SEVENTH AMENDMENT
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SEVENTH AMENDMENT dated as of July 30, 1994 (as the same may be
amended or otherwise modified from time to time, this "AMENDMENT") by and among
(a) (i) BANKERS TRUST COMPANY, a New York banking corporation, and (ii) BANCA
CASSA DI RISPARMIO DI TORINO, S.p.A., NEW YORK BRANCH (formerly known as Cassa
di Risparmio di Torino), a federally licensed branch of a bank incorporated
under the law of the Republic of Italy, as Lenders; (b) AIRCOA HOTEL PARTNERS,
L.P., a Delaware limited partnership, as Borrower; (c) BANKERS TRUST COMPANY, a
New York banking corporation, as Agent; and (d) (i) MCCORMICK RANCH OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, (ii) LAKESIDE OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, (iii) FOURWINDS OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, (iv) BUFFALO OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, (v) DURHAM OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership, and (vi) AURORA INN OPERATING
PARTNERSHIP, L.P., a Delaware limited partnership (each an "OPERATING
PARTNERSHIP", and collectively, the "OPERATING PARTNERSHIPS").
W I T N E S S E T H:
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WHEREAS, the Borrower, the Lenders and the Agent entered into a Loan
Agreement dated as of February 20, 1987
EXHIBIT 10.29g
(as amended by a First Amendment dated as of July 21, 1987, a Second Amendment
dated as of July 30, 1987, a Third Amendment dated as of March 31, 1988, a
Fourth Amendment dated as of September 22, 1989, by letters dated November 13,
1990, as of December 23, 1990 and as of January 24, 1991, a Fifth Amendment
dated as of January 31, 1992 and a Sixth Amendment dated as of July 31, 1993 and
as the same may further be amended or otherwise modified from time to time, the
"AGREEMENT") pursuant to which, among other things, the Lenders extended
financial accommodations to the Borrower upon the terms and conditions contained
therein; and
WHEREAS, the Borrower and the Operating Partnerships have requested,
and the Lenders and all of the Voting Participants have agreed, subject to the
terms and conditions set forth herein, to amend certain of the terms and
conditions of the Agreement.
NOW, THEREFORE, in consideration of the premises and other good and
valuable consideration, the receipt and sufficiency of which are hereby
acknowledged, the parties to this Amendment agree as follows:
1. DEFINITIONS. Unless the context otherwise requires, for all
purposes of this Amendment all capitalized terms used herein without definition
and which are defined
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in the Agreement are used herein with the respective meanings ascribed to such
terms in the Agreement.
2. Amendments to and Other Provisions Affecting THE AGREEMENT AND
THE OTHER LOAN AND SECURITY DOCUMENTS.
(a) If the Maturity Date is extended from the Maturity Date to
the Extended Maturity Date, then, on the Maturity Date Merchants may be paid an
additional $500,000 on account of the Merchants portion of the Junior Unsecured
Note and the Required Lenders hereby consent to such payment to Merchants. If
the Maturity Date is not, for any reason, extended then such payment to
Merchants shall not be made. For the purposes of making the calculations
described in SECTION 2.06 (d)(ii)(2), $1,000,000 of the principal payment to be
made to Lender pursuant to SECTION 2.18 (g) such $500,000 principal payment on
the Merchants portion of the Junior Unsecured Note shall, whether or not such
payments are funded with monies of the Borrower or any of the Operating
Partnerships, be added to audited net income for the year in question. Such
payments to Lender pursuant to SECTION 2.18(g) shall be applied to principal in
the inverse order of maturity.
(b) SECTION 2.18 (c) and (d) are hereby amended to read, in
their entirety, as follows:
"(c) on or before the Maturity Date, the Agent has received from the
Borrower written notice of Borrower's election to extend the Maturity
Date as hereinafter provided, (d) such notice to Agent is accompanied
by fully executed documents extending the maturity of the Merchants
Debt portion of the Junior Unsecured Note to a date not earlier than
ninety (90) days after the Extended Maturity Date, but allowing the
Merchants Debt portion of the Junior Unsecured Note to become a demand
obligation if the Loans and all other sums due and owing under the
Loan and Security Documents have been paid in full"
(c) SECTION 2.18 (g) is hereby amended to read, in its entirety,
as follows:
"(g) an additional mandatory prepayment of the principal amount of the
Loan shall have been made
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in the amount of $1,000,000 PLUS the following additional amount: (x)
if the outstanding principal amount of the Loan at the close of
business on the Maturity Date (after giving effect to such $1,000,000
payment) is greater than $36,600,000, then the required additional
mandatory prepayment shall be $500,000, (y) if the outstanding
principal amount of the Loan at the close of business on the Maturity
Date (after giving effect to such $1,000,000 payment) is less than
$36,600,000 but greater than $26,600,000, then the required additional
mandatory prepayment shall be $200,000 and (y) in all other cases
there shall be no additional mandatory prepayment (other than said
$1,000,000 amount) of the Loans required under this SECTION."
