, directors, agents, attorneys, advisors and employees, together with the respective heirs, legal representatives, legatees, successors, and assigns of any of the foregoing Persons, of and from all actions, claims, demands, damages, debts, losses, liabilities, indebtedness, causes of action either at law or in equity and obligations of whatever kind or nature, whether known or unknown, direct or indirect, new or existing, by reason of any matter, cause or thing whatsoever from the beginning of the world to the date of this Agreement, including without limitation any such action, claim, demand, damage, debt, loss, liability, indebtedness, cause of action or obligation arising out of or relating to (a) any Loan Document, or (b) any transaction contemplated by, or any action of any Person pursuant to, in connection with or relating to any Loan Document, including without limitation, any claims asserted or which could have been asserted as of the date hereof by the Releasors in connection with any Loan to or Letter of Credit for the account of any Borrower or any of its Subsidiaries. |
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MORGANS GROUP LLC | ||||||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||||||
By: | /s/ Richard Szymanski | |||||||||
Title: Chief Financial Officer and Secretary | ||||||||||
BEACH HOTEL ASSOCIATES LLC | ||||||||||
By: Morgans Group LLC, its Managing Member | ||||||||||
�� | By: Morgans Hotel Group Co., its Managing Member | |||||||||
By: | /s/ Richard Szymanski | |||||||||
Title: Chief Financial Officer and Secretary | ||||||||||
ROYALTON LLC | ||||||||||
By: Morgans Group LLC, its Managing Member | ||||||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||||||
By: | /s/ Richard Szymanski | |||||||||
Title: Chief Financial Officer and Secretary | ||||||||||
MORGANS HOLDINGS LLC | ||||||||||
By: Morgans Group LLC, its Managing Member | ||||||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||||||
By: | /s/ Richard Szymanski | |||||||||
Title: Chief Financial Officer and Secretary | ||||||||||
MORGANS HOTEL GROUP CO. | ||||||||||
By: | /s/ Richard Szymanski | |||||||||
Name: Richard Szymanski | ||||||||||
Title: Chief Financial Officer and Secretary |
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
THE GUARANTORS: | ||||||
MORGANS HOTEL GROUP CO. | ||||||
MORGANS HOTEL GROUP MANAGEMENT LLC | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
BEACH HOTEL ASSOCIATES LLC | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
MORGANS HOLDINGS LLC | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
ROYALTON, LLC | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
MORGANS/DELANO PLEDGOR LLC | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
ROYALTON PLEDGOR LLC | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
43rd RESTAURANT LLC | ||||||
By: Royalton Pledgor LLC, its Managing Member | ||||||
By: Morgans Group, LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
MADISON BAR COMPANY LLC | ||||||
By: Morgans/Delano Pledgor LLC, its Managing Member | ||||||
By: Morgans Group LLC, its Managing Member | ||||||
By: Morgans Hotel Group Co., its Managing Member | ||||||
By: | /s/ Richard Szymanski | |||||
Title: Chief Financial Officer and Secretary |
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
WACHOVIA BANK, NATIONAL ASSOCIATION, as Agent and as a Lender | ||||
By: | /s/ Mark Cagley | |||
Name: | Mark Cagley | |||
Title: | Managing Director | |||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
