[Conformed Copy with
Exhibits F-1, F-2, G,
H-1, H-2 and U
conformed as executed]
Exhibit 10.23
CREDIT AGREEMENT
among
HMC CAPITAL RESOURCES HOLDINGS CORP.,
HMC CAPITAL CORPORATION,
HMC CAPITAL RESOURCES CORP.,
VARIOUS BANKS,
CREDIT LYONNAIS NEW YORK BRANCH,
THE BANK OF NOVA SCOTIA
and
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Co-Agents,
THE BANK OF NOVA SCOTIA,
as Documentation Agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION,
as Syndication Agent,
and
BANKERS TRUST COMPANY,
as ARRANGER and ADMINISTRATIVE AGENT
----------------------------------
Dated as of June 19, 1997
----------------------------------
$500,000,000
TABLE OF CONTENTS
Page
SECTION 1. Amount and Terms of Credit............................................................... 1
1.01 The Commitments....................................................................... 1
1.02 Minimum Amount of Each Borrowing...................................................... 2
1.03 Notice of Borrowing................................................................... 2
1.04 Disbursement of Funds................................................................. 3
1.05 Notes................................................................................. 3
1.06 Conversions........................................................................... 4
1.07 Pro Rata Borrowings................................................................... 5
1.08 Interest.............................................................................. 5
1.09 Interest Periods...................................................................... 6
1.10 Increased Costs, Illegality, etc...................................................... 7
1.11 Compensation.......................................................................... 10
1.12 Change of Lending Office.............................................................. 10
1.13 Replacement of Banks.................................................................. 10
SECTION 2. Fees; Reductions of Commitment........................................................... 11
2.01 Fees.................................................................................. 11
2.02 Voluntary Termination of Unutilized Commitments....................................... 12
2.03 Mandatory Termination of Commitments.................................................. 12
SECTION 3. Prepayments; Payments; Taxes............................................................. 12
3.01 Voluntary Prepayments................................................................. 12
3.02 Mandatory Repayments.................................................................. 13
3.03 Method and Place of Payment........................................................... 15
3.04 Net Payments; Taxes................................................................... 16
SECTION 4. Conditions Precedent to Effective Date................................................... 18
4.01 Execution of Agreement; Notes......................................................... 18
4.02 Fees, etc............................................................................. 18
4.03 Opinions of Counsel................................................................... 18
4.04 Corporate and Partnership Documents; Proceedings; etc................................. 19
4.05 Management Agreements; Debt Agreements; etc........................................... 19
4.06 Pledge Agreement...................................................................... 20
4.07 Partnership Pledge and Security Agreement and Security
Agreement......................................................................... 20
(i)
Page
4.08 Guaranties............................................................................ 21
4.09 Assignment and Pledge Agreements; Mortgages; Title
Insurance; Surveys; etc........................................................... 21
4.10 Manager Subordination Agreement; HMC Capital
Subordination Agreement........................................................... 23
4.11 Adverse Change, etc................................................................... 23
4.12 Litigation............................................................................ 24
4.13 Initial Capital Contributions; etc.................................................... 24
4.14 Solvency Certificate; Environmental Assessments; Insurance
Certificates; Real Estate Appraisals; Engineers Reports........................... 24
4.15 Pro Forma Balance Sheets.............................................................. 25
4.16 California Environmental Indemnity Agreement.......................................... 26
4.17 Initial Borrowing Base Certificate.................................................... 26
4.18 No Default; Representations and Warranties............................................ 26
SECTION 5. Conditions Precedent to All Revolving Loans.............................................. 26
5.01 No Default; Representations and Warranties............................................ 26
5.02 Notice of Borrowing................................................................... 27
5.03 Hotel Property and Senior Living Care Facility Information; etc....................... 27
5.04 Certain Requirements with Respect to Loans............................................ 27
5.05 Subsequent Legal Opinions............................................................. 28
SECTION 6. Representations and Warranties........................................................... 29
6.01 Status................................................................................ 29
6.02 Power and Authority................................................................... 30
6.03 No Violation.......................................................................... 30
6.04 Governmental Approvals................................................................ 30
6.05 Financial Statements; Financial Condition; Undisclosed
Liabilities; Projections; etc..................................................... 31
6.06 Litigation............................................................................ 32
6.07 True and Complete Disclosure.......................................................... 33
6.08 Use of Proceeds; Margin Regulations................................................... 33
6.09 Tax Returns and Payments.............................................................. 34
6.10 Compliance with ERISA................................................................. 34
6.11 The Security Documents................................................................ 35
6.12 Manager Subordination Agreements; HMC Capital
Subordination Agreement........................................................... 38
6.13 Properties............................................................................ 38
6.14 Capitalization........................................................................ 39
(ii)
Page
6.15 Subsidiaries.......................................................................... 39
6.16 Compliance with Statutes, etc......................................................... 39
6.17 Investment Company Act................................................................ 40
6.18 Public Utility Holding Company Act.................................................... 40
6.19 Environmental Matters................................................................. 40
6.20 Labor Relations....................................................................... 41
6.21 Intellectual Property................................................................. 41
6.22 Indebtedness.......................................................................... 41
6.23 Management Agreements; Ground Leases.................................................. 42
SECTION 7. Affirmative Covenants.................................................................... 42
7.01 Information Covenants................................................................. 42
7.02 Books, Records and Inspections........................................................ 48
7.03 Maintenance of Property; Insurance.................................................... 48
7.04 Corporate Franchises.................................................................. 51
7.05 Compliance with Statutes, etc......................................................... 51
7.06 Compliance with Environmental Laws.................................................... 52
7.07 ERISA................................................................................. 52
7.08 End of Fiscal Years; Fiscal Quarters.................................................. 54
7.09 Performance of Obligations............................................................ 54
7.10 Payment of Taxes...................................................................... 54
7.11 Certain Requirements with Respect to Acquisitions of
Borrowing Base Properties......................................................... 55
7.12 Certain Partnerships.................................................................. 58
7.13 Facility Manager...................................................................... 58
7.14 Lien Waivers; etc..................................................................... 58
7.15 FF&E Reserve Accounts................................................................. 58
7.16 Interest Rate Protection.............................................................. 59
7.17 Appraisals............................................................................ 60
7.18 Casualty and Condemnation; Restoration................................................ 60
7.19 Marriott Suites Hotels................................................................ 69
7.20 Estoppel Certificate for Atlanta Marriott Suites Midtown.............................. 70
7.21 Certain Engineering Matters........................................................... 71
7.22 Additional Earthquake Insurance....................................................... 71
SECTION 8. Negative Covenants....................................................................... 71
8.01 Liens................................................................................. 71
8.02 Consolidation, Merger, Purchase or Sale of Assets, etc................................ 74
8.03 Dividends............................................................................. 80
(iii)
Page
8.04 Indebtedness.......................................................................... 81
8.05 Advances, Investments and Loans....................................................... 83
8.06 Transactions with Affiliates; Management Agreements................................... 84
8.07 Capital Expenditures.................................................................. 85
8.08 Minimum Consolidated Interest Coverage Ratio.......................................... 86
8.09 Minimum Modified Interest Coverage Ratio.............................................. 87
8.10 Maximum Consolidated Debt............................................................. 87
8.11 Maximum Total Leverage Ratio.......................................................... 87
8.12 Maximum Modified Leverage Ratio....................................................... 88
8.13 Limitation on Payments of Certain Indebtedness; Modifications
of Certain Indebtedness; Modifications of Certificate of
Incorporation, By-Laws and Certain Agreements; etc................................ 89
8.14 Limitation on Certain Restrictions on Subsidiaries.................................... 90
8.15 Limitation on Issuance of Capital Stock............................................... 90
8.16 Business.............................................................................. 91
8.17 Limitation on Creation of Subsidiaries................................................ 91
SECTION 9. Events of Default........................................................................ 92
9.01 Payments.............................................................................. 92
9.02 Representations, etc.................................................................. 92
9.03 Covenants............................................................................. 92
9.04 Default Under Other Agreements........................................................ 93
9.05 Bankruptcy, etc....................................................................... 93
9.06 ERISA................................................................................. 94
9.07 Security Documents.................................................................... 94
9.08 Guaranty.............................................................................. 95
9.09 Judgments............................................................................. 95
9.10 Management Agreements................................................................. 95
9.11 Manager Subordination Agreements...................................................... 95
9.12 Ground Leases......................................................................... 96
9.13 Change of Control..................................................................... 96
9.14 Trademark Permission.................................................................. 96
SECTION 10. Definitions and Accounting Terms........................................................ 97
10.01 Defined Terms........................................................................ 97
SECTION 11. The Agents..............................................................................133
11.01 Appointment..........................................................................133
11.02 Nature of Duties.....................................................................133
(iv)
Page
11.03 Lack of Reliance on the Agents.......................................................134
11.04 Certain Rights of the Agents.........................................................134
11.05 Reliance.............................................................................135
11.06 Indemnification......................................................................135
11.07 Each Agent in its Individual Capacity................................................135
11.08 Holders..............................................................................135
11.09 Resignation by the Agents; Removal of the Administrative
Agent.............................................................................136
SECTION 12. Miscellaneous...........................................................................136
12.01 Payment of Expenses, etc.............................................................136
12.02 Right of Setoff......................................................................138
12.03 Notices..............................................................................138
12.04 Benefit of Agreement.................................................................139
12.05 No Waiver; Remedies Cumulative.......................................................141
12.06 Payments Pro Rata....................................................................141
12.07 Calculations; Computations...........................................................142
12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION;
VENUE; WAIVER OF JURY TRIAL.......................................................143
12.09 Counterparts.........................................................................144
12.10 Effectiveness........................................................................144
12.11 Headings Descriptive.................................................................145
12.12 Amendment or Waiver; etc.............................................................145
12.13 Survival.............................................................................146
12.14 Domicile of Loans....................................................................146
12.15 Confidentiality......................................................................147
12.16 Register.............................................................................147
12.17 Purchase of Loans by Marriott International..........................................148
12.18 Commercial Loan Transactions.........................................................148
SECTION 13. Parents Guaranty........................................................................149
13.01 The Guaranty.........................................................................149
13.02 Bankruptcy...........................................................................149
13.03 Nature of Liability..................................................................149
13.04 Independent Obligation...............................................................150
13.05 Authorization........................................................................150
13.06 Reliance.............................................................................151
13.07 Subordination........................................................................151
13.08 Waiver...............................................................................152
(v)
13.09 Nature of Liability..................................................................154
13.10 Interest Rate Protection Agreements and Other Hedging
Agreements........................................................................154
SCHEDULE I Commitments
SCHEDULE II Bank Addresses
SCHEDULE III Real Property
SCHEDULE IV Subsidiaries
SCHEDULE V Existing Indebtedness
SCHEDULE VI Insurance
SCHEDULE VII Existing Liens
SCHEDULE VIII Existing New York Marriott Financial Center
Mortgages and Notes
SCHEDULE IX Noncompliance with certain Legal Requirements
SCHEDULE X Certain Engineering Matters
EXHIBIT A Notice of Borrowing
EXHIBIT B Note
EXHIBIT C Section 3.04(b)(ii) Certificate
EXHIBIT D-1 Opinion of Christopher Townsend, Esq.,
General Counsel
EXHIBIT D-2 Opinion of Hogan & Hartson L.L.P.
EXHIBIT E Officers' Certificate
EXHIBIT F-1 Pledge Agreement
EXHIBIT F-2 Partnership Pledge and Security Agreement
EXHIBIT G Security Agreement
EXHIBIT H-1 Host Marriott Guaranty
EXHIBIT H-2 Subsidiaries Guaranty
EXHIBIT I Manager Subordination Agreement
EXHIBIT J Officer's Solvency Certificate
EXHIBIT K California Environmental Indemnity Agreement
EXHIBIT L Borrowing Base Certificate
EXHIBIT M-1 Quarterly Hotel Property Financial Report
EXHIBIT M-2 Quarterly Senior Living Care Facility Financial Report
EXHIBIT N Quarterly Cash Flow Report
EXHIBIT O Subordination Provisions
EXHIBIT P Assignment and Assumption Agreement
(vi)
EXHIBIT Q Intercompany Note
EXHIBIT R Completion Certificate
EXHIBIT S Notice of Renovation/Restoration
EXHIBIT T New York Marriott Financial Center Assignment of Mortgage
and Pledge Agreement
EXHIBIT U HMC Capital Subordination Agreement
EXHIBIT V San Francisco Marriott Mortgage
(vii)
CREDIT AGREEMENT, dated as of June 19, 1997, among HMC CAPITAL RESOURCES
HOLDINGS CORP., a Delaware corporation ("Holdings"), HMC CAPITAL CORPORATION, a
Delaware corporation ("HMC Capital"), HMC CAPITAL RESOURCES CORP., a Delaware
corporation (the "Borrower"), the Banks party hereto from time to time, CREDIT
LYONNAIS NEW YORK BRANCH, THE BANK OF NOVA SCOTIA and WELLS FARGO BANK, NATIONAL
ASSOCIATION, as Co-Agents, THE BANK OF NOVA SCOTIA, as Documentation Agent,
WELLS FARGO BANK, NATIONAL ASSOCIATION, as Syndication Agent, and BANKERS TRUST
COMPANY, as Arranger and Administrative Agent (all capitalized terms used herein
and defined in Section 10 are used herein as therein defined).
W I T N E S S E T H :
WHEREAS, subject to and upon the terms and conditions set forth herein, the
Banks are willing to make available to the Borrower the respective credit
facilities provided for herein;
NOW, THEREFORE, IT IS AGREED:
SECTION 1. Amount and Terms of Credit.
1.01 The Commitments. (a) Subject to and upon the terms and conditions set
forth herein, each Bank severally agrees, at any time and from time to time on
and after the Effective Date and prior to the Conversion Date, to make a
revolving loan or revolving loans (each, a "Revolving Loan" and, collectively,
the "Revolving Loans") to the Borrower, which Revolving Loans (i) shall, at the
option of the Borrower, be Base Rate Loans or Eurodollar Loans, provided that,
except as otherwise specifically provided in Section 1.10(b), all Revolving
Loans comprising the same Borrowing shall at all times be of the same Type, (ii)
may be repaid and reborrowed at any time in accordance with the provisions
hereof, (iii) shall not exceed for any Bank at any time outstanding that
aggregate principal amount which equals the Commitment of such Bank at such time
and (iv) shall not exceed for all Banks at any time outstanding that aggregate
principal amount which equals the lesser of (x) the Total Commitment at such
time and (y) the Borrowing Base at such time.
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(b) Subject to and upon the terms and conditions set forth herein, the
Borrower and each Bank agree that, at 9:00 A.M. (New York time) on the
Conversion Date, the aggregate principal amount of Revolving Loans owing to such
Bank and outstanding at such time shall (unless such Revolving Loans have been
declared (or have become) due and payable pursuant to this Agreement), without
any notice or action by any party hereto, automatically convert to and
thereafter constitute Term Loans owing to such Bank hereunder. The Term Loans of
any Bank (i) shall, at the option of the Borrower, be Base Rate Loans or
Eurodollar Loans, provided that, except as otherwise specifically provided in
Section 1.10(b), all Term Loans comprising the same Borrowing shall at all times
be of the same Type and (ii) shall not exceed in initial principal amount for
such Bank an amount which equals the aggregate principal amount of Revolving
Loans owed to such Bank and outstanding immediately prior to such conversion.
Once repaid, Term Loans may not be reborrowed.
1.02 Minimum Amount of Each Borrowing. The aggregate principal amount of
each Borrowing of Loans shall not be less than the Minimum Borrowing Amount
applicable thereto. More than one Borrowing may occur on the same date, but at
no time shall there be outstanding more than ten Borrowings of Eurodollar Loans.
1.03 Notice of Borrowing. (a) Whenever the Borrower desires to incur a
Borrowing of Revolving Loans, the Borrower shall give the Administrative Agent
at the Notice Office at least one Business Day's prior written notice (or
telephonic notice promptly confirmed in writing) of each Base Rate Loan and at
least three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of each Eurodollar Loan to be made hereunder, provided
that any such notice shall be deemed to have been given on a certain day only if
given before 11:00 A.M. (New York time) on such day. Each such written notice or
written confirmation of telephonic notice (each a "Notice of Borrowing"), except
as otherwise expressly provided in Section 1.10, shall be irrevocable and shall
be given by the Borrower in the form of Exhibit A, appropriately completed to
specify (i) the aggregate principal amount of the Revolving Loans to be incurred
pursuant to such Borrowing, (ii) the date of such Borrowing (which shall be a
Business Day), (iii) the specific uses to be made of the proceeds of such
Revolving Loans and (iv) whether the Revolving Loans being incurred pursuant to
such Borrowing are to be initially maintained as Base Rate Loans or Eurodollar
Loans and, if Eurodollar Loans, the initial Interest Period to be applicable
thereto. The Administrative Agent shall promptly give each Bank facsimile or
other written notice of such proposed Borrowing, of such Bank's proportionate
share thereof and of the other matters required by the immediately preceding
sentence to be specified in the Notice of Borrowing. Notwithstanding anything to
the contrary contained in this Agreement, unless the Administrative Agent
otherwise agrees, no more than four Notices of Borrowing may be given in any 30
consecutive day period.
-2-
(b) Without in any way limiting the obligation of the Borrower to confirm
in writing any telephonic notice of any Borrowing of Revolving Loans, the
Administrative Agent may act without liability upon the basis of telephonic
notice of such Borrowing believed by the Administrative Agent in good faith to
be from an Authorized Officer of the Borrower prior to receipt of written
confirmation. In each such case, the Borrower hereby waives the right to dispute
the Administrative Agent's record of the terms of such telephonic notice of such
Borrowing.
1.04 Disbursement of Funds. No later than 1:00 P.M. (New York time) on the
date specified in each Notice of Borrowing, each Bank which has received the
notice referred to in the next to last sentence of Section 1.03(a) will disburse
its pro rata portion of each Borrowing requested to be made on such date. All
such amounts shall be disbursed in Dollars and in immediately available funds at
the Payment Office, and the Administrative Agent will promptly disburse to the
Borrower at the Payment Office, in Dollars and in immediately available funds,
the aggregate of the amounts so made available by the Banks. Unless the
Administrative Agent shall have been notified by any Bank prior to the date of
Borrowing that such Bank does not intend to disburse to the Administrative Agent
such Bank's portion of any Borrowing to be made on such date, the Administrative
Agent may assume that such Bank has disbursed such amount to the Administrative
Agent on such date of Borrowing and the Administrative Agent may, in reliance
upon such assumption, disburse to the Borrower a corresponding amount. If such
corresponding amount is not in fact disbursed to the Administrative Agent by
such Bank, the Administrative Agent shall be entitled to recover such
corresponding amount on demand from such Bank. If such Bank does not pay such
corresponding amount forthwith upon the Administrative Agent's demand therefor,
the Administrative Agent shall promptly notify the Borrower and the Borrower
shall within one Business Day thereafter pay such corresponding amount to the
Administrative Agent. The Administrative Agent shall also be entitled to recover
on demand from such Bank or the Borrower, as the case may be, interest on such
corresponding amount in respect of each day from the date such corresponding
amount was disbursed by the Administrative Agent to the Borrower until the date
such corresponding amount is recovered by the Administrative Agent, at a rate
per annum equal to (i) if recovered from such Bank, at the overnight Federal
Funds Rate and (ii) if recovered from the Borrower, the rate of interest
applicable to the respective Borrowing, as determined pursuant to Section 1.08.
Nothing in this Section 1.04 shall be deemed to relieve any Bank from its
obligation to make Revolving Loans hereunder or to prejudice any rights which
the Borrower may have against any Bank as a result of any failure by such Bank
to make Revolving Loans hereunder.
-3-
1.05 Notes. (a) The Borrower's obligation to pay the principal of, and
interest on, the Loans made by each Bank to the Borrower shall be evidenced by a
promissory note duly executed and delivered by the Borrower substantially in the
form of Exhibit B with blanks appropriately completed in conformity herewith
(each, a "Note" and, collectively, the "Notes"). The Note issued by the Borrower
to each Bank shall (i) be executed by the Borrower, (ii) be payable to such Bank
or its registered assigns and be dated the Effective Date (or, if issued after
the Effective Date, be dated the date of the issuance thereof), (iii) be in a
stated principal amount equal to the Commitment of such Bank (or, if issued
after the termination of such Commitment, be in a stated principal amount equal
to the outstanding Loans of such Bank at such time) and be payable in the
principal amount of the outstanding Loans evidenced thereby, (iv) mature on the
Final Maturity Date, (v) bear interest as provided in the appropriate clause of
Section 1.08 in respect of the Base Rate Loans and Eurodollar Loans, as the case
may be, evidenced thereby, (vi) be subject to voluntary prepayment as provided
in Section 3.01, or mandatory repayment as provided in Section 3.02 and (vii) be
entitled to the benefits of this Agreement and the other Credit Documents.
(b) Each Bank will note on its internal records the amount of each Loan
made by it and each payment in respect thereof and will prior to any transfer of
its Note properly endorse on the reverse side thereof the outstanding principal
amount of Loans evidenced thereby. Failure to make any such notation (or any
error in such notation) shall not affect the Borrower's obligations to the
holder from time to time of each Note in respect of such Loans.
1.06 Conversions. The Borrower shall have the option to convert, on any
Business Day occurring after the Effective Date, all or a portion equal to at
least the applicable Minimum Borrowing Amount of the outstanding principal
amount of Loans made to the Borrower into a Borrowing or Borrowings of another
Type of Loan, provided that (i) except as otherwise provided in Section 1.10(b),
Eurodollar Loans may be converted into Base Rate Loans only on the last day of
an Interest Period applicable to the Loans being converted and no partial
conversion of a Borrowing of Eurodollar Loans shall reduce the outstanding
principal amount of such Eurodollar Loans made pursuant to a single Borrowing to
less than the Minimum Borrowing Amount applicable thereto, (ii) Base Rate Loans
may only be converted into Eurodollar Loans if no Default or Event of Default is
in existence on the date of the conversion, and (iii) no conversion pursuant to
this Section 1.06 shall result in a greater number of Borrowings of Eurodollar
Loans than is permitted under Section 1.02. Each such conversion shall be
effected by the Borrower by giving the Administrative Agent at the Notice Office
prior to 11:00 A.M. (New York time) at least three Business Days' prior written
notice (or one Business Day's prior written notice in the case of a conversion
of Eurodollar Loans into Base Rate Loans) (each a "Notice of Conversion")
specifying the Loans to be so converted, the Borrowing(s) pursuant to which such
Loans were made and, if to be converted into Eurodollar Loans, the Interest
Period to be initially applicable thereto.
-4-
The Administrative Agent shall give each Bank prompt notice of any such proposed
conversion affecting any of its Loans.
1.07 Pro Rata Borrowings. All Borrowings of Revolving Loans shall be
incurred from the Banks pro rata on the basis of their respective Commitments.
It is understood that no Bank shall be responsible for any default by any other
Bank of its obligation to make Revolving Loans hereunder and that each Bank
shall be obligated to make the Revolving Loans provided to be made by it
hereunder, regardless of the failure of any other Bank to make its Revolving
Loans hereunder.
1.08 Interest. (a) The Borrower agrees to pay interest in respect of the
unpaid principal amount of each Base Rate Loan from the date the proceeds
thereof are made available to the Borrower until the earlier of (i) the maturity
(whether by acceleration or otherwise) of such Base Rate Loan and (ii) the
conversion of such Base Rate Loan to a Eurodollar Loan pursuant to Section 1.06,
at a rate per annum which shall be equal to the sum of the Applicable Margin
plus the Base Rate in effect from time to time.
(b) The Borrower agrees to pay interest in respect of the unpaid principal
amount of each Eurodollar Loan from the date the proceeds thereof are made
available to the Borrower until the earlier of (i) the maturity (whether by
acceleration or otherwise) of such Eurodollar Loan and (ii) the conversion of
such Eurodollar Loan to a Base Rate Loan pursuant to Section 1.06, 1.09 or 1.10,
as applicable, at a rate per annum which shall, during each Interest Period
applicable thereto, be equal to the sum of the Applicable Margin plus the
Eurodollar Rate for such Interest Period.
(c) Overdue principal and, to the extent permitted by law, overdue interest
in respect of each Loan and any other overdue amount payable hereunder shall, in
each case, bear interest at a rate per annum equal to the greater of (x) 2% per
annum in excess of the rate otherwise applicable to Base Rate Loans from time to
time and (y) the rate which is 2% in excess of the rate then borne by such Loans
(without giving effect to any increase in the rate borne by such Loans as a
result of the operation of this clause (c)), in each case with such interest to
be payable on demand.
(d) Accrued (and theretofore unpaid) interest shall be payable in respect
of each Loan, (i) monthly in arrears on the last Business Day of each calendar
month and (ii) on any repayment or prepayment thereof (on the amount repaid or
prepaid), at maturity (whether by acceleration or otherwise) and, after such
maturity, on demand.
-5-
(e) Upon each Interest Determination Date, the Administrative Agent shall
determine the Eurodollar Rate for each Interest Period applicable to Eurodollar
Loans and shall promptly notify the Borrower and the Banks thereof. Each such
determination shall, absent manifest error, be final and conclusive and
binding on all parties hereto.
1.09 Interest Periods. At the time the Borrower gives any Notice of
Borrowing or Notice of Conversion in respect of the making of, or conversion
into, any Eurodollar Loan (in the case of the initial Interest Period applicable
thereto) or on the third Business Day prior to the expiration of an Interest
Period applicable to such Eurodollar Loan (in the case of any subsequent
Interest Period), the Borrower shall have the right to elect, by giving the
Administrative Agent notice thereof, the interest period (each an "Interest
Period") applicable to such Eurodollar Loan, which Interest Period shall, at the
option of the Borrower, be a one, two, three or six-month period, provided that:
(i) all Eurodollar Loans comprising a Borrowing shall at all times have
the same Interest Period;
(ii) the initial Interest Period for any Eurodollar Loan shall commence on
the date of Borrowing of such Eurodollar Loan (including the date of
any conversion thereto from a Loan of a different Type) and each
Interest Period occurring thereafter in respect of such Eurodollar
Loan shall commence on the day on which the next preceding Interest
Period applicable thereto expires;
(iii) if any Interest Period relating to a Eurodollar Loan begins on a day
for which there is no numerically corresponding day in the calendar
month at the end of such Interest Period, such Interest Period shall
end on the last Business Day of such calendar month;
(iv) if any Interest Period would otherwise expire on a day which is not a
Business Day, such Interest Period shall expire on the next
succeeding Business Day; provided, however, that if any Interest
Period for a Eurodollar Loan would otherwise expire on a day which is
not a Business Day but is a day of the month after which no further
Business Day occurs in such month, such Interest Period shall expire
on the next preceding Business Day;
(v) no Interest Period may be selected at any time when a Default or an
Event of Default is then in existence;
-6-
(vi) no Interest Period in respect of any Borrowing of Eurodollar Loans
shall be selected which extends beyond the Final Maturity Date; and
(vii) no Interest Period in respect of any Borrowing of any Term Loans
shall be selected which extends beyond any date upon which a
mandatory repayment of such Term Loans will be required to be made
under Section 3.02(b), if the aggregate principal amount of such Term
Loans which have Interest Periods which will expire after such date
will be in excess of the aggregate principal amount of such Term
Loans then outstanding less the aggregate amount of such required
repayment.
If upon the expiration of any Interest Period applicable to a Borrowing of
Eurodollar Loans, the Borrower has failed to elect, or is not permitted to
elect, a new Interest Period to be applicable to such Eurodollar Loans as
provided above, the Borrower shall be deemed to have elected to convert such
Eurodollar Loans into Base Rate Loans effective as of the expiration date of
such current Interest Period.
1.10 Increased Costs, Illegality, etc. (a) In the event that any Bank shall
have determined (which determination shall, absent manifest error, be final and
conclusive and binding upon all parties hereto but, with respect to clause (i)
below, may be made only by the Administrative Agent):
(i) on any Interest Determination Date that, by reason of any changes
arising after the date of this Agreement affecting the interbank
Eurodollar market, adequate and fair means do not exist for
ascertaining the applicable interest rate on the basis provided for
in the definition of Eurodollar Rate; or
(ii) at any time, that such Bank shall incur increased costs or reductions
in the amounts received or receivable hereunder with respect to any
Eurodollar Loan because of (x) any change since the date of this
Agreement in any applicable law or governmental rule, regulation,
order, guideline or request (whether or not having the force of law)
or in the interpretation or administration thereof and including
the introduction of any new law or governmental rule, regulation,
order, guideline or request, such as, for example, but not limited
to: (A) a change in the basis of taxation of payment to any Bank of
the principal of or interest on such Eurodollar Loan or any other
amounts payable hereunder (except for changes in the rate of tax on,
or determined by reference to, the net income or net profits of such
Bank, or any franchise tax based on the net income or net profits of
a Bank, in either case pursuant to the laws of the jurisdiction in
which such Bank is organized or in which such Bank's principal office
or applicable lending office is located or any subdivision thereof or
therein), or
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(B) a change in official reserve requirements, but, in all events,
excluding reserves required under Regulation D to the extent included
in the computation of the Eurodollar Rate and/or (y) other
circumstances since the date of this Agreement affecting such Bank or
the interbank Eurodollar market or the position of such Bank in such
market; or
(iii) at any time, that the making or continuance of any Eurodollar Loan
has been made (x) unlawful by any law or governmental rule,
regulation or order, (y) impossible by compliance by any Bank in good
faith with any governmental request (whether or not having force of
law) or (z) impracticable as a result of a contingency occurring
after the date of this Agreement which materially and adversely
affects the interbank Eurodollar market;
then, and in any such event, such Bank (or the Administrative Agent, in the case
of clause (i) above) shall promptly give notice (by telephone confirmed in
writing) to the Borrower and, except in the case of clause (i) above, to the
Administrative Agent of such determination (which notice the Administrative
Agent shall promptly transmit to each of the other Banks). Thereafter (x) in the
case of clause (i) above, Eurodollar Loans shall no longer be available until
such time as the Administrative Agent notifies the Borrower and the Banks that
the circumstances giving rise to such notice by the Administrative Agent no
longer exist, and any Notice of Borrowing or Notice of Conversion or notice
given under Section 1.09 given by the Borrower with respect to Eurodollar Loans
which have not yet been incurred (including by way of conversion) shall be
deemed rescinded by the Borrower, (y) in the case of clause (ii) above, the
Borrower shall pay to such Bank, upon written demand therefor, such additional
amounts (in the form of an increased rate of, or a different method of
calculating, interest or otherwise as such Bank in its sole discretion shall
determine) as shall be required to compensate such Bank for such increased costs
or reductions in amounts received or receivable hereunder (a written notice as
to the additional amounts owed to such Bank, showing the basis for the
calculation thereof, submitted to the Borrower by such Bank in good faith shall,
absent manifest error, be final and conclusive and binding on all the parties
hereto) and (z) in the case of clause (iii) above, the Borrower shall take one
of the actions specified in Section 1.10(b) as promptly as possible and, in any
event, within the time period required by law. Each of the Administrative Agent
and each Bank agrees that if it gives notice to the Borrower of any of the
events described in clause (i) or (iii) above, it shall promptly notify the
Borrower and, in the case of any such Bank, the Administrative Agent, if such
event ceases to exist. If any such event described in clause (iii) above ceases
to exist as to a Bank, the obligations of such Bank to make Eurodollar Loans and
to convert Base Rate Loans into Eurodollar Loans on the terms and conditions
contained herein shall be reinstated. In addition, if the Administrative Agent
gives notice to the Borrower that the events described in clause
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(i) above cease to exist, then the obligations of the Banks to make Eurodollar
Loans and to convert Base Rate Loans into Eurodollar Loans on the terms and
conditions contained herein (but subject to clause (iii) above) shall also be
reinstated.
(b) At any time that any Eurodollar Loan is affected by the circumstances
described in Section 1.10(a)(ii) or (iii), the Borrower may (and in the case of
a Eurodollar Loan affected by the circumstances described in Section
1.10(a)(iii) the Borrower shall) either (x) if the affected Eurodollar Loan is
then being made initially or pursuant to a conversion, cancel the respective
Borrowing by giving the Administrative Agent telephonic notice (confirmed in
writing) on the same date that the Borrower was notified by the affected Bank or
the Administrative Agent pursuant to Section 1.10(a)(ii) or (iii) or (y) if the
affected Eurodollar Loan is then outstanding, upon at least three Business Days'
written notice to the Administrative Agent, require the affected Bank to convert
such Eurodollar Loan into a Base Rate Loan, provided that, if more than one Bank
is affected at any time, then all affected Banks must be treated the same
pursuant to this Section 1.10(b).
(c) If at any time any Bank determines that, after the date of this
Agreement, the introduction of or any change in any applicable law or
governmental rule, regulation, order, guideline, directive or request (whether
or not having the force of law and including, without limitation, those
announced or published prior to the Effective Date) concerning capital adequacy,
or any change in interpretation or administration thereof by any governmental
authority, central bank or comparable agency, will have the effect of increasing
the amount of capital required or expected to be maintained by such Bank or any
corporation controlling such Bank based on the existence of such Bank's
Commitment hereunder or its obligations hereunder, then the Borrower shall pay
to such Bank, upon its written demand therefor, such additional amounts as shall
be required to compensate such Bank or such other corporation for the increased
cost to such Bank or such other corporation or the reduction in the rate of
return to such Bank or such other corporation as a result of such increase of
capital. In determining such additional amounts, each Bank will act reasonably
and in good faith and will use averaging and attribution methods which are
reasonable, provided that such Bank's reasonable good faith determination of
compensation owing under this Section 1.10(c) shall, absent manifest error, be
final and conclusive and binding on all the parties hereto. Each Bank, upon
determining that any additional amounts will be payable pursuant to this
Section 1.10(c), will give prompt written notice thereof to the Borrower, which
notice shall show the basis for calculation of such additional amounts. In
addition, each such Bank, upon determining that the circumstances giving rise to
the payment of additional amounts pursuant to this Section 1.10(c) cease to
exist, will give prompt written notice thereof to the Borrower.
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1.11 Compensation. The Borrower shall compensate each Bank, upon its
written request (which request shall set forth the basis for requesting such
compensation), for all reasonable losses, expenses and liabilities (including,
without limitation, any loss, expense or liability incurred by reason of the
liquidation or reemployment of deposits or other funds required by such Bank to
fund its Eurodollar Loans but excluding any loss of anticipated profit) which
such Bank may sustain: (i) if for any reason (other than a default by such Bank
or the Administrative Agent) a Borrowing or continuation of, or conversion
from or into, Eurodollar Loans does not occur on a date specified therefor in a
Notice of Borrowing or Notice of Conversion or notice under Section 1.09
(whether or not withdrawn by the Borrower or deemed withdrawn pursuant to
Section 1.10(a)); (ii) if any repayment (including any repayment made pursuant
to Section 3.01 or 3.02 or as a result of an acceleration of the Loans pursuant
to Section 9) or conversion of any Eurodollar Loans occurs on a date which is
not the last day of an Interest Period with respect thereto; (iii) if any
prepayment of any Eurodollar Loans is not made on any date specified in a notice
of prepayment given by the Borrower; or (iv) as a consequence of (x) any other
default by the Borrower to repay the Loans when required by the terms of this
Agreement or the Note held by such Bank or (y) any election made pursuant to
Section 1.10(b).
1.12 Change of Lending Office. Each Bank agrees that on the occurrence of
any event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c) or Section 3.04 with respect to such Bank, it will, if requested by the
Borrower, use reasonable efforts (subject to overall policy considerations of
such Bank) to designate another lending office for any Loans affected by such
event, provided that such designation is made on such terms that such Bank and
its lending office suffer no economic, legal or regulatory disadvantage, with
the object of avoiding the consequence of the event giving rise to the operation
of such Section. Nothing in this Section 1.12 shall affect or postpone any of
the obligations of the Borrower or the right of any Bank provided in Sections
1.10 and 3.04.