(d) PARAGRAPH 6(a) of the Sixth Amendment to the Loan Agreement
is hereby amended to delete the reference to June 30, 1994 and to substitute
therefore a reference to July 31, 1994.
3. CLOSING CONDITIONS; CONDITIONS TO EFFECTIVENESS. This Amendment
shall not be binding and shall not become effective unless and until each of the
following conditions precedent shall have been satisfied:
(a) AMENDMENT. This Amendment shall have been signed by each of
the parties hereto and consented to by each of the Voting Participants, and the
Agent shall have received a counterpart hereof signed by the Borrower and each
Operating Partnership.
(b) MERCHANTS. The Agent shall have received a fully executed
original, in form and substance satisfactory to the Agent, of the consent of the
holder of
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the Merchants portion of the Junior Unsecured Note to the transactions
contemplated hereby.
(c) AUTHORIZATIONS. The Agent shall have received, with a copy
for each Lender and Voting Participant:
(1) A certificate of the secretary or an assistant
secretary of the General Partner, dated as of the date this Amendment is to
become effective, (A) certifying as to resolutions of the Board of Directors of
the General Partner authorizing the execution, deliver and performance by the
General Partner, as general partner of the Borrower and of each Operating
Partnership, of this Amendment and of the other amendments, agreements,
documents and instruments described herein, (B) stating that such resolutions
have not been modified or rescinded and remain in full force and effect, (C)
certifying as to the names, incumbency and signatures of the officers of the
General Partner authorized to sign this Amendment and all such other amendments,
agreements, documents and instruments and (D) certifying as to all amendments
and other modifications to the Bylaws of the General Partner since the Closing
Date;
(2) A copy of all amendments to the Certificate of
Incorporation of the General Partner since July 31, 1993, certified by the
Secretary of State of the State of Delaware or by an officer of the General
Partner as being true, correct and complete;
(3) A copy of all amendments, since July 31, 1993, to the
partnership agreement and/or to any certificate of limited partnership and/or to
any documents relating to authority to do business in any state, other than its
state of formation, of the Borrower and/or any Operating Partnership; and
(4) A certificate of the chief financial or executive
officer of the General Partner, dated as of the date this Amendment is to become
effective, to the effect that (A) after giving effect to this Amendment and to
the transactions contemplated hereby and as of the date of such certificate,
there exists no Default or Event of Default and (B) all of the representations
and warranties contained in the Loan and Security Documents are true and correct
as of such date, except as may be set forth in such certificate with respect to
litigation commenced after the Closing Date.
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(d) OTHER DOCUMENTS. The Agent shall have received such other
documents as the Agent may have requested, including opinions of counsel and
title endorsements, and all other documents and legal matters in connection with
the transactions contemplated by this Amendment shall be satisfactory in form
and substance to the Agent and its counsel.
4. REPRESENTATIONS AND WARRANTIES. The Borrower and each Operating
Partnership jointly and severally represents and warrants to the Lenders (such
representations and warranties also being deemed to be made pursuant to the
Agreement, such that if any thereof proves to have been untrue or misleading in
any material respect at the time when made or deemed to be made, then an Event
of Default shall be deemed to have occurred under SECTION 7.01(b) of the
Agreement) that:
(a) As of July 28, 1994 the principal and interest owing on the
Loans to the Lenders is as follows:
Interest
(through
Principal July 28, 1994)
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$43,200,000 $252,000
The Borrower and each Operating Partnership hereby confirms that there are no
defenses or off-sets, and it has no counterclaims or causes of action with
respect, to its obli-
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gations under the Loan and Security Documents and/or any of the other documents
to which it is a party and to the extent that any such defense or offset or
counterclaims or cause of action exists without its knowledge, the same is
hereby waived and released to the fullest extent permitted by law.
(b) All representations and warranties contained in the Loan and
Security Documents continue to be true and correct, with the same force and
effect as if made on and as of the date this Amendment becomes effective (and
are repeated as of such date), and in addition the representations and
warranties of the Borrower contained in SECTION 4.10 of the Agreement are also
made in respect of the most recent financial statements of the Borrower
furnished to the Lenders.
(c) The Borrower and each Operating Partnership has full power,
authority and legal right to execute, deliver and perform this Amendment. This
Amendment has been duly executed and delivered on behalf of the Borrower and
each Operating Partnership and constitutes a legal, valid and binding obligation
of the Borrower and each Operating Partnership, enforceable against the Borrower
and each Operating Partnership in accordance with its terms. Except for the
consent of Merchants delivered to the Lender concurrently herewith, no consent
of any other Person and no consent, license, approval or authorization of, or
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registration or declaration with or notice to, any governmental authority,
bureau or agency is required in connection with the execution, delivery or
performance by the Borrower or any Operating Partnership, or the validity or
enforceability against the Borrower or any Operating Partnership, of this
Amendment.