CITICORP NORTH AMERICA, INC. | ||||
By: | /s/ Daniel Gouger | |||
Name: | Daniel Gouger | |||
Title: | Vice President | |||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
AAREAL CAPITAL CORPORATION | ||||
By: | /s/ Dagmar Knoper | |||
Name: | Dagmar Knoper | |||
Title: | Senior Managing Director | |||
By: | /s/ Daniel de Roo | |||
Name: | Daniel de Roo | |||
Title: | Director | |||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
MERRILL LYNCH CAPITAL CORPORATION | ||||
By: | /s/ Christopher DiBiase | |||
Name: | Christopher DiBiase | |||
Title: | Vice President | |||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
ALLIED IRISH BANKS, P.L.C. | ||||
By: | ||||
Name: | ||||
Title: | ||||
By: | ||||
Name: | ||||
Title: | ||||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
KBC BANK, NV | ||||
By: | /s/ Nicholas A. Philippides | |||
Name: | Nicholas A. Philippides | |||
Title: | Assistant Vice President | |||
By: | /s/ Sandra T. Johnson | |||
Name: | Sandra T. Johnson | |||
Title: | Managing Director | |||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
MIDFIRST BANK | ||||
By: | /s/ Darrin Rigler | |||
Name: | Darrin Rigler | |||
Title: | Vice President | |||
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
Consolidated Form Credit Agreement
as Borrower,
as Florida Borrower,
as NY Morgans Borrower,
as NY Royalton Borrower,
Holdings,
(successor in interest to Wachovia Capital Markets, LLC)
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers
and
Joint Book Runners,
as Administrative Agent,
as Syndication Agent,
AND THEIR ASSIGNEES PURSUANT TO SECTION 13.5,
as Lenders
Page | ||||
ARTICLE. I DEFINITIONS | 1 | |||
Section 1.1 Definitions | 1 | |||
Section 1.2 General; References to Times | 25 | |||
Section 1.3 Financial Attributes of Non-Wholly Owned Subsidiaries | 26 | |||
Section 1.4 Pro Forma Calculations | 26 | |||
Section 1.5 Co-Borrowers Representative | 26 | |||
Section 1.6 Joint and Several Obligations | 27 | |||
ARTICLE. II CREDIT FACILITY | 27 | |||
Section 2.1 Tranche A Loans | 27 | |||
Section 2.2 INTENTIONALLY OMITTED | 28 | |||
Section 2.3 Tranche B Loans | 28 | |||
Section 2.4 Letters of Credit | 30 | |||
Section 2.5 Rates and Payment of Interest on Loans | 35 | |||
Section 2.6 Number of Interest Periods | 36 | |||
Section 2.7 Repayment of Loans | 36 | |||
Section 2.8 Prepayments | 36 | |||
Section 2.9 Continuation | 38 | |||
Section 2.10 Conversion | 39 | |||
Section 2.11 Notes | 39 | |||
Section 2.12 Voluntary Reductions of the Commitment | 40 | |||
Section 2.13 Expiration or Maturity Date of Letters of Credit Past Termination Date | 40 | |||
Section 2.14 Amount Limitations | 41 | |||
ARTICLE. III PAYMENTS, FEES AND OTHER GENERAL PROVISIONS | 41 | |||
Section 3.1 Payments | 41 | |||
Section 3.2 Pro Rata Treatment | 42 | |||
Section 3.3 Pro Rata Treatment of Tranche B | 42 | |||
Section 3.4 Sharing of Payments, Etc. | 43 | |||
Section 3.5 Lockbox Account | 43 | |||
Section 3.6 Several Obligations | 45 |
-i-
(continued)
Page | ||||
Section 3.7 Minimum Amounts | 45 | |||
Section 3.8 Fees | 45 | |||
Section 3.9 Computations | 46 | |||
Section 3.10 Usury | 47 | |||
Section 3.11 Agreement Regarding Interest and Charges | 47 | |||
Section 3.12 Statements of Account | 47 | |||
Section 3.13 Defaulting Lenders | 48 | |||
Section 3.14 Taxes | 50 | |||
ARTICLE. IV COLLATERAL PROPERTIES | 51 | |||
Section 4.1 INTENTIONALLY OMITTED | 51 | |||
Section 4.2 INTENTIONALLY OMITTED | 51 | |||
Section 4.3 Frequency of Calculations of Borrowing Base | 52 | |||