1.13 Replacement of Banks. (a) (x) If any Bank (i) becomes a Defaulting
Bank or otherwise defaults in its obligations to make Revolving Loans or (ii)
refuses to consent to certain proposed changes, waivers, discharges or
terminations with respect to this Agreement which have been approved by the
Required Banks as provided in Section 12.12(b) or (y) upon the occurrence of any
event giving rise to the operation of Section 1.10(a)(ii) or (iii), Section
1.10(c) or Section 3.04 with respect to any Bank which results in such Bank
charging to the Borrower increased costs in excess of those being generally
charged by the other Banks, the Borrower shall have the right, in accordance
with the requirements of Section 12.04(b), if no Default or Event of Default
will exist after giving effect to such replacement, to replace such Bank (the
"Replaced Bank") with one or more other Eligible Transferee or Transferees
reasonably acceptable
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to the Administrative Agent, none of whom shall constitute a Defaulting Bank at
the time of such replacement (collectively, the "Replacement Bank"), provided
that (i) at the time of any replacement pursuant to this Section 1.13, the
Replaced Bank and the Replacement Bank shall enter into one or more Assignment
and Assumption Agreements pursuant to Section 12.04(b) (and with all fees
payable pursuant to said Section 12.04(b) to be paid by the Replacement Bank)
pursuant to which the Replacement Bank shall acquire the entire Commitment and
all of the outstanding Loans of the Replaced Bank and, in connection therewith,
shall pay to the Replaced Bank in respect thereof an amount equal to the sum of
(1) an amount equal to the principal of, and all accrued interest on, all
outstanding Loans of the Replaced Bank at such time and (2) an amount equal to
all accrued, but theretofore unpaid, Fees owing to the Replaced Bank pursuant to
Section 2.01 and (ii) all obligations of the Borrower owing to the Replaced
Bank (other than those specifically described in clause (i) above of this
proviso in respect of which the assignment purchase price has been, or is
concurrently being, paid) shall be paid in full to such Replaced Bank
concurrently with such replacement.
(b) Upon the execution of the respective Assignment and Assumption
Agreements, the payment of amounts referred to in clauses (i) and (ii) of the
proviso of Section 1.13(a) and, if so requested by the Replacement Bank,
delivery to the Replacement Bank of the appropriate Note executed by the
Borrower, the Replacement Bank shall become a Bank hereunder and the Replaced
Bank shall cease to constitute a Bank hereunder, except with respect to
indemnification provisions under this Agreement (including, without limitation,
Sections 1.10, 1.11, 3.04, 12.01 and 12.06), which shall survive as to such
Replaced Bank. Upon the Replaced Bank ceasing to be a Bank hereunder, such
Replaced Bank agrees to promptly return to the Borrower the Note theretofore
delivered to such Replaced Bank pursuant to this Agreement marked "cancelled",
or if such Replaced Bank has lost or cannot find such Note, such Replaced Bank
will execute and deliver to the Borrower a customary lost note and indemnity
agreement in form and substance reasonably satisfactory to the Borrower.
SECTION 2. Fees; Reductions of Commitment.
2.01 Fees. (a) The Borrower agrees to pay to the Administrative Agent for
distribution to each Non-Defaulting Bank a commitment commission (the
"Commitment Commission") for the period from the Effective Date to but not
including the Conversion Date (or until such earlier date as the Total
Commitment shall have been terminated), computed at a rate for each day equal to
.35% per annum on the daily average Unutilized Commitment of such Non-Defaulting
Bank. Accrued Commitment Commission shall be due and payable quarterly in
arrears on the last Business Day of each February, May, August and November and
on the Conversion Date or such earlier date upon which the Total Commitment is
terminated.
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(b) The Borrower agrees to pay to the Administrative Agent and each
Co-Agent, for their own account, such other fees as have been agreed to in
writing by the Borrower with the Administrative Agent.
2.02 Voluntary Termination of Unutilized Commitments. (a) Upon at least two
Business Days' prior written notice to the Administrative Agent at the Notice
Office (which notice the Administrative Agent shall promptly transmit to each of
the Banks), the Borrower shall have the right, at any time or from time to time,
without premium or penalty, to terminate or partially reduce the Total
Unutilized Commitment, in integral multiples of $1,000,000; provided that each
such reduction shall apply proportionately to permanently reduce the
Commitment of each Bank.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b), the Borrower may, upon five Business Days' written notice to the
Administrative Agent at the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks) terminate the entire Commitment of
such Bank so long as all Loans, together with accrued and unpaid interest, Fees
and all other amounts owing to such Bank are repaid concurrently with the
effectiveness of such termination pursuant to Section 3.01(b) (at which time
Schedule I shall be deemed modified to reflect such changed amounts), and at
such time, such Bank shall no longer constitute a "Bank" for purposes of this
Agreement, except with respect to indemnifications under this Agreement
(including, without limitation, Sections 1.10, 1.11, 3.04, 12.01 and 12.06),
which shall survive as to such repaid Bank.
2.03 Mandatory Termination of Commitments. (a) The Total Commitment (and
the Commitment of each Bank) shall terminate in its entirety on June 30, 1997,
unless the Effective Date shall have occurred on or prior to such date.
(b) At 9:00 A.M. (New York time) on the Conversion Date, the Total
Commitment (and the Commitment of each Bank) shall terminate in its entirety.
SECTION 3. Prepayments; Payments; Taxes.
3.01 Voluntary Prepayments. (a) The Borrower shall have the right to prepay
the Loans, without premium or penalty, in whole or in part at any time and from
time to time on the following terms and conditions: (i) the Borrower shall give
the Administrative Agent prior to 12:00 Noon (New York time) at the Notice
Office (x) at least one Business Day's prior written notice (or telephonic
notice promptly confirmed in writing) of the Borrower's intent to prepay Base
Rate Loans and (y) at
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least three Business Days' prior written notice (or telephonic notice promptly
confirmed in writing) of the Borrower's intent to prepay Eurodollar Loans, the
amount of such prepayment and the Types of Loans to be prepaid and, in the case
of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, which notice the Administrative Agent shall promptly transmit to each of
the Banks; (ii) each prepayment of Loans shall be in an aggregate principal
amount of at least $1,000,000, provided that if any partial prepayment of
Eurodollar Loans made pursuant to any Borrowing shall reduce the outstanding
Eurodollar Loans made pursuant to such Borrowing to an amount less than the
Minimum Borrowing Amount applicable thereto, then such Borrowing may not be
continued as a Borrowing of Eurodollar Loans and any election of an Interest
Period with respect thereto given by the Borrower shall have no force or effect;
(iii) each prepayment in respect of any Loans made pursuant to a Borrowing shall
be applied pro rata among such Loans, provided that at the Borrower's election
in connection with any prepayment of Revolving Loans pursuant to this Section
3.01(a), such prepayment shall not be applied to any Revolving Loans of a
Defaulting Bank; and (iv) each prepayment of Term Loans pursuant to this Section
3.01(a) shall be applied (1) first, to reduce in direct order of maturity the
Scheduled Repayments that will be due and payable (after giving effect to all
prior reductions thereto) within 12 months following the date of such prepayment
and (2) second, to the extent in excess thereof, to reduce the then remaining
Scheduled Repayments pro rata based upon the then remaining amount of each such
Scheduled Repayment after giving effect to all prior reductions thereto.
(b) In the event of certain refusals by a Bank to consent to certain
proposed changes, waivers, discharges or terminations with respect to this
Agreement which have been approved by the Required Banks as provided in Section
12.12(b), the Borrower may, upon five Business Days' prior written notice to the
Administrative Agent at the Notice Office (which notice the Administrative Agent
shall promptly transmit to each of the Banks) repay all Loans, together with
accrued and unpaid interest, Fees, and all other amounts owing to such Bank
under this Agreement (including under Section 1.11) in accordance with said
Section 12.12(b) so long as (A) in the case of the repayment of any Revolving
Loans of any Bank pursuant to this Section 3.01(b) the Commitment of such Bank
is terminated concurrently with such repayment pursuant to Section 2.02(b) (at
which time Schedule I shall be deemed modified to reflect the changed
Commitments) and (B) the consents required by Section 12.12(b) in connection
with the repayment pursuant to this Section 3.01(b) have been obtained.
3.02 Mandatory Repayments. (a) (i) On any day on which the aggregate
outstanding principal amount of Revolving Loans exceeds the Total Commitment
then in effect, the Borrower shall prepay on such day principal of Revolving
Loans in an amount equal to such excess.
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(ii) On any day on which the aggregate outstanding principal amount of
Loans exceeds the Borrowing Base then in effect, the Borrower shall prepay or
repay on such day principal of Loans in an amount equal to such excess.
(b) On each date set forth below, the Borrower shall be required to repay
that principal amount of Term Loans, to the extent then outstanding, as is set
forth opposite such date (each such repayment, as the same may be reduced as
provided in Section 3.01(a), this Section 3.02(b) and 3.02(e), a "Scheduled
Repayment"):
Scheduled Repayment Date Amount
------------------------ ------
the last Business Day in August, 2000 $20,000,000
the last Business Day in November, 2000 $20,000,000
the last Business Day in February, 2001 $20,000,000
the last Business Day in May, 2001 $20,000,000
the last Business Day in August, 2001 $25,000,000
the last Business Day in November, 2001 $25,000,000
the last Business Day in February, 2002 $25,000,000
the last Business Day in May, 2002 $25,000,000
the last Business Day in August, 2002 $25,000,000
the last Business Day in November, 2002 $25,000,000
the last Business Day in February, 2003 $25,000,000
the last Business Day in May, 2003 $25,000,000
the last Business Day in August, 2003 $30,000,000
the last Business Day in November, 2003 $30,000,000
the last Business Day in February, 2004 $30,000,000
Final Maturity Date $130,000,000
In the event that less than $500,000,000 of Term Loans are outstanding on
the Conversion Date (after giving effect to the conversion of outstanding
Revolving Loans into Term Loans on such date), the amount of each Scheduled
Repayment set forth in the table above shall be reduced on a pro rata basis
(based on the relative proportion that the amount of each such Scheduled
Repayment as set forth in the table above bears to the aggregate amount of all
Scheduled Repayments as set forth in the table above).
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(c) On each date on and after the Effective Date upon which any sale of a
Borrowing Base Property occurs (other than a sale of a Borrowing Base Property
as part of a Like-Kind Exchange), an amount equal to the Release Price with
respect thereto shall be applied as a mandatory repayment of principal of
outstanding Loans.
(d) If there shall occur a Casualty Event or a Taking with respect to any
Borrowing Base Property (or any portion thereof), the Borrower shall be required
to repay principal of outstanding Loans as and to the extent required by Section
7.18(e) or 7.18(g).
(e) The amount of each principal repayment of Term Loans made as required
by Sections 3.02(a)(ii), (c) and (d) shall be applied to reduce the then
remaining Scheduled Repayments on a pro rata basis (based upon the then
remaining amount of each such Scheduled Repayment after giving effect to all
prior reductions thereto).
(f) With respect to each repayment of Loans required by this Section 3.02,
the Borrower may designate the Types of Loans which are to be repaid and, in the
case of Eurodollar Loans, the specific Borrowing or Borrowings pursuant to which
made, provided that: (i) repayments of Eurodollar Loans pursuant to this Section
3.02 may only be made on the last day of an Interest Period applicable thereto
unless all Eurodollar Loans with Interest Periods ending on such date of
required repayment and all Base Rate Loans have been paid in full; (ii) if any
repayment of Eurodollar Loans made pursuant to a single Borrowing shall reduce
the outstanding Eurodollar Loans made pursuant to such Borrowing to an amount
less than the Minimum Borrowing Amount applicable thereto, such Borrowing shall
be converted at the end of the then current Interest Period into a Borrowing of
Base Rate Loans; and (iii) each repayment of Loans made pursuant to the same
Borrowing shall be applied pro rata among such Loans. In the absence of a
designation by the Borrower as described in the preceding sentence, the
Administrative Agent shall, subject to the above, make such designation in its
sole discretion.
3.03 Method and Place of Payment. Except as otherwise specifically provided
herein, all payments under this Agreement or any Note shall be made to the
Administrative Agent for the account of the Bank or Banks entitled thereto not
later than 12:00 Noon (New York time) on the date when due and shall be made in
Dollars in immediately available funds at the Payment Office. Whenever any
payment to be made hereunder or under any Note shall be stated to be due on a
day which is not a Business Day, the due date thereof shall be extended to the
next succeeding Business Day and, with respect to payments of principal,
interest shall be payable at the applicable rate during such extension.
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3.04 Net Payments; Taxes. (a) All payments made by the Borrower hereunder
or under any Note will be made without setoff, counterclaim or other defense.
Except as provided in Section 3.04(b), all such payments will be made free and
clear of, and without deduction or withholding for, any present or future taxes,
levies, imposts, duties, fees, assessments or other charges of whatever nature
now or hereafter imposed by any jurisdiction or by any political subdivision or
taxing authority thereof or therein with respect to such payments (but
excluding, except as provided in the second succeeding sentence, any tax imposed
on or measured by the net income or net profits of a Bank, or any franchise tax
based on the net income or net profits of a Bank, in either case pursuant to the
laws of the jurisdiction in which it is organized or the jurisdiction in which
the principal office or applicable lending office of such Bank is located or any
subdivision thereof or therein) and all interest, penalties or similar
liabilities with respect to such non-excluded taxes, levies, imposts, duties,
fees or other charges (all such non-excluded taxes, levies, imposts, duties,
fees, assessments or other charges being referred to collectively as "Taxes").
If any Taxes are so levied or imposed, the Borrower agrees to pay the full
amount of such Taxes, and such additional amounts as may be necessary so that
every payment of all amounts due under this Agreement or under any Note, after
withholding or deduction for or on account of any Taxes, will not be less than
the amount provided for herein or in such Note. If any amounts are payable in
respect of Taxes pursuant to the preceding sentence, the Borrower agrees to
reimburse each Bank, upon the written request of such Bank, for taxes imposed on
or measured by the net income or net profits of such Bank, or any franchise tax
based on the net income or net profits of a Bank, in either case pursuant to the
laws of the jurisdiction in which such Bank is organized or in which the
principal office or applicable lending office of such Bank is located or under
the laws of any poli- tical subdivision or taxing authority of any such
jurisdiction in which such Bank is organized or in which the principal office or
applicable lending office of such Bank is located and for any withholding of
income or similar taxes imposed by the United States of America as such Bank
shall reasonably determine are payable by, or withheld from, such Bank in
respect of such amounts so paid to or on behalf of such Bank pursuant to the
preceding sentence and in respect of any amounts paid to or on behalf of such
Bank pursuant to this sentence. The Borrower will furnish to the Administrative
Agent within 45 days after the date the payment of any Taxes is due pursuant to
applicable law certified copies of tax receipts or other documentation
reasonably acceptable to the Administrative Agent, evidencing such payment by
the Borrower. The Borrower agrees to indemnify and hold harmless each Bank, and
reimburse such Bank upon its written request, for the amount of any Taxes so
levied or imposed and paid by such Bank.
(b) Each Bank that is not a United States person (as such term is defined
in Section 7701(a)(30) of the Code) agrees to deliver to the Borrower and the
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Administrative Agent on or prior to the Effective Date, or in the case of a
Bank that is an assignee or transferee of an interest under this Agreement
pursuant to Section 1.13 or 12.04 (unless the respective Bank was already a Bank
hereunder immediately prior to such assignment or transfer), on the date of such
assignment or transfer to such Bank, (i) two accurate and complete original
signed copies of Internal Revenue Service Form 4224 or 1001 (or successor forms)
certifying to such Bank's entitlement to a com- plete exemption from United
States withholding tax with respect to payments to be made under this Agreement
and under any Note, or (ii) if such Bank is not a "bank" within the meaning of
Section 881(c)(3)(A) of the Code and cannot deliver either Internal Revenue
Service Form 1001 or 4224 pursuant to clause (i) above, (x) a certificate
substantially in the form of Exhibit C (any such certificate, a "Section
3.04(b)(ii) Certificate") and (y) two accurate and complete original signed
copies of Internal Revenue Service Form W-8 (or successor form) certifying to
such Bank's enti- tlement to a complete exemption from United States withholding
tax with respect to payments of interest to be made under this Agreement and
under any Note. In addition, each Bank agrees that from time to time after the
Effective Date, when a lapse in time or change in circumstances renders the
previous certification invalid or inaccurate in any material respect, such Bank
will promptly deliver to the Borrower and the Administrative Agent two new
accurate and complete original signed copies of Internal Revenue Service Form
4224 or 1001 (or successor forms), or Form W-8 (or successor form) and a Section
3.04(b)(ii) Certificate, as the case may be, and such other forms as may be
required in order to confirm or establish the entitlement of such Bank to a
continued exemption from or reduction in United States withholding tax with
respect to payments under this Agreement and any Note, or it shall immediately
notify the Borrower and the Administrative Agent of its inability to deliver any
such Form or Certificate, in which case such Bank shall not be required to
deliver any such Form or Certificate pursuant to this Section 3.04(b).
Notwithstanding anything to the contrary contained in Section 3.04(a), but
subject to Section 12.04(b) and the immediately succeeding sentence, (x) the
Borrower shall be entitled, to the extent it is required to do so by law, to
deduct or withhold income or similar taxes imposed by the United States (or any
political subdivision or taxing authority thereof or therein) from interest,
Fees or other amounts payable hereunder for the account of any Bank which is not
a United States person (as such term is defined in Section 7701(a)(30) of the
Code) for U.S. Federal income tax purposes to the extent that such Bank has not
provided to the Borrower U.S. Internal Revenue Service Forms that establish a
complete exemption from such deduction or withholding and (y) the Borrower shall
not be obligated pursuant to any provision of Section 3.04(a) to gross-up
payments to be made to a Bank in respect of income or similar taxes imposed by
the United States if (I) such Bank has not provided to the Borrower the Internal
Revenue Service Forms required to be provided to the Borrower pursuant to this
Section 3.04(b) or (II) in the case of a payment, other than interest, to a Bank
described in clause (ii) above, to the extent that
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such Forms do not establish a complete exemption from withholding of such
taxes. Notwithstanding anything to the contrary contained in the preceding
sentence or elsewhere in this Section 3.04 and except as set forth in Section
12.04(b), the Borrower agrees to pay additional amounts and to indemnify each
Bank in the manner set forth in Section 3.04(a) (without regard to the identity
of the jurisdiction requiring the deduction or withholding) in respect of any
Taxes deducted or withheld by it as described in the immediately preceding
sentence as a result of any changes after the Effective Date in any applicable
law, treaty, governmental rule, regulation, guideline or order, or in the
interpretation thereof, relating to the deducting or withholding of such Taxes.
SECTION 4. Conditions Precedent to Effective Date. The occurrence of the
Effective Date pursuant to Section 12.10 is subject to the satisfaction of the
following conditions:
4.01 Execution of Agreement; Notes. (i) This Agreement shall have been
executed and delivered as provided in Section 12.10 and (ii) there shall have
been delivered to the Administrative Agent for the account of each of the Banks
the appro- priate Note executed by the Borrower, in each case in the amount and
maturity and with other terms as otherwise provided herein.
4.02 Fees, etc. On the Effective Date, the Borrower shall have paid to the
Agents and the Banks all costs, fees and expenses (including, without
limitation, reasonable legal fees and expenses) payable to the respective Agents
and the Banks to the extent then due.
4.03 Opinions of Counsel. On the Effective Date, the Administrative Agent
shall have received (i) from Christopher Townsend, Esq., General Counsel to Host
Marriott, and counsel to Holdings, HMC Capital, the Borrower and the Subsidiary
Guarantors, an opinion addressed to each of the Agents and each of the Banks and
dated the Effective Date covering the matters set forth in Exhibit D-1 and such
other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request, (ii) from Hogan & Hartson L.L.P.,
special counsel to Host Marriott, Holdings, HMC Capital, the Borrower and the
Subsidiary Guarantors, an opinion addressed to each of the Agents and each of
the Banks and dated the Effective Date covering the matters set forth in Exhibit
D-2 and such other matters incident to the transactions contemplated herein as
the Administrative Agent may reasonably request and (iii) from local counsel
reasonably satisfactory to the Administrative Agent, opinions each of which
shall be in form and substance reasonably satisfactory to the Administrative
Agent and shall cover the perfection of the security interests granted pursuant
to the Security Agreement, the New York Marriott Financial Center
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Assignment and Pledge Agreement and the Mortgage on the San Francisco Marriott
and such other matters incident to the transactions contemplated herein as the
Administrative Agent may reasonably request.
4.04 Corporate and Partnership Documents; Proceedings; etc. (a) On the
Effective Date, the Administrative Agent shall have received a certificate,
dated the Effective Date, signed by the Secretary or an Assistant Secretary of
each Credit Party (or from the Secretary or an Assistant Secretary of the
general partner of each Credit Party that is a limited partnership), in the form
of Exhibit E with appropriate insertions, together with copies of the
certificate of incorporation and by-laws or other organizational documents
(including partnership agreements and certificates of partnership) of each such
Credit Party and the resolutions of each Credit Party referred to in such
certificate, and the foregoing shall be reasonably acceptable to the
Administrative Agent.
(b) All corporate, partnership and legal proceedings and all instruments
and agreements in connection with the transactions contemplated by this
Agreement and the other Credit Documents (including the transactions
contemplated by Section 4.13) shall be reasonably satisfactory in form and
substance to the Administrative Agent and the Required Banks, and the
Administrative Agent shall have received all information and copies of all
documents and papers, including records of corporate and partnership
proceedings, governmental approvals, good standing certificates and bring-down
telegrams, if any, which the Administrative Agent may have reasonably requested
in connection therewith, such documents and papers where appropriate to be
certified by proper corporate, partnership or governmental authorities.
4.05 Management Agreements; Debt Agreements; etc.. (a) On the Effective
Date, there shall have been delivered to (or, in the case of clause (ii)(z)
below, made available for review by) the Administrative Agent true and correct
copies (or, in the case of clause (ii)(y) below, originals), certified as true
and complete by an Authorized Officer of the Borrower, of (i) all agreements
with respect to the manage- ment of each Initial Hotel Property (collectively,
the "Management Agreements") and (ii) all agreements evidencing or relating (x)
to all Existing Indebtedness of Holdings or of any of its Subsidiaries (other
than Existing Indebtedness of the type described in Section 8.04(iii)), (y) to
the Existing New York Marriott Financial Center Mortgages and the Existing New
York Marriott Financial Center Notes and (z) to the Indebtedness under the
Acquisition Notes, the Properties Notes and all other Indebtedness of Host
Marriott (other than Non-Recourse Indebtedness) if the aggregate principal
amount of the respective Indebtedness exceeds (or upon utilization of any unused
commitments may exceed) $50,000,000 (collectively, the "Debt Agreements"); all
of which Management Agreements and Debt Agreements shall be in full force and
effect.
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(b) On or prior to the Effective Date, Host Marriott shall have (i) amended
the MI LOC pursuant to which the restrictive covenants set forth therein shall
have been terminated and (ii) repaid all loans, if any, outstanding thereunder,
and the Administrative Agent shall have received a true and correct copy of such
amendment which shall be in form and substance reasonably satisfactory to it.
(c) On or prior to the Effective Date, HMC Capital and the Borrower shall
have amended the terms of the Existing New York Marriott Financial Center
Mortgages and the Existing New York Marriott Financial Center Notes on terms and
conditions reasonably satisfactory to the Administrative Agent, and the
Administrative Agent shall have received true and correct copies of such
amendments.
4.06 Pledge Agreement. On the Effective Date, each Credit Party (other than
Host Marriott) shall have duly authorized, executed and delivered a Pledge
Agreement in the form of Exhibit F-1 (as modified, supplemented or amended from
time to time, the "Pledge Agreement") and shall have delivered to the Collateral
Agent, as Pledgee, all the certificated Pledged Securities, if any, referred to
therein then owned by such Credit Party, (x) endorsed in blank in the case of
promissory notes constituting Pledged Securities and (y) together with executed
and undated stock powers in blank, in the case of capital stock constituting
Pledged Securities.
4.07 Partnership Pledge and Security Agreement and Security Agreement. On
the Effective Date, each Credit Party (other than Host Marriott) shall have duly
authorized, executed and delivered (i) a Partnership Pledge and Security
Agreement in the form of Exhibit F-2 (as modified, supplemented or amended from
time to time, the "Partnership Pledge and Security Agreement") covering all of
such Credit Party's present and future Partnership Pledge and Security Agreement
Collateral and (ii) a Security Agreement in the form of Exhibit G (as modified,
supplemented or amended from time to time, the "Security Agreement") covering
all of the such Credit Party's present and future Security Agreement Collateral,
in each case together with:
(a) proper financing statements (Form UCC-1) fully executed for filing
under the UCC or other appropriate filing offices of each jurisdiction as may be
necessary or, in the reasonable opinion of the Collateral Agent, desirable to
perfect the security interests purported to be created by the Partnership Pledge
and Security Agreement and the Security Agreement, as the case may be;
(b) certified copies of requests for information or copies (Form UCC- 11),
or equivalent reports, listing all effective financing statements that name such
Credit Party as debtor and that are filed in the jurisdictions referred to in
clause (a) above, together with copies of such other financing statements that
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name any such Credit Party as debtor (none of which shall cover the Collateral
except to the extent evidencing Permitted Liens or in respect of which the
Collateral Agent shall have received termination statements (Form UCC-3 or such
other termination statements as shall be required by local law) fully executed
for filing);
(c) evidence of the completion of all other recordings and filings of, or
with respect to, the Partnership Pledge and Security Agreement and the Security
Agreement as may be necessary or, in the reasonable opinion of the Collateral
Agent, desirable to perfect the security interests intended to be created by the
Partnership Pledge and Security Agreement and the Security Agreement;
(d) executed copies of Partnership Notices delivered to each Pledged
Partnership Entity and executed copies of Partnership Acknowledgements executed
by each Pledged Partnership Entity, together with evidence that such other
actions have been taken as may be necessary or, in the reasonable opinion of the
Collateral Agent, desirable to perfect the security interests purported to be
created by the Partnership Pledge and Security Agreement (including, without
limitation, evidence that each Pledged Partnership Entity has duly recorded the
security interest created by the Partnership Pledge and Security Agreement on
the partnership books and records of such Pledged Partnership Entity); and
(e) evidence that all other actions necessary or, in the reasonable opinion
of the Collateral Agent, desirable to perfect and protect the security interests
purported to be created by the Partnership Pledge and Security Agreement and the
Security Agreement have been taken.
4.08 Guaranties. On the Effective Date, (i) Host Marriott shall have duly
authorized, executed and delivered a Guaranty in the form of Exhibit H-1 (as
modified, amended or supplemented from time to time, the "Host Marriott
Guaranty") and (ii) each Subsidiary Guarantor shall have duly authorized,
executed and delivered a Subsidiaries Guaranty in the form of Exhibit H-2 (as
modified, amended or supplemented from time to time, the "Subsidiaries
Guaranty").
4.09 Assignment and Pledge Agreements; Mortgages; Title Insurance; Surveys;
etc. On the Effective Date, the Collateral Agent shall have received:
(a) in respect of the New York Marriott Financial Center, fully executed
counterparts of an Assignment of Mortgage and Pledge Agreement in the form of
Exhibit T (as modified, amended or supplemented from time to time, the "New York
Marriott Financial Center Assignment and Pledge Agreement")
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pursuant to which HMC Capital shall have pledged and assigned to the Collateral
Agent, for the benefit of the Secured Creditors, the Existing New York Marriott
Financial Center Mortgages and the Existing New York Marriott Financial Center
Notes;
(b) in respect of the San Francisco Marriott, fully executed counterparts
of a Mortgage in the form of Exhibit V, together with evidence that a fully
executed counterpart of such Mortgage has been delivered to the title insurance
company insuring the lien of such Mortgage for recording in all places to the
extent necessary to effectively create a valid and enforceable first priority
mortgage lien on the San Francisco Marriott in favor of the Collateral Agent (or
such other trustee as may be required or desired under local law) for the
benefit of the Secured Creditors;
(c) Mortgage Policies on each of the San Francisco Marriott and the New
York Marriott Financial Center issued by Commonwealth Land Title Insurance
Company or other title insurers reasonably satisfactory to the Collateral Agent
in amounts reasonably satisfactory to the Administrative Agent assuring the
Collateral Agent that the Mortgage on the San Francisco Marriott and the New
York Marriott Financial Center Assignment and Pledge Agreement are valid and
enforceable first priority liens on such Initial Hotel Properties (or interest
therein, as the case may be), free and clear of all defects and encumbrances
except Permitted Liens applicable thereto and such Mortgage Policies shall
otherwise be in form and substance reasonably satisfactory to the Administrative
Agent and shall include, as appropriate, an endorsement for future advances
under this Agreement and the Notes and for any other matter that the Collateral
Agent in its reasonable discretion may request, shall not include an exception
for mechanics' liens or creditors' rights, and shall provide for affirmative
insurance and such reinsurance as the Collateral Agent in its reasonable
discretion may request;
(d) surveys, in form and substance reasonably satisfactory to the
Administrative Agent, of the San Francisco Marriott and the New York Marriott
Financial Center certified by a licensed professional surveyor reasonably
satisfactory to the Administrative Agent;
(e) an estoppel certificate in form and substance reasonably satisfactory
to the Administrative Agent, duly executed by the fee owner or ground lessor of
the San Francisco Marriott;
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(f) certificates of occupancy (or such other proof of compliance with local
ordinances as the Administrative Agent shall reasonably require), in form and
substance reasonably satisfactory to the Administrative Agent, with respect to
each Initial Hotel Property; and
(g) with respect to each Initial Hotel Property which is a Leasehold, a
true and correct copy of the ground lease for each such Initial Hotel Property.
4.10 Manager Subordination Agreement; HMC Capital Subordination Agreement.
(a) On the Effective Date, the Borrower, YBG Associates or Marriott Suites L.P.,
as the case may be, and each Facility Manager, shall have duly authorized,
executed and delivered a Subordination Agreement substantially in the form of
Exhibit I with respect to each Initial Hotel Property owned and/or leased by
such Person (as modified, amended or supplemented from time to time, a "Manager
Subordination Agreement").
(b) On the Effective Date, HMC Capital and the Borrower shall have duly
authorized, executed and delivered a Subordination Agreement in the form of
Exhibit U (as modified, amended or supplemented from time to time, the "HMC
Capital Subordination Agreement").
4.11 Adverse Change, etc. (a) On the Effective Date, nothing shall have
occurred (and none of the Banks shall have become aware of any facts, conditions
or other information not previously known) which the Administrative Agent or the
Required Banks believe could reasonably be expected to have a material adverse
effect (i) on the rights or remedies of the Administrative Agent or the Banks,
or on the ability of any Credit Party to perform its respective obligations to
the Administrative Agent and the Banks or (ii) on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Host Marriott, Holdings, HMC Capital, the Borrower, Holdings and its
Subsidiaries taken as a whole or the Borrower and its Subsidiaries taken as a
whole.
(b) On or prior to the Effective Date, all necessary governmental (domestic
and foreign) and third party approvals (including any approvals of the ground
lessor of the San Francisco Marriott) in connection with the making of the Loans
and the transactions contemplated by the Credit Documents (including the
consummation of the Initial Capital Contributions) and otherwise referred to
herein or therein shall have been obtained and remain in effect, and all
applicable waiting periods shall have expired without any action being taken by
any competent authority which restrains, prevents or imposes materially adverse
conditions upon the making of the Loans and the transactions contemplated by the
Credit Documents. Additionally, there shall not
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exist any judgment, order, injunction or other restraint issued or filed or a
hearing seek- ing injunctive relief or other restraint pending or notified
prohibiting or imposing materially adverse conditions upon the making of the
Loans or the transactions contemplated by the Credit Documents.
4.12 Litigation. On the Effective Date, no litigation by any entity
(private or governmental) shall be pending or, to the best knowledge of
Holdings, HMC Capital and the Borrower, threatened (i) with respect to the
making of the Loans or the Credit Documents or any documentation executed in
connection therewith or the transactions contemplated thereby or (ii) which the
Administrative Agent or the Required Banks believe could reasonably be expected
to have a materially adverse effect on the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of Host
Marriott, Holdings, HMC Capital, the Borrower, Holdings and its Subsidiaries
taken as a whole or the Borrower and its Subsidiaries taken as a whole.
4.13 Initial Capital Contributions; etc. (a) On or prior to the Effective
Date, the Initial Capital Contributions shall have occurred in a manner, and
pursuant to documentation, reasonably satisfactory to the Administrative Agent.
(b) On the Effective Date, (i) the Borrower, YBG Associates or Marriott
Suites L.P., as the case may be, shall own the Initial Hotel Properties free and
clear of all Liens other than (w) in the case of the New York Marriott Financial
Center, Liens evidenced by the Existing New York Marriott Financial Center
Mortgages, (x) the Liens created pursuant to the respective Security Documents,
(y) Permitted Encumbrances and (z) Permitted Liens in respect of any Specified
Equipment, and (ii) Holdings and its Subsidiaries shall have no Indebtedness
other than Indebtedness under the Credit Documents, the Existing New York
Marriott Financial Center Notes and the Existing Indebtedness.
(c) To the extent not required by the other provisions of this Section 4,
the Borrower shall have delivered to the Administrative Agent all information
and documentation with respect to each Initial Hotel Property which would be
required pursuant to Section 7.11 if such Initial Hotel Properties were
subsequently acquired Borrowing Base Properties.
4.14 Solvency Certificate; Environmental Assessments; Insurance
Certificates; Real Estate Appraisals; Engineers Reports. On or prior to the
Effective Date, there shall have been delivered to the Administrative Agent:
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(a) a solvency certificate in the form of Exhibit J, addressed to each of
the Agents and each of the Banks and dated the Effective Date from an Authorized
Financial Officer of Holdings providing the opinion of such Authorized Financial
Officer as to the solvency of Holdings and its Subsidiaries taken as a whole and
the Borrower on a stand-alone basis;
(b) Phase I environmental assessments for the Initial Hotel Properties from
environmental consultants reasonably satisfactory to the Administrative Agent
and in form, scope and substance reasonably satisfactory to the Administrative
Agent and the Required Banks;
(c) certificates of insurance complying with the requirements of Section
7.03 for the business and properties of Holdings and its Subsidiaries, in scope,
form and substance reasonably satisfactory to the Administrative Agent and the
Required Banks and naming the Collateral Agent as an additional insured and/or
loss payee (as its respective interest may appear), and stating that such
insurance shall not be cancelled or materially changed without at least 30 days'
prior written notice (or at least 10 days' prior written notice in the case of
non- payment of premium) by the respective insurer to the Collateral Agent at
the Notice Office;
(d) Appraisals with respect to the Initial Hotel Properties, which
Appraisals shall satisfy the requirements set forth in 12 C.F.R. Part 34 -
Subpart C and shall in all other respects be in scope, form and substance
reasonably satisfactory to the Administrative Agent and the Required Banks; and
(e) engineers reports with respect to the Initial Hotel Properties, which
engineers reports shall be from engineers reasonably satisfactory to the
Administrative Agent, and shall be in form, scope and substance reasonably
satisfactory to the Administrative Agent and the Required Banks.
4.15 Pro Forma Balance Sheets. On or prior to the Effective Date, the
Administrative Agent shall have received unaudited pro forma consolidated
balance sheets and projections of the Borrower and its Subsidiaries, in each
case prepared on a basis consistent with the financial statements referred to in
Section 6.05(a) and in accordance with GAAP except as specifically set forth in
the notes to such balance sheets, after giving effect to the transactions
contemplated hereby, which consolidated balance sheets and projections shall be
in form and substance reasonably satisfactory to the Administrative Agent and
the Required Banks.
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4.16 California Environmental Indemnity Agreement. On the Effective Date,
each Credit Party (other than Host Marriott) shall have duly authorized,
executed and delivered an Environmental Indemnity Agreement in the form of
Exhibit K (as modified, amended or supplemented from time to time, the
"California Environmental Indemnity Agreement").