(d) The execution, delivery and performance by the Borrower and
each Operating Partnership of this Amendment does not and will not violate any
provision of any existing law, rule or regulation or of any order, judgment,
award or decree of any court, arbitrator or governmental authority, bureau or
agency, or of the partnership agreement, charter or Bylaws of, or any security
issued by, the Borrower, any Operating Partnership or the General Partner, or of
any mortgage, indenture, lease, contract or other agreement or undertaking to
which the Borrower, any Operating Partnership or the General Partner is a party
or by which any of their respective properties or assets may be bound, and will
not result in the creation or imposition of any Lien on any of their respective
properties or assets pursuant to the provisions of any such mortgage, indenture,
lease, contract or other agreement or undertaking.
5. CHANGES. This Amendment may not be amended, waived or otherwise
modified, except in accordance with the provisions of SECTION 9.02 of the
Agreement.
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6. CAPTIONS. Section captions are for convenience only and shall
not affect the interpretation or construction of this Amendment.
7. COUNTERPARTS. This Amendment may be signed in any number of
separate counterparts, each of which shall constitute an original instrument and
all of which taken together shall constitute one and the same instrument, with
the same force and effect as if the signatures of all the parties hereto were on
a single instrument.
8. GOVERNING LAW. This Amendment shall be governed by and construed
and enforced in accordance with the laws of the State of New York applicable to
contracts made and to be performed wholly within such State.
9. MERGER. This Amendment sets forth the entire understanding of
the parties hereto with respect to the subject matter hereof, and supersedes any
prior or contemporaneous understandings with respect to the subject matter
hereof.
10. CONTINUING FORCE AND EFFECT. As modified by this Amendment, the
Agreement and each of the other Loan and Security Documents, including, without
limitation, PARAGRAPH 7 (OPERATING ACCOUNTS) to the Fifth Amendment to the Loan
Agreement, shall continue in full force and effect in
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accordance with their respective terms. This Amendment is a Loan and Security
Document. Accordingly, any Default or Event of Default hereunder shall
constitute a Default and/or Event of Default under the Agreement.
11. SUCCESSORS AND ASSIGNS. This Amendment shall be binding upon and
inure to the benefit of the parties hereto and their respect successors and
assigns, provided that neither the Borrower nor any Operating Partnership may
assign or transfer any of its interest hereunder without the prior written
consent of the Required Lenders.
IN WITNESS WHEREOF, the Borrower, the Operating Partnerships, the
Lenders and the Agent have caused this Amendment to be duly executed and
delivered, all as of the day and year first above written.
AIRCOA HOTEL PARTNERS, L.P.
By: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title: Douglas M. Pasquale
Executive Vice President
By: /s/ Carol K. Werner
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Title: Carol K. Werner
Executive Vice President
BANKERS TRUST COMPANY, as a
Lender and as Agent
By: /s/ Laura J. Buswick
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Title: Vice President
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BANCA CASSA DI RISPARMIO DI
TORINO, S.p.A.,
New York Branch, as Lender
By: /s/ Giorgio Cuccolo
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Title: Giorgio Cuccolo
Manager and Senior V.P.
By: /s/ C. Vincent Calvo
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Title: C. Vincent Calvo
Vice President
MCCORMICK RANCH OPERATING
PARTNERSHIP, L.P.
BY: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title: Douglas M. Pasquale
Executive Vice President
By: /s/ Carol K. Werner
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Title: Carol K. Werner
Executive Vice President
LAKESIDE OPERATING PARTNERSHIP,
L.P.
BY: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title: Douglas M. Pasquale
Executive Vice President
By: /s/ Carol K. Werner
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Title: Carol K. Werner
Executive Vice President
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FOURWINDS OPERATING PARTNERSHIP,
L.P.
BY: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title: Douglas M. Pasquale
Executive Vice President
By: /s/ Carol K. Werner
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Title: Carol K. Werner
Executive Vice President
BUFFALO OPERATING PARTNERSHIP,
L.P.
BY: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title: Douglas M. Pasquale
Executive Vice President
By: /s/ Carol K. Werner
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Title: Carol K. Werner
Executive Vice President
DURHAM OPERATING PARTNERSHIP,
L.P.
BY: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title: Douglas M. Pasquale
Executive Vice President
By: /s/ Carol K. Werner
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Title: Carol K. Werner
Executive Vice President
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AURORA INN OPERATING
PARTNERSHIP, L.P.
BY: AIRCOA Hospitality
Services, Inc., general
partner
By: /s/ Douglas M. Pasquale
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Title:
By: /s/ Carol K. Werner
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Title: EVP
CONSENTED TO:
THE BANK OF NEW YORK
By: /s/ Frederick L. Sasq
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Title: Vice President
BANK OF THE WEST
By: /s/ Tom K. Matson
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Title: Vice President
ROYAL BANK OF CANADA, GRAND CAYMAN
(NORTH AMERICA NO. ONE BRANCH)
By: /s/ D. S. Berg
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Title: Manager
THE SAKURA BANK, LIMITED, NEW YORK BRANCH
By: /s/ T. Tashajima
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Title: Senior Vice President
Assistant General Manager
BANKERS TRUST DELAWARE
By: /s/ Dean Mitchell
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Title: Vice President
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