Section 4.4 Frequency of Appraisals | 52 | |||
Section 4.5 Additional Appraisals Required under Applicable Law | 53 | |||
ARTICLE. V YIELD PROTECTION, ETC. | 53 | |||
Section 5.1 Additional Costs; Capital Adequacy | 53 | |||
Section 5.2 Suspension of LIBOR Loans | 54 | |||
Section 5.3 Illegality | 55 | |||
Section 5.4 Compensation | 55 | |||
Section 5.5 Treatment of Affected Loans | 56 | |||
Section 5.6 Change of Lending Office | 56 | |||
Section 5.7 Assumptions Concerning Funding of LIBOR Loans | 56 | |||
ARTICLE. VI CONDITIONS PRECEDENT | 57 | |||
Section 6.1 Initial Conditions Precedent | 57 | |||
Section 6.2 Conditions Precedent to All Loans and Letters of Credit | 59 | |||
Section 6.3 Additional Conditions Precedent to Tranche B Loans and Tranche B Letters of Credit | 60 | |||
ARTICLE. VII REPRESENTATIONS AND WARRANTIES | 60 | |||
Section 7.1 Representations and Warranties | 60 | |||
Section 7.2 Survival of Representations and Warranties, Etc. | 66 |
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(continued)
Page | ||||
ARTICLE. VIII AFFIRMATIVE COVENANTS | 66 | |||
Section 8.1 Preservation of Existence and Similar Matters | 66 | |||
Section 8.2 Compliance with Applicable Law and Material Contracts | 66 | |||
Section 8.3 Maintenance of Property | 67 | |||
Section 8.4 Insurance | 67 | |||
Section 8.5 Payment of Taxes and Claims | 67 | |||
Section 8.6 Visits and Inspections | 68 | |||
Section 8.7 Use of Proceeds; Letters of Credit | 68 | |||
Section 8.8 Environmental Matters | 68 | |||
Section 8.9 Books and Records | 69 | |||
Section 8.10 Further Assurances | 69 | |||
Section 8.11 New Subsidiaries/Guarantors; Release of Guarantors | 69 | |||
Section 8.12 Exchange Listing | 70 | |||
ARTICLE. IX INFORMATION | 70 | |||
Section 9.1 Quarterly Financial Statements | 70 | |||
Section 9.2 Year-End Statements | 70 | |||
Section 9.3 Compliance Certificate; Borrowing Base Certificate; Etc. | 71 | |||
Section 9.4 Other Information | 71 | |||
Section 9.5 Electronic Delivery of Certain Information | 73 | |||
ARTICLE. X NEGATIVE COVENANTS | 74 | |||
Section 10.1 Indebtedness; Certain Equity Securities | 74 | |||
Section 10.2 Liens | 77 | |||
Section 10.3 Fundamental Changes | 79 | |||
Section 10.4 Investments, Loans, Advances, Guarantees and Acquisitions | 79 | |||
Section 10.5 Asset Sales | 81 | |||
Section 10.6 Swap Agreements | 83 | |||
Section 10.7 Restricted Payments | 83 | |||
Section 10.8 Transactions with Affiliates | 84 | |||
Section 10.9 Restrictive Agreements | 84 |
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(continued)
Page | ||||
Section 10.10 Amendment of Material Documents | 85 | |||
Section 10.11 Financial Covenants | 85 | |||
Section 10.12 Changes in Fiscal Periods | 85 | |||
Section 10.13 ERISA Exemptions | 86 | |||
Section 10.14 Availability of Exceptions | 86 | |||
ARTICLE. XI DEFAULT | 86 | |||
Section 11.1 Events of Default | 86 | |||
Section 11.2 Remedies Upon Event of Default | 89 | |||
Section 11.3 Remedies Upon Default | 90 | |||
Section 11.4 Allocation of Proceeds | 90 | |||
Section 11.5 Collateral Account | 91 | |||
Section 11.6 Performance by Agent | 92 | |||
Section 11.7 Rights Cumulative | 92 | |||
Section 11.8 Remedies in Respect of Real Estate Security Documents | 92 | |||
ARTICLE. XII THE AGENT | 93 | |||
Section 12.1 Authorization and Action | 93 | |||
Section 12.2 Agent’s Reliance, Etc. | 93 | |||
Section 12.3 Notice of Defaults | 94 | |||
Section 12.4 Wachovia as Lender | 94 | |||
Section 12.5 Approvals of Lenders | 95 | |||
Section 12.6 Collateral Matters | 95 | |||