4.17 Initial Borrowing Base Certificate. On the Effective Date, the
Borrower shall have delivered to the Administrative Agent the initial Borrowing
Base Certificate in the form of Exhibit L.
4.18 No Default; Representations and Warranties. On the Effective Date, (i)
there shall exist no Default or Event of Default and (ii) all representations
and warranties contained herein and in the other Credit Documents shall be true
and correct in all material respects with the same effect as though such
representations and warranties had been made on the Effective Date (it being
understood and agreed that any representation or warranty which by its terms is
made as of a specified date shall be required to be true and correct in all
material respects only as of such specified date).
The occurrence of the Effective Date shall constitute a representation and
warranty by Holdings, HMC Capital and the Borrower to each of the Agents and
each of the Banks that all the conditions specified in this Section 4 exist as
of the Effective Date (except to the extent that any of the conditions specified
in this Section 4 are required to be satisfactory to or determined by any Bank,
the Required Banks, the Collateral Agent and/or the Administrative Agent or
otherwise expressly calls for a subjective determination to be made by any Bank,
the Required Banks, the Collateral Agent and/or the Administrative Agent). All
of the Notes, certificates, legal opinions and other documents and papers
referred to in this Section 4, unless otherwise specified, shall be delivered to
the Administrative Agent at the Notice Office for the benefit of each of the
Banks and shall be in form and substance reasonably satisfactory to the Banks.
SECTION 5. Conditions Precedent to All Revolving Loans. The obligation of
each Bank to make Revolving Loans (including any Revolving Loans made on the
Effective Date) is subject, at the time of each such Revolving Loan (except as
hereinafter indicated), to the satisfaction of the following conditions:
5.01 No Default; Representations and Warranties. At the time of each such
Revolving Loan and also after giving effect thereto (i) there shall exist no
Default or Event of Default and (ii) all representations and warranties
contained herein and in the other Credit Documents shall be true and correct in
all material respects with the
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same effect as though such representations and warranties had been made on the
date of the making of such Revolving Loan (it being understood and agreed that
any representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date).
5.02 Notice of Borrowing. Prior to the making of each Revolving Loan, the
Administrative Agent shall have received a Notice of Borrowing meeting the
requirements of Section 1.03(a).
5.03 Hotel Property and Senior Living Care Facility Information; etc. Prior
to the making of any Revolving Loan, neither the Administrative Agent nor the
Required Banks shall have become aware of any negative facts, conditions or
other information which would reasonably lead the Administrative Agent or the
Required Banks to believe that (i) the information provided in any Information
Package with respect to any Borrowing Base Property is not true and accurate in
all material respects (or was not true and accurate in all material respects at
the time such Information Package was furnished pursuant to this Agreement) or
is incomplete by omitting to state any fact necessary to make such information
not misleading in any material respect (or was incomplete by omitting to state
any fact necessary to make such information not misleading in any material
respect at the time such Information Package was furnished pursuant to this
Agreement) and neither the Administrative Agent nor the Required Banks shall
have so informed the Borrower in writing thereof or (ii) the representations and
warranties made in any of Sections 6.16(b), 6.19 and 6.20 are (or were) untrue
in any material respect at the time such representations and warranties are (or
were) made or deemed made (determined without regard to any "knowledge"
qualification set forth in Section 6.16(b), 6.19 or 6.20) and neither the
Administrative Agent nor the Required Banks shall have so informed the Borrower
in writing thereof.
5.04 Certain Requirements with Respect to Loans. (a) Prior to the making of
any Revolving Loan, the Administrative Agent shall have received a certificate
from an Authorized Financial Officer of the Borrower certifying as to the
specific uses to be made of the proceeds thereof (broken down by Hotel Property
and/or Senior Living Care Facility, as the case may be, and showing the
categories of uses as specified in Section 6.08(a)), which certificate shall be
in form and detail reasonably satisfactory to the Administrative Agent.
(b) Prior to or contemporaneously with (as applicable) the incurrence of
any Revolving Loan the proceeds of which are to be used to acquire a Borrowing
Base Property (including by purchasing the capital stock or other equity
interests of the Person(s) owning such Borrowing Base Property), the Borrower
shall have satisfied the relevant requirements of Sections 7.11 and 8.02(viii).
Prior to the incurrence of any
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Revolving Loan the proceeds of which are to be used for the purposes set forth
in Section 8.02(ix) or Section 8.05(vii), the Borrower shall have satisfied the
relevant requirements of Section 8.02(ix) or Section 8.05(vii), as the case may
be.
(c) Prior to the incurrence of any Revolving Loan, the Borrower shall have
delivered to the Administrative Agent a Borrowing Base Certificate from an
Authorized Financial Officer of the Borrower, showing that, after giving effect
to the incurrence of such Revolving Loan, the total outstanding principal amount
of all Revolving Loans will not exceed the Borrowing Base as then in effect.
(d) Prior to or contemporaneously with the incurrence of any Revolving
Loan, the Borrower shall have delivered to the Administrative Agent (x)
evidence, in form and substance reasonably satisfactory to the Administrative
Agent, demonstrating that all mortgage recording taxes and similar taxes and
charges have been paid (or funds sufficient therefor have been deposited with
the title insurance company insuring the lien of the respective Mortgages for
payment to the applicable taxing authorities) in all jurisdictions as may be
necessary with respect to such Revolving Loan or that, in the reasonable opinion
of the Administrative Agent, are desirable to maintain the priority and/or
enforceability of the Mortgages with respect to the Revolving Loans to be made
and all Revolving Loans theretofore made and (y) to the extent requested by the
Administrative Agent, a title update and endorsement as necessary to increase,
or confirm, the coverage (as applicable) of those Mortgage Policies for the
respective Borrowing Base Properties as may be necessary under applicable law to
maintain the priority of the mortgage lien as to the Revolving Loan to be made.
5.05 Subsequent Legal Opinions. If, at the time of any Revolving Loan
subsequent to the Effective Date, the Administrative Agent or the Required Banks
shall have reasonably determined that any facts, circumstances or conditions
exist which could reasonably be expected to adversely affect either (x) the
ability of counsel to issue at such time the legal opinions originally delivered
pursuant to Section 4.03 or (y) the perfection of any of the security interests
created pursuant to any Security Document, and the Administrative Agent or the
Required Banks shall have requested the Borrower to deliver one or more opinions
of counsel covering such of the matters set forth in the opinions of counsel
theretofore delivered pursuant to Section 4.03 as the Administrative Agent or
the Required Banks shall specify, then prior to the incurrence of such Revolving
Loan the Administrative Agent shall have received from counsel (who shall be
reasonably satisfactory to the Administrative Agent) an opinion in form and
substance reasonably satisfactory to the Administrative Agent, addressed to each
of the Agents and each of the Banks and dated the date of such Revolving Loan,
covering the matters so specified.
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The acceptance of the proceeds of each Revolving Loan shall constitute a
representation and warranty by Holdings, HMC Capital and the Borrower to each of
the Agents and each of the Banks that all the conditions specified in this
Section 5 and applicable to such Revolving Loan exist as of that time (except to
the extent that any of the conditions specified in this Section 5 are required
to be satisfactory to or determined by any Bank, the Required Banks, the
Collateral Agent and/or the Administrative Agent or otherwise expressly calls
for a subjective determination to be made by any Bank, the Required Banks, the
Collateral Agent and/or the Administrative Agent). All of the certificates and
other documents and papers referred to in this Section 5, unless otherwise
specified, shall be delivered to the Administrative Agent at the Notice Office
for the benefit of each of the Banks.
SECTION 6. Representations and Warranties. In order to induce the Banks to
enter into this Agreement and to make the Loans as provided herein, each of
Holdings, HMC Capital and the Borrower makes (as to itself and each of its
Subsidiaries), the following representations, warranties and agreements, all of
which shall survive the execution and delivery of this Agreement and the Notes
and the making of the Loans, with the occurrence of the Effective Date and the
incurrence of each Revolving Loan on or after the Effective Date being deemed to
constitute a representation and warranty that the matters specified in this
Section 6 are true and correct on and as of the Effective Date and on the date
of each such Revolving Loan (it being understood and agreed that (x) any
representation or warranty which by its terms is made as of a specified date
shall be required to be true and correct in all material respects only as of
such specified date and (y) no representation or warranty made by Holdings, HMC
Capital and the Borrower in Section 6.02 or 6.03 is being made as to Host
Marriott).
6.01 Status. Each of Holdings and each of its Subsidiaries (i) is a duly
organized and validly existing corporation, partnership or limited liability
company, as the case may be, in good standing (if applicable) under the laws of
the jurisdiction of its organization, (ii) has the corporate, partnership or
limited liability company power and authority, as the case may be, to own or
lease its property and assets and to transact the business in which it is
engaged and presently proposes to engage and (iii) is duly qualified and is
authorized to do business and is in good standing in each jurisdiction where the
conduct of its business requires such qualifications except for failures to be
so qualified which, individually or in the aggregate, could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Holdings, Holdings and its Subsidiaries taken as a whole, the Borrower or the
Borrower and its Subsidiaries taken as a whole.
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6.02 Power and Authority. Each Credit Party has the corporate, partnership
or limited liability company power and authority, as the case may be, to
execute, deliver and perform the terms and provisions of each of the Credit
Documents to which it is a party and has taken all necessary corporate,
partnership or limited liability company action, as the case may be, to
authorize the execution, delivery and performance by it of each of such Credit
Documents. Each Credit Party has duly executed and delivered each of the Credit
Documents to which it is a party, and each of such Credit Documents constitutes
the legal, valid and binding obligation of such Credit Party enforceable in
accordance with its terms, except to the extent that the enforceability thereof
may be limited by applicable bankruptcy, insolvency, fraudulent conveyance (but
only with respect to any guaranties or security interests given by a Subsidiary
Guarantor), reorganization or other similar laws generally affecting creditors'
rights and by equitable principles (regardless of whether enforcement is sought
in equity or at law).
6.03 No Violation. Neither the execution, delivery or performance by any
Credit Party of the Credit Documents to which it is a party, nor compliance by
it with the terms and provisions thereof, (i) will contravene any provision of
any applicable law, statute, rule or regulation or any applicable order, writ,
injunction or decree of any court or governmental instrumentality, (ii) will
conflict with or result in any breach of any of the terms, covenants, conditions
or provisions of, or constitute a default under, or result in the creation or
imposition of (or the obligation to create or impose) any Lien (except pursuant
to the Security Documents) upon any of the properties or assets of Holdings or
any of its Subsidiaries pursuant to the terms of any indenture, mortgage, deed
of trust, credit agreement or loan agreement, or any other material agreement,
contract or instrument, to which Holdings or any of its Subsidiaries is a party
or by which it or any of its property or assets is bound or to which it may be
subject or (iii) will violate any provision of the certificate of incorporation,
partnership agreement, certificate of partnership, limited liability company
agreement or by-laws, as the case may be, of Holdings or any of its
Subsidiaries.
6.04 Governmental Approvals. No order, consent, approval, license,
authorization or validation of, or filing, recording or registration with
(except as have been obtained or made and which remain in full force and
effect), or exemption by, any governmental or public body or authority, or any
subdivision thereof, is required to authorize, or is required in connection
with, (i) the execution, delivery and performance of any Credit Document or (ii)
the legality, validity, binding effect or enforceability of any Credit Document.
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6.05 Financial Statements; Financial Condition; Undisclosed Liabilities;
Projections; etc. (a) (i) The unaudited cash flow statements for each Initial
Hotel Property for each of (x) the twelve week period ended on March 28, 1997
and (y) the latest fifty-three week period ended on January 3, 1997 and (ii) the
pro forma combined balance sheet of the Borrower and its Subsidiaries at March
28, 1997 and the pro forma combined cash flow statements for the latest
fifty-three week period ended January 3, 1997 (which statements have been
prepared based on the assumption that (x) in the case of the balance sheet, that
the Initial Hotel Properties were acquired by the Borrower or its Subsidiaries
on January 3, 1997 and (y) in the case of the cash flow statements, that the
Initial Hotel Properties were acquired by the Borrower or its Subsidiaries on
December 30, 1995), each present fairly the historical financial results of the
Initial Hotel Properties (and the combined results which would have applied on
the basis of the assumptions provided above). All information contained in each
Information Package furnished to the Banks pursuant to Section 4.13 (with
respect to the Initial Hotel Properties) or Section 7.11 (with respect to
subsequently acquired Borrowing Base Properties) is, to the best knowledge of
the Borrower, true and accurate in all material respects and not incomplete by
omitting to state any fact necessary to make such information not misleading in
any material respect. Since January 3, 1997 (but assuming that the Initial Hotel
Properties had been acquired by the Borrower or its Subsidiaries on such date),
there has been no material adverse change in the business, operations, property,
assets, liabilities, condition (financial or otherwise) or prospects of
Holdings, Holdings and its Subsidiaries taken as a whole, the Borrower or the
Borrower and its Subsidiaries taken as a whole.
(b) On and as of the Effective Date and on the date on which each Revolving
Loan is made, on a Pro Forma Basis after giving effect to all Indebtedness
(including the Revolving Loans) being incurred or assumed and Liens created by
each Credit Party (other than Host Marriott) in connection therewith, (x) the
sum of the assets, at a fair valuation, of Holdings and its Subsidiaries (taken
as a whole) and the Borrower (on a stand-alone basis) will exceed their
respective debts, (y) Holdings and its Subsidiaries (taken as a whole) and the
Borrower (on a stand-alone basis) have not incurred and do not intend to incur,
and do not believe that they will incur, debts beyond their ability to pay such
debts as such debts mature and (z) Holdings and its Subsidiaries (taken as a
whole) and the Borrower (on a stand-alone basis) have sufficient capital with
which to conduct its business. For purposes of this Section 6.05(b) "debt" means
any liability on a claim, and "claim" means (i) right to payment whether or not
such a right is reduced to judgment, liquidated, unliquidated, fixed,
contingent, matured, unmatured, disputed, undisputed, legal, equitable, secured
or unsecured or (ii) right to an equitable remedy for breach of performance if
such breach gives rise to a payment, whether or not such right to an equitable
remedy is reduced
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to judgment, fixed, contingent, matured, unmatured, disputed, undisputed,
secured or unsecured.
(c) Except as fully disclosed in the financial statements delivered
pursuant to Section 6.05(a), there were as of the Effective Date no liabilities
or obligations with respect to Holdings or any of its Subsidiaries of any
nature whatsoever (whether absolute, accrued, contingent or otherwise and
whether or not due) which, either individually or in aggregate, would be
material to Holdings, HMC Capital, the Borrower or the Borrower and its
Subsidiaries taken as a whole. As of the Effective Date, none of Holdings, HMC
Capital or the Borrower knows of any basis for the assertion against it or any
of its Subsidiaries of any liability or obligation of any nature that is not
fully disclosed in the financial statements delivered pursuant to Section
6.05(a) which, either individually or in the aggregate, could reasonably be
expected to have a material adverse effect on Holdings, Holdings and its
Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole.
(d) On and as of the Effective Date, the financial projections, including
those prepared on a combined basis and those prepared for the individual Initial
Hotel Properties (the "Projections") previously delivered to the Administrative
Agent and the Banks have been prepared on a basis consistent in all material
respects with the financial statements referred to in Section 6.05(a) (other
than as set forth or presented in such Projections), and there are no statements
or conclusions in any of the Projections which are based upon or include
information known to Holdings, HMC Capital or the Borrower to be misleading in
any material respect or which fail to take into account known material
information regarding the matters reported therein. On the Effective Date, each
of Holdings, HMC Capital and the Borrower believed that the Projections were
reasonable and attainable. On the date of the delivery of any projections
contained in the Information Package with respect to each subsequently acquired
Borrowing Base Property, there shall be no statements or conclusions in any of
such projections which are based upon or include information known by Holdings,
HMC Capital or the Borrower to be misleading in any material respect or which
fail to take into account known material information regarding the matters
reported therein. On the date any such projections are furnished pursuant to
Section 7.11, each of Holdings, HMC Capital and the Borrower shall believe that
such projections are reasonable and attainable.
6.06 Litigation. There are no actions, suits or proceedings pending or, to
the best knowledge of Holdings, HMC Capital or the Borrower, threatened (i) with
respect to any Credit Document, (ii) with respect to any material Indebtedness
of Holdings or any of its Subsidiaries or (iii) that could reasonably be
expected to materially and adversely affect the business, operations, property,
assets, liabilities,
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condition (financial or otherwise) or prospects of Holdings, Holdings and its
Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole.
6.07 True and Complete Disclosure. All factual information (taken as a
whole) furnished by or on behalf of Holdings or any of its Subsidiaries in
writing to the Administrative Agent or any Bank (including, without limitation,
all information contained in the Credit Documents and all information contained
in each Information Package furnished to the Banks pursuant to Section 4.13
(with respect to the Initial Hotel Properties) or 7.11 (with respect to
subsequently acquired Borrowing Base Properties) for purposes of or in
connection with this Agreement, the other Credit Documents or any transaction
contemplated herein or therein is, and all other such factual information (taken
as a whole) hereafter furnished by or on behalf of Holdings, or any of the its
Subsidiaries in writing to the Administrative Agent or any Bank will be, true
and accurate in all material respects on the date as of which such information
is dated or certified and, to the best of Holdings', HMC Capital's and the
Borrower's knowledge, not incomplete by omitting to state any fact necessary to
make such information (taken as a whole) not misleading in any material respect
at such time in light of the circumstances under which such information is or
was provided (subject, in the case of any information referred to in Section
6.05, to the qualifications (if any) set forth in Section 6.05 with respect to
any such information).
6.08 Use of Proceeds; Margin Regulations. (a) The proceeds of all Revolving
Loans shall be used by the Borrower and its Subsidiaries, subject to the other
restrictions set forth in this Agreement, (i) to acquire Borrowing Base
Properties, (ii) to purchase related working capital in connection with the
acquisition of such Borrowing Base Properties, (iii) to pay pre-opening costs
and make improvements to the Borrowing Base Properties so acquired to bring such
Borrowing Base Properties up to the respective Credit Party's and Facility
Manager's standards so long as (A) such pre-opening costs and improvements are
incurred and completed on or prior to the second year anniversary of such
acquisition and (B) any payments made in respect thereof utilizing Revolving
Loans are made on or prior to the thirtieth month after such acquisition, (iv)
to pay fees and expenses incurred in connection with the acquisition of such
Borrowing Base Properties, and (v) to make acquisitions pursuant to Sections
8.02(viii) and (ix) and/or Investments pursuant to Sections 8.05(vi) and (vii).
(b) No part of the proceeds of any Revolving Loan will be used to purchase
or carry any Margin Stock or to extend credit for the purpose of purchasing or
carrying any Margin Stock. Neither the making of any Revolving Loan nor the use
of the proceeds thereof will violate or be inconsistent with the provisions of
Regulation G, T, U or X of the Board of Governors of the Federal Reserve System.
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6.09 Tax Returns and Payments. Each of Holdings and each of its
Subsidiaries has timely filed or caused to be timely filed, on the due dates
thereof or within applicable grace periods, with the appropriate taxing
authority, all Federal, state and other material returns, statements, forms and
reports for taxes (the "Returns") required to be filed by or with respect to the
income, properties or operations of Holdings and/or its Subsidiaries. The
Returns accurately reflect in all material respects all liability for taxes of
Holdings and its Subsidiaries for the periods covered thereby. Each of Holdings
and each of its Subsidiaries has paid all material taxes payable by them other
than taxes which are not delinquent, and other than those contested in good
faith and for which adequate reserves have been established in accordance with
generally accepted accounting principles. There is no material action, suit,
proceeding, investigation, audit, or claim now pending or, to the best knowledge
of Holdings, HMC Capital or the Borrower, threatened by any authority regarding
any material taxes relating to Holdings or any of its Subsidiaries. As of the
Effective Date, neither Holdings nor any of its Subsidiaries has entered into an
agreement or waiver or been requested to enter into an agreement or waiver
extending any statute of limitations relating to the payment or collection of
taxes of Holdings or any of its Subsidiaries.
6.10 Compliance with ERISA. (i) Each Plan that is a single employer plan as
defined in Section 4001(a)(15) of ERISA (a "Single Employer Plan") is in
substantial compliance with ERISA and the Code; no Reportable Event has occurred
with respect to a Single Employer Plan; no Single Employer Plan is insolvent or
in reorganization; to the best knowledge of Holdings, HMC Capital or the
Borrower, no Multiemployer Plan is insolvent or in reorganization; no Single
Employer Plan has an Unfunded Current Liability; no Single Employer Plan which
is subject to Section 412 of the Code or Section 302 of ERISA has an accumulated
funding deficiency, within the meaning of such Sections of the Code or ERISA, or
has applied for or received an extension of any amortization period within the
meaning of Section 412 of the Code or Section 303 or 304 of ERISA; all
contributions required to be made by Holdings or any of its Subsidiaries or any
ERISA Affiliate with respect to a Plan and a Foreign Pension Plan have been
timely made; neither Holdings nor any of its Subsidiaries nor any ERISA
Affiliate has incurred any material liability to or on account of a Plan
pursuant to Section 409, 502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204
or 4212 of ERISA or Section 401(a)(29), 4971, 4975 or 4980 of the Code or
reasonably expects to incur any material liability (including any indirect,
contingent, or secondary liability) under any of the foregoing Sections with
respect to any Plan; no proceedings have been instituted to terminate or appoint
a trustee to administer any Single Employer Plan; to the best knowledge of
Holdings, HMC Capital or the Borrower, no proceedings have been instituted to
terminate or appoint a trustee to administer any Multiemployer Plan; no
condition exists which presents a substantial risk to Holdings or any of its
Subsidiaries or any ERISA Affiliate of incurring a material liability to or on
account
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of a Single Employer Plan pursuant to the foregoing provisions of ERISA and the
Code; to the best knowledge of Holdings, HMC Capital or the Borrower, no
condition exists which presents a substantial risk to Holdings or any of its
Subsidiaries or any ERISA Affiliate of incurring any material liability to or on
account of a Multiemployer Plan pursuant to the foregoing provisions of ERISA
and the Code; Holdings, HMC Capital and the Borrower believe that the aggregate
liabilities of Holdings and its Subsidiaries and its ERISA Affiliates to all
Multiemployer Plans in the event of a withdrawal therefrom, as of the close of
the most recent fiscal year of each such Plan ended prior to the date of the
incurrence of any Loan, could not reasonably be expected to have a material
adverse effect on the ability of Holdings or any of its Subsidiaries to perform
its obligations under this Agreement or the other Credit Documents to which it
is a party; each group health plan (as defined in Section 607(1) of ERISA or
Section 4980B(g)(2) of the Code) which covers or has covered employees or former
employees of Holdings or any of its Subsidiaries or any ERISA Affiliate has at
all times been operated in substantial compliance with the provisions of Part 6
of subtitle B of Title I of ERISA and Section 4980B of the Code; no lien imposed
under the Code or ERISA on the assets of Holdings or any of its Subsidiaries or
any ERISA Affiliate exists or, to the best knowledge of Holdings, HMC Capital or
the Borrower is likely to arise on account of any Plan; and Holdings and its
Subsidiaries do not maintain or contribute to (A) any employee welfare benefit
plan (as defined in Section 3(1) of ERISA) which provides benefits to retired
employees or other former employees (other than as required by Section 601 of
ERISA) or (B) any Plan, the obligations with respect to which could reasonably
be expected to have a material adverse effect on the ability of Holdings or any
of its Subsidiaries to perform its obligations under this Agreement or the other
Credit Documents to which it is a party.
(ii) Each Foreign Pension Plan has been maintained in substantial
compliance with its terms and with the requirements of any and all applicable
laws, statutes, rules, regulations and orders and has been maintained, where
required, in good standing with applicable regulatory authorities. Neither
Holdings nor or any of its Subsidiaries has incurred any obligation in
connection with the termination of or withdrawal from any Foreign Pension Plan.
The present value of the accrued benefit liabilities (whether or not vested)
under each Foreign Pension Plan, determined as of the end of the Borrower's most
recently ended fiscal year on the basis of actuarial assumptions, each of which
is reasonable, does not exceed the current value of the assets of each Foreign
Pension Plan allocable to such benefit liabilities, in the aggregate, by a
material amount.
6.11 The Security Documents. (a) With respect to the Security Agreement
Collateral that consists of cash, Cash Equivalents and property in which a
security interest may be perfected by the filing of a financing statement under
the UCC,
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upon (i) possession by the Collateral Agent or its designee in the case of cash,
(ii) the taking of all action required under Article 8 or Article 9, as
applicable, of the UCC in the case of Cash Equivalents and instruments and (iii)
the filing of appropriate financing statements under the UCC in the case of such
other Security Agreement Collateral (all of the foregoing actions described in
preceding clauses (i), (ii) and (iii) having been done and being in full force
and effect with respect to such Security Agreement Collateral owned by such
Credit Party on any date on which this representation and warranty is made or
deemed made or, (x) in the case of the Effective Date, will have been done
within 10 days following the Effective Date or (y) in the case of any Security
Agreement Collateral acquired on any Addition Date, within 10 days following
such Addition Date), the Collateral Agent has been granted, for the benefit of
the Secured Creditors and pursuant to the Security Agreement, a legal, valid and
enforceable security interest in all right, title and interest of such Credit
Party in such Security Agreement Collateral, which security interest is a fully
perfected first lien on, and security interest in, all right, title and interest
of such Credit Party in all of such Security Agreement Collateral, subject to no
other Liens other than Permitted Liens, it being understood that no
representation and warranty is made in this Section 6.11(a) with respect to Cash
Equivalents which, in the aggregate, total less than $100,000. The recordation
of the Assignment of Security Interest in U.S. Patents and Trademarks in the
form attached to the Security Agreement (appropriately completed) in the United
States Patent and Trademark Office together with filings of financing statements
under the UCC will be effective, under applicable law, to perfect the security
interest granted to the Collateral Agent in the United States trademarks (if
any) and United States patents (if any) covered by the Security Agreement and
owned by any Credit Party party thereto on any date on which this representation
and warranty is made or deemed made and the recordation of the Assignment of
Security Interest in U.S. Copyrights in the form attached to the Security
Agreement (appropriately completed) in the United States Copyright Office
together with filings of financing statements under the UCC will be effective,
under applicable law, to perfect the security interest granted to the Collateral
Agent in the United States registered copyrights (if any) covered by the
Security Agreement and owned by any Credit Party party thereto on any date on
which this representation and warranty is made or deemed made. Each Credit Party
has good and marketable title to all Security Agreement Collateral, free and
clear of all Liens except those described above in this clause (a).
(b) Upon delivery to the Collateral Agent of any certificated Pledged
Securities referred to in the Pledge Agreement and upon the taking of all
actions required by Article 8 or Article 9, as applicable, of the UCC in the
case of any uncertificated Pledged Stock (which delivery and/or such other
actions have been done and remain in full force and effect as to all such Pledge
Agreement Collateral owned by any Credit Party on any date on which this
representation and warranty is made or
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deemed made), the security interests created in favor of the Collateral Agent,
as Pledgee, for the benefit of the Secured Creditors under the Pledge Agreement
constitute first priority perfected security interests in the Pledged Securities
described in the Pledge Agreement and owned by the Credit Parties party thereto
on any date on which this representation and warranty is made or deemed made,
subject to no security interests of any other Person. No filings or recordings
(except as have been done in connection with any uncertificated Pledged Stock)
are required in order to perfect (or maintain the perfection or priority of) the
security interests created in the Pledged Securities and the proceeds thereof
under the Pledge Agreement.
(c) The Mortgages create (upon recordation in all relevant jurisdictions,
which recordations have been made and remain in full force and effect as to all
Mortgaged Properties owned or leased by any Credit Party on any date on which
this representation is made or deemed made (or, (x) in the case of the Mortgage
on the San Francisco Marriott, such recordation will have been made within 10
days following the Effective Date or (y) in the case of any Mortgaged Property
acquired on any Addition Date, such recordation will have been made within 10
days following such Addition Date)), as security for the obligations purported
to be secured thereby, a valid and enforceable perfected security interest in
and mortgage lien on all of the Mortgaged Properties owned by any Credit Party
on any date on which this representation and warranty is made or deemed made and
in favor of the Collateral Agent (or such other trustee as may be required or
desired under local law) for the benefit of the Secured Creditors, superior to
and prior to the rights of all third Persons (except that the security interest
and mortgage lien created in the Mortgaged Properties may be subject to the
Permitted Encumbrances related thereto) and subject to no other Liens (other
than Permitted Liens). Schedule III contains a true and complete list of each
parcel of Real Property owned or leased by Holdings and its Subsidiaries on the
Effective Date, and the type of interest therein held by Holdings or any such
Subsidiary. Each of the Borrower, Marriott Suites L.P. or the respective
Subsidiary Guarantor, as the case may be, has good and marketable title to all
Borrowing Base Properties owned by them on any date on which this representation
and warranty is made or deemed made free and clear of all Liens except those
described in the first sentence of this subsection (c).
(d) The Partnership Pledge and Security Agreement creates (after all steps
required under Article 8 or Article 9, as applicable, of the UCC have been
taken) in favor of the Collateral Agent for the benefit of the Secured Creditors
a legal, valid and enforceable security interest in all right, title and
interest of each Credit Party in the Partnership Pledge and Security Agreement
Collateral described therein and owned by such Credit Party on any date on which
this representation and warranty is made or deemed made, which security interest
shall, (i) upon delivery to the Collateral Agent of any certificates evidencing
equity interests in a Pledged Partnership Entity, (ii) upon
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the filing of appropriate financing statements under the UCC in respect of any
Pledged Partnership Entity's partnership interest that is not represented by a
certificate and (iii) upon the taking of all steps required under Article 8 or
Article 9, as applicable, of the UCC (which delivery, filings and/or steps have
been done and remain in full force and effect as to the Partnership Pledge and
Security Agreement Collateral owned by any Credit Party on any date on which
this representation and warranty is made or deemed made), constitute a fully
perfected first lien on, and security interest in, all right, title and interest
of such Credit Party in all of the Partnership Pledge and Security Agreement
Collateral described therein, subject to no security interests of any other
Person.
(e) Upon delivery to the Collateral Agent of the Existing New York Marriott
Financial Center Notes and the filing of the New York Marriott Financial Center
Assignment and Pledge Agreement and appropriate financing statements under the
UCC (which delivery has been made, and which filings have been done and remain
in full force and effect to the extent that the representation is made (or
deemed made) on or after the tenth day after the Effective Date), the security
interests created in favor of the Collateral Agent for the benefit of the
Secured Creditors under the New York Marriott Financial Center Assignment and
Pledge Agreement constitute first priority perfected security interests in the
New York Marriott Financial Center Assignment and Pledge Agreement Collateral
subject to no security interests of any other Person.
6.12 Manager Subordination Agreements; HMC Capital Subordination Agreement.
(a) Each Manager Subordination Agreement is in full force and effect and all
Obligations hereunder and under the other Credit Documents are within the
definition of "Senior Indebtedness" included in the subordination provisions of
each Manager Subordination Agreement.
(b) The HMC Capital Subordination Agreement is in full force and effect and
all Obligations hereunder and under the other Credit Documents are within the
definition of "Senior Indebtedness" included in the subordination provisions of
the HMC Capital Subordination Agreement.
6.13 Properties. Each of Holdings and each of its Subsidiaries has good and
marketable title to all material properties owned by them, including, in the
case of the Borrower and its Subsidiaries, all material property reflected in
the consolidated balance sheet of the Borrower and its Subsidiaries referred
to in Section 6.05(a) and in the pro forma balance sheet referred to in Section
4.15 (except as sold or otherwise disposed of since the date of such balance
sheet in the ordinary course of business, free and clear of all Liens, other
than (i) as referred to in such balance sheet or in the notes thereto or in such
pro forma balance sheet or (ii) Permitted Liens. Except as may be
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disclosed in the engineering reports delivered to, and not objected to by, the
Administrative Agent or the Required Banks prior to the Effective Date (in the
case of the Initial Hotel Properties) or the date of acquisition of any
subsequently acquired Borrowing Base Properties, each Borrowing Base Property is
free of material structural defects and is in good repair (normal wear and tear
excepted) and all building systems contained therein are in good working order
in all material respects subject to ordinary wear and tear, and is free and
clear of any damage that could reasonably be expected to materially and
adversely affect the value of such Borrowing Base Property as to the use thereof
for its intended purposes.
6.14 Capitalization. On the Effective Date, the authorized capital stock of
(i) Holdings shall consist of 200 shares of common stock, with no par value per
share, of which 200 shares shall be issued and outstanding and owned by Host
Marriott, (ii) HMC Capital shall consist of 200 shares of common stock, with no
par value per share, of which 200 shares shall be issued and outstanding and
owned by Holdings and (iii) the Borrower shall consist of 200 shares of common
stock, with no par value per share, of which 180 shares shall be issued and
outstanding and owned by Holdings and 20 shares shall be issued and outstanding
and owned by HMC Capital. All such outstanding shares of common stock have been
duly and validly issued, are fully paid and nonassessable and are free of
preemptive rights. Neither Holdings, HMC Capital nor the Borrower has
outstanding any securities convertible into or exchangeable for its capital
stock or outstanding any rights to subscribe for or to purchase, or any options
for the purchase of, or any agreements providing for the issuance (contingent or
otherwise) of, or any calls, commitments or claims of any character relating
to, its capital stock.
6.15 Subsidiaries. Holdings has no Subsidiaries other than HMC Capital, the
Borrower and the Borrower's Subsidiaries. HMC Capital has no Subsidiaries. The
Borrower has no Subsidiaries other than (i) those Subsidiaries listed on
Schedule IV and (ii) new Subsidiaries created in compliance with Section 8.17.
6.16 Compliance with Statutes, etc. (a) Each of Holdings and each of its
Subsidiaries is in compliance with all applicable statutes, regulations and
orders of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property (including applicable statutes, regulations, orders and
restrictions relating to environmental standards and controls), except such
noncompliances as could not, individually or in the aggregate, reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Holdings, Holdings and its Subsidiaries taken as a whole, the Borrower or the
Borrower and its Subsidiaries taken as a whole.
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(b)(i) Except as disclosed on Schedule IX, to the best knowledge of
Holdings, HMC Capital and the Borrower each Borrowing Base Property complies in
all material respects with all Legal Requirements, (ii) all material consents,
licenses (including liquor licenses), certificates and permits required by all
Legal Requirements for the operation of each Borrowing Base Property have been
obtained and are in full force and effect and (iii) all utility services and
facilities necessary for the operation of each Borrowing Base Property are
available at such Borrowing Base Property.
6.17 Investment Company Act. Neither Holdings nor any of its 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.
6.18 Public Utility Holding Company Act. Neither Holdings nor any of its
Subsidiaries is a "holding company," or a "subsidiary company" of a "holding
company," or an "affiliate" of a "holding company" or of a "subsidiary company"
of a "holding company" within the meaning of the Public Utility Holding Company
Act of 1935, as amended.
6.19 Environmental Matters. (a) To the best knowledge of Holdings, HMC
Capital and the Borrower, each of Holdings and each of its Subsidiaries has
complied with all applicable Environmental Laws and the requirements of any
permits issued under such Environmental Laws. To the best knowledge of Holdings,
HMC Capital and the Borrower, there are no pending or threatened Environmental
Claims against Holdings or any of its Subsidiaries or any Real Property owned or
operated by Holdings or any of its Subsidiaries. To the best knowledge of
Holdings, HMC Capital and the Borrower, there are no facts, circumstances,
conditions or occurrences on any Real Property owned or operated by Holdings or
any of its Subsidiaries or on any property adjoining or in the vicinity of any
such Real Property that could reasonably be expected (i) to form the basis of an
Environmental Claim against Holdings or any of its Subsidiaries or any such Real
Property or (ii) to cause any such Real Property to be subject to any
restrictions on the ownership, occupancy, use or transferability of such Real
Property by Holdings or any of its Subsidiaries under any applicable
Environmental Law.
(b) To the best knowledge of Holdings, HMC Capital and the Borrower,
Hazardous Materials have not at any time been generated, used, treated or stored
on, or transported to or from, or Released on or from, any Real Property owned
or operated by Holdings or any of its Subsidiaries except in compliance with all
applicable Environmental Laws and reasonably required in connection with the
operation, use and maintenance of any such Real Property by Holdings or such
Subsidiary's business.
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(c) Notwithstanding anything to the contrary in this Section 6.19, the
representations made in this Section 6.19 shall only be untrue if the aggregate
effect of all failures and noncompliance of the types described above could
reasonably be expected to have a material adverse effect on the business,
operations, property, assets, liabilities, condition (financial or otherwise) or
prospects of Holdings, Holdings and its Subsidiaries taken as a whole, the
Borrower or the Borrower and its Subsidiaries taken as a whole.
6.20 Labor Relations. None of Holdings or any of its Subsidiaries has any
employees. To the best knowledge of Holdings, HMC Capital and the Borrower, no
Facility Manager is engaged in any unfair labor practice with respect to any
Hotel Property or Senior Living Care Facility that could reasonably be expected
to have a material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Holdings,
Holdings and its Subsidiaries taken as a whole, the Borrower or the Borrower and
its Subsidiaries taken as a whole. To the best knowledge of Holdings, HMC
Capital and the Borrower, there is (i) no unfair labor practice complaint
pending or reasonably expected to arise against any Facility Manager before the
National Labor Relations Board and no significant grievance or significant
arbitration proceeding arising out of or under any collective bargaining
agreement is so pending or reasonably expected to arise against any Facility
Manager, (ii) no strike, labor dispute, slowdown or stoppage is pending or
reasonably expected to arise against any Facility Manager and (iii) no union
representation question exists with respect to the employees of any Facility
Manager, in each case with respect to the Hotel Properties and/or Senior Living
Care Facilities managed by the Facility Managers, except (with respect to any
matter specified in clause (i), (ii) or (iii) above, either individually or in
the aggregate) such as could not reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Holdings, Holdings and its
Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole.
6.21 Intellectual Property. Each of Holdings and each of its Subsidiaries
owns or has the right to use all material trademarks, permits, service marks,
trade names, licenses and franchises necessary for the conduct of its respective
businesses.
6.22 Indebtedness. (a) Schedule V sets forth a true and complete list of
all Indebtedness (excluding Indebtedness of the type described in Section
8.04(iii)) of Holdings and its Subsidiaries as of the Effective Date (excluding
the Loans and the Existing New York Marriott Financial Center Notes, the
"Existing Indebtedness"), in each case showing the aggregate principal amount
thereof and the name of the
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respective borrower and any other entity which directly or indirectly guaranteed
such debt.
(b) None of Holdings or any of its Subsidiaries is liable for any
Indebtedness or other obligations of Host Marriott or any of Host Marriott's
other Subsidiaries of any nature whatsoever (whether absolute, accrued,
contingent or otherwise and whether or not due), but excluding such obligations
in which Host Marriott and all of its Subsidiaries are jointly and severally
liable as a matter of law.
6.23 Management Agreements; Ground Leases. (a) Each Management Agreement
with respect to any Borrowing Base Property is in full force and effect and no
party thereto has denied or disaffirmed any of its material obligations
thereunder or has defaulted in the due performance or observance of any material
term, covenant or agreement on its part to be performed or observed pursuant
thereto, and the Loans and the Banks constitute "Qualified Loans" and "Lenders,"
respectively, under each such Management Agreement (to the extent that such
terms are applicable under each such Management Agreement).
(b) Each ground lease with respect to any Borrowing Base Property which is
a Leasehold is in full force and effect and no party thereto has denied or
disaffirmed any of its material obligations thereunder or has defaulted in the
due performance or observance of any material term, covenant or agreement on its
part to be performed or observed pursuant thereto.
SECTION 7. Affirmative Covenants. Each of Holdings, HMC Capital and the
Borrower hereby covenants and agrees (as to itself and each of its Subsidiaries)
that on and after the Effective Date and until the Total Commitment has
terminated and the Loans and Notes, together with interest, Fees and all other
Obligations incurred hereunder and thereunder, are paid in full:
7.01 Information Covenants. Holdings and/or the Borrower will furnish to
the Administrative Agent (with sufficient copies for each of the Banks, and the
Administrative Agent will promptly forward to each of the Banks):
(a) Quarterly Financial Statements and Reports. (A) Within 60 days after
the close of each of the first three quarterly accounting periods in each fiscal
year of the Borrower (commencing with the quarterly accounting period ending
closest to September 30, 1997) (i) the consolidated balance sheet of each of
Holdings and its Subsidiaries and the Borrower and its Subsidiaries as at the
end of such quarterly accounting period, (ii) the related consolidated
statements of income for such quarterly accounting period and for the elapsed
portion of
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the fiscal year ended with the last day of such quarterly accounting period and
(iii) the related consolidated statements of cash flows for the elapsed portion
of the fiscal year ended with the last day of such quarterly accounting period,
in each case (commencing with the financial statements to be delivered in
respect of the Borrower's quarterly accounting period ending closest to
September 30, 1998) setting forth comparative figures for the corresponding
fiscal periods in the prior fiscal year, all of which shall be in reasonable
detail and certified by an Authorized Financial Officer of the Borrower that, to
the best of such officer's knowledge after due inquiry, they fairly present the
financial condition of each of Holdings and its Subsidiaries and the Borrower
and its Subsidiaries as of the dates indicated and the results of their
operations and changes in their cash flows for the periods indicated, subject to
normal year-end audit adjustments, provided that, in satisfying the
requirements of this Section 7.01(a), if at the time the financial statements
referenced herein are to be delivered, Holdings owns no capital stock of any
Person other than HMC Capital and the Borrower and has no other material assets
or liabilities (other than pursuant to the Credit Documents), then one set of
combined financial statements may be delivered pursuant to this Section 7.01(a)
so long as any differences in the combined financial statements of Holdings and
its Subsidiaries from those of the Borrower and its Subsidiaries are indicated
by footnotes in the respective combined financial statements.
(B)(i) Within 50 days after the end of each of the first three quarterly
accounting periods, and within 75 days after the end of the fourth quarterly
accounting period, in each fiscal year of the Borrower, certificates in the
forms of (x) Exhibit M-1 (with such changes thereto as are reasonably acceptable
to the Administrative Agent) for each Hotel Property that is a Borrowing Base
Property on an individual basis, and, at any time that the Borrower or any of
its Subsidiaries owns or leases any non-Borrowing Base Properties, for all such
Hotel Properties on a combined basis, and (y) Exhibit M-2 (with such changes
thereto as are reasonably acceptable to the Administrative Agent) for each
Senior Living Care Facility that is a Borrowing Base Property on an individual
basis, and, at any time that the Borrower or any of its Subsidiaries owns or
leases any non-Borrowing Base Properties, for all such Senior Living Care
Facilities on a combined basis, in each case signed by an Authorized Financial
Officer of the Borrower setting forth the required financial and other
information for such quarterly accounting period as set forth in such Exhibits
and for the elapsed portion of the fiscal year ended with the last day of such
quarterly accounting period, and setting forth comparative figures for the
corresponding quarterly accounting period in the prior fiscal year and the
budgeted figures for such quarterly accounting period.
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(ii) Within 60 days after the end of each of the first three quarterly
accounting periods (commencing with the quarterly accounting period ending
closest to September 30, 1997), and within 120 days after the end of the fourth
quarterly accounting period, in each fiscal year of the Borrower, a certificate
in the form of Exhibit N (with such changes thereto as are reasonably acceptable
to the Administrative Agent) for the Borrower and its Subsidiaries on a
consolidated basis, in each case signed by an Authorized Financial Officer of
the Borrower setting forth the required financial and other information for the
elapsed portion of the fiscal year ended with the last day of such quarterly
accounting period.
(b) Annual Financial Statements. Within 120 days after the close of each
fiscal year of the Borrower, the consolidated balance sheet of each of Holdings
and its Subsidiaries and the Borrower and its Subsidiaries, as of the end of
such fiscal year and the related consolidated statements of income and
shareholders' equity and of cash flows for such fiscal year setting forth
comparative figures for the preceding fiscal year and certified by Arthur
Andersen L.L.P., any other "Big Six" independent certified public accounting
firm or such other independent certified public accountants of recognized
national standing reasonably acceptable to the Administrative Agent, together
with a report of such accounting firm stating that in the course of its regular
audit of the financial statements of each of Holdings and its Subsidiaries and
the Borrower and its Subsidiaries, which audit was conducted in accordance with
generally accepted auditing standards, such accounting firm obtained no
knowledge of any Default or Event of Default which has occurred and is
continuing under any of Sections 8.08 through 8.12, inclusive, or, if in the
opinion of such accounting firm such a Default or Event of Default has occurred
and is continuing, a statement as to the nature thereof, provided that, in
satisfying the requirements of this Section 7.01(b), if at the time the
financial statements referenced herein are to be delivered, Holdings owns no
capital stock of any Person other than HMC Capital and the Borrower and has no
other material assets or liabilities (other than pursuant to the Credit
Documents), then one set of combined financial statements may be delivered
pursuant to this Section 7.01(b) so long as any differences in the combined
financial statements of Holdings and its Subsidiaries from those of the Borrower
and its Subsidiaries are indicated by footnotes in the respective combined
financial statements.
(c) Borrowing Base Certificate. (i) Within 50 days after the close of each
quarterly accounting period in each fiscal year of the Borrower, a Borrowing
Base Certificate, signed by an Authorized Financial Officer of the Borrower,
calculating (in reasonable detail) the Borrowing Base as of the last
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day of such quarterly accounting period, (ii) at the time of the delivery of any
Notice of Borrowing or any notice pursuant to Section 7.01(j), a revised
Borrowing Base Certificate signed by an Authorized Financial Officer of the
Borrower calculating (in reasonable detail) the Borrowing Base as of the date of
such Notice of Borrowing (and after giving effect thereto) or such other notice
and (iii) on any Addition Date or Release Date, a revised Borrowing Base
Certificate signed by an Authorized Financial Officer of the Borrower
calculating (in reasonable detail) the Borrowing Base as of such Addition Date
or Release Date, as the case may be (in each case after giving effect thereto).
(d) Budgets. No later than 60 days after the first day of each fiscal year
of the Borrower, budgets in form reasonably satisfactory to the Administrative
Agent (including, in any event, budgeted statements of cash flow and Capital
Expenditures and budgeted debt and cash balances) for such fiscal year prepared
in detail, with respect to (x) the Borrower and its Subsidiaries, (y) each
Borrowing Base Property and (z) all the Borrowing Base Properties, in each case
accompanied by a statement of an Authorized Financial Officer of the Borrower to
the effect that, to the best of such officer's knowledge, the budget is a
reasonable estimate of the period covered thereby.
(e) Officer's Certificates. At the time of the delivery of the financial
statements provided for in Sections 7.01(a) and (b), a certificate of an
Authorized Financial Officer of the Borrower to the effect that, to the best of
such officer's knowledge, no Default or Event of Default has occurred and is
continuing or, if any Default or Event of Default has occurred and is
continuing, specifying the nature and extent thereof, which certificate shall
(x) set forth the calculations required to establish whether Holdings and its
Subsidiaries were in compliance with the provisions of Sections 7.15(b), 8.03,
8.04, 8.05 and 8.07 through 8.12, inclusive, at the end of such fiscal quarter
or year, as the case may be, and (y) commencing with the fiscal quarter ending
closest to September 30, 1997, set forth the amount of (and the calculations
required to establish) Quarterly Excess Cash Flow for the preceding fiscal
quarter or Annual Excess Cash Flow for the preceding fiscal year, as the case
may be.
(f) Notice of Default or Litigation. Promptly, and in any event within
three Business Days after the President, the Chief Executive Officer, any Vice
President or any Authorized Financial Officer of Holdings or any of its
Subsidiaries obtains knowledge thereof, notice of (i) the occurrence of any
event which constitutes a Default or an Event of Default and (ii) any litigation
or governmental investigation or proceeding pending or threatened (x) against
Holdings or any of its Subsidiaries which could reasonably be expected to
materially and
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adversely affect the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Holdings, Holdings and its
Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole, (y) with respect to any material Indebtedness of Holdings or
any of its Subsidiaries or (z) with respect to any Credit Document.
(g) Management Letters. Promptly after Holdings', HMC Capital's, the
Borrower's or any Subsidiary Guarantor's receipt thereof, a copy of any
"management letter" received by Holdings, HMC Capital, the Borrower or such
Subsidiary Guarantor from its certified public accountants and management's
responses thereto.
(h) Other Reports and Filings. Promptly, and without duplication of any
documents or information delivered pursuant to another clause of this Section
7.01, copies of all financial information, proxy materials and other information
and reports, if any, which Holdings or any of its Subsidiaries shall file with
the Securities and Exchange Commission or any successor thereto (the "SEC") (it
being understood, however, that with respect to any preliminary filings made
with the SEC, Holdings need only deliver a certificate describing such filing)
and copies of all notices and reports which Holdings or any of its Subsidiaries
shall deliver to holders of its material Indebtedness pursuant to the terms of
the documentation governing such Indebtedness (or any trustee, agent or other
representative therefor).
(i) Environmental Matters. Promptly upon, and in any event within ten
Business Days after the President, the Chief Executive Officer, any Vice
President or any Authorized Financial Officer of Holdings or any of its
Subsidiaries, obtaining knowledge thereof, notice of one or more of the
following environmental matters to the extent that any such environmental
matters, individually or in the aggregate, could reasonably be expected to
materially and adversely affect the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Holdings,
Holdings and its Subsidiaries taken as a whole, the Borrower or the Borrower and
its Subsidiaries taken as a whole:
(i) any pending or threatened Environmental Claim against Holdings or
any of its Subsidiaries or any Real Property owned or operated
by Holdings or any of its Subsidiaries;
(ii) any condition or occurrence on or arising from any Real Property
owned or operated by Holdings or any of its Subsidiaries that
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(a) results in non-compliance by Holdings or any of its
Subsidiaries with any applicable Environmental Law or (b) could
reasonably be expected to form the basis of an Environmental
Claim against Holdings or any of its Subsidiaries or any such
Real Property;
(iii) any condition or occurrence on any Real Property owned or
operated by Holdings or any of its Subsidiaries that could
reasonably be expected to cause such Real Property to be subject
to any restrictions on the ownership, occupancy, use or
transferability by Holdings or any of its Subsidiaries of such
Real Property under any Environmental Law; and
(iv) the taking of any removal or remedial action in response to the
actual or alleged presence of any Hazardous Material on any Real
Property owned or operated by Holdings or any of its
Subsidiaries as required by any Environmental Law or any
governmental or other administrative agency.
All such notices shall describe in reasonable detail the nature of the
claim, investigation, condition, occurrence or removal or remedial action and
Holdings' or such Subsidiary's response or proposed response thereto.
(j) Reduction of Borrowing Base. Promptly and in any event within five
Business Days after the President, the Chief Executive Officer, any Vice
President or any Authorized Financial Officer of Holdings or any of its
Subsidiaries obtains knowledge thereof, notice of the occurrence or
effectiveness of any event or condition that has caused, or could reasonably be
expected to cause, the Borrowing Base Property Amount of any Borrowing Base
Property to be reduced by more than the lesser of (x) $1,000,000 and (y) 10% of
such Borrowing Base Property Amount, in each case together with a certificate of
an Authorized Financial Officer of the Borrower setting forth (in reasonable
detail) the nature of the respective event and/or condition.
(k) Annual Meetings with Banks. At the request of the Administrative Agent
or the Required Banks, the Borrower shall, at least once during each fiscal year
of the Borrower, hold a meeting (at a mutually agreeable location and time) with
all of the Banks at which meeting the financial results of the previous fiscal
year and the financial condition of Holdings and its Subsidiaries and the
budgets presented for the current fiscal year of Holdings and its Subsidiaries
shall be reviewed, with each Bank bearing its own travel, lodging, food and
other costs associated with attending any such meeting.
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(l) Other Information. From time to time, such other information or
documents (financial or otherwise) with respect to Holdings and/or any of its
Subsidiaries as the Administrative Agent or any Bank (through the Administrative
Agent) may reasonably request.
7.02 Books, Records and Inspections. Holdings will, and will cause each of
its Subsidiaries to, keep proper books of record and account in which full, true
and correct entries in conformity with generally accepted accounting principles
and all requirements of law shall be made of all dealings and transactions in
relation to its business and activities. Holdings will, and will cause each of
its Subsidiaries to, permit officers and designated representatives of the
Administrative Agent or any Bank to visit and inspect, upon reasonable advance
notice, during regular business hours and under guidance of officers of Holdings
or such Subsidiary, any of the properties of Holdings or any of its
Subsidiaries, and to examine the books of account of Holdings and any of its
Subsidiaries and discuss the affairs, finances and accounts of Holdings and any
of its Subsidiaries with, and be advised as to the same by, its and their
respective Presidents, Chief Executive Officers, Vice Presidents, Authorized
Financial Officers and independent accountants, all at such reasonable times and
intervals and to such reasonable extent as the Administrative Agent or any Bank
may reasonably request, provided that any Bank's rights under this Section 7.02
may not be exercised more than once in any fiscal quarter of the Borrower.
7.03 Maintenance of Property; Insurance. (a) Schedule VI sets forth a true
and complete listing of all insurance maintained by, or on behalf of, Holdings
and its Subsidiaries as of the Effective Date. Holdings will, and will cause
each of its Subsidiaries and Facility Managers to, (i) keep all property
necessary in its business (including, in any event, each Borrowing Base
Property) in good working order and condition and (ii) furnish to the
Administrative Agent, upon written request, information evidencing the insurance
carried. In addition to the requirements of the immediately preceding sentence,
Holdings will, and will cause each of its Subsidiaries and Facility Managers to,
at all times cause (I) insurance coverage to be issued by an insurer (x)
authorized to issue such insurance in all applicable jurisdictions and (y)
having an "A-" or better rating as established by A.M. Best Company and with a
financial size rating of VII or larger as established by A.M. Best Company (or
another financial size rating reasonably acceptable to the Administrative Agent
considering market conditions) and (II) insurance with at least the coverages
set forth below to be continuously maintained:
(i) Property insurance including coverage for business
interruption and/or rental income covering all Borrowing Base
Properties including, but not limited to, any alterations,
Improvements or additions thereto. All such insurance coverage shall
be written on the so-called "All Risk of Physical Loss"
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basis and include the perils of fire, lightning, windstorm, sprinkler
leakage, hail, explosion, riot, riot attending a strike, civil
commotion, vandalism, malicious mischief, terrorist acts, aircraft,
vehicle, smoke, sinkhole (which in the case of a Borrowing Base
Property located in the State of California, is covered by earthquake
insurance) and collapse in an amount equal to at least 100% of the
full replacement cost of the respective property (other than in
respect of the foundation and excavation);
(ii) Boiler and machinery insurance covering all boilers, boiler
tanks, pressure vessels, auxiliary piping, heating and air
conditioning equipment and similar apparatus located in or about the
Borrowing Base Properties in such amounts as are generally carried by
risks of the nature of the respective property;
(iii) Flood insurance to the extent available under the National
Flood Insurance Program, against damage or loss by flood if any
Borrowing Base Property is located in an area now or in the future
designated "A" or "V" FIRM Zones as defined in the National Flood
Insurance Act of 1968, or the Flood Disaster Protection Act of 1973,
or the National Flood Insurance Reform Act of 1994 and any
modifications of such acts to the full amount available under such
acts or programs;
(iv) Earthquake insurance against the peril of earthquake and
earth movement if any Borrowing Base Property is located in California
or another area at high risk to earthquake on such basis and amounts
as shall be reasonably determined by the Administrative Agent;
(v) Liability insurance on a Comprehensive General Liability
Occurrence format in an amount of at least $1,000,000 combined bodily
injury and property damage per occurrence and $3,000,000 in the annual
aggregate amount per Hotel Property or Senior Living Care Facility.
Such insurance coverage shall protect both Holdings and its
Subsidiaries and the Collateral Agent against claims for bodily injury
including death, property damage, personal injury, advertising injury,
contractual liability, products and completed operations liability
arising out of or connected with the possession, use, operation,
leasing, maintenance, construction, alteration or renovation of each
Hotel Property or Senior Living Care Facility. If any of the coverages
referred to in this clause (v) are obtained under a so-called
"blanket" policy with more than one property covered, the policy shall
contain a so-called "individual aggregate per location or project"
endorsement;
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(vi) Umbrella or excess liability insurance on an occurrence
basis in the amount of at least $100,000,000 per occurrence covering
both Holdings and its Subsidiaries and the Collateral Agent against
claims for damages in excess of all primary liability policies;
(vii) Statutory workers' compensation insurance or a qualified
self insurer (to the extent the risks to be covered thereby are not
already covered by other policies of insurance maintained by, or on
behalf of, Holdings and its Subsidiaries), in statutory amounts as
required by law (including employer's liability insurance);
(viii) Liquor liability and dram shop insurance on such basis
and in such amounts as shall be reasonably required by the
Administrative Agent in a minimum amount of $1,000,000 per occurrence
and $3,000,000 in the aggregate for Hotel Properties; and
(ix) Such other insurance against loss or damage of the kinds
from time to time customarily insured against and in such amounts as
are generally available and required by institutional lenders for
properties comparable to the respective Hotel Property or Senior
Living Care Facility.
With respect to insurance of the types described in clauses (i), (ii),
(iii) and (iv) above in this Section 7.03(a) for non-Borrowing Base Properties,
such insurance shall be in at least such amounts and insure against at least
such risks as are consistent with industry practice for similarly situated
properties.
(b) Holdings, HMC Capital and the Borrower will, and will cause each of
Marriott Suites L.P., the Subsidiary Guarantors and/or each Facility Manager to,
at all times keep the respective Borrowing Base Properties (and all equipment,
fixtures, improvements and other personalty relating thereto) insured in favor
of the Collateral Agent, and all policies or certificates with respect to such
insurance (and any other insurance maintained by, or on behalf of, Holdings, HMC
Capital, the Borrower, Marriott Suites L.P. or any Subsidiary Guarantor) (i)
shall name the Collateral Agent as loss payee or as an additional insured, as
its respective interest may appear, (ii) shall state that such insurance
policies shall not be cancelled or materially changed without at least 30 days'
prior written notice thereof (or at least 10 days' prior written notice thereof
in the case of non-payment of premium) by the respective insurer to the
Collateral Agent, (iii) shall provide that the respective insurers irrevocably
waive any and all rights of subrogation with respect to the Collateral Agent and
the Secured Creditors, (iv) shall contain the standard non-contributory
mortgagee clause endorsement in favor of the Collateral Agent with respect to
hazard insurance coverage, (v) shall, with
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respect to first party property insurance and business interruption insurance,
provide that any losses shall be payable to the Collateral Agent notwithstanding
(A) any act or neglect of Holdings, HMC Capital, the Borrower, Marriott Suites
L.P., any Subsidiary Guarantor or any Facility Manager, (B) the occupation or
use of the properties for purposes more hazardous than those permitted by the
terms of the respective policy if such coverage is obtainable at commercially
reasonable rates and is of the kind from time to time customarily insured
against by Persons owning or using similar property and in such amounts as are
customary, (C) any foreclosure or other proceeding relating to the insured
properties or (D) any change in the title to or ownership or possession of the
insured properties and (vi) shall be deposited with the Collateral Agent.
(c) If Holdings, HMC Capital, the Borrower, Marriott Suites L.P., any of
the Subsidiary Guarantors or any Facility Manager shall fail to maintain all
insurance in accordance with this Section 7.03, or if Holdings, HMC Capital, the
Borrower, Marriott Suites L.P., any of the Subsidiary Guarantors or any Facility
Manager shall fail to so name the Collateral Agent as an additional insured or
as a loss payee or so deposit all certificates with respect thereto, the
Administrative Agent and/or the Collateral Agent shall have the right (but
shall be under no obligation), upon at least 10 days' notice to the Borrower, to
procure such insurance, and Holdings, HMC Capital and the Borrower agree to
reimburse the Administrative Agent or the Collateral Agent, as the case may be,
for all costs and expenses of procuring such insurance.
7.04 Corporate Franchises. Holdings will, and will cause each of its
Subsidiaries to, do or cause to be done, all things necessary to preserve and
keep in full force and effect its existence and its material rights, franchises,
licenses and patents; provided, however, that nothing in this Section 7.04 shall
prevent (i) any of the transactions permitted in accordance with Section 8.02 or
(ii) the withdrawal by Holdings or any of its Subsidiaries of its qualification
as a foreign corporation, partnership or limited liability company, as the case
may be, in any jurisdiction where such withdrawal could not reasonably be
expected to have a material adverse effect on the business, operations,
property, assets, liabilities, condition (financial or otherwise) or prospects
of Holdings, Holdings and its Subsidiaries taken as a whole, the Borrower or the
Borrower and its Subsidiaries taken as a whole.
7.05 Compliance with Statutes, etc. Holdings will, and will cause each of
its Subsidiaries to, comply with all applicable statutes, regulations and orders
of, and all applicable restrictions imposed by, all governmental bodies,
domestic or foreign, in respect of the conduct of its business and the ownership
of its property, except such noncompliances as could not, individually or in the
aggregate, reasonably be expected to have a material adverse effect on the
business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Holdings, Holdings and its
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Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole.
7.06 Compliance with Environmental Laws. (a) Holdings will comply, and will
cause each of its Subsidiaries to comply, with all Environmental Laws applicable
to the ownership or use of its Real Property now or hereafter owned or operated
by Holdings or any of its Subsidiaries, except such noncompliances as could not,
individually or in the aggregate, reasonably be expected to have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Holdings, Holdings and its
Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole, and will promptly pay or cause to be paid all costs and
expenses incurred in connection with such compliance, and will keep or cause to
be kept all such Real Property free and clear of any Liens imposed pursuant to
such Environmental Laws.
(b) At the written request of the Administrative Agent or the Required
Banks, which request shall specify in reasonable detail the basis therefor, at
any time and from time to time after (i) the Obligations have been declared due
and payable pursuant to Section 9, (ii) the Administrative Agent receives notice
under Section 7.01(i) of any event for which notice is required to be delivered
for any Real Property or (iii) Holdings or any of its Subsidiaries are not in
compliance with Section 7.06(a) with respect to any Real Property, Holdings, HMC
Capital and the Borrower will provide, at their sole cost and expense, an
environmental site assessment report concerning any such Real Property now or
hereafter owned or operated by Holdings or any of its Subsidiaries, prepared by
an environmental consulting firm reasonably approved by the Administrative
Agent, indicating the presence or absence of Hazardous Materials and the
potential cost of any removal or remedial action in connection with any
Hazardous Materials on such Real Property. If Holdings, HMC Capital or the
Borrower fails to provide the same within 90 days after such request was made,
the Administrative Agent may order the same, and Holdings, HMC Capital and the
Borrower shall grant and hereby grant, to the Administrative Agent and the Banks
and their agents access to such Real Property and specifically grants the
Administrative Agent and the Banks an irrevocable non-exclusive license, subject
to the rights of tenants, to undertake such an assessment, all at the
Borrower's expense.
7.07 ERISA. Within 15 Business Days after Holdings, any Subsidiary of
Holdings or any ERISA Affiliate knows or has reason to know of the occurrence of
any of the following events to the extent that such events, individually or in
the aggregate, could reasonably be expected to have a material adverse effect on
the business, operations, property, assets, liabilities, condition (financial or
otherwise) or prospects of Holdings, Holdings and its Subsidiaries taken as a
whole, the Borrower or
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the Borrower and its Subsidiaries taken as a whole, Holdings will deliver to the
Administrative Agent a certificate of an Authorized Financial Officer of
Holdings setting forth details as to such occurrence and the action, if any,
that Holdings, such Subsidiary or such ERISA Affiliate is required or proposes
to take, together with any notices required or proposed to be given to or filed
with or by Holdings, such Subsidiary, such ERISA Affiliate, the PBGC, a Plan
participant or the Plan administrator with respect thereto: that a Reportable
Event has occurred; that an accumulated funding deficiency, within the meaning
of Section 412 of the Code or Section 302 of ERISA, has been incurred or an
application may reasonably be expected to be or has been made to the Secretary
of the Treasury for a waiver or modification of the minimum funding standard
(including any required installment payments) or an extension of any
amortization period under Section 412 of the Code or Section 303 or 304 of ERISA
with respect to a Single Employer Plan; that any contribution required to be
made by Holdings, any Subsidiary of Holdings or any ERISA Affiliate to a Plan or
Foreign Pension Plan has not been timely made; that a Plan has been or may
reasonably be expected to be terminated, reorganized, partitioned or declared
insolvent under Title IV of ERISA; that a Plan has an Unfunded Current Liability
giving rise to a lien on the assets of Holdings, any Subsidiary of Holdings or
any ERISA Affiliate under ERISA or the Code; that proceedings may reasonably be
expected to be or have been instituted to terminate or appoint a trustee to
administer a Plan; that a proceeding has been instituted against Holdings, any
Subsidiary of Holdings or any ERISA Affiliate pursuant to Section 515 of ERISA
to collect a delinquent contribution to a Plan; that Holdings, any Subsidiary of
Holdings or any ERISA Affiliate will or may reasonably be expected to incur or
has incurred any liability (including any indirect, contingent, or secondary
liability) to or on account of the termination of or withdrawal from a Plan
under Section 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or with
respect to a Plan under Section 401(a)(29), 4971, 4975 or 4980 of the Code or
Section 409 or 502(i) or 502(l) of ERISA or with respect to a group health plan
(as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the Code under
Section 4980B of the Code; or that Holdings or any Subsidiary of Holdings may
incur any liability pursuant to any employee welfare benefit plan (as defined in
Section 3(1) of ERISA) that provides benefits to retired employees or other
former employees (other than as required by Section 601 of ERISA) or any
employee pension benefit plan (as defined in Section 3(2) of ERISA). Holdings
will deliver to the Administrative Agent (with sufficient copies for each Bank)
(i) a complete copy of the annual report (Form 5500) of each Single Employer
Plan (including, to the extent required, the related financial and actuarial
statements and opinions and other supporting statements, certifications,
schedules and information) required to be filed by Holdings or any of its
Subsidiaries with the Internal Revenue Service and (ii) copies of any records,
documents or other information that must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA. In addition to any certificates
or notices delivered to the Administrative Agent pursuant
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to the first sentence hereof, copies of annual reports and any material notices
received by Holdings, any Subsidiary of Holdings or any ERISA Affiliate with
respect to any Plan or Foreign Pension Plan shall be delivered to the
Administrative Agent (with sufficient copies for each Bank) no later than 15
Business Days after the date such report has been filed with the Internal
Revenue Service or such notice has been received by Holdings, such Subsidiary or
such ERISA Affiliate, as applicable.
7.08 End of Fiscal Years; Fiscal Quarters. Holdings, HMC Capital and the
Borrower will cause (i) each of the Borrower's, and each of the Borrower's
Subsidiaries', fiscal years to end on the Friday closest to December 31 and
(ii) each of the Borrower's, and each of the Borrower's Subsidiaries', first
three fiscal quarters to end on the last day of the 12th, 24th and 36th week,
respectively, of each fiscal year and the fourth fiscal quarter to end on the
Friday closest to December 31, it being understood that (x) if any Hotel
Property or Senior Living Care Facility owned or leased by a Subsidiary of the
Borrower is managed by a Facility Manager other than Marriott International or
any Wholly-Owned Subsidiary of Marriott International, Holdings, HMC Capital and
the Borrower shall cause such Subsidiary's fiscal years and fiscal quarters to
end on dates as close as reasonably practicable to the dates set forth above in
this Section 7.08 and (y) the Borrower may elect to change each of its and each
of its Subsidiaries fiscal quarters to end on March 31, June 30, September 30
and December 31.
7.09 Performance of Obligations. Holdings will, and will cause each of its
Subsidiaries to, perform all of its obligations under the terms of each
Management Agreement, each ground lease and each mortgage, deed of trust,
indenture, loan agreement or credit agreement and each other material agreement,
contract or instrument by which it or any Real Property owned or leased by
Holdings or any of its Subsidiaries is bound, except such non-performances as
could not, individually or in the aggregate, reasonably be expected to have a
material adverse effect on the business, operations, property, assets,
liabilities, condition (financial or otherwise) or prospects of Holdings,
Holdings and its Subsidiaries taken as a whole, the Borrower or the Borrower and
its Subsidiaries taken as a whole.
7.10 Payment of Taxes. Holdings will, and will cause each of its
Subsidiaries to, pay and discharge all taxes, assessments and governmental
charges or levies imposed upon it or upon its income or profits, or upon any
properties belonging to it, prior to the date on which any penalties attach
thereto, and all lawful claims for sums that have become due and payable which,
if unpaid, might become a lien or charge upon any properties of Holdings or any
such Subsidiary; provided that neither Holdings nor any such Subsidiary shall be
required to pay any such tax, assessment, charge, levy or claim which is being
contested in good faith and by proper proceedings
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if it has maintained adequate reserves with respect thereto in accordance with
generally accepted accounting principles.