Section 12.7 Lender Credit Decision, Etc. | 97 | |||
Section 12.8 Indemnification of Agent | 97 | |||
Section 12.9 Successor Agent | 98 | |||
Section 12.10 Titled Agents | 99 |
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(continued)
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ARTICLE. XIII MISCELLANEOUS | 99 | |||
Section 13.1 Notices | 99 | |||
Section 13.2 Expenses | 100 | |||
Section 13.3 Setoff | 101 | |||
Section 13.4 Litigation; Jurisdiction; Other Matters; Waivers | 101 | |||
Section 13.5 Successors and Assigns | 102 | |||
Section 13.6 Amendments | 105 | |||
Section 13.7 Nonliability of Agent and Lenders | 106 | |||
Section 13.8 Confidentiality | 107 | |||
Section 13.9 Indemnification | 107 | |||
Section 13.10 Termination; Survival | 110 | |||
Section 13.11 Severability of Provisions | 110 | |||
Section 13.12 GOVERNING LAW | 110 | |||
Section 13.13 Patriot Act | 110 | |||
Section 13.14 Counterparts | 110 | |||
Section 13.15 Obligations with Respect to Loan Parties | 111 | |||
Section 13.16 Limitation of Liability | 111 | |||
Section 13.17 Entire Agreement | 111 | |||
Section 13.18 Construction | 111 |
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ANNEX 1 | Additional Provisions Applicable to NY Properties | |
SCHEDULE 1.1(A) | Formation and Structuring Transactions | |
SCHEDULE 1.1(B) | List of Loan Parties | |
SCHEDULE 2.1 | Tranche A Loan Commitments and Applicable Percentages | |
SCHEDULE 2.3 | Tranche B Loan Commitments and Applicable Percentages | |
SCHEDULE 4.1 | Initial Collateral Properties | |
SCHEDULE 7.1(b) | Ownership Structure | |
SCHEDULE 7.1(d) | Governmental Approvals | |
SCHEDULE 7.1(f) | Title to Properties; Liens | |
SCHEDULE 7.1(g) | Indebtedness as of Fifth Amendment Effective Date | |
SCHEDULE 7.1(h) | Material Contracts | |
SCHEDULE 7.1(i) | Litigation | |
SCHEDULE 7.1(y) | Secured Existing Swap Agreements | |
SCHEDULE 10.1(a) | Indebtedness as of Effective Date | |
SCHEDULE 10.2(xiii) | Certain Permitted Liens | |
SCHEDULE 10.4 | Existing Investments | |
SCHEDULE 10.4(n) | Certain Permitted Investments | |
SCHEDULE 10.9 | Restrictive Agreements | |
EXHIBIT A | Form of Assignment and Assumption | |
EXHIBIT B | Form of Notice of Tranche A Borrowing | |
EXHIBIT C | Form of Notice of Continuation | |
EXHIBIT D | Form of Notice of Conversion | |
EXHIBIT E | Form of Notice of Tranche B Borrowing | |
EXHIBIT F-1 | Form of Tranche A Borrower Note | |
EXHIBIT F-2 | Form of Tranche A Florida Borrower Note | |
EXHIBIT G | Form of Tranche B Note | |
EXHIBIT H | Form of Opinion of Counsel | |
EXHIBIT I | Form of Compliance Certificate | |
EXHIBIT J | Form of Guaranty | |
EXHIBIT K | Form of Security Deed | |
EXHIBIT L | Form of Assignment of Leases and Rents | |
EXHIBIT M | Form of Environmental Indemnity Agreement | |
EXHIBIT N | Form of Assignment of Contracts, Documents and Rights | |
EXHIBIT O | Form of Property Management Contract Assignment | |
EXHIBIT P | Form of Pledge Agreement | |
EXHIBIT Q | Form of Security Agreement | |
EXHIBIT R | Form of Borrowing Base Certificate | |
EXHIBIT S | Form of Account Control Agreement | |
EXHIBIT T | Form of Endorsement to Title Insurance |
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New York, New York 10018
Attn: Richard Szymanski
Telephone: (212) 277-4188
Telecopy: (212) 277-4270
301 South College Street, NC0172
Charlotte, North Carolina 28288
Attn: Anand J. Jobanputra
Telephone: (704) 383-4013
Telecopy: (704) 383-6205
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