7.11 Certain Requirements with Respect to Acquisitions of Borrowing Base
Properties. Unless the Required Banks otherwise agree in writing with respect to
any Borrowing Base Property acquired after the Effective Date, prior to or, if
specified below, concurrently with (and within any time requirements specified
below) any acquisition by the Borrower or any of its Subsidiaries of a Hotel
Property or a Senior Living Care Facility which shall constitute a Borrowing
Base Property, the Borrower shall furnish to the Administrative Agent (with
sufficient copies for each of the Banks, and the Administrative Agent will
promptly forward to each of the Banks):
(i) at least 10 days prior to the acquisition of the respective
Borrowing Base Property, the Information Package relating to such Borrowing
Base Property;
(ii) concurrently with the acquisition of such Borrowing Base
Property, fully executed counterparts of a Mortgage, in form and substance
reasonably satisfactory to the Administrative Agent, which Mortgage shall
cover the Borrowing Base Property to be acquired and shall secure the full
amount of the Total Commitment (or, after the termination thereof, all
outstanding Loans at such time) (provided, that in any jurisdiction in
which there is a mortgage recording tax, such Mortgage shall secure the
Loans in an amount equal to at least the Appraised Value of such Borrowing
Base Property), together with evidence that counterparts of such Mortgage
have been delivered to the title insurance company insuring the lien on
such Borrowing Base Property for recording in all places to the extent
necessary to effectively create a valid and enforceable first priority
mortgage lien on such Borrowing Base Property in favor of the Collateral
Agent (or such other trustee as may be required or desired under local law)
for the benefit of the Secured Creditors;
(iii) concurrently with the acquisition of such Borrowing Base
Property, a Mortgage Policy on such Borrowing Base Property issued by title
insurers (and with such reinsurance and co-insurance as is) reasonably
satisfactory to the Administrative Agent in amounts reasonably
satisfactory to the Administrative Agent assuring the Administrative Agent
that the Mortgage on such Borrowing Base Property is a valid and
enforceable first priority mortgage lien on such Borrowing Base Property,
free and clear of all defects and encumbrances except Permitted
Encumbrances and such Mortgage Policy shall otherwise be in form and
substance reasonably satisfactory to the Administrative Agent;
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(iv) concurrently with the acquisition of such Borrowing Base
Property, a recent ALTA survey of such Borrowing Base Property certified by
a licensed professional surveyor, which certification and surveyor shall be
reasonably satisfactory to the Administrative Agent;
(v) in the case of any Borrowing Base Property that is a Leasehold, at
least 10 days prior to the acquisition of such Borrowing Base Property, a
true and correct copy of the ground or other lease for such Borrowing Base
Property, and concurrently with the acquisition of such Borrowing Base
Property, an estoppel certificate and, to the extent required by the
Administrative Agent, a landlord waiver, in each case from the fee owner or
ground lessor of such Borrowing Base Property, which lease, estoppel
certificate and landlord waiver shall be in form and substance reasonably
satisfactory to the Administrative Agent;
(vi) a certificate of occupancy (or such other proof of compliance
with local ordinances as the Administrative Agent shall reasonably require)
in form and substance reasonably satisfactory to the Administrative Agent
with respect to such Borrowing Base Property;
(vii) at least 10 days prior to the acquisition of the respective
Borrowing Base Property, recent Phase I (and to the extent reasonably
determined to be necessary by the Administrative Agent, Phase II)
environmental assessments on such Borrowing Base Property from an
independent environmental firm, certified to and in form, scope and
substance, reasonably satisfactory to the Administrative Agent;
(viii) at least 10 days prior to the acquisition of the respective
Borrowing Base Property, recent engineering reports on such Borrowing Base
Property prepared by an independent engineering firm, certified to and in
form, scope and substance, reasonably satisfactory to the Administrative
Agent;
(ix) a true and correct copy of the Management Agreement for such
Borrowing Base Property, which Management Agreement shall be in form and
substance reasonably satisfactory to the Administrative Agent;
(x) concurrently with the acquisition of such Borrowing Base Property,
but only to the extent not already entered into by the Facility Manager of
such Borrowing Base Property, such Facility Manager and the respective
Credit Party shall have duly executed and delivered a Manager Subordination
Agreement;
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(xi) concurrently with the acquisition of such Borrowing Base
Property, an opinion of local counsel reasonably satisfactory to the
Administrative Agent, which shall cover the perfection of the security
interests granted pursuant to the Mortgage on such Borrowing Base Property
and such other matters incident to the transactions contemplated thereby as
the Administrative Agent may reasonably request;
(xii) true and correct copies of all material licenses (including, in
any event, all liquor licenses in the case of a Hotel Property) and permits
for such Borrowing Base Property;
(xiii) a certificate of an Authorized Officer of the Borrower
certifying (i) the cost to acquire the respective Borrowing Base Property,
(ii) the purchase of related working capital in connection with the
acquisition of such Borrowing Base Property, (iii) the amount expected to
be used to pay fees and expenses in connection with the acquisition of such
Borrowing Base Property, and (iv) the amount anticipated to be spent within
two years after the date of the acquisition of such Borrowing Base Property
to pay preopening costs and to make improvements on such Borrowing Base
Property so acquired to bring such Borrowing Base Property up to the
respective Facility Manager's standards;
(xiv) true and correct copies of all leases or other occupancy
agreements for rental space in excess of 7,500 square feet to be entered
into or assumed by the Borrower or any of its Subsidiaries (as lessor) for
such Borrowing Base Property, which leases shall be reasonably satisfactory
to the Administrative Agent;
(xv) either (1) evidence reasonably satisfactory to the Administrative
Agent (which may be included as part of the survey delivered pursuant to
clause (iv) of this Section 7.11) indicating that such Borrowing Base
Property is not located in an area identified as a special flood hazard
area by the Federal Emergency Management Agency or other applicable agency,
or (2) if any such Borrowing Base Property is located in an area identified
as a special flood hazard area by the Federal Emergency Management Agency
or other applicable agency, then a copy of the certificate of insurance
evidencing the underlying flood insurance policy, which underlying policy
shall be in accordance with Section 7.03 and in accordance with the
National Flood Insurance Act of 1968, as amended;
(xvi) a certificate of insurance evidencing that there has been
obtained insurance coverage for such Borrowing Base Property which
satisfies the
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requirements of Section 7.03 and all of such coverage is in full force and
effect; and
(xvii) in the case of any Borrowing Base Property that is not
wholly-owned by the Borrower or by any Wholly-Owned Subsidiary of the
Borrower, a consent, in form and substance satisfactory to the
Administrative Agent, from each of the minority owners of such Borrowing
Base Property (or in the Subsidiary of the Borrower that owns such
Borrowing Base Property) consenting to the granting of a Mortgage on such
Borrowing Base Property and in the related personal property and, to the
extent that such Borrowing Base Property is owned by a Subsidiary of the
Borrower, to the entering into by such Subsidiary of the Security
Agreement, the Pledge Agreement, the Partnership Pledge and Security
Agreement, the Subsidiaries Guaranty, the California Environmental
Indemnity Agreement and any documents related to the foregoing.
7.12 Certain Partnerships. Holdings and the Borrower will ensure that all
times either the Borrower or a Wholly-Owned Subsidiary of the Borrower that is a
Subsidiary Guarantor is the sole general partner of any Subsidiary Guarantor
that is a partnership.
7.13 Facility Manager. Unless the Required Banks otherwise agree in
writing, Holdings will take, and will cause each of its Subsidiaries to take,
all action necessary so that (x) each Borrowing Base Property is at all times
managed by a Permitted Facility Manager pursuant to the respective Management
Agreement and (y) no such Management Agreement is terminated.
7.14 Lien Waivers; etc. Within 60 days after the making of any Revolving
Loan the proceeds of which were used to pay contractors for renovations or
improvements theretofore made on any Borrowing Base Property, the Borrower shall
have delivered to the Administrative Agent (x) lien waivers in form and
substance reasonably satisfactory to the Administrative Agent from the
contractor or contractors that have made such renovations or improvements to the
extent that such contract or contracts are in excess of $2,000,000 and (y) at
the reasonable request of the Administrative Agent, updates regarding title to
the relevant Mortgage Policy in the form of an endorsement to such Mortgage
Policy, to ensure that the priority of the Mortgage on such Borrowing Base
Property is not affected by such renovations or improvements.
7.15 FF&E Reserve Accounts. (a) (i) Within 30 days after the Effective
Date, (x) the Borrower or its respective Subsidiary shall establish FF&E
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Reserve Accounts with respect to each Initial Hotel Property and (y) the
Borrower or its respective Subsidiary shall take all actions as may be
necessary, or in the reasonable opinion of the Administrative Agent desirable,
to perfect the Collateral Agent's security interest in each FF&E Reserve Account
(and all funds from time to time on deposit therein) with respect to the New
York Marriott Financial Center and the San Francisco Marriott and (ii) within 30
days after each acquisition of a Borrowing Base Property, the Borrower or its
respective Subsidiary shall establish an FF&E Reserve Account with respect to
such Borrowing Base Property and shall take all actions as may be necessary, or
in the reasonable opinion of the Administrative Agent desirable, to perfect the
Collateral Agent's security interest in such FF&E Reserve Account (and all funds
from time to time on deposit therein).
(b) On or before the last day of the month immediately following the end of
each accounting period of the Borrower, commencing with its accounting period
ending on June 20, 1997, Holdings will, and will cause its respective
Subsidiaries or Facility Managers to, deposit into the FF&E Reserve Account for
each Borrowing Base Property at least that amount required to be deposited into
such FF&E Reserve Account pursuant to the terms of the respective Management
Agreement, provided that in no event shall the amount so deposited in any
accounting period of the Borrower in respect of any Borrowing Base Property be
less than 3% of the Gross Revenues from such Borrowing Base Property for such
accounting period (net of FF&E expenditures made during such accounting period)
(with such amount to increase to 5% of such Gross Revenues within a reasonable
time reasonably acceptable to the Administrative Agent after the entering into
of such Management Agreement) or more than 7% of the Gross Revenues from such
Borrowing Base Property for such accounting period (net of FF&E expenditures
made during such accounting period). The funds on deposit in the FF&E Reserve
Accounts shall be used by the Borrower or its respective Subsidiary solely to
(i) renew or replace FF&E or make certain Capital Expenditures for the
respective Borrowing Base Property on the terms and conditions set forth in the
respective Management Agreement and in this Agreement and (ii) repay outstanding
Indebtedness incurred pursuant to Section 8.04(x) subject to the terms and
conditions of this Agreement and the respective subordination provisions of such
Indebtedness.
7.16 Interest Rate Protection. If at any time the aggregate outstanding
principal of Loans exceeds $250,000,000, then within 60 days thereafter, the
Borrower will enter into (and thereafter maintain) Interest Rate Protection
Agreements reasonably acceptable to the Agents, with a term of at least one
year, establishing a fixed or maximum interest rate not to exceed 11% for an
aggregate amount equal to at least 50% of the aggregate principal amount of all
Loans then outstanding.
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7.17 Appraisals. (a) As soon as available, but in any event within 30 days
following the acquisition of any Borrowing Base Property after the Effective
Date, the Borrower shall, at its own expense, deliver to the Administrative
Agent (with sufficient copies for each of the Banks, and the Administrative
Agent will promptly forward to each of the Banks), a recent Appraisal with
respect to such Borrowing Base Property, which Appraisal shall satisfy the
requirements set forth in 12 C.F.R. Part 34- Subpart C and shall in all other
respects be in form, scope and substance reasonably satisfactory to the
Administrative Agent.
(b) If the Administrative Agent or the Required Banks shall advise the
Borrower by written notice that the Administrative Agent or the Required Banks
reasonably believe that the value of one or more Borrowing Base Properties has
been materially and adversely affected, for any reason, since the date of the
most recent Appraisal thereof, promptly thereafter the Borrower will cause the
preparation and delivery to the Administrative Agent of a new Appraisal of each
such Borrowing Base Property dated not more than 30 days prior to the date of
such delivery, which Appraisal shall satisfy the requirements set forth in 12
C.F.R. Part 34 - Subpart C, shall otherwise be in form and substance reasonably
satisfactory to the Administrative Agent and shall be prepared by an independent
appraiser satisfactory to, and engaged by, the Administrative Agent; provided
that, unless an Event of Default shall have occurred and be continuing, (i) the
expense of such Appraisal shall be borne by the Banks ratably and (ii) no
Borrowing Base Property shall be appraised pursuant to this Section 7.17(b) more
than once each calendar year.
7.18 Casualty and Condemnation; Restoration. (a) Upon the occurrence of any
Casualty Event of all or any portion of any Borrowing Base Property, whether or
not covered by insurance, which will cost (or may reasonably be expected to
cost) $1,000,000 or more to Restore, as reasonably determined by the Borrower
and so certified by an Authorized Officer of the Borrower in a certificate
delivered to the Administrative Agent, (i) the Borrower shall promptly deliver
to the Administrative Agent written notice of the same which shall, among other
things, describe such Casualty Event, and (ii) to the extent that the respective
Credit Party elects to Restore such Borrowing Base Property, as soon as
practicable but in any event prior to the commencement of Restoration of such
Borrowing Base Property, the Borrower shall deliver to the Administrative Agent
a Notice of Renovation/Restoration in the form of Exhibit S.
(b) The Administrative Agent, on behalf of the Secured Creditors, is hereby
authorized, at its option, to collect and receive all Insurance Proceeds in
respect of a Borrowing Base Property (other than Insurance Proceeds attributable
to workers' compensation and liability insurance) and to give proper receipts
and acquittances
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therefor; provided, however, that (x) if no Event of Default shall have occurred
and be continuing, the Borrower shall have the right to direct the
Administrative Agent to apply Insurance Proceeds in accordance with Sections
7.18(e) and (f) and (y) if no Event of Default shall have occurred and be
continuing, to the extent not inconsistent with the requirements of Sections
7.18 (e) and (f), the Borrower shall have the right to direct the Administrative
Agent (1) to pay to the Borrower or the other applicable Credit Party all
Insurance Proceeds with respect to any Casualty Event affecting a Borrowing Base
Property which will cost (or may reasonably be expected to cost) less than
$1,000,000 to Restore and (2) to pay to the Borrower or the other applicable
Credit Party all proceeds of any related business interruption insurance as, and
to the extent, requested by the Borrower. If, prior to the receipt by the
Administrative Agent of such Insurance Proceeds, any Borrowing Base Property
shall have been transferred upon foreclosure of the applicable Mortgage (or by
deed in lieu thereof) or other Security Document, the Administrative Agent shall
have the right to receive such Insurance Proceeds to the extent (x) such
Insurance Proceeds are attributable to a Casualty Event occurring prior to
foreclosure or delivery of any deed in lieu thereof and (y) of any deficiency
attributable to such Borrowing Base Property found to be due upon such sale,
with legal interest thereon, and reasonable counsel fees, costs and
disbursements incurred by the Administrative Agent in connection with the
collection of such Insurance Proceeds. The Administrative Agent may, but shall
not be obligated to, make proof of loss if not made promptly by the applicable
Credit Party. Subject to the terms of any Management Agreement or ground lease,
during the continuance of any Event of Default, the Administrative Agent is
hereby authorized and empowered by the Borrower and each other Credit Party to
settle, adjust or compromise any claims for damage, destruction or loss
thereunder in good faith, with or without the consent of any Credit Party (and
each of the Borrower and each other Credit Party hereby irrevocably appoints and
constitutes the Administrative Agent as its lawful attorney-in- fact, coupled
with an interest and with full power of substitution, for the purpose of
settling, adjusting or compromising any such claims with respect to any
Borrowing Base Property). Subject to the terms of any Management Agreement, in
no event shall any Credit Party settle, adjust or compromise any claim for
Insurance Proceeds in respect of any Borrowing Base Property of $1,000,000 or
more without the prior written consent of the Administrative Agent, which shall
not be unreasonably withheld, conditioned or delayed; provided, that this
provision shall not restrict the right of the lessor under any ground lease
applicable to such Borrowing Base Property (1) to settle, adjust or compromise
any claim for Insurance Proceeds to the extent such lessor is granted the power
to do so under such ground lease or (2) to approve any settlement, adjustment or
compromise of any claim for Insurance Proceeds to the extent the approval of
such lessor is required under such ground lease. Subject to the requirements of
any ground lease affecting any Borrowing Base Property, each insurance company
concerned is hereby authorized and directed to make payment of all
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Insurance Proceeds in respect of each of the Borrowing Base Properties payable
by it directly to the Administrative Agent. If any Credit Party receives any
Insurance Proceeds resulting from such Casualty Event in respect of any
Borrowing Base Property, such Credit Party shall (subject to the requirements of
any ground lease affecting such Borrowing Base Property) promptly endorse and
transfer such Insurance Proceeds to the Administrative Agent and each Credit
Party covenants that until so paid over to the Administrative Agent, such Credit
Party, shall hold such Insurance Proceeds in trust for the benefit of the
Administrative Agent and shall not commingle such Insurance Proceeds with any
other funds or assets of such Credit Party or any other Person.
(c) The Borrower will promptly deliver written notice to the Administrative
Agent upon obtaining knowledge of the institution, or the proposed institution,
of any bona fide action or proceeding for the Taking of all or any portion of
any Borrowing Base Property. The Administrative Agent shall have the right to
participate in any negotiation, action or proceeding relating to any such action
or proceeding affecting any Borrowing Base Property, and no settlement or
compromise of any claim of $1,000,000 or more in connection with any such action
or proceeding shall be made without the consent of the Administrative Agent,
which consent shall not be unreasonably withheld, conditioned or delayed;
provided, that this provision shall not restrict the right of the lessor under
any ground lease applicable to such Borrowing Base Property (1) to settle or
compromise any such claim to the extent such lessor is granted the power to do
so under such ground lease or (2) to approve any settlement or compromise of any
such claim to the extent the approval of such lessor is required under such
ground lease. Upon the occurrence of any partial Taking with respect to a
Borrowing Base Property which will cost (or may reasonably be expected to cost)
$1,000,000 or more to Restore, as reasonably determined by the Borrower and so
certified by an Authorized Officer of the Borrower in a certificate delivered to
the Administrative Agent, as soon as practicable thereafter but in any event
prior to the commencement of any Restoration of such Borrowing Base Property,
the Borrower shall deliver to the Administrative Agent a Notice of
Renovation/Restoration in the form attached hereto as Exhibit S.
(d) The Administrative Agent, on behalf of the Secured Creditors, is hereby
authorized, at its option, to collect and receive all Condemnation Proceeds in
respect of each of the Borrowing Base Properties and to give proper receipts and
acquittances therefor; provided that, (x) if no Event of Default shall have
occurred and be continuing, the Borrower shall have the right to direct the
Administrative Agent to apply Condemnation Proceeds in accordance with Sections
7.18(e) and (f), and (y) if no Event of Default shall have occurred and be
continuing, to the extent not inconsistent with the requirements of Sections
7.18(e) and (f), the Borrower shall have
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the right to direct the Administrative Agent to pay to the Borrower or the other
applicable Credit Party all Condemnation Proceeds with respect to a Taking
affecting a Borrowing Base Property which will cost (or may reasonably be
expected to cost) less than $1,000,000 to Restore. If, prior to the receipt by
the Administrative Agent of such Condemnation Proceeds, the portion of the
Borrowing Base Property subject to such action or proceeding shall have been
sold upon foreclosure of the applicable Mortgage (or by deed in lieu thereof) or
other Security Document, the Administrative Agent shall have the right to
receive such Condemnation Proceeds to the extent (x) such Condemnation Proceeds
are attributable to a Taking occurring prior to foreclosure or delivery of any
deed in lieu thereof and (y) of any deficiency attributable to such Borrowing
Base Property found to be due upon such sale, with legal interest thereon, and
reasonable counsel fees, costs and disbursements incurred by the Administrative
Agent in connection with the collection of such Condemnation Proceeds. The
Administrative Agent may, but shall not be obligated to, make proof of loss if
not made promptly by the applicable Credit Party. Subject to the terms of any
Management Agreement or ground lease, during the continuance of any Event of
Default, the Administrative Agent is hereby authorized and empowered by the
Borrower and each other Credit Party to settle, adjust or compromise any claims
for Condemnation Proceeds with or without the consent of any Credit Party (and
each of the Borrower and each other Credit Party hereby irrevocably appoints and
constitutes the Administrative Agent as its lawful attorney-in-fact, coupled
with an interest and with full power of substitution, for the purpose of
settling, adjusting or compromising any such claims with respect to any
Borrowing Base Property). Subject to the terms of any Management Agreement, in
no event shall any Credit Party settle, adjust or compromise any claim for
Condemnation Proceeds in respect of any Borrowing Base Property of $1,000,000 or
more without the prior written consent of the Administrative Agent, which shall
not be unreasonably withheld, conditioned or delayed; provided, that this
provision shall not restrict the right of the lessor under any ground lease
applicable to such Borrowing Base Property (1) to settle or compromise any claim
for Condemnation Proceeds to the extent such lessor is granted the power to do
so under such ground lease or (2) to approve any settlement or compromise of any
claim for Condemnation Proceeds to the extent the approval of such lessor is
required under such ground lease. Subject to the requirements of any ground
lease affecting any Borrowing Base Property, each condemn or concerned is hereby
authorized and directed to make payment of all Condemnation Proceeds in respect
of each of the Borrowing Base Properties payable by it directly to the
Administrative Agent. If any Credit Party receives any Condemnation Proceeds
resulting from such condemnation in respect of any Borrowing Base Property, such
Credit Party shall (subject to the requirements of any ground lease affecting
such Borrowing Base Property) promptly endorse and transfer such Condemnation
Proceeds to the Administrative Agent and each Credit Party covenants that until
so paid over to the Administrative Agent, such Credit Party shall
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hold such Condemnation Proceeds in trust for the benefit of the Administrative
Agent and shall not commingle such Condemnation Proceeds with any other funds or
assets of such Credit Party or any other Person.
(e) In the event of any Casualty Event or Taking with respect to a
Borrowing Base Property which will cost (or may reasonably be expected to cost)
$1,000,000 or more to Restore, as reasonably determined by the Borrower and so
certified by an Authorized Officer of the Borrower in a certificate delivered to
the Administrative Agent, the Borrower shall elect by written notice delivered
to the Administrative Agent as soon as practicable thereafter, but in any event
before the earlier of (x) 30 days after the occurrence of such Casualty Event or
Taking and (y) the commencement of the Restoration of such Borrowing Base
Property, either:
(i) to remove such Borrowing Base Property from the calculation of the
Borrowing Base, prepay the Loans in an amount equal to the Release Price with
respect to such Borrowing Base Property pursuant to Section 3.02(d) in the
manner set forth in Sections 3.02(e) and (f) (which prepayment may be made with
the respective Net Insurance/Condemnation Proceeds to the extent same are
available to the Borrower or any of its Subsidiaries or the Collateral Agent)
and not Restore such Borrowing Base Property (or Restore such Borrowing Base
Property to the extent then permitted by Section 8.07 in respect of
non-Borrowing Base Properties); or
(ii) if all the following conditions shall be satisfied, to Restore such
Borrowing Base Property pursuant to subsection 7.18(f):
(A) the Final Maturity Date shall not have occurred;
(B) no Default or Event of Default shall have occurred and be
continuing or would be caused by such Restoration;
(C) the Borrower is in compliance in all respects with the
provisions of Section 7.18(f);
(D) either (1) the Administrative Agent shall have determined,
in its reasonable discretion and after considering such
written opinions of architects and engineers and other
written information as the Borrower shall timely deliver to
the Administrative Agent, that Restoration of such Borrowing
Base Property is, under the circumstances then existing,
physically and economically feasible and can be completed in
accordance with Section 7.18(f) on or before a date not
later than the earlier of (x) 12 months
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after the date of such Casualty Event or Taking and (y) six
months prior to the Final Maturity Date or (2) such
Restoration shall not constitute a Major
Renovation/Restoration;
(E) the Credit Parties shall have business interruption
insurance complying with Section 7.03 in an amount at least
equal to the reduction in Borrowing Base Property EBITDA
with respect to such Borrowing Base Property, if any, which
the Borrower reasonably expects to suffer during the period
of Restoration;
(F) the Credit Parties shall have complied with all notices and
other requirements under any ground lease affecting such
Borrowing Base Property that must be satisfied in respect of
such Restoration, such Restoration is permitted under the
terms of such ground lease and such ground lease remains in
full force and effect; and
(G) either (1) the Net Insurance/Condemnation Proceeds shall be
sufficient to complete the costs of such Restoration, as
determined by the Administrative Agent in its reasonable
discretion, or (2) in the event that such Net
Insurance/Condemnation Proceeds are insufficient to complete
the costs of such Renovation, the Credit Parties shall have
provided a cash deposit for the amount of any shortfall in
the amount of Net Insurance/Condemnation Proceeds necessary
to cover the costs to complete such Restoration.
If the Credit Parties shall fail to satisfy the conditions set forth in clause
(ii) of the preceding sentence or in Section 7.18(f) with respect to the related
Borrowing Base Property, or shall fail to diligently and continuously prosecute
the Work to completion (other than as a result of Excusable Delay), as
determined by the Administrative Agent, in its reasonable discretion, then such
Borrowing Base Property shall be removed from the calculation of the Borrowing
Base, the Borrower shall prepay the Loans in an amount equal to the Release
Price with respect to such Borrowing Base Property and, subject to the terms of
any ground lease, the Administrative Agent shall apply any or all remaining
Insurance Proceeds or Condemnation Proceeds, as applicable, towards such
prepayment.
(f) In the event of any Casualty Event or Taking with respect to a
Borrowing Base Property which will cost (or may reasonably be
expected to cost) $1,000,000 or more to Restore, as reasonably
determined by the Borrower and so certified by an Authorized Officer
of the Borrower in a certificate delivered to the Administrative
Agent, if any of the Credit Parties elects to Restore a Borrowing
Base
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Property pursuant to this Section 7.18(f) and the conditions set forth in clause
(ii) of the first sentence of Section 7.18(e) are satisfied, all Net
Insurance/Condemnation Proceeds shall be held by the Administrative Agent
(subject to the requirements of any ground lease affecting such Borrowing Base
Property) in an interest-bearing account with the Administrative Agent, with all
interest to be held therein until completion and final inspection of the Work,
and shall be applied by the Administrative Agent to the payment of the cost of
Restoring such Borrowing Base Property so damaged or destroyed or of the portion
or portions of such Borrowing Base Property not so Taken (the "Work") and shall
be paid out from time to time to the Borrower as the Work progresses, subject to
retainage as reasonably determined by the Administrative Agent in accordance
with its customary construction lending practices and otherwise in accordance
with any conditions reasonably imposed by the Administrative Agent but subject
to each of the following conditions:
(i) Subject to Excusable Delays, the Borrower shall promptly (and in
any event within 60 days after the applicable Casualty Event or Taking)
commence, or cause the commencement of, Restoration of such Borrowing Base
Property.
(ii) If the Work is structural or if the cost of the Work, as
estimated by the Borrower, shall exceed the lesser of 10% of the Borrowing
Base Property Amount with respect to such Borrowing Base Property and
$1,000,000, the Work shall be in the charge of an architect or engineer
reasonably acceptable to the Administrative Agent (who may be an employee
or Affiliate of the Borrower), and before any Credit Party commences any
Work, other than temporary work to protect property or prevent interference
with business, the Administrative Agent shall have approved the plans and
specifications and the general contract for the Work to be submitted by
such Credit Party, which approval shall not be unreasonably withheld,
conditioned or delayed. Such plans and specifications shall provide for
such Work that, upon completion thereof, the Improvements shall (x) be in
compliance in all material respects with all Legal Requirements such that
all representations or warranties of the Credit Parties relating to the
compliance of such Borrowing Base Property with applicable laws as set
forth in this Agreement and in the other Credit Documents would then be
true and correct in all material respects, and (y) be reasonably equivalent
in value and general utility to the Improvements which were on such
Borrowing Base Property prior to the Casualty Event or Taking. Such plans
and specifications shall be accompanied by (1) a signed estimate of the
Borrower, or, if an architect or engineer is required to supervise the
Work, such architect or engineer, stating the estimated cost of completing
the Work, which estimate shall bear the architect's or
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engineer's seal if not made by the Borrower and (2) to the extent necessary
at such stage of the Work, certified copies of all authorizations required
in connection with the commencement and performance of the Work.
(iii) Each request for payment shall be made on seven days' prior
notice to the Administrative Agent and shall be accompanied by invoices and
by (a) a certificate to be made by such architect or engineer, if one be
required under clause (ii) above, otherwise by a certificate of an
Authorized Officer of the Borrower, stating that (1) all of the Work
completed has been done in substantial compliance with the approved plans
and specifications, if any be required under said clause (ii) above, and
(2) the sum requested is justly required to reimburse any of the Credit
Parties for payments made by the applicable Credit Party to, or is justly
due to, the contractor, subcontractors, materialmen, laborers, engineers,
architects or other Persons rendering services or materials for the Work
(giving a brief description of such services and materials), and that when
added to all sums previously paid out by the Administrative Agent does not
exceed the cost of the Work done to the date of such certificate, and (b) a
certificate of an Authorized Officer of the Borrower stating either that
(x) the amount of such proceeds remaining in the hands of the
Administrative Agent, or (y) the amount of such funds, in the hands of the
applicable Credit Party from other sources irrevocably committed to the
completion of the Work in a manner reasonably satisfactory to the
Administrative Agent (including delivery of such funds to the
Administrative Agent for application to pay the costs of the Restoration),
will be sufficient on completion of the Work to pay for the same in full
(giving in such reasonable detail as the Administrative Agent may require
an estimate of the cost of such completion). The Administrative Agent may
require that any such statements be independently verified by an inspector
approved by the Administrative Agent to the extent that any such costs for
the Work equal or exceed $1,000,000.
(iv) Each request shall be accompanied by lien waivers satisfactory to
the Administrative Agent covering that part of the Work for which payment
or reimbursement has been made (or other evidence as shall be satisfactory
to the Administrative Agent in its sole discretion confirming that no
rights of mechanics, contractors, subcontractors, materialmen or suppliers
are outstanding in respect of such Work) and by a search prepared by a
title company reasonably satisfactory to the Administrative Agent
establishing that there has not been filed with respect to such Borrowing
Base Property any mechanics' or other lien or instrument for the retention
of title in respect of any part of the Work not discharged of record or
bonded to the reasonable
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satisfaction of the Administrative Agent and evidencing the continued
priority of the Mortgage on such Borrowing Base Property.
(v) The available property Insurance Proceeds or Condemnation Proceeds
which are paid or will be payable by the insurance company, together with
other cash proceeds available to the Borrower and held in a reserve by the
Administrative Agent are, in the reasonable judgment of the Administrative
Agent, sufficient to pay in full costs of the Restoration.
(vi) There shall be no Default or Event of Default.
(vii) The request for any payment after the Work has been completed
shall be accompanied by (a) a copy of any certificate or certificates
required by law to render occupancy of the improvements being rebuilt,
repaired or restored legal and (b) final lien waivers for all labor,
materials and supplies from all contractors, subcontractors and
materialmen, except with respect to claims or rights being contested or
bonded in accordance with the provisions of Section 8.01(ii).
(viii) After commencing the Work, the Borrower or its applicable
Subsidiary shall, subject to Excusable Delays, cause such Work to be
performed diligently and in good faith in a good and workmanlike manner to
completion in accordance with the approved plans and specifications, if
any.
(xi) The Administrative Agent shall have received "agreements to
complete" of the general contractor and any independent architects or
engineers, which agreements to complete shall be in form and substance
reasonably satisfactory to the Administrative Agent.
(x) The Borrower shall have obtained and maintained, or shall have
caused the applicable Credit Party to obtain and maintain, "all risks"
insurance in accordance with Section 7.03.
All costs and expenses of any Restoration, including, without limitation,
any Work, engineer's fees, architect's fees or contractor's fees and the cost
and expense of complying with this Section 7.18(f), shall be for the account of
the Borrower and/or its applicable Subsidiary. Upon completion of the Work and
payment in full therefor, the Borrower shall promptly deliver to the
Administrative Agent a Completion Certificate with respect thereto, and the
Administrative Agent shall return to the Borrower the amount of any unspent
Insurance Proceeds or Condemnation Proceeds then or thereafter in the hands of
the Administrative Agent on account of the Casualty Event or Taking
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that created the need for such Work, together with all undisbursed accrued
interest thereon. Subject to the terms of any ground lease, nothing in this
Section 7.18 shall prevent the Administrative Agent from applying at any time
all or any part of the Insurance Proceeds or Condemnation Proceeds to the curing
of any Event of Default.
(g) In the event of any Casualty Event or Taking with respect to a
Borrowing Base Property which will cost (or may reasonably be expected to cost)
$1,000,000 or more to Restore (as reasonably determined by the Borrower and so
certified in a certificate delivered to the Administrative Agent) which a Credit
Party has elected to Restore, upon completion of the Restoration and delivery to
the Administrative Agent of a Completion Certificate, (i) the Administrative
Agent may hire an independent engineer to inspect the applicable Borrowing Base
Property and the Administrative Agent may deem any related Restoration not
complete unless the engineer determines that the Restoration was completed in
accordance with this Agreement and (ii) to the extent that the remaining Net
Insurance/Condemnation Proceeds from such Casualty Event or Taking equals or
exceeds $500,000, such remaining Net Insurance/Condemnation Proceeds shall be
applied at such time to prepay the Loans pursuant to Section 3.02(d) in the
manner set forth in Section 3.02(e) and (f). The cost of such inspection shall
be for the account of the Borrower or the applicable Subsidiary.
7.19 Marriott Suites Hotels. (a) The Borrower agrees to use its reasonable
efforts to obtain the consent of the limited partners in Marriott Suites L.P.
which are not Affiliates or Subsidiaries of the Borrower to the granting by
Marriott Suites L.P. of a Mortgage on each of the Marriott Suites Hotels and to
the entering into by Marriott Suites L.P. of the Subsidiaries Guaranty, the
Security Agreement, the Pledge Agreement, the Partnership Pledge and Security
Agreement, the California Environmental Indemnity Agreement and any documents
related to the foregoing.
(b) Within 45 days after either (x) the Borrower obtains the consents
referred to in clause (a) of this Section 7.19 or (y) Marriott Suites L.P.
becomes a Wholly-Owned Subsidiary of Host Marriott, the Borrower shall, at its
own expense, cause Marriott Suites L.P. to grant a Mortgage on each of the
Marriott Suites Hotels and to execute and deliver the other Credit Documents and
related documents referred to in clause (a) of this Section 7.19. In connection
with the foregoing, the Borrower shall, at its own expense, deliver to the
Administrative Agent the following items:
(i) a Mortgage Policy on each Marriott Suites Hotel issued by title
insurers reasonably satisfactory to the Administrative Agent in amounts
reasonably satisfactory to the Administrative Agent assuring the
Administrative Agent that the Mortgage on each such Marriott Suites
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Hotel is a valid and enforceable first priority mortgage lien on each such
Marriott Suites Hotel, free and clear of all defects and encumbrances
except Permitted Encumbrances and each such Mortgage Policy shall otherwise
be in form and substance reasonably satisfactory to the Administrative
Agent;
(ii) a recent ALTA survey of each such Marriott Suites Hotel certified
by a licensed professional surveyor, which certification and surveyor shall
be reasonably satisfactory to the Administrative Agent;
(iii) in the case of any Marriott Suites Hotel that is a Leasehold, at
least 10 days prior to the acquisition of each such Marriott Suites Hotel,
a true and correct copy of the ground or other lease for such Marriott
Suites Hotel, and on or before the granting of the respective Mortgage on
such Marriott Suites Hotel, an estoppel certificate and, to the extent
required by the Administrative Agent, a landlord waiver, in each case from
the fee owner or ground lessor of such Marriott Suites Hotel, which lease,
estoppel certificate and landlord waiver shall be in form and substance
reasonably satisfactory to the Administrative Agent;
(iv) one or more opinions of local counsel reasonably satisfactory to
the Administrative Agent, which shall cover the perfection of the security
interests granted pursuant to the respective Mortgages on each such
Marriott Suites Hotel and such other matters incident to the transactions
contemplated thereby as the Administrative Agent may reasonably request;
and
(v) a certificate of insurance evidencing that there has been obtained
insurance coverage for each such Marriott Suites Hotel which satisfies the
requirements of Section 7.03 and all of such coverage is in full force and
effect.
7.20 Estoppel Certificate for Atlanta Marriott Suites Midtown. The Borrower
agrees to use its reasonable best efforts to obtain as promptly as practicable
following the Effective Date, or cause Marriott Suites L.P. to so obtain, an
estoppel certificate from the ground lessor of the Atlanta Marriott Suites
Midtown in form and substance reasonably satisfactory to the Administrative
Agent, which estoppel certificate shall be delivered to the Administrative Agent
(with sufficient copies for each of the Banks, and the Administrative Agent
shall promptly deliver such estoppel certificate to each of the Banks).
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7.21 Certain Engineering Matters. As soon as practicable, but in any event
within 180 days following the Effective Date, the Borrower shall, or shall cause
its respective Subsidiary to, remedy each of the engineering matters set forth
on Schedule X and shall promptly thereafter deliver a certificate of an
Authorized Officer of the Borrower certifying as to each such remediation.
7.22 Additional Earthquake Insurance. On or before the 60th day following
the Effective Date, the Borrower shall have purchased at least $5,000,000 of
additional earthquake insurance on the San Francisco Marriott to the extent that
such insurance is available at commercially reasonable rates.
SECTION 8. Negative Covenants. Each of Holdings, HMC Capital and the
Borrower hereby covenants and agrees (as to itself and each of its Subsidiaries)
that on and after the Effective Date and until the Total Commitment has
terminated and the Loans and Notes, together with interest, Fees and all other
Obligations incurred here- under and thereunder, are paid in full:
8.01 Liens. Holdings will not, and will not permit any of its Subsidiaries
to, create, incur, assume or suffer to exist any Lien upon or with respect to
any property or assets (real or personal, tangible or intangible) of Holdings or
any of its Subsidiaries, whether now owned or hereafter acquired, or sell any
such property or assets subject to an understanding or agreement, contingent or
otherwise, to repurchase such property or assets (including sales of accounts
receivable with recourse to Holdings or any of its Subsidiaries), or assign any
right to receive income or permit the filing of any financing statement under
the UCC or any other similar notice of Lien under any similar recording or
notice statute, provided that the provisions of this Section 8.01 shall not
prevent the creation, incurrence, assumption or existence of the following Liens
(collectively, "Permitted Liens"):
(i) inchoate Liens (other than Liens created or imposed under ERISA)
for taxes, assessments or governmental charges or levies not yet due and
payable or Liens for taxes, assessments or governmental charges or levies
being contested in good faith and by appropriate proceedings for which
adequate reserves have been established in accordance with generally
accepted accounting principles;
(ii) Liens in respect of property or assets of the Borrower or any of
its Subsidiaries imposed by law, which were incurred in the ordinary course
of business and do not secure Indebtedness for borrowed money, such as
carriers', warehousemen's, materialmen's and mechanics' liens and other
similar Liens arising in the ordinary course of business, and (x) which do
not in the aggregate
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materially detract from the value of the Borrower's or such Subsidiary's
property or assets or materially impair the use thereof in the operation of
the business of the Borrower or such Subsidiary or (y) which are being
contested in good faith by appropriate proceedings and for which adequate
reserves have been established (or, in the case of any Marriott Suites
Hotel in which a Mortgage has not been granted pursuant to this Agreement,
the Borrower shall have caused Marriott Suites L.P. to fully bond any such
Lien), which proceedings have the effect of preventing the forfeiture or
sale of the property or assets subject to any such Lien;
(iii) Liens in existence on the Effective Date which are listed, and
the property subject thereto described, in Schedule VII (which Schedule VII
need not set forth Permitted Encumbrances and the Liens created pursuant to
the Security Documents), but only to the respective date, if any, set forth
in such Schedule VII for the removal and termination of any such Liens, but
no renewals or extensions of such Liens shall be permitted;
(iv) Permitted Encumbrances;
(v) Liens created pursuant to the Security Documents;
(vi) leases or subleases to merchants, vendors or other providers of
services to be located in the respective Hotel Property or Senior Living
Care Facility or granted by the Borrower or any of its Subsidiaries to
other Persons in the ordinary course of business not materially interfering
with the conduct of the business of the Borrower or any of its Subsidiaries
in the respective Hotel Property or Senior Living Care Facility;
(vii) (A) Liens upon equipment or machinery subject to Capitalized
Lease Obligations, provided that (x) such Liens only serve to secure the
payment of Indebtedness arising under such Capitalized Lease Obligation and
(y) the Lien encumbering the asset giving rise to such Capitalized Lease
Obligation does not encumber any other asset of Holdings or any of its
Subsidiaries and (B) Liens placed upon equipment or machinery used in the
ordinary course of business of the Borrower or any of its Subsidiaries at
the time of acquisition thereof by the Borrower or any such Subsidiary or
within 60 days thereafter to secure Indebtedness incurred to pay all or a
portion of the purchase price thereof, provided further that the Lien
encumbering the asset giving rise to the purchase money Indebtedness does
not encumber any other asset of Holdings or any of its Subsidiaries,
provided further that the aggregate
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outstanding principal amount of all Indebtedness secured by Liens permitted
by this clause (vii) shall not at any time exceed $5,000,000;
(viii) Liens securing Permitted Non-Recourse Indebtedness of Specified
Subsidiaries permitted under Section 8.04(viii) so long as such Liens only
encumber the Real Property (including the furniture, fixtures and equipment
related thereto) of the Specified Subsidiary that has assumed or incurred
such Permitted Non-Recourse Indebtedness;
(ix) easements, rights-of-way, restrictions, encroachments and other
similar charges or encumbrances, and minor title deficiencies, in each case
not securing Indebtedness and not materially interfering with the conduct
of the business of the Borrower or any of its Subsidiaries;
(x) Liens arising from precautionary UCC financing statement filings
in respect of operating leases;
(xi) statutory and common law landlords' liens under leases to which
the Borrower or any of its Subsidiaries is a party;
(xii) Liens (other than Liens created or imposed under ERISA) incurred
or deposits made in the ordinary course of business in connection with
workers' compensation, unemployment insurance and other types of social
security, or to secure the performance of tenders, statutory obligations,
surety bonds, bids, government contracts, performance and return-of-money
bonds and other similar obligations incurred in the ordinary course of
business (exclusive of obligations in respect of the payment for borrowed
money);
(xiii) Liens arising out of judgments or awards in respect of which
Holdings or any of its Subsidiaries shall in good faith be prosecuting an
appeal or proceedings for review in respect of which there shall have been
secured a subsisting stay of execution pending such appeal or proceedings,
provided that the aggregate amount of all such judgments or awards (and the
aggregate amount of any cash and the fair market value of any property
pledged by Holdings or any of its Subsidiaries in connection therewith)
does not exceed $5,000,000 at any time outstanding; and
(xiv) Liens evidenced by the Existing New York Marriott Financial
Center Mortgages and related UCC financing statements.
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8.02 Consolidation, Merger, Purchase or Sale of Assets, etc. Holdings will
not, and will not permit any of its Subsidiaries to, wind up, liquidate or
dissolve its affairs or enter into any transaction of merger or consolidation,
or convey, sell, lease or otherwise dispose of all or any part of its property
or assets, or enter into any sale- leaseback transactions, or purchase or
otherwise acquire (in one or a series of related transactions) any part of the
property or assets (other than purchases or other acquisitions of inventory,
materials and equipment in the ordinary course of business) of any Person (or
agree to do any of the foregoing at any future time), except that:
(i) Capital Expenditures (including payments in respect of Capitalized
Lease Obligations) by the Borrower and its Subsidiaries shall be permitted
to the extent not in violation of Sections 8.01(vii)(B) and 8.07;
(ii) the Borrower and each of its Subsidiaries may in the ordinary
course of business, (x) sell or otherwise dispose of equipment and
materials which, in the reasonable opinion of such Person, are obsolete,
uneconomic or no longer useful in the conduct of such Person's business and
(y) sell or exchange other items of equipment and materials so long as the
purpose of each such sale or exchange is to acquire (and results within 30
days of such sale or exchange in the acquisition of) replacement items of
equipment or materials which are the functional equivalent of the item of
equipment or material so sold or exchanged and is at least of equivalent
value and quality;
(iii) Investments may be made to the extent permitted by Section 8.05;
(iv) the Borrower and each of its Subsidiaries may lease (as lessee)
real or personal property in the ordinary course of business (so long as
any such lease does not create a Capitalized Lease Obligation unless
permitted by Section 8.01(vii)); provided that Leaseholds of Borrowing Base
Properties which do not constitute Capitalized Lease Obligations shall be
permitted (x) with respect to the Initial Hotel Properties that are
Leaseholds and (y) with respect to subsequently acquired Borrowing Base
Properties, to the extent provided in Section 8.02(viii);
(v) the Borrower and each of its Subsidiaries may make sales of
inventory in the ordinary course of business;
(vi) the Borrower and each of its Subsidiaries may sell Borrowing Base
Properties (or in the case of a Borrowing Base Property owned or leased by
a Subsidiary of the Borrower all of the capital stock or other equity
interests of the respective Subsidiary which owns such Borrowing Base
Property) so long
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as (i) no Default or Event of Default then exists or would result
therefrom, (ii) each such sale is at fair market value (as determined in
good faith by the Board of Directors of the Borrower), (iii) except in the
case of a Like-Kind Exchange, the total cash consideration received by the
Borrower or such Subsidiary for any such sale (x) equals at least the
Release Price for such Borrowing Base Property and (y) is received at the
time of the consummation of any such sale, and with the balance of such
consideration to be in the form of promissory notes which shall be pledged
to the Collateral Agent pursuant to the Pledge Agreement (although in no
event shall more than 20% of the total consideration be in the form of
promissory notes), (iv) the Borrowing Base shall be reduced in accordance
with the definition thereof at the time of the consummation of such sale,
(v) the Borrower shall have delivered to the Administrative Agent a new
Borrowing Base Certificate signed by an Authorized Financial Officer of the
Borrower, calculating (in reasonable detail) the Borrowing Base after
giving effect to such sale, and the aggregate outstanding principal amount
of Loans after giving effect to such sale (and any repayment required under
Section 3.02(c)) shall not exceed the revised Borrowing Base, (vi) the
Borrower or such Subsidiary concurrently makes any payments required under
Section 3.02(c) as a result of such sale, and (vii) at least 10 Business
Days prior written notice of such sale is given by the Borrower to the
Administrative Agent (or such shorter notice as may be acceptable to the
Administrative Agent);
(vii) the Borrower and each of its Subsidiaries may sell other assets
(other than the capital stock or other equity interests of any Subsidiary
Guarantor) so long as (i) no Default or Event of Default then exists or
would result therefrom, (ii) each such sale is at fair market value (as
determined in good faith by the Borrower), (iii) the consideration received
by the Borrower or such Subsidiary is at least 80% cash and is received at
the time of the consummation of such sale, and with the balance of such
consideration to be in the form of promissory notes which shall be pledged
to the Collateral Agent pursuant to the Pledge Agreement to the extent such
promissory notes are held by a Credit Party and (iv) the aggregate amount
of all sales made pursuant to this Section 8.02(vii) shall not exceed
$5,000,000 in any fiscal year of the Borrower;
(viii) the Borrower and each of its Subsidiaries may acquire Borrowing
Base Properties (including by purchasing the capital stock or other equity
interests of the Person or Persons that own such Borrowing Base Properties)
so long as (i) in the case of an acquisition of a Hotel Property, such
Hotel Property constitutes a Qualified Hotel Property (it being understood
that to the extent such Hotel Property does not satisfy one or more of the
qualifications set forth
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in clauses (i) through (iv) of the definition of "Qualified Hotel Property"
and the Borrower desires to have such Hotel Property constitute a Borrowing
Base Property, the Required Banks shall use their reasonable efforts to
vote on whether such Hotel Property shall constitute a Borrowing Base
Property within 10 Business Days after receiving the Information Package
for such Hotel Property (although the Required Banks' decision as to
whether or not to treat such Hotel Property as a Borrowing Base Property
shall be made in their sole discretion)), (ii) each Borrowing Base Property
(or the capital stock or other equity interests of the Person owning such
Borrowing Base Property) is at least 75% owned by the Borrower or a
Wholly-Owned Subsidiary thereof, provided that the aggregate acquisition
cost of all non-wholly-owned Borrowing Base Properties shall not exceed
$200,000,000, (iii) such Borrowing Base Properties are located in the
United States or Canada, provided that no more than $75,000,000 in the
aggregate may be expended on Borrowing Base Properties located in Canada,
(iv) the Collateral Agent is able to obtain a first priority mortgage lien
on such Borrowing Base Property (subject only to Permitted Liens) (it being
understood that with respect to Borrowing Base Properties located in
Canada, such mortgage lien shall provide the Collateral Agent with rights
and remedies comparable to those available in the United States) and all of
the actions specified in Section 7.11, in Section 8.17 and in the
respective Security Documents with respect to such acquisition shall have
been taken by the Borrower and/or its respective Subsidiary, (v) with
respect to the acquisition of any Borrowing Base Property subject to a
Leasehold (and which will not be owned by the Borrower or the respective
Subsidiary thereof in fee), such Borrowing Base Property may be acquired
only if (w) after giving effect to such acquisition, not more than 50% of
the aggregate book value of all Borrowing Base Properties (calculated
without regard to the San Francisco Marriott and the Atlanta Marriott
Suites Midtown) then owned or leased by the Borrower and its Subsidiaries
shall be attributed to Borrowing Base Properties subject to Leasehold
interests (rather than being owned in fee), (x) the respective Leasehold
shall be mortgageable with appropriate mortgagee protections (as reasonably
determined by the Administrative Agent, including but not limited to,
notice of defaults, cure rights, successor rights and transfer rights upon
foreclosure), (y) the respective Leasehold shall have a remaining term
(including a right of extension by the Borrower or such Subsidiary) of at
least 50 years, provided, however, that up to 10% of the aggregate book
value of all Borrowing Base Properties which are leased by the Borrower and
its Subsidiaries (calculated without regard to the San Francisco Marriott
and the Atlanta Marriott Suites Midtown) may have a remaining term
(including a right of extension by the Borrower or such Subsidiary) of less
than 50 years so long as such remaining term is at least 20 years, and (z)
the respective Leasehold shall
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otherwise be in form and substance reasonably satisfactory to the
Administrative Agent, (vi) the acquisition cost of any such Borrowing Base
Property shall not exceed $50,000,000, provided that the Borrower and its
Subsidiaries may acquire up to four Borrowing Base Properties each with an
acquisition cost of up to $75,000,000, (vii) the Facility Manager of such
Borrowing Base Property shall be a Permitted Facility Manager, (viii) based
on calculations made by the Borrower on a Pro Forma Basis after giving
effect to the respective acquisition, no Default or Event of Default will
exist under, or would have existed during the Test Period last reported (or
required to be reported pursuant to Section 7.01(a) or (b), as the case may
be) prior to the date of the respective acquisition under, the financial
covenants contained in Sections 8.08 through 8.12, inclusive, (ix) based on
good faith projections prepared by the Borrower for the period from the
date of the consummation of the respective acquisition to the date which is
one year thereafter calculated after giving effect to the respective
acquisition, the level of financial performance measured by the covenants
set forth in Sections 8.08 through 8.12, inclusive, shall be better than or
equal to such level as would be required to provide that no Default or
Event of Default will exist under the financial covenants contained in
Sections 8.08 through 8.12, inclusive, as compliance with such covenants
will be required through the date which is one year from the date of the
consummation of the respective acquisition, (x) the proposed acquisition
could not reasonably be expected to result in materially increased tax and
ERISA liabilities with respect to the Borrower and its Subsidiaries taken
as a whole, (xi) the Borrower shall have delivered to the Administrative
Agent an officer's certificate executed by an Authorized Financial Officer
of the Borrower, certifying, to the best of such officer's knowledge,
compliance with the requirements of the preceding clauses (i) through (ix)
(other than clauses (v)(x) and (v)(z)) and containing the calculations
required by the preceding clauses (viii) and (ix), (xii) the
representations and warranties set forth in Section 6.16(b) with respect to
any Borrowing Base Property to be acquired are true and correct in all
material respects, (xiii) after giving effect to any such acquisition, the
aggregate principal amount of all Loans then outstanding shall not exceed
the Borrowing Base then in effect, (xiv) the aggregate acquisition cost of
all Senior Living Care Facilities acquired pursuant to this Section
8.02(viii) shall not exceed $100,000,000 and (xv) no acquisition of a
Senior Living Care Facility pursuant to this Section 8.02(viii) may be
consummated without the prior written consent of the Required Banks (it
being understood that the Required Banks shall use their reasonable efforts
to vote on whether or not to approve such acquisition within 10 Business
Days after receiving the Information Package for such Senior Living Care
Facility (although the Required Banks' decision as to whether or not to
grant such consent shall be made in their sole discretion));
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(ix) the Borrower and its Subsidiaries may acquire Hotel Properties
and/or Senior Living Care Facilities which do not constitute Borrowing Base
Properties (or the capital stock or other equity interests of the Person or
Persons owning such Hotel Properties and/or Senior Living Care Facilities)
so long as (i) no Default or Event of Default then exists or would result
therefrom, (ii) based on calculations made by the Borrower on a Pro Forma
Basis after giving effect to such acquisition, no Default or Event of
Default will exist under, or would have existed during the Test Period last
reported (or required to be reported pursuant to Section 7.01(a) or (b), as
the case may be) prior to the date of the respective acquisition under, the
financial covenants contained in Sections 8.08 through 8.12, inclusive,
(iii) based on good faith projections prepared by the Borrower for the
period from the date of the consummation of such acquisition to the date
which is one year thereafter calculated after giving effect to the
respective acquisition, the level of financial performance measured by the
covenants set forth in Sections 8.08 through 8.12, inclusive, shall be
better than or equal to such level as would be required to provide that no
Default or Event of Default will exist under the financial covenants
contained in Sections 8.08 through 8.12, inclusive, as compliance with such
covenants will be required through the date which is one year from the date
of the consummation of the respective acquisition, (iv) in the case of any
Hotel Property or Senior Living Care Facility which is financed, in whole
or in part, with Permitted Non-Recourse Indebtedness, the amount of all
Indebtedness incurred to finance such acquisition does not exceed an amount
equal to the product of the Non-Borrowing Base Property EBITDA of such
Hotel Property or Senior Living Care Facility for the most recently ended
12 month period multiplied by the Applicable EBITDA Factor at such time,
(v) the Borrower shall have delivered to the Administrative Agent an
officer's certificate executed by an Authorized Financial Officer of the
Borrower, certifying to the best of such officer's knowledge, compliance
with the requirements of preceding clauses (i) through (iv) and containing
the calculations required by the preceding clauses (ii), (iii) and (iv) and
(vi) after giving effect to any such acquisition, the aggregate principal
amount of all Loans then outstanding shall not exceed the Borrowing Base
then in effect and (vii) the aggregate amount of all acquisitions made
pursuant to this Section 8.02(ix), when added to the aggregate amount of
all Investments made pursuant to Section 8.05(vii), shall not exceed the
sum of (I) $150,000,000 plus (II) the amount of any such acquisitions and
Investments financed with the proceeds of Permitted Non-Recourse
Indebtedness;
(x) Marriott Suites L.P. may transfer to the Borrower any of the
Marriott Suites Hotels so long as (i) no consideration is paid by the
Borrower or any other Subsidiary of Holdings in connection therewith and
(ii) the
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Borrower takes all of the actions specified in clauses (i) through (v) of
Section 7.19(b) in respect of the Marriott Suites Hotel so transferred;
(xi) any Subsidiary Guarantor may be merged with and into the Borrower
or any other Subsidiary Guarantor so long as (i) in the case of any merger
involving the Borrower, the Borrower is the surviving corporation, (ii) in
the case of any merger between two Subsidiary Guarantors one of which is a
Wholly-Owned Subsidiary, such Wholly-Owned Subsidiary is the surviving
corporation, (iii) in the case of any merger involving a non-Wholly-Owned
Subsidiary, the only consideration paid to third parties in connection
therewith is cash, provided that any such cash payment shall be treated as
an Investment made (and shall reduce the aggregate amount of Investments
permitted to be made) under Section 8.05(vii) and such payment may only be
made to the extent that an Investment may be made at such time under such
Section 8.05(vii), (iv) all Liens granted pursuant to the Security
Documents on any property or assets of any Subsidiary Guarantor shall
remain in full force and effect and with at least the same priority as such
Lien would have had if such merger had not occurred and (v) at least 10
Business Days prior written notice of any such merger is given by the
Borrower to the Administrative Agent;
(xii) any Subsidiary of the Borrower (other than a Specified
Subsidiary) that is not a Subsidiary Guarantor may be merged with and into
any other Subsidiary of the Borrower (other than a Specified Subsidiary)
that is not a Subsidiary Guarantor so long as in the case of any merger
involving a non- Wholly-Owned Subsidiary of the Borrower, the only
consideration paid to third parties in connection therewith is cash,
provided that any such cash payment shall be treated as an Investment made
(and shall reduce the aggregate amount of Investments permitted to be made)
under Section 8.05(vii) and such cash payment may only be made to the
extent that an Investment may be made at such time under such Section
8.05(vii); and
(xiii) YBG Associates may be merged or liquidated with and into the
Borrower so long as (i) the Borrower is the surviving corporation, (ii) all
Liens granted pursuant to the Security Documents on any property or assets
of YBG Associates shall remain in full force and effect and with, or shall
be replaced with Liens with, at least the same priority as such Lien would
have had if such merger or liquidation had not occurred and (iii) at least
10 Business Days prior written notice of any such merger or liquidation is
given by the Borrower to the Administrative Agent.
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To the extent the Required Banks or all of the Banks, as the case may be,
waive the provisions of this Section 8.02 with respect to the sale of any
Collateral, or any Collateral is sold or otherwise disposed of as permitted
by this Section 8.02, such Collateral shall be sold or otherwise disposed
of free and clear of the Liens created by the Security Documents, and the
Administrative Agent and the Collateral Agent shall be authorized to take
any actions deemed appropriate in order to effect the foregoing.
8.03 Dividends. Holdings will not, and will not permit any of its
Subsidiaries to, authorize, declare or pay any Dividends with respect to
Holdings or any of its Subsidiaries, except that (i) any Subsidiary of the
Borrower may pay cash Dividends to the Borrower or to a Wholly-Owned Subsidiary
of the Borrower, (ii) any non-Wholly-Owned Subsidiary of the Borrower may pay
cash Dividends to its shareholders or partners generally so long as (x) the
Borrower or its respective Subsidiary which owns the equity interest or
interests in the Subsidiary paying such Dividends receives at least its
proportionate share thereof (based upon its relative holdings of equity
interests in the Subsidiary paying such Dividends and taking into account the
relative preferences, if any, of the various classes of equity interests in such
Subsidiary) and (y) no Dividends may be paid by any Subsidiary of the Borrower
pursuant to this clause (ii) at any time that any Intercompany Loans are
outstanding to such Subsidiary, and (iii) so long as no Default or Event of
Default then exists or would result therefrom, the Borrower may pay cash
Dividends to Holdings and to HMC Capital, both of whom in turn may pay cash
Dividends, provided that (x) the aggregate amount of cash Dividends paid by the
Borrower pursuant to this clause (iii) in any fiscal quarter of the Borrower
shall not exceed the remainder of (I) 75% of Quarterly Excess Cash Flow of the
Borrower for the immediately preceding fiscal quarter of the Borrower minus (II)
the amount of funds expended or reserved for Capital Expenditures by the
Borrower and its Subsidiaries pursuant to Section 8.07(v) during such fiscal
quarter and (y) no such Dividends may be paid from such Quarterly Excess Cash
Flow for the immediately preceding fiscal quarter until the Borrower has
delivered to the Administrative Agent the financial statements pursuant to
Section 7.01(a) or (b), as the case may be, in respect of such immediately
preceding fiscal quarter and provided further, (x) that if 75% of Annual Excess
Cash Flow of the Borrower for any fiscal year of the Borrower is less than the
sum of (I) the aggregate amount of Dividends paid from Quarterly Excess Cash
Flow of the Borrower for periods included in such fiscal year plus (II) the
aggregate amount of Capital Expenditures made pursuant to Section 8.07(v) in
such fiscal year, Holdings and HMC Capital will (and Holdings and HMC Capital
hereby covenant and agree to) immediately return such difference (but not to
exceed the amount of such Dividends actually paid in such fiscal year) to the
Borrower as a cash equity contribution with cash equity proceeds received from
Host Marriott and (y) that if 75% of Annual Excess Cash Flow of the Borrower for
any fiscal year of the Borrower is more than the sum of (I) the aggregate amount
of Dividends paid from
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Quarterly Excess Cash Flow of the Borrower for periods included in such fiscal
year and (II) the aggregate amount of Capital Expenditures made pursuant to
Section 8.07(v) in such fiscal year, the Borrower may pay a cash Dividend to
Holdings and to HMC Capital, both of whom in turn may pay a cash Dividend, in
each case in an amount equal to such excess so long as such cash Dividend is
paid within 15 Business Days after the delivery of the annual financial
statements pursuant to Section 7.01(b) in respect of such fiscal year.
8.04 Indebtedness. Holdings will not, and will not permit any of its
Subsidiaries to, contract, create, incur, assume or suffer to exist any
Indebtedness, except:
(i) Indebtedness incurred pursuant to this Agreement and the other
Credit Documents;
(ii) Existing Indebtedness to the extent the same is listed on
Schedule V (although any Existing Indebtedness of the type described in
clause (iii) of this Section 8.04 does not have to be listed on such
Schedule V), but no refinancings or renewals thereof;
(iii) accrued expenses and current trade accounts payable incurred in
the ordinary course of business;
(iv) Indebtedness of the Borrower and its Subsidiaries evidenced by
Capitalized Lease Obligations and/or purchase money Indebtedness to the
extent permitted under Section 8.01(vii);
(v) intercompany Indebtedness among the Borrower and the Subsidiary
Guarantors to the extent permitted by Section 8.05(iv);
(vi) intercompany Indebtedness owed by Subsidiaries of the Borrower
which are not Subsidiary Guarantors to the Borrower or any Subsidiary
Guarantor to the extent permitted by Section 8.05(vii);
(vii) Indebtedness of the Borrower under Interest Rate Protection
Agreements entered into in compliance with Section 7.16;
(viii) Permitted Non-Recourse Indebtedness of a Specified Subsidiary
incurred to finance the purchase of (or assumed at the time of the purchase
of), or to finance the renovation of, a Hotel Property and/or a Senior
Living Care Facility which, in either case, is not a Borrowing Base
Property so long as (i)
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no Default or Event of Default then exists or would result therefrom, (ii)
based on calculations made by the Borrower on a Pro Forma Basis as if the
incurrence of such Indebtedness had occurred on the first day of the
respective Calculation Period relating to such incurrence, no Default or
Event of Default will exist under, or would have existed during the period
beginning on the first day of the respective Calculation Period and ended
on the Determination Date under, the financial covenants contained in
Sections 8.08 through 8.12, inclusive, (iii) based on good faith
projections prepared by the Borrower for the period from the date that such
Indebtedness is incurred to the date which is one year thereafter, the
level of financial performance measured by the covenants set forth in
Sections 8.08 through 8.12, inclusive, shall be better than or equal to
such level as would be required to provide that no Default or Event of
Default will exist under the financial covenants contained in Sections 8.08
through 8.12, inclusive, as compliance with such covenants will be required
through the date which is one year from the date of the incurrence of such
Indebtedness, (iv) the amount of any such Permitted Non-Recourse
Indebtedness does not exceed an amount equal to the product of the
Non-Borrowing Base Property EBITDA of the respective Hotel Property or
Senior Living Care Facility for the most recent 12 month period multiplied
by the Applicable EBITDA Factor at such time, (v) the aggregate principal
amount of all Permitted Non-Recourse Indebtedness outstanding at any one
time shall not exceed $150,000,000 and (vi) the Borrower shall have
delivered to the Administrative Agent an officer's certificate executed by
an Authorized Financial Officer of the Borrower, certifying to the best of
such officer's knowledge, compliance with the requirements of this Section
8.04(viii) and containing the calculations required by the preceding
clauses (ii), (iii), (iv) and (v);
(ix) accrued and deferred management fees under any Management
Agreement or the New York Marriott Financial Center Contribution Agreement
to the extent that the payment thereof is prohibited by the subordination
provisions of a Manager Subordination Agreement;
(x) unsecured subordinated Indebtedness of the Borrower or any of its
Subsidiaries the proceeds of which are used to cover the cost of renovation
of any Hotel Property or Senior Living Care Facility, replace or renew any
FF&E or to make certain Capital Expenditures, provided that (i) the
aggregate principal amount of all Indebtedness incurred pursuant to this
clause (x) shall not exceed $10,000,000 at any one time outstanding and
(ii) the terms and conditions of the applicable subordination provisions
shall be in form and substance satisfactory to the Administrative Agent;
and
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(xi) Indebtedness of the Borrower under the Existing New York Marriott
Financial Center Notes.
8.05 Advances, Investments and Loans. Holdings will not, and will not
permit any of its Subsidiaries to, directly or indirectly, lend money or credit
or make advances to any Person, or purchase or acquire any stock, obligations or
securities of, or any other interest in, or make any capital contribution to,
any other Person, or purchase or own a futures contract or otherwise become
liable for the purchase or sale of currency or other commodities at a future
date in the nature of a futures contract, or hold any cash or Cash Equivalents
(each of the foregoing an "Investment" and, collectively, "Investments"), except
that the following shall be permitted:
(i) the Borrower and its Subsidiaries may acquire and hold accounts
receivables owing to any of them, if created or acquired in the ordinary
course of business and payable or dischargeable in accordance with
customary terms;
(ii) the Borrower and its Subsidiaries may acquire and hold cash and
Cash Equivalents;
(iii) the Borrower may enter into Interest Rate Protection Agreements
to the extent permitted by Section 8.04(vii);
(iv) the Borrower and the Subsidiary Guarantors may make inter-company
loans to one another so long as (i) each such intercompany loan is
evidenced by an Intercompany Note which shall be pledged to the Collateral
Agent pursuant to the Pledge Agreement, (ii) no more than $2,500,000 of
intercompany loans in the aggregate may be outstanding at any one time to
all Subsidiary Guarantors that are not Wholly-Owned Subsidiaries of the
Borrower (determined without regard to any write-downs or write-offs
thereof) and (iii) any intercompany loan made by any Subsidiary Guarantor
that is not a Wholly- Owned Subsidiary of the Borrower shall contain the
subordination provisions set forth in Exhibit O;
(v) Holdings and HMC Capital may make cash common equity contributions
to the Borrower;
(vi) the Borrower may make intercompany loans to Host Marriott so long
as (i) each such intercompany loan is evidenced by an Intercompany Note
which shall be pledged to the Collateral Agent pursuant to the Pledge
Agreement, (ii) no more than $100,000,000 of such intercompany loans may be
outstanding at any one time (determined without regard to any write-downs
or
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write-offs thereof) and (iii) after giving effect to any such Investment,
the aggregate principal amount of all Loans then outstanding shall not
exceed the Borrowing Base then in effect;
(vii) subject to the restrictions set forth in Section 8.16, the
Borrower and its Subsidiaries may make additional Investments so long as
(i) no Default or Event of Default then exists or would result therefrom,
(ii) the aggregate amount of all Investments made pursuant to this Section
8.05(vii), when added to the aggregate amount of all acquisitions made
pursuant to Section 8.02(ix), shall not exceed the sum of (I) $150,000,000
plus (II) the amount of any such Investments and acquisitions financed with
the proceeds of Permitted Non- Recourse Indebtedness, (iii) after giving
effect to any such Investment, the aggregate principal amount of Loans then
outstanding shall not exceed the Borrowing Base then in effect and (iv) any
Investments that are made by the Borrower or a Subsidiary Guarantor
pursuant to this Section 8.05(vii) in the form of a loan shall be evidenced
by a promissory note and shall be pledged to the Collateral Agent pursuant
to the Pledge Agreement; and
(viii) Holdings and its Subsidiaries may hold the stock or other
interests in their respective Subsidiaries.
8.06 Transactions with Affiliates; Management Agreements. (a) Holdings will
not, and will not permit any of its Subsidiaries to, enter into any transaction
or series of related transactions with any Affiliate of Holdings or any of its
Subsidiaries, other than in the ordinary course of business and on terms and
conditions substantially as favorable to Holdings or such Subsidiary as would
reasonably be obtained by Holdings or such Subsidiary at that time in a
comparable arm's-length transaction with a Person other than an Affiliate,
except that:
(i) Dividends may be paid to the extent provided in Section 8.03;
(ii) loans may be made and other transactions may be entered into by
Holdings and its Subsidiaries to the extent permitted by Section 8.04 or
8.05; and
(iii) the Borrower may pay to Host Marriott the Borrower's allocable
share of Host Marriott's federal income taxes, with such allocable share to
be determined on the basis set forth in Section 12(h) of the Host Marriott
Guaranty.
(b) Notwithstanding anything to the contrary contained in this
Agreement, neither Holdings nor any of its Subsidiaries shall (x) enter
into any management
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agreement or similar contract or arrangement relating to the operation of
the Hotel Properties or Senior Living Care Facilities other than the
Management Agreements, (y) transfer any assets to Host Marriott or any of
its other Subsidiaries or Affiliates except to the extent permitted by
Section 8.03(iii) and Section 8.05(vi) or (z) be responsible for, or
allocated a portion of, any corporate or overhead costs and expenses of
Host Marriott and its other Subsidiaries other than such corporate or
overhead costs and expenses as are fairly and reasonably allocated thereto
by Host Marriott to the Borrower and its Subsidiaries.
8.07 Capital Expenditures. Holdings will not, and will not permit any of
its Subsidiaries to, make any Capital Expenditures, except:
(i) the Borrower and its Subsidiaries may make acquisitions of Hotel
Properties and/or Senior Living Care Facilities in accordance with the
requirements of Sections 8.02(viii) and (ix) and, during the two-year
period following the acquisition of any Hotel Property or Senior Living
Care Facility, the Borrower or the Subsidiary which owns the respective
Hotel Property or Senior Living Care Facility may make Capital Expenditures
to the extent (and so long as the amounts thereof do not exceed the amount)
specified in the respective officer's certificate delivered with respect to
such Borrowing Base Property pursuant to Section 7.11(xiii) (including as
such Section is incorporated by reference in Section 4.13);
(ii) in addition to Capital Expenditures permitted by the preceding
clause (i) and the following clauses (iii), (iv), (v) and (vi), the
Borrower and its Subsidiaries may make maintenance Capital Expenditures
with respect to their Hotel Properties and Senior Living Care Facilities so
long as (x) the aggregate amount of such Capital Expenditures for any Hotel
Property or Senior Living Care Facility in any fiscal year of the Borrower
does not exceed an amount equal to 5% of the Gross Revenues from such Hotel
Property or Senior Living Care Facility, as the case may be, for such
fiscal year (which amount may be increased to up to 7% of such Gross
Revenues to the extent that the amount required to be deposited into the
respective FF&E Reserve Account pursuant to the respective Management
Agreement has been increased to a like amount) plus any amounts then on
deposit in an FF&E Reserve Account for such Hotel Property or Senior Living
Care Facility, as the case may be, to the extent deposited in a prior
fiscal year and (y) all such Capital Expenditures are made in accordance
with the terms of the respective Management Agreement for such Hotel
Property or Senior Living Care Facility, as the case may be;
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(iii) in addition to Capital Expenditures permitted by the preceding
clauses (i) and (ii) and the following clauses (iv), (v) and (vi), the
Borrower and its Subsidiaries may make additional Capital Expenditures (x)
to the extent permitted by Section 7.18 and (y) to Restore any
non-Borrowing Base Property with Insurance Proceeds or Condemnation
Proceeds received from any Casualty Event or Taking in respect of such
non-Borrowing Base Property;
(iv) in addition to Capital Expenditures permitted by the preceding
clauses (i), (ii) and (iii) and the following clauses (v) and (vi), (x) the
Borrower and its Subsidiaries may make additional Capital Expenditures of
the type described in the preceding clause (ii) with the proceeds received
by capital contributions from, or equity issuances to, Host Marriott and
its other Subsidiaries and (y) the Borrower and its Subsidiaries may make
payments in respect of Capitalized Lease Obligations to the extent such
Capitalized Lease Obligations are otherwise permitted under Section
8.04(iv);
(v) in addition to Capital Expenditures permitted by the preceding
clauses (i), (ii), (iii) and (iv) and following clause (vi), the Borrower
and its Subsidiaries may make (or set aside reserves for) additional
Capital Expenditures with respect to any then existing Hotel Property
and/or Senior Living Care Facility, provided that (x) the aggregate amount
of Capital Expenditures made (or reserved for) pursuant to this clause (v)
in any fiscal quarter of the Borrower shall not exceed the remainder of (I)
75% of Quarterly Excess Cash Flow of the Borrower for the immediately
preceding fiscal quarter of the Borrower minus (II) the amount of Dividends
paid pursuant to Section 8.03(iii) during such fiscal quarter and (y) no
such Capital Expenditures may be made (or reserved) from such Quarterly
Excess Cash Flow for the immediately preceding fiscal quarter until the
Borrower has delivered to the Administrative Agent the financial statements
pursuant to Section 7.01(a) or (b), as the case may be, in respect of such
fiscal quarter; and
(vi) in addition to Capital Expenditures permitted by the preceding
clauses (i), (ii), (iii), (iv) and (v), the Borrower and its Subsidiaries
may make additional Capital Expenditures with the proceeds of Indebtedness
incurred pursuant to, and in accordance with the terms of, Section 8.04(x).
8.08 Minimum Consolidated Interest Coverage Ratio. The Borrower will not
permit its Consolidated Interest Coverage Ratio for any Test Period to be less
than 2.15:1.00.
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8.09 Minimum Modified Interest Coverage Ratio. The Borrower will not permit
its Modified Interest Coverage Ratio for any Test Period to be less than
2.15:1.00.
8.10 Maximum Consolidated Debt. The Borrower will not permit its
Consolidated Debt at any time to be more than 60% of its Consolidated
Capitalization at such time.
8.11 Maximum Total Leverage Ratio. The Borrower will not permit its Total
Leverage Ratio at any time during a period set forth below to be greater than
the ratio set forth opposite such period below:
Period Ratio
Effective Date through but not
including the last day of the Borrower's
fiscal quarter ending closest to
September 30, 1999 4.50:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
1999 through but not including the last day
of the Borrower's fiscal quarter ending
closest to September 30, 2000 4.25:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
2000 through but not including the last
day of the Borrower's fiscal quarter
ending closest to September 30, 2001 4.00:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
2001 through but not including the last
day of the Borrower's fiscal quarter
ending closest to September 30, 2002 3.75:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
2002 through but not including the last
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Period Ratio
day of the Borrower's fiscal quarter
ending closest to September 30, 2003 3.50:1.00
Thereafter 3.25:1.00
8.12 Maximum Modified Leverage Ratio. The Borrower will not permit its
Modified Leverage Ratio at any time during a period set forth below to be
greater than the ratio set forth opposite such period below:
Period Ratio
Effective Date through but not
including the last day of the Borrower's
fiscal quarter ending closest to
September 30, 1999 4.50:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
1999 through but not including the
last day of the Borrower's fiscal
quarter ending closest to September 30, 2000 4.25:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
2000 through but not including the last
day of the Borrower's fiscal
quarter ending closest to September 30, 2001 4.00:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
2001 through but not including the last
day of the Borrower's fiscal quarter
ending closest to September 30, 2002 3.75:1.00
The last day of the Borrower's fiscal
quarter ending closest to September 30,
2002 through but not including the last day
of the Borrower's fiscal quarter ending
closest to September 30, 2003 3.50:1.00
Thereafter 3.25:1.00
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8.13 Limitation on Payments of Certain Indebtedness; Modifications of
Certain Indebtedness; Modifications of Certificate of Incorporation, By-Laws and
Certain Agreements; etc. Holdings will not, and will not permit any of its
Subsidiaries to, (i) make (or give any notice in respect of) any voluntary or
optional payment or pre- payment on or redemption or acquisition for value of,
or any prepayment or redemption as a result of any change of control or similar
event of, including, in each case without limitation, by way of depositing with
the trustee with respect thereto money or securities before due for the purpose
of paying when due, any Permitted Non-Recourse Indebtedness or any Indebtedness
incurred pursuant to Section 8.04(x), provided that the Borrower or its
respective Subsidiary may so prepay any Indebtedness incurred pursuant to such
Section 8.04(x) so long as no Default or Event of Default then exists and such
payment is otherwise permitted under the respective subordination provisions
applicable thereto, (ii) make (or give any notice in respect of) any payment or
prepayment on or redemption or acquisition for value of, including, in each case
without limitation, by way of depositing with any trustee with respect thereto
money or securities before due for the purpose of paying when due, any
principal, premium, interest or other amounts on the Existing New York Marriott
Financial Center Notes, provided that, so long as no Default or Event of Default
then exists, the Borrower may make the annual interest payment on the Existing
New York Marriott Financial Center Notes so long as HMC Capital, within one
Business Day after receiving such interest payment, contributes (and HMC Capital
hereby covenants and agrees to so contribute) the full amount of such interest
payment to the Borrower as a common equity contribution, (iii) amend or modify,
or permit the amendment or modification of, any provision of any Permitted
Non-Recourse Indebtedness or any agreement (including, without limitation, any
purchase agreement, indenture or loan agreement) related thereto (other than any
amendment or modification thereto which would not violate or be inconsistent
with any of the terms or provisions of this Agreement and could not reasonably
be expected to be adverse to the interests of the Banks in any material
respect), (iv) amend or modify, or permit the amendment or modification of, any
provision of the Existing New York Marriott Financial Center Mortgages or the
Existing New York Marriott Financial Center Notes, (v) amend or modify, or
permit the amendment or modification of, any provision of any Management
Agreement or the New York Marriott Financial Center Contribution Agreement
(other than any amendment or modification thereto which would not violate or be
inconsistent with any of the terms or provisions of this Agreement and the other
Credit Documents and could not reasonably be expected to be adverse to the
interests of the Banks in any material respect), (vi) amend, modify or change
its certificate of incorporation (including, with- out limitation, by the filing
or modification of any certificate of designation), by-laws, certificate of
partnership, partnership agreement or any equivalent organizational document, or
any agreement entered into by it, with respect to its capital stock or other
equity interests, or enter into any new agreement with respect to its capital
stock or
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other equity interests, other than any amendments, modifications or changes
pursuant to this clause (vi) or any such new agreements which are not adverse in
any material respect to the interests of the Banks, provided that in no event
shall any amendments, modifications or changes to the terms of the capital stock
of Holdings, or any Subsidiary of Holdings be permitted, other than any
amendments which change the number of authorized shares of capital stock, or
(vii) enter into any tax sharing agreement or arrangement that would require the
Borrower or any of its Subsidiaries to make payments (whether to Host Marriott,
Holdings, one or more other Subsidiaries of Host Marriott (other than a
Subsidiary Guarantor), the relevant tax authorities or any other Person) in
respect of Federal income taxes which, for the Borrower and such Subsidiaries,
would exceed the amounts required to be paid by the Borrower and such
Subsidiaries in accordance with the election made by Host Marriott under Section
1552 of the Code and Treasury Regulation Section 1.1502-33(d)(2)(ii) as provided
in the Host Marriott Guaranty and computed by reference to the provisions of the
foregoing Section as in effect on the Effective Date.
8.14 Limitation on Certain Restrictions on Subsidiaries. Holdings will not,
and will not permit any of its Subsidiaries to, directly or indirectly, create
or other- wise cause or suffer to exist or become effective any encumbrance or
restriction on the ability of any Subsidiary of the Borrower to (a) pay
dividends or make any other distributions on its capital stock or any other
interest or participation in its profits owned by the Borrower or any of its
Subsidiaries, or pay any Indebtedness owed to the Borrower or any Subsidiary of
the Borrower, (b) make loans or advances to the Borrower or any Subsidiary of
the Borrower or (c) transfer any of its properties or assets to the Borrower or
any Subsidiary of the Borrower, except in each case for such encumbrances or
restrictions existing under or by reason of (i) applicable law, (ii) this
Agreement and the other Credit Documents, (iii) customary provisions restricting
subletting or assignment of any lease governing a leasehold interest of the
Borrower or any Subsidiary of the Borrower, (iv) customary provisions
restricting assignment of any licensing agreement entered into by the Borrower
or any Subsidiary of the Borrower in the ordinary course of business, (v)
customary provisions restricting the transfer of assets subject to Liens
permitted under Section 8.01(vii) and (vi) restrictions existing in any document
executed in connection with any Permitted Non-Recourse Indebtedness so long as
such restrictions only apply to the Specified Subsidiary that has incurred such
Permitted Non-Recourse Indebtedness.
8.15 Limitation on Issuance of Capital Stock. (a) Holdings will not permit
any of its Subsidiaries to issue any capital stock (including by way of sales of
treasury stock) or other equity interests or any options or warrants to
purchase, or securities convertible into, capital stock or other equity
interests, except (i) for transfers and replacements of then outstanding shares
of capital stock or other equity interests,
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(ii) for stock splits, stock dividends and similar or additional issuances which
do not decrease the percentage ownership of Holdings or any of its Subsidiaries
in any class of the capital stock or other equity interests of such Subsidiary
and (iii) to qualify directors to the extent required by applicable law.
(b) Holdings will not, and will not permit any of its Subsidiaries to,
issue any class of preferred stock or redeemable common stock.
8.16 Business. (a) The Borrower will not, and will not permit any of its
Subsidiaries to, engage (directly or indirectly) in any business other than the
business in which the Borrower and its Subsidiaries are engaged on the Effective
Date and the ownership of Senior Living Care Facilities.
(b) Notwithstanding anything to the contrary contained in this Agreement,
Holdings will not engage in any business activities, will not have any
significant assets other than the ownership of the capital stock of the Borrower
and HMC Capital, and will not have any significant liabilities other than those
under this Agreement and the other Credit Documents to which it is a party.
(c) Notwithstanding anything to the contrary contained in this Agreement,
HMC Capital will not engage in any business activities, will not have any
significant assets other than the ownership of the capital stock of the Borrower
and the ownership of the Existing New York Marriott Financial Center Mortgages
and the Existing New York Marriott Financial Center Notes, and will not have any
significant liabilities other than those under this Agreement and the other
Credit Documents to which it is a party.
(d) Notwithstanding anything to the contrary contained in this Agreement,
Holdings, HMC Capital and the Borrower will not permit Marriott Suites L.P. to
engage in any business activities other than the ownership of the Marriott
Suites Hotels.
(e) Notwithstanding anything to the contrary contained in this Agreement,
Holdings, HMC Capital and the Borrower will not permit YBG Associates to engage
in any business activities other than the ownership of the San Francisco
Marriott.
8.17 Limitation on Creation of Subsidiaries. Holdings will not, and will
not permit any of its Subsidiaries to, establish, create or acquire any
additional Subsidiaries, except that the Borrower and its Wholly-Owned
Subsidiaries shall be permitted to establish, create or acquire Wholly-Owned
Subsidiaries and, to the extent permitted
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by Section 8.02(viii), Section 8.02(ix) and Section 8.05(vii), non-Wholly-Owned
Subsidiaries, in each case in connection with the acquisition of new Hotel
Properties and/or Senior Living Care Facilities permitted by Section 8.02(viii)
and Section 8.02 (ix) and Investments permitted by Section 8.05(vii), as the
case may be, so long as (i) the capital stock or limited liability company
interests of such new Subsidiary (to the extent that same is a corporation or a
limited liability company and is owned by a Credit Party) are pledged pursuant
to the Pledge Agreement and the certificates representing such stock or limited
liability company interests, together with undated stock or other powers duly
executed in blank, are delivered to the Collateral Agent, (ii) the partnership
interests of such new Subsidiary (to the extent that same is a partnership and
is owned by a Credit Party) are pledged and assigned pursuant to the Partnership
Pledge and Security Agreement and (iii) any such new Subsidiary which owns a
Borrowing Base Property and/or an equity interest (both directly and indirectly)
in any other Subsidiary which owns a Borrowing Base Property executes a
counterpart of the Subsidiaries Guaranty, the Pledge Agreement, the Partnership
Pledge and Security Agreement, the Security Agreement and the California
Environmental Indemnity Agreement, and (iv) any such new Subsidiary which owns a
Borrowing Base Property and/or an equity interest in any other Subsidiary which
owns a Borrowing Base Property shall take all actions required pursuant to
Section 7.11. In addition, each such new Subsidiary which owns a Borrowing Base
Property and/or an equity interest in any other Subsidiary which owns a
Borrowing Base Property shall execute and deliver, or cause to be executed and
delivered, all other relevant documentation of the type described in Section 4
as such new Subsidiary would have had to deliver if such new Subsidiary were a
Credit Party on the Effective Date.
SECTION 9. Events of Default. Upon the occurrence of any of the following
specified events (each an "Event of Default"):
9.01 Payments. The Borrower shall (i) default in the payment when due of
any principal of any Loan or any Note or (ii) default, and such default shall
continue unremedied for two or more Business Days, in the payment when due of
any interest on any Loan or Note, or any Fees or any other amounts owing
hereunder or under any other Credit Document; or
9.02 Representations, etc. Any representation, warranty or statement made
or deemed made by any Credit Party herein or in any other Credit Document or in
any certificate delivered pursuant hereto or thereto shall prove to be untrue in
any material respect on the date as of which made or deemed made; or
9.03 Covenants. Any Credit Party shall (i) default in the due performance
or observance by it of any term, covenant or agreement contained in
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Section 7.01(f)(i), 7.08 or 7.13 or Section 8 or (ii) default in the due
performance or observance by it of any other term, covenant or agreement
contained in this Agreement (other than as provided in Section 9.01) and such
default shall continue unremedied for a period of 30 days after written notice
to the Borrower by the Administrative Agent or the Required Banks; or
9.04 Default Under Other Agreements. (i) Holdings or any of its
Subsidiaries shall (x) default in any payment of any Indebtedness (other than
the Obligations) beyond the period of grace, if any, provided in the instrument
or agreement under which such Indebtedness was created or (y) default in the
observance or performance of any agreement or condition relating to any
Indebtedness (other than the Obligations) or contained in any instrument or
agreement evidencing, securing or relating thereto, or any other event shall
occur or condition exist, the effect of which default or other event or
condition is to cause, or to permit the holder or holders of such Indebtedness
(or a trustee or agent on behalf of such holder or holders) to cause (determined
without regard to whether any notice is required), any such Indebtedness to
become due prior to its stated maturity, or (ii) any Indebtedness (other than
the Obligations) of Holdings or any of its Subsidiaries 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, provided that it
shall not be a Default or an Event of Default under clauses (i) or (ii) of this
Section 9.04 unless the aggregate outstanding principal amount of all
Indebtedness as described in such clauses (i) and (ii) is at least $5,000,000;
or
9.05 Bankruptcy, etc. Holdings or any of its Subsidiaries shall commence a
voluntary case concerning itself under Title 11 of the United States Code
entitled "Bankruptcy," as now or hereafter in effect, or any successor thereto
(the "Bankruptcy Code"); or an involuntary case is commenced against Holdings or
any of its Subsidiaries and the petition is not controverted within 10 days, or
is not dismissed within 30 days, after commencement of the case; or a custodian
(as defined in the Bankruptcy Code) is appointed for, or takes charge of, all or
substantially all of the property of Holdings or any of its Subsidiaries or
Holdings or any of its Subsidiaries commences any other proceeding under any
reorganization, arrangement, adjustment of debt, relief of debtors, dissolution,
insolvency or liquidation or similar law of any jurisdiction whether now or
hereafter in effect relating to Holdings or any of its Subsidiaries, or there is
commenced against Holdings or any of its Subsidiaries any such proceeding which
remains undismissed for a period of 30 days, or Holdings or any of its
Subsidiaries is adjudicated insolvent or bankrupt; or any order of relief or
other order approving any such case or proceeding is entered and is not vacated
or stayed within 30 days; or Holdings or any of its Subsidiaries suffers any
appointment of any custodian or the like for it or any substantial part of its
property to continue undis-
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charged or unstayed for a period of 30 days; or Holdings or any of its
Subsidiaries makes a general assignment for the benefit of creditors; or any
partnership and/or corporate action is taken by Holdings or any of its
Subsidiaries for the purpose of effecting any of the foregoing; or
9.06 ERISA. (a) Any Plan shall fail to satisfy the minimum funding standard
required for any plan year or part thereof under Section 412 of the Code or
Section 302 of ERISA or a waiver of such standard or extension of any
amortization period is sought or granted under Section 412 of the Code or
Section 303 or 304 of ERISA, a Reportable Event shall have occurred, a
contributing sponsor (as defined in Section 4001(a)(13) of ERISA) of a Plan
subject to Title IV of ERISA shall be subject to the advance reporting
requirement of PBGC Regulation 4043.61 (without regard to subparagraph (b)(1)
thereof) and an event described in subsection .62, .63, .64., .65, .66, .67 or
.68 or PBGC Regulation Section 4043 shall be reasonably expected to occur with
respect to such Plan within the following 30 days, any Plan shall have had or is
likely to have a trustee appointed to administer such Plan, any Plan is, shall
have been or is likely to be terminated or to be the subject of termination
proceedings under ERISA, any Plan shall have an Unfunded Current Liability, a
contribution required to be made by Holdings, any Subsidiary of Holdings or any
ERISA Affiliate to a Plan or a Foreign Pension Plan has not been timely made,
Holdings or any of its Subsidiaries or ERISA Affiliates has incurred or is
likely to incur a liability to or on account of a Plan under Section 409,
502(i), 502(l), 515, 4062, 4063, 4064, 4069, 4201, 4204 or 4212 of ERISA or
Section 401(a)(29), 4971, 4975 or 4980 of the Code or on account of a group
health plan (as defined in Section 607(1) of ERISA or Section 4980B(g)(2) of the
Code) under Section 4980B of the Code, or Holdings or any of its Subsidiaries or
ERISA Affiliates has incurred or is likely to incur liabilities pursuant to one
or more employee welfare benefit plans (as defined in Section 3(1) of ERISA)
that provide benefits to retired employees or other former employees (other
than as required by Section 601 of ERISA) or employee pension benefit plans (as
defined in Section 3(2) of ERISA) or Foreign Pension Plans; (b) there shall
result from any such event or events the imposition of a lien, the granting of a
security interest, or a liability or a material risk of incurring a liability;
and (c) such lien, security interest or liability, individually and/or in the
aggregate, in the reasonable opinion of the Required Banks, will have a material
adverse effect on the business, operations, property, assets, liabilities,
condition (financial or otherwise) or prospects of Holdings, Holdings and its
Subsidiaries taken as a whole, the Borrower or the Borrower and its Subsidiaries
taken as a whole; or
9.07 Security Documents. At any time after the execution and delivery
thereof, any of the Security Documents shall cease to be in full force and
effect, or shall cease to give the Collateral Agent for the benefit of the
Secured Creditors the Liens, rights, powers and privileges purported to be
created thereby (including, without
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limitation, a perfected security interest in, and Lien on, all of the Collateral
(other than Security Agreement Collateral with a value of not more than
$1,000,000 or constituting the Specified Equipment)), in favor of the Collateral
Agent, superior to and prior to the rights of all third Persons (except as
permitted by Section 8.01), and subject to no other Liens (except as permitted
by Section 8.01), or any Credit Party shall default in the due performance or
observance of any term, covenant or agreement on its part to be per- formed or
observed pursuant to any of the Security Documents and such default shall
continue beyond any grace period specifically applicable thereto pursuant to the
terms of such Security Document; or
9.08 Guaranty. Any Guaranty shall cease to be in full force or effect as to
the relevant Guarantor, or any Guarantor or Person acting by or on behalf of
such Guarantor shall deny or disaffirm such Guarantor's obligations under the
relevant Guaranty or any Guarantor Event of Default shall occur; or
9.09 Judgments. One or more judgments or decrees shall be entered against
Holdings or any of its Subsidiaries involving in the aggregate for Holdings and
its Subsidiaries a liability (not paid or not fully covered by a reputable and
solvent insurance company) and such judgments and decrees either shall be final
and non- appealable or shall not be vacated, discharged or stayed or bonded
pending appeal for any period of 30 consecutive days, and the aggregate amount
of all such judgments equals or exceeds $5,000,000; or
9.10 Management Agreements. Any Management Agreement or any material
provision thereof shall cease to be in full force and effect or any party
thereto shall deny or disaffirm its material obligations thereunder or shall
default in the due performance or observance of any material term, covenant or
agreement on its part to be performed or observed pursuant thereto after the
expiration of any applicable cure period or the Loans or the Banks shall cease
to constitute "Qualified Loans" or "Qualified Lenders", as the case may be,
under any such Management Agreement (to the extent that such terms are
applicable under any such Management Agreement); or
9.11 Manager Subordination Agreements. Any Manager Subordination Agreement
or any provision thereof shall cease to be a legal, valid and binding obligation
enforceable against any party to such Manager Subordination Agreement, or any
party to a Manager Subordination Agreement (other than the Administrative Agent)
or any Person acting by or on behalf of any such party shall deny or disaffirm
such party's obligations under any such Manager Subordination Agreement, or any
such party shall default in the due performance of any term, covenant or
agreement on its part to be performed or observed pursuant to any such Manager
Subordination Agreement; or
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9.12 Ground Leases. Any ground lease with respect to any Borrowing Base
Property which is a Leasehold shall cease to be in full force and effect or any
party thereto shall deny or disaffirm any of its material obligations thereunder
or shall default in the due performance or observance of any material term,
covenant or agreement on its part to be performed or observed pursuant thereto
after the expiration of any applicable cure period; or
9.13 Change of Control. A Change of Control shall occur; or
9.14 Trademark Permission. (a) At any time any Qualified Hotel Property
shall be operated without the use of the "Marriott", "Renaissance" or
"Ritz-Carlton" name or trademark or shall not be permitted to use any such name
or trademark in any advertising incident thereto; or
(b) At any time any Qualified Senior Living Care Facility shall be operated
without the use of the "Forum" or "Brighton Gardens" name or trademark (or
another nationally recognized brand name or trademark acceptable to the Required
Banks and which is used by a Permitted Facility Manager in the operation of a
Qualified Senior Living Care Facility) or shall not be permitted to use any such
name or trademark in any advertising incident thereto; or
9.15 HMC Capital Subordination Agreements. The HMC Capital Subordination
Agreement or any provision thereof shall cease to be a legal, valid and binding
obligation enforceable against HMC Capital or the Borrower, or HMC Capital or
the Borrower or any Person acting by or on behalf of any such party shall deny
or disaffirm such party's obligations under the HMC Capital Subordination
Agreement, or any such party shall default in the due performance of any term,
covenant or agreement on its part to be performed or observed pursuant to the
HMC Capital Subordination Agreement; then, and in any such event, and at any
time thereafter, if any Event of Default shall then be continuing, the
Administrative Agent, upon the written request of the Required Banks, shall by
written notice to the Borrower, take any or all of the following actions,
without prejudice to the rights of the Administrative Agent, any Bank or the
holder of any Note to enforce its claims against any Credit Party (provided,
that, if an Event of Default specified in Section 9.05 shall occur with respect
to the Borrower, the result which would occur upon the giving of written notice
by the Administrative Agent to the Borrower as specified in clauses (i) and (ii)
below shall occur automatically without the giving of any such notice): (i)
declare the Total Commitment terminated, whereupon the Commitment of each Bank
shall forthwith terminate immediately and any Commitment Commission shall
forthwith become due and payable without any other
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notice of any kind; (ii) declare the principal of and any accrued interest in
respect of all Loans and the Notes and all other Obligations owing hereunder and
thereunder to be, whereupon the same shall become, forthwith due and payable
without presentment, demand, protest or other notice of any kind, all of which
are hereby waived by each Credit Party; and (iii) enforce, as Collateral Agent,
all of the Liens and security interests created pursuant to the Security
Documents.
SECTION 10. Definitions and Accounting Terms.
10.01 Defined Terms. As used in this Agreement, the following terms shall
have the following meanings (such meanings to be equally applicable to both the
singular and plural forms of the terms defined):
"Acquisition Notes" shall mean the $350,000,000 9% Senior Notes due 2007
which were issued by HMC Acquisition Properties, Inc. (and any Indebtedness
issued to refinance same).
"Addition Date" shall mean (x) with respect to the Initial Hotel
Properties, the Effective Date and (y) with respect to any Borrowing Base
Property acquired after the Effective Date pursuant to Section 8.02(viii), the
later to occur of (i) the date upon which such acquisition is consummated or
(ii) the date on which all the conditions to such acquisition set forth in
Sections 7.11 and 8.02(viii) shall have been satisfied with respect to such
Borrowing Base Property.
"Adjusted Certificate of Deposit Rate" shall mean, on any day, the sum
(rounded to the nearest 1/100 of 1% or, if there is no nearest 1/100 of 1%, to
the next highest 1/100 of 1%) of (1) the rate obtained by dividing (x) the most
recent weekly average dealer offering rate for negotiable certificates of
deposit with a three-month maturity in the secondary market as published in the
most recent Federal Reserve System publication entitled "Select Interest Rates,"
published weekly on Form H.15 as of the date hereof, or if such publication or a
substitute containing the foregoing rate information shall not be published by
the Federal Reserve System for any week, the weekly average offering rate
determined by the Administrative Agent on the basis of quotations for such
certificates received by it from three certificate of deposit dealers in New
York of recognized standing or, if such quotations are unavailable, then on the
basis of other sources reasonably selected by the Administrative Agent, by (y) a
percentage equal to 100% minus the stated maximum rate of all reserve
requirements as specified in Regulation D applicable on such day to a
three-month certificate of deposit of a member bank of the Federal Reserve
System in excess of $100,000 (including, without limitation, any marginal,
emergency, supplemental, special or other reserves), plus (2) the then daily net
annual assessment rate as estimated by the
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Administrative Agent for determining the current annual assessment payable by
the Administrative Agent to the Federal Deposit Insurance Corporation for
insuring three- month certificates of deposit.
"Adjusted Consolidated EBITDA" shall mean, for any Person and period, the
Consolidated Net Income of such Person for such period adjusted to (A) add
thereto (to the extent deducted in determining Consolidated Net Income for such
period), without duplication, the sum of the amounts for such Person and period
of (i) Consolidated Interest Expense, (ii) provisions for taxes based on income,
(iii) depreciation and amortization expense (provided that the depreciation and
amortization expense of a non-Wholly-Owned Subsidiary shall be included only to
the extent of the equity interest of such Person in such non-Wholly-Owned
Subsidiary), (iv) any other noncash items reducing Consolidated Net Income of
such Person for such period (except to the extent that such noncash items relate
to the write-off or write-down of any item included in Consolidated Net Income
in a prior period) and (v) any cash receipts of such Person or a Subsidiary
thereof during such period that represent items included in Consolidated Net
Income of such Person for a prior period which were excluded from Adjusted
Consolidated EBITDA of such Person in such prior period by virtue of clause (B)
of this definition and (B) subtract therefrom, without duplication, the sum of
the amounts for such Person and period of (i) all noncash items increasing
Consolidated Net Income of such Person for such period and (ii) any cash
expenditures of such Person during such period to the extent that such cash
expenditures (x) did not reduce Consolidated Net Income of such Person for such
period and (y) were applied against reserves or accruals that constituted
noncash items reducing Consolidated Net Income of such Person when reserved or
accrued for in a prior period.
"Administrative Agent" shall mean Bankers Trust Company, in its capacity as
Administrative Agent for the Banks hereunder, and shall include any successor to
the Administrative Agent appointed pursuant to Section 11.09.
"Affiliate" shall mean, with respect to any Person, any other Person (i)
directly or indirectly controlling (including, but not limited to, all
directors, officers and general partners of such Person) controlled by, or under
direct or indirect common control with, such Person or (ii) that directly or
indirectly owns more than 10% of any class of the voting securities or capital
stock of or equity interests in such Person. A Person shall be deemed to control
another Person if such Person possesses, directly or indirectly, the power to
direct or cause the direction of the management and policies of such other
Person, whether through the ownership of voting securities, by contract or
otherwise.
"Agent" shall mean the Administrative Agent and each Co-Agent.
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"Agreement" shall mean this Credit Agreement, as modified, supplemented,
amended, restated, extended, renewed, refinanced or replaced from time to time.
"Annual Excess Cash Flow" shall mean, in respect of any fiscal year of the
Borrower, the amount of Excess Cash Flow of the Borrower for such fiscal year of
the Borrower.
"Applicable EBITDA Factor" shall mean, for any period set forth below, the
applicable number set forth opposite such period below:
EBITDA
PERIOD FACTOR
from and including the Effective Date
to but not including the last day of the
Borrower's fiscal quarter ending closest
to September 30, 1999 4.50
from and including the last day of the
Borrower's fiscal quarter ending closest
to September 30, 1999 to but not including
the last day of the Borrower's fiscal
quarter ending closest to September 30, 2000 4.25
from and including the last day of the
Borrower's fiscal quarter ending closest to
September 30, 2000 to but not including the
last day of the Borrower's fiscal quarter
ending closest to September 30, 2001 4.00
from and including the last day of the
Borrower's fiscal quarter ending closest to
September 30, 2001 to but not including the
last day of the Borrower's fiscal quarter
ending closest to September 30, 2002 3.75
from and including the last day of the
Borrower's fiscal quarter ending closest
September 30, 2002 to but not including
the last day of the Borrower's fiscal quarter
ending closest to September 30, 2003 3.50
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from and including the last day of the
Borrower's fiscal quarter ending closest
September 30, 2003 to and including
the Final Maturity Date 3.25
; provided however, that until such time as each of the conditions set forth in
Section 7.19(b) have been satisfied, the Applicable EBITDA Factor for purposes
of calculating the Borrowing Base Property Amount for each of the Marriott
Suites Hotels shall be 3.25.
"Applicable Margin" shall mean, in the case of (x) Base Rate Loans, .70%,
and (y) Eurodollar Loans, 1.70%.
"Appraisal" shall mean a written appraisal prepared by an independent MAI
appraiser engaged by and acceptable to the Administrative Agent and subject to
the Administrative Agent's customary independent appraisal requirements and
prepared in compliance with all applicable regulatory requirements, including 12
C.F.R. Part 34- Subpart C.
"Appraised Value" shall mean, as to any Borrowing Base Property, the as-is
fair market value of such Borrowing Base Property as reflected in the then most
recent Appraisal of such Borrowing Base Property delivered pursuant to Section
4.14(d) or 7.17, as the case may be.
"Approved Bank" shall have the meaning provided in the definition of "Cash
Equivalents."
"Assignment and Assumption Agreement" shall mean the Assignment and
Assumption Agreement substantially in the form of Exhibit P (appropriately
completed).
"Atlanta Marriott Suites Midtown" shall mean Marriott Suites L.P.'s Hotel
Property located at 35 14th Street, Atlanta, Georgia.
"Authorized Financial Officer" of any Credit Party shall mean any of the
Chief Financial Officer, the Treasurer or the Chief Accounting Officer of such
Credit Party or any other officer of such Credit Party designated in writing to
the Administrative Agent by any of the foregoing officers of such Credit Party
as being authorized to act in such capacity so long as the other officer is a
financial person who works in such Credit Party's controller's or accounting
office.
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"Authorized Officer" of any Credit Party shall mean any of the President,
any Authorized Financial Officer or any Vice-President of such Credit Party or
any other officer of such Credit Party which is designated in writing to the
Administrative Agent by any of the foregoing officers of such Credit Party as
being authorized to give such notices under this Agreement.
"Bank" shall mean each financial institution listed on Schedule I, as well
as any Person which becomes a "Bank" hereunder pursuant to 12.04(b).
"Bank Debt" shall mean, at any time, the aggregate outstanding principal
amount of all Loans at such time.
"Bank Default" shall mean (i) the refusal (which has not been retracted) of
a Bank to make available its portion of any Borrowing in violation of this
Agreement or (ii) a Bank having notified in writing the Borrower and/or the
Administrative Agent that it does not intend to comply with its obligations
under Section 1.01(a) or Section 1.01(b), including, without limitation, as a
result of any takeover of such Bank by any regulatory authority or agency.
"Bank Interest Expense" shall mean, for any period, that portion of
Consolidated Interest Expense of the Borrower for such period that is
attributable solely to the Indebtedness under this Agreement.
"Bankruptcy Code" shall have the meaning provided in Section 9.05.
"Base Rate" at any time shall mean the higher of (i) the rate which is 1/2
of 1% in excess of the Adjusted Certificate of Deposit Rate and (ii) the Prime
Lending Rate.
"Base Rate Loan" shall mean each Loan designated or deemed designated as
such by the Borrower at the time of the incurrence thereof or conversion
thereto.
"Borrower" shall have the meaning provided in the first paragraph of this
Agreement.
"Borrowing" shall mean the borrowing of one Type of Loan from all the Banks
on a given date (or resulting from a conversion or conversions on such date)
having in the case of Eurodollar Loans the same Interest Period, provided that
Base Rate Loans incurred pursuant to Section 1.10(b) shall be considered part of
the related Borrowing of Eurodollar Loans.
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"Borrowing Base" shall mean, as of any date of determination, the amount
determined by the Administrative Agent as of the last day of the most recently
ended fiscal quarter of the Borrower or, if subsequent thereto, the most recent
Addition Date or Release Date, that is equal to the sum of the Borrowing Base
Property Amounts in respect of all Borrowing Base Properties as of such date of
determination as reflected in the applicable Borrowing Base Certificate;
provided that (i) the Borrowing Base is subject to (1) reduction from time to
time upon the occurrence of a Casualty Event or a Taking with respect to a
Borrowing Base Property (or any portion thereof) or the sale or other permanent
disposition of a Borrowing Base Property in either case with respect to which
occurrence a prepayment of Loans is required by Section 3.02(c) or
Section 3.02(d), as the case may be, and with such reduction to be in an amount
equal to then applicable Borrowing Base Property Amount for such Borrowing Base
Property and (2) adjustments from time to time as provided in the definitions of
Borrowing Base EBITDA and Borrowing Base Property EBITDA and (ii)
notwithstanding anything to the contrary contained in this Agreement, at any
time that an Appraisal has not yet been delivered pursuant to Section 7.17(a)
for any newly acquired Borrowing Base Property, in no event shall the aggregate
outstanding principal amount of the Loans exceed an amount equal to the
aggregate Appraised Values of all other Borrowing Base Properties multiplied by
80%.
"Borrowing Base Certificate" shall mean a certificate signed by an
Authorized Financial Officer of the Borrower in the form of Exhibit L.
"Borrowing Base EBITDA" shall mean, for any period and as of any date of
determination, an amount equal to the sum of the Borrowing Base Property EDITDAs
in respect of all Borrowing Base Properties for such period and as of such date
of determination; provided that (w) no more than 35% of the aggregate Borrowing
Base EBITDA and the Borrowing Base may be attributed to any one of the four
United States Regions (i.e., Northeast, Southwest, Northwest and Southeast) as
reasonably determined by the Administrative Agent (but calculated without regard
to the San Francisco Marriott), and with any portion of the aggregate Borrowing
Base EBITDA and the Borrowing Base in excess thereof to be excluded from such
calculations, (x) no more than 20% of the aggregate Borrowing Base EBITDA and
the Borrowing Base may be attributed to Qualified Senior Living Care Facilities
and with any portion of the aggregate Borrowing Base EBITDA and the Borrowing
Base in excess thereof to be excluded from such calculations, (y) no more than
21% of the aggregate Borrowing Base EBITDA and the Borrowing Base may be
attributed to the Marriott Suites Hotels so long as each of the conditions set
forth in Section 7.19(b) have not been satisfied and with any portion of the
aggregate Borrowing Base EBITDA and the Borrowing Base in excess thereof to be
excluded from such calculations, and (z) no more than two
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Qualified Hotel Properties in any metropolitan market may contribute to the
aggregate Borrowing Base EBITDA and the Borrowing Base.
"Borrowing Base Property" shall mean each Qualified Hotel Property
(including each Initial Hotel Property) and each Qualified Senior Living Care
Facility.
"Borrowing Base Property Amount" shall mean, as of any date of
determination with respect to any Borrowing Base Property, the product of the
Applicable EBITDA Factor at such time multiplied by the Borrowing Base Property
EBITDA for such Borrowing Base Property for the most recently completed Test
Period for which the Administrative Agent has received the financial statements
with respect to such Borrowing Base Property required to be delivered pursuant
to Section 7.01(a) or (b), as the case may be; provided however, (x) that the
Borrowing Base Property Amount for any Borrowing Base Property shall not exceed
(i) for the period from the Effective Date through and including June 19, 2000,
an amount equal to 70% the Appraised Value thereof, and (ii) for the period
thereafter, an amount equal to 65% of the Appraised Value thereof and (y) that
notwithstanding the preceding clause (x), the Borrowing Base Property Amount for
any newly acquired Borrowing Base Property for which an Appraisal has not been
delivered pursuant to Section 7.17(a) shall not exceed an amount equal to 60% of
the aggregate acquisition cost of such Borrowing Base Property.
"Borrowing Base Property EBITDA" shall mean, with respect to any Borrowing
Base Property, for any period and as of any date of determination, an amount
equal to that portion of the Adjusted Consolidated EBITDA for such period that
is attributable solely to such Borrowing Base Property (after deduction for any
minority interest in such Borrowing Base Property to the extent not already
deducted in determining Borrowing Base Property EBITDA); provided that:
(x) the Borrowing Base Property EBITDA with respect to any Borrowing
Base Property shall be zero for such period if (A) the Addition Date with
respect to such Borrowing Base Property shall not have occurred on or
before such date of determination or (B) such Borrowing Base Property shall
have been sold or otherwise disposed of on or before such date of
determination;
(y) if the Addition Date with respect to such Borrowing Base Property
shall have occurred after the Effective Date and after the commencement of
such period but before the termination of such period, the Borrowing Base
Property EBITDA with respect to such Borrowing Base Property for such
period shall be the sum of (1) the Borrowing Base Property
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EBITDA for the portion of such period commencing on the first day of such
period and ending on the day before such Addition Date, as the same shall
be determined based upon the financial statements for such period required
to be delivered with respect to such Borrowing Base Property in the
Information Package related thereto and such other information with respect
thereto that may be provided by the Borrower and found acceptable to the
Administrative Agent, subject to such adjustments as may be reasonably
required by the Administrative Agent so that the Borrowing Base Property
EBITDA with respect to such Borrowing Base Property shall be calculated in
the same manner as the Borrowing Base Property EBITDA with respect to the
other Borrowing Base Properties owned by the Credit Parties during the
entire period plus (2) the Borrowing Base Property EBITDA with respect to
such Borrowing Base Property for the portion of such period commencing on
such Addition Date and ending on the last day of such period, based upon
the financial statements for such period required to be delivered on or
before such date of determination pursuant to Section 7.01(a) or (b), as
the case may be; and
(z) if such date of determination shall occur during a Major
Renovation/Restoration Removal Period with respect to such Borrowing Base
Property and the Borrowing Base Property EBITDA with respect to such
Borrowing Base Property for such period is a positive number, then for
purposes of calculating the Borrowing Base Property Amount with respect to
such Borrowing Base Property as of such date of determination, Borrowing
Base Property EBITDA with respect to such Borrowing Base Property for such
period shall be zero.
"BTCo" shall mean Bankers Trust Company in its individual capacity.
"Business Day" shall mean (i) for all purposes other than as covered
by clause (ii) below, any day except Saturday, Sunday and any day which
shall be in New York City a legal holiday or a day on which banking
institutions are authorized or required by law or other government action
to close and (ii) with respect to all notices and determinations in
connection with, and payments of principal and interest on, Eurodollar
Loans, any day which is a Business Day described in clause (i) above and
which is also a day for trading by and between banks in the New York
interbank Euro-dollar market.
"Calculation Period" shall mean the period of four consecutive fiscal
quarters last ended before the date of the respective event or incurrence
which requires calculations to be made on a Pro Forma Basis.
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"California Environmental Indemnity Agreement" shall have the meaning
provided in Section 4.16.
"Capital Expenditures" shall mean, with respect to any Person, (i) all
expenditures by such Person which should be capitalized in accordance with
generally accepted accounting principles, including all such expenditures with
respect to fixed or capital assets (including, without limitation, expenditures
for maintenance and repairs which should be capitalized in accordance with
generally accepted accounting principles) and, without duplication, the amount
of Capitalized Lease Obligations of such Person (but excluding, solely for
purposes of calculating Excess Cash Flow for any period, any expenditures as
described above in this clause (i) to the extent representing withdrawals from
an FF&E Reserve Account which were included as Capital Expenditures pursuant to
clause (ii) below of this definition in a prior period) and (ii) solely for
purposes of calculating Excess Cash Flow for any period, all amounts actually
deposited by such Person in an FF&E Reserve Account during such period.
"Capitalized Interest" shall mean interest that is capitalized and is not
counted as interest expense in accordance with GAAP.
"Capitalized Lease Obligations" of any Person shall mean all rental
obligations which, under generally accepted accounting principles, are or will
be required to be capitalized on the books of such Person, in each case taken at
the amount thereof accounted for as indebtedness in accordance with such
principles.
"Cash Equivalents" shall mean (i) securities issued or directly and fully
guaranteed or insured by the United States of America or any agency or
instrumentality thereof (provided that the full faith and credit of the United
States of America is pledged in support thereof) having maturities of not more
than six months from the date of acquisition, (ii) U.S. dollar denominated time
deposits, certificates of deposit and bankers acceptances of (x) any Bank or (y)
any bank whose short-term commercial paper rating from S&P is at least A-1 or
the equivalent thereof or from Moody's is at least P-1 or the equivalent thereof
(any such bank or Bank, an "Approved Bank"), in each case with maturities of not
more than six months from the date of acquisition, (iii) commercial paper issued
by any Approved Bank or by the parent company of any Approved Bank and
commercial paper issued by, or guaranteed by, any industrial or financial
company with a short-term commercial paper rating of at least A-1 or the
equivalent thereof by S&P or at least P-1 or the equivalent thereof by Moody's,
or guaranteed by any industrial company with a long term unsecured debt rating
of at least A or A2, or the equivalent of each thereof, from S&P or Moody's, as
the case may be, and in each case maturing within six months after the date of
acquisition, (iv) marketable direct obligations issued by the District of
Columbia or any state of the
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United States of America or any political subdivision of any such state or any
public instrumentality thereof maturing within six months from the date of
acquisition thereof and, at the time of acquisition, having one of the two
highest ratings obtainable from either S&P or Moody's and (v) investments in
money market funds substantially all the assets of which are comprised of
securities of the types described in clauses (i) through (iv) above.
"Casualty Event" shall mean any theft, loss, physical destruction, damage
or similar event with respect to any Borrowing Base Property (or any portion
thereof).
"CERCLA" shall mean the Comprehensive Environmental Response, Compensation,
and Liability Act of 1980, as the same may be amended from time to time, 42
U.S.CA. 9601 et seq.
"Change of Control" shall mean either (i) Host Marriott shall at any time
cease to own 100% of the economic and voting interests of Holdings, (ii)
Holdings shall at any time cease to own 100% of the economic and voting
interests of HMC Capital, (iii) Holdings and HMC Capital shall at any time cease
to collectively own 100% of the economic and voting interests of the Borrower,
(iv) the direct or indirect acquisition by any Person or a group (as such term
is defined in Section 13(d)(3) of the Exchange Act), other than Marriott Family
Members, of beneficial ownership (as such term is defined in Rule 13D-3
promulgated under the Securities Exchange Act) of 30% or more of the outstanding
shares of common stock of Host Marriott, (v) the Board of Directors of Host
Marriott shall not consist of a majority of Continuing Directors or (vi) any
"change of control" or similar event shall occur under the Acquisition Notes,
the Properties Notes or any other Indebtedness (other than Non-Recourse
Indebtedness) of Host Marriott with an aggregate principal amount of
$100,000,000 or more.
"Claims" shall have the meaning provided in the definition of
"Environmental Claims."
"Co-Agent" shall mean each of Credit Lyonnais New York Branch, The Bank of
Nova Scotia and Wells Fargo Bank, National Association.
"Code" shall mean the Internal Revenue Code of 1986, as amended from time
to time, and the regulations promulgated thereunder. Section references to the
Code are to the Code, as in effect at the date of this Agreement, and to any
subsequent provision of the Code, amendatory thereof, supplemental thereto or
substituted therefor.
"Collateral" shall mean all property (whether real or personal) with
respect to which any security interests have been granted (or purported to be
granted)
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pursuant to any Security Document, including, without limitation, all
Pledge Agreement Collateral, all Partnership Pledge and Security
Agreement Collateral, all Security Agreement Collateral, all New York
Marriott Financial Center Assignment and Pledge Agreement Collateral
and all Borrowing Base Properties (other than the Marriott Suites
Hotels until such time as Mortgages have been placed on the Marriott
Suites Hotels in favor of the Secured Creditors).
"Collateral Agent" shall mean the Administrative Agent acting as collateral
agent for the Secured Creditors pursuant to the Security Documents.
"Commitment" shall mean, for each Bank, the amount set forth opposite such
Bank's name in Schedule I directly below the column entitled "Commitment," as
same may be (x) reduced from time to time pursuant to Sections 2.02, 2.03 and/or
9 or (y) adjusted from time to time as a result of assignments to or from such
Bank pursuant to Section 1.13 or 12.04(b).
"Commitment Commission" shall have the meaning provided in Section 2.01(a).
"Completion Certificate" shall mean a certificate of an architect or
engineer substantially in the form of Exhibit R, delivered to the Administrative
Agent pursuant to Section 7.18(f).
"Condemnation Proceeds" shall mean all compensation, awards, damages,
rights of action and proceeds awarded to any Credit Party or any of its
Subsidiaries by reason of any Taking.
"Consolidated Capitalization" shall mean, at any time, the sum of (1)
Consolidated Debt plus (2) Consolidated Net Worth at such time.
"Consolidated Debt" shall mean, at any time, all Indebtedness of the
Borrower and its Subsidiaries as would be required to be reflected on the
liability side of a balance sheet as prepared in accordance with GAAP and as
determined on a consolidated basis at such time, including, in any event, all
Loans and Permitted Non- Recourse Indebtedness.
"Consolidated EBITDA" shall mean, for any Person and period, the
Consolidated Net Income of such Person for such period adjusted to (A) add
thereto (to the extent deducted from determining Consolidated Net Income for
such period), without duplication, the sum of the amounts for such Person and
period of (i) Consolidated Interest Expense, (ii) provisions for taxes based on
income, (iii)
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depreciation and amortization expense, (iv) any other noncash items reducing
Consolidated Net Income of such Person for such period (except to the extent
that such noncash items relate to the write-off or write-down of any item
included in Consolidated Net Income in a prior period), (v) any cash receipts of
such Person or a Subsidiary thereof during such period that represent items
included in Consolidated Net Income of such Person for a prior period which were
excluded from Consolidated EBITDA of such Person in such prior period by virtue
of clause (B) of this definition and (vi) minority interest expense of
non-Wholly Owned Subsidiaries (as determined by GAAP), and (B) subtract
therefrom, without duplication, the sum of the amounts for such Person and
period of (i) all noncash items increasing Consolidated Net Income of such
Person for such period, (ii) any cash expenditures of such Person during such
period to the extent that such cash expenditures (x) did not reduce Consolidated
Net Income of such Person for such period and (y) were applied against reserves
of accruals that constituted noncash items reducing Consolidated Net Income of
such Person when reserved or accrued for in a prior period and (iii) dividends
or distributions by a non- Wholly Owned Subsidiary of such Person for such
period to its shareholders or partners. The parties hereto hereby acknowledge
and agree that the definition of Consolidated EBITDA is not used for purposes of
calculating any of the financial information set forth in this Agreement or in
any of the Exhibits hereto (other than under the Host Marriott Guaranty), but
rather may be used by the Borrower for reporting financial information unrelated
to this Agreement.
"Consolidated Interest Coverage Ratio" shall mean, for any period, the
ratio of Adjusted Consolidated EBITDA to Consolidated Interest Expense for such
period.
"Consolidated Interest Expense" shall mean, for any Person and period, the
total consolidated interest expense of such Person and its Subsidiaries for such
period (calculated without regard to any limitations on the payment thereof)
plus, without duplication, that portion of Capitalized Lease Obligations of
such Person and its Subsidiaries representing the interest factor for such
period, but excluding the amortization of any deferred financing costs
incurred in connection with this Agreement. Notwithstanding anything to the
contrary contained elsewhere in this Agreement or the requirements of GAAP, the
amount of Capitalized Interest incurred during any period shall be added as a
component of Consolidated Interest Expense.
"Consolidated Net Income" shall mean, for any Person and period, net income
(or loss) of such Person and its Subsidiaries for such period, determined on a
consolidated basis; provided that (i) net income (or loss) of (x) any other
Person which is accounted for by such specified Person by the equity method of
accounting or (y) any Subsidiary of such Person that is restricted from
declaring or paying dividends or other
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distributions, directly or indirectly, by operation of the terms of its charter,
any applicable agreement, instrument, judgment, decree, order, statute, rule or
governmental regulation or otherwise shall (in each case) be included only to
the extent of the amount of cash dividends or distributions paid to the
specified Person or a Wholly-Owned Subsidiary of such Person, (ii) the net
income (or loss) of any other Person acquired by such specified Person or a
Subsidiary of such Person in a pooling of interests transaction for any period
prior to the date of such acquisition shall be excluded and (iii) all gains or
losses which are extraordinary or are either unusual or nonrecurring shall be
excluded from the calculation of Consolidated Net Income of such Person for such
period; provided further, that for purposes of calculating Consolidated Net
income for any period, to the extent that the amount of management fees paid
during such period is less than 3% of Gross Revenues for such period with
respect to all Hotel Properties and Senior Living Care Facilities, such
management fees shall be deemed to be 3% of Gross Revenues for such period with
respect to all Hotel Properties and Senior Living Care Facilities.
"Consolidated Net Worth" shall mean, at any time, the net worth of the
Borrower and its Subsidiaries at such time.
"Contingent Obligation" shall mean, as to any Person, any obligation of
such Person guaranteeing or intended to guarantee (including, without
limitation, as a result of such Person being a general partner of the other
Person, unless the underlying obligation is expressly made non-recourse as to
such general partner) any Indebtedness, leases, dividends or other obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, any
obligation of such Person, whether or not contingent, (i) to purchase any such
primary obligation or any property constituting direct or indirect security
therefor, (ii) to advance or supply funds (x) for the purchase or payment of any
such primary obligation or (y) to maintain working capital or equity capital of
the primary obligor or otherwise to maintain the net worth or solvency of the
primary obligor, (iii) to purchase property, securities or services primarily
for the purpose of assuring the owner of any such primary obligation of the
ability of the primary obligor to make payment of such primary obligation or
(iv) otherwise to assure or hold harmless the holder of such primary obligation
against loss in respect thereof; provided, however, that the term Contingent
Obligation shall not include endorsements of instruments for deposit or
collection in the ordinary course of business. The amount of any Contingent
Obligation shall be deemed to be an amount equal to the stated or determinable
amount of the primary obligation in respect of which such Contingent Obligation
is made or, if not stated or determinable, the maximum reasonably anticipated
liability in respect thereof (assuming such Person is required to perform
thereunder) as determined by such Person in good faith.
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"Continuing Directors" shall mean the directors of Host Marriott on the
Effective Date and each other director, if such other director's nomination for
election to the Board of Directors of Host Marriott is recommended by a majority
of the then Continuing Directors or is recommended by a committee of the Board
of Directors a majority of which is composed of the then Continuing Directors.
"Conversion Date" shall mean June 19, 2000.
"Credit Documents" shall mean this Agreement and, after the execution and
delivery thereof pursuant to the terms of this Agreement, each Note, each
Security Document, each Guaranty, the California Environmental Indemnity
Agreement, the HMC Capital Subordination Agreement and each Manager
Subordination Agreement.
"Credit Party" shall mean Host Marriott, Holdings, HMC Capital, the
Borrower and each Subsidiary Guarantor.
"Creditors" shall mean and include the Administrative Agent, each Co-Agent,
the Collateral Agent, each Bank and each Person (other than any Credit Party)
party to an Interest Rate Protection Agreement or Other Hedging Agreement to the
extent such Person constitutes a Secured Creditor under the Security Documents.
"Debt Agreements" shall have the meaning provided in Section 4.05.
"Default" shall mean any event, act or condition which with notice or lapse
of time, or both, would constitute an Event of Default.
"Defaulting Bank" shall mean any Bank with respect to which a Bank Default
is in effect.
"Determination Date" shall have the meaning provided in the definition of
"Pro Forma Basis."
"Dividends" with respect to any Person shall mean that such Person has
declared or paid a dividend or returned any equity capital to its stockholders,
partners or members or authorized or made any other distribution, payment or
delivery of property (other than common stock or other common equity interests
of such Person) or cash to its stockholders, partners or members as such, or
redeemed, retired, purchased or otherwise acquired, directly or indirectly, for
a consideration any shares of any class of its capital stock or any other equity
interests outstanding on or after the Effective Date (or any options or warrants
issued by such Person with respect to its capital stock or other equity
interest), or set aside any funds for any of the foregoing
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purposes, or shall have permitted any of its Subsidiaries to purchase or
otherwise acquire for consideration any shares of any class of the capital stock
or any partnership interests of such Person outstanding on or after the
Effective Date (or any options or warrants issued by such Person with respect to
its capital stock or other equity interest). Without limiting the foregoing,
"Dividends" with respect to any Person shall also include all payments made or
required to be made by such Person with respect to any stock appreciation
rights, plans, equity incentive or achievement plans or any similar plans or
setting aside of any funds for the foregoing purposes.
"Dollars" and the sign "$" shall each mean freely transferable lawful money
of the United States.
"Effective Date" shall have the meaning provided in Section 12.10.
"Eligible Transferee" shall mean and include a commercial bank, financial
institution, any fund that invests in bank loans or any other "accredited
investor" (as defined in Regulation D under the Securities Act).
"Environmental Claims" shall mean any and all administrative, regulatory or
judicial actions, suits, demands, demand letters, claims, liens, notices of
non-compliance or violation, investigations or proceedings relating in any way
to any Environmental Law (hereafter "Claims") or any permit issued under any
such law, including, without limitation, (a) any and all Claims by governmental
or regulatory authorities for enforcement, cleanup, removal, response, remedial
or other actions or damages pursuant to any applicable Environmental Law, and
(b) any and all Claims by any third party seeking damages, contribution,
indemnification, cost recovery, compensation or injunctive relief resulting
from Hazardous Materials or arising from alleged injury to health, safety or the
environment.
"Environmental Law" shall mean any applicable Federal, state, foreign or
local statute, law, rule, regulation, ordinance, code, binding and enforceable
guideline, binding and enforceable written policy and rule of common law now or
hereafter in effect and in each case as amended, and any judicial or
administrative interpretation thereof, including any judicial or administrative
order, consent decree or judgment relating to the environment, Hazardous
Materials or employee health or safety relating to Hazardous Materials,
including, without limitation, CERCLA; RCRA; the Federal Water Pollution Control
Act, 33 U.S.CA. 2601 et seq., the Clean Air Act, 42 U.S.CA. 7401 et seq.; the
Safe Drinking Water Act, 42 U.S.CA. 3803 et seq.; the Oil Pollution Act of 1990,
33 U.S.CA. 2701 et seq.; the Emergency Planning and the Community Right-to-Know
Act of 1986, 42 U.S.CA. 11001 et seq., the Hazardous Material Transportation
Act, 49 U.S.CA. 1801 et seq. and the
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Occupational Safety and Health Act, 29 U.S.CA. 651 et seq. (to the extent it
regulates occupational exposure to Hazardous Materials); and any state and local
or foreign counterparts or equivalents, in each case as amended from time to
time.
"ERISA" shall mean the Employee Retirement Income Security Act of 1974, as
amended from time to time, and the regulations promulgated and rulings issued
thereunder. Section references to ERISA are to ERISA, as in effect at the date
of this Agreement and any subsequent provisions of ERISA, amendatory thereof,
supplemental thereto or substituted therefor.
"ERISA Affiliate" shall mean each person (as defined in Section 3(9) of
ERISA) which together with Holdings or any Subsidiary of Holdings would be
deemed to be a "single employer" within the meaning of Section 414(b),(c), (m)
or (o) of the Code.
"Eurodollar Loan" shall mean each Loan designated as such by the Borrower
at the time of the incurrence thereof or conversion thereto.
"Eurodollar Rate" shall mean (a) the offered quotation to first-class banks
in the New York interbank Eurodollar market by BTCo for Dollar deposits of
amounts in immediately available funds comparable to the outstanding principal
amount of the Eurodollar Loan of BTCo with maturities comparable to the Interest
Period applicable to such Eurodollar Loan commencing two Business Days
thereafter as of 10:00 A.M. (New York time) on the date which is two Business
Days prior to the commencement of such Interest Period, divided (and rounded off
to the nearest 1/16 of 1% or, if there is no nearest 1/16 of 1%, to the next
highest 1/16 of 1%) by (b) a percentage equal to 100% minus the then stated
maximum rate of all reserve requirements (including, without limitation, any
marginal, emergency, supplemental, special or other reserves required by
applicable law) applicable to any member bank of the Federal Reserve System in
respect of Eurocurrency funding or liabilities as defined in Regulation D (or
any successor category of liabilities under Regulation D).
"Event of Default" shall have the meaning provided in Section 9.
"Excess Cash Flow" shall mean, for any period, the remainder of (a)
Adjusted Consolidated EBITDA for such period, minus (b) the sum of (i) the
amount of Capital Expenditures (but excluding Capital Expenditures (w) financed
with Indebtedness, (x) made with Insurance Proceeds or Condemnation Proceeds,
(y) made with the proceeds of equity issuances or capital contributions or (z)
made in such period pursuant to Section 8.07(v) to the extent utilizing Excess
Cash Flow generated in the immediately preceding period) made by the Borrower
and its Subsidiaries on a
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consolidated basis during such period pursuant to and in accordance with
Section 8.07, (ii) the aggregate amount of permanent principal payments of
Indebtedness for borrowed money of the Borrower and its Subsidiaries (but
excluding repayments of Loans, provided that repayments of Loans shall be
deducted in determining Excess Cash Flow if such repayments were (A) required as
a result of a Scheduled Repayment under Section 3.02(b) or (B) made as a
voluntary prepayment pursuant to Section 3.01 with internally generated funds
(but in the case of a voluntary prepayment of Revolving Loans, only to the
extent accompanied by a voluntary reduction to the Total Commitment)) during
such period, (iii) the amount of Consolidated Interest Expense for such period,
(iv) the amount of provision for taxes based on income for such period (which,
for purposes of this clause (iv), shall be based on the greater of (x) the
actual amount of such provision for such taxes and (y) an amount imputed at a
rate of 40%) and (v) any amounts paid by the Borrower pursuant to the New York
Marriott Financial Center Contribution Agreement or Exhibit H to the Management
Agreement for the New York Marriott Financial Center for such period (but only
to the extent that such amounts have not otherwise already reduced Adjusted
Consolidated EBITDA for such period).
"Exchange Act" shall mean the Securities Exchange Act of 1934, as amended,
and the rules and regulations promulgated thereunder.
"Excusable Delay" shall mean a delay due to acts of God, governmental
restrictions, enemy actions, war, civil commotion, fire, casualty, strikes,
shortages of supplies or labor, work stoppages or other causes beyond the
reasonable control of Holdings, any of its Subsidiaries or any Permitted
Facility Manager, but lack of funds shall not be deemed a cause beyond such
reasonable control.
"Existing Indebtedness" shall have the meaning provided in Section 6.22.
"Existing New York Marriott Financial Center Mortgages" shall mean all of
the mortgages currently held by HMC Capital and more fully set forth on Schedule
VIII which encumber the New York Marriott Financial Center and which will be
assigned and pledged to the Collateral Agent pursuant to Section 4.09(a).
"Existing New York Marriott Financial Center Notes" shall mean all of the
notes currently held by HMC Capital and secured by the Existing New York
Marriott Financial Center Mortgages as more fully set forth on Schedule VIII.
"Facility Manager" shall mean each manager of a Borrowing Base Property
owned or leased by the Borrower, Marriott Suites L.P. or any Subsidiary
Guarantor.
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"Federal Funds Rate" shall mean, for any period, a fluctuating interest
rate 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 such day on such
transactions received by the Administrative Agent from three Federal Funds
brokers of recognized standing selected by the Administrative Agent.
"Fees" shall mean all amounts payable pursuant to or referred to in
Section 2.01.
"FF&E" shall mean, with respect to any Hotel Property or Senior Living Care
Facility, any furniture, fixtures and equipment, including any beds, lamps,
bedding, tables, chairs, sofas, curtains, carpeting, smoke detectors, mini bars,
paintings, decorations, televisions, telephones, radios, desks, dressers,
towels, bathroom equipment, heating, cooling, lighting, laundry, incinerating,
loading, swimming pool, landscaping, garage and power equipment, machinery,
engines, vehicles, fire prevention, refrigerating, ventilating and
communications apparatus, carts, dollies, elevators, escalators, kitchen
appliances, restaurant equipment, computers, reservation systems, software, cash
registers, switchboards, cleaning equipment or other items of furniture,
fixtures and equipment typically used in hotel properties or senior living care
facilities (including furniture, fixtures and equipment used in guest rooms,
lobbies and common areas (other than those items of furniture, fixtures and
equipment owned by the occupant or tenant in any such room)).
"FF&E Reserve Account" shall mean one or more accounts maintained by the
Borrower or any of its Subsidiaries (or maintained by any Permitted Facility
Manager on behalf of the Borrower or any of its Subsidiaries) with banking
institutions reasonably acceptable to the Administrative Agent but, in the case
of a Borrowing Base Property (other than a Marriott Suites Hotel until such time
as such Marriott Suites Hotel becomes a Mortgaged Property), only so long as the
Collateral Agent has a valid and fully perfected first Lien on any such account
and on the Security Agreement Collateral from time to time on deposit therein or
investments made with the proceeds thereof, provided that each Borrowing Base
Property owned or leased by the Borrower or any of its Subsidiaries shall have
its own separate FF&E Reserve Account.
"Final Maturity Date" shall mean June 19, 2004.
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"Foreign Pension Plan" shall mean any plan, fund (including, without
limitation, any superannuation fund) or other similar program established or
maintained outside the United States of America by Holdings or any one or more
of its Affiliates primarily for the benefit of employees of Holdings or such
Affiliates residing outside the United States of America, which plan, fund or
other similar program provides, or results in, retirement income, a deferral of
income in contemplation of retirement or payments to be made upon termination of
employment, and which plan is not subject to ERISA or the Code, and as to which
plan neither the Borrower nor any Guarantor has any material liability.
"GAAP" shall have the meaning provided in Section 12.07(a).
"Gross Revenues" shall mean, for any Hotel Property or Senior Living Care
Facility, all revenues and receipts of every kind derived from operating such
Hotel Property or Senior Living Care Facility and parts thereof, including, but
not limited to: income (from both cash and credit transactions), before
commissions and discounts for prompt or cash payments, from rentals or sales of
rooms, stores, offices, meeting space, exhibit space or sales space of every
kind; license, lease and concession fees and rentals (not including gross
receipts of licensees, lessees and concessionaires); net income from vending
machines; health club membership fees; food and beverage sales; sales of
merchandise (other than proceeds from the sale of FF&E no longer necessary to
the operation of such Hotel Property or Senior Living Care Facility); service
charges, to the extent not distributed to the employees at such Hotel Property
or Senior Living Care Facility as, or in lieu of, gratuities; and proceeds, if
any, from business interruption or other loss of income insurance; provided,
however, that Gross Revenues shall not include the following: gratuities to
employees of such Hotel Property or Senior Living Care Facility, federal, state
or municipal excise, sales, use or similar taxes collected directly from
tenants, patrons or guests or included as part of the sales price of any goods
or services; insurance proceeds (other than proceeds from business interruption
or other loss of income insurance); condemnation proceeds; any proceeds from any
sale of such Hotel Property or Senior Living Care Facility; or interest which
accrues on amounts deposited in any FF&E Reserve Account.
"Guaranteed Obligations" shall mean (i) the full and prompt payment when
due (whether at the stated maturity, by acceleration or otherwise) of the
principal of, and interest on each Note issued by, and all Loans made to, the
Borrower under this Agreement, together with all the other obligations and
liabilities (including, without limitation, indemnities, expenses, fees and
interest thereon) of the Borrower to the Creditors now existing or hereafter
incurred under, arising out of or in connection with this Agreement or any other
Credit Document and the due performance and compliance with all the terms,
conditions and agreements contained in the Credit Documents by the
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Borrower and (ii) the full and prompt payment when due (whether at the stated
maturity, by acceleration or otherwise) of all obligations and liabilities of
the Borrower owing under, or with respect to, any Interest Rate Protection
Agreement or Other Hedging Agreement entered into with any Creditor, whether
such Interest Rate Protection Agreement or Other Hedging Agreement is now in
existence or hereafter arising, and the due performance and compliance by the
Borrower with all of the terms, conditions and agreements contained therein.
"Guarantor" shall mean Host Marriott, each Parent Guarantor and each
Subsidiary Guarantor.
"Guarantor Event of Default" shall have the meaning provided in the Host
Marriott Guaranty.
"Guaranty" shall mean the Parents Guaranty, the Host Marriott Guaranty and
the Subsidiaries Guaranty.
"Hazardous Materials" shall mean (a) any petrochemical or petroleum
products, radioactive materials, asbestos in any form that is or could become
friable, urea formaldehyde foam insulation, transformers or other equipment that
contain dielectric fluid containing levels of polychlorinated biphenyls, and
radon gas; and (b) any chemicals, materials or substances defined as or included
in the definition of "hazardous substances," "hazardous wastes," "hazardous
materials," "restricted hazardous materials," "extremely hazardous wastes,"
"restrictive hazardous wastes," "toxic substances," "toxic pollutants,"
"contaminants" or "pollutants," or words of similar meaning and regulatory
effect under any applicable Environmental Law.
"HMC Capital" shall have the meaning provided in the first paragraph of
this Agreement.
"HMC Capital Subordination Agreement" shall have the meaning provided in
Section 4.10(b).
"Holdings" shall have the meaning provided in the first paragraph of this
Agreement.
"Host Marriott" shall mean Host Marriott Corporation, a Delaware
corporation.
"Host Marriott Guaranty" shall have the meaning provided in Section 4.08.
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"Hotel Property" shall mean each hotel owned or leased by the Borrower or
any of its Subsidiaries (including the furniture, fixture and equipment
thereon), provided that the term "Hotel Property" shall not include any casino
or gaming hotel.
"Improvements" shall mean all buildings, structures, fixtures, tenant
improvements and other improvements of every kind and description now or
hereafter located in or on or attached to any Real Property, including all
building materials, water, sanitary and storm sewers, drainage, electricity,
steam, gas, telephone and other utility facilities, parking areas, roads,
driveways, walks and other site improvements; and all additions and betterments
thereto and all renewals, substitutions and replacements thereof.
"Indebtedness" shall mean, as to any Person, without duplication, (i) all
indebtedness (including principal, interest, fees and charges) of such Person
for borrowed money or for the deferred purchase price of property or services,
(ii) the maximum amount available to be drawn under all letters of credit issued
for the account of such Person and all unpaid drawings in respect of such
letters of credit, (iii) all Indebtedness of the types described in clause (i),
(ii), (iv), (v), (vi) or (vii) of this definition secured by any Lien on any
property owned by such Person, whether or not such Indebtedness has been assumed
by such Person, (iv) the aggregate amount required to be capitalized under
leases under which such Person is the lessee, (v) all obligations of such Person
to pay a specified purchase price for goods or services, whether or not
delivered or accepted, i.e., take-or-pay and similar obligations, (vi) all
Contingent Obligations of such Person, and (vii) all obligations under any
Interest Rate Protection Agreement or Other Hedging Agreement or under any
similar type of agreement or arrangement.
"Information Package" shall mean, with respect to each Borrowing Base
Property, an information package consisting of (i) a description of such
Borrowing Base Property, (ii) management's discussion and analysis of such
Borrowing Base Property, and discussing any improvements or changes to be made
with respect thereto, (iii) historical financial information (which may be
unaudited) for such Borrowing Base Property for at least the two full fiscal
years most recently ended and the latest 12-month period ended with the last
day of the fiscal quarter last ended, (iv) projections for such Borrowing Base
Property for the four years after the respective acquisition, (v) any investment
memorandum prepared or used in connection with the acquisition of such Borrowing
Base Property and (vi) any other information which the Borrower determines
should be furnished so that the Information Package for such Borrowing Base
Property is true and correct in all material respects and is not incomplete by
omitting to state any fact necessary to make the information (taken as a whole)
contained therein not misleading in any material respect.
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"Initial Capital Contributions" shall mean, collectively, (i) the
contribution of 100% of the limited liability company member interests in YBG
Associates to the Borrower, (ii) the contribution to Holdings and then to the
Borrower of Host Marriott's 38.40% limited partnership interest in Marriott
Suites L.P., (iii) the contribution to Holdings and then to the Borrower of 100%
of the capital stock of Marriott SBM One (which owns a .68% general partnership
interest in Marriott Suites L.P. and a 58.24% limited partnership interest in
Marriott Suites L.P.), (iv) the contribution of 100% of the capital stock of HMC
Capital to Holdings, and (v) the contribution of 100% of the capital stock of
the Borrower to Holdings and the subsequent transfer of 10% of the capital stock
of the Borrower to HMC Capital.
"Initial Hotel Properties" shall mean the Hotel Properties listed on
Schedule III.
"Insurance Proceeds" shall mean all insurance proceeds, damages, claims and
rights of action and the right thereto under any insurance policies relating to
any portion of any Hotel Property or Senior Living Care Facility.
"Intercompany Note" shall mean a promissory note in the form of Exhibit Q
(appropriately completed).
"Interest Determination Date" shall mean, with respect to any Eurodollar
Loan, the second Business Day prior to the commencement of any Interest Period
relating to such Eurodollar Loan.
"Interest Period" shall have the meaning provided in Section 1.09.
"Interest Rate Protection Agreement" shall mean any interest rate swap
agreement, interest rate cap agreement, interest rate collar agreement, interest
rate hedging agreement, interest rate floor agreement or other similar agreement
or arrangement.
"Investment" shall have the meaning provided in Section 8.05.
"Leasehold" of any Person shall mean all of the right, title and interest
of such Person as lessee or licensee in, to and under any lease or license of
land, improvements and/or fixtures.
"Legal Requirements" shall have the meaning provided in the Mortgages.
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"Lien" shall mean any mortgage, pledge, hypothecation, assignment, deposit
arrangement, encumbrance, lien (statutory or other) or other security agreement
or preferential arrangement of any kind or nature whatsoever (including, without
limitation, any conditional sale or other title retention agreement, any
financing or similar statement or notice filed under the UCC or any other
similar recording or notice statute, and any lease having substantially the same
effect as any of the foregoing).
"Like-Kind Exchange" shall mean, in the case of any sale of a Borrowing
Base Property pursuant to Section 8.02(vi), the simultaneous exchange of the
existing Borrowing Base Property to be sold for the new Borrowing Base Property
to be acquired, provided that (i) all of the applicable conditions set forth in
Sections 7.11 and 8.02(viii) in respect of the new Borrowing Base Property to be
acquired shall be required to be satisfied on or prior to the date of such
transaction in accordance with terms of such Sections, and (ii) the Borrowing
Base Property EBITDA for the most recently ended 12 month period of the
Borrowing Base Property to be acquired and the Appraised Value of such Borrowing
Base Property is at least as great as the Borrowing Base Property EBITDA and the
Appraised Value of the Borrowing Base Property to be sold (with the Borrowing
Base Property EBITDA of the Borrowing Base Property to be acquired to be
calculated using the historical financial statements delivered pursuant to the
Information Package for such Borrowing Base Property).
"Loan" shall mean, prior to the Conversion Date, each Revolving Loan and,
on or after the Conversion Date, each Term Loan.
"Major Renovation/Restoration" shall mean, as of any date of determination,
any Renovation or Restoration of a Borrowing Base Property with respect to which
more than 50% of the rooms "available for sale" at such Borrowing Base Property
have been, are scheduled to be, or could reasonably be expected to be, "room
out-of-order", as determined in accordance with the Uniform System (in the case
of a Hotel Property) or otherwise not available for occupancy, during any period
of 30 consecutive days; provided that a Restoration related to a Casualty Event
or Taking or conducted pursuant to and, as of such date of determination,
satisfying the conditions of Section 7.18(f) is not a Major
Renovation/Restoration.
"Major Renovation/Restoration Removal Period" shall mean with respect to
any Borrowing Base Property, the period commencing on the day that a Major
Renovation/Restoration shall commence with respect to such Borrowing Base
Property and terminating on the day that such Major Renovation/Restoration shall
terminate with respect to such Borrowing Base Property, in each case as such
dates of commencement and termination shall be reasonably determined by the
Administrative Agent based on
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documentation received from the Borrower and on such other information as the
Administrative Agent shall determine to be relevant.
"Management Agreements" shall have the meaning provided in Section 4.05.
With respect to each Borrowing Base Property acquired after the Effective Date,
the Management Agreement with respect thereto shall be a management agreement
entered into with a Permitted Facility Manager in substantially the form entered
into by the Borrower or the respective Subsidiary with a Permitted Facility
Manager.
"Manager Subordination Agreement" shall have the meaning provided in
Section 4.10(a).
"Margin Stock" shall have the meaning provided in Regulation U.
"Marriott Family Members" shall mean any of Alice Marriott, J.W. Marriott,
Jr., Richard E. Marriott, any brother or sister of J.W. Marriott, Sr.
(deceased), any children or grandchildren of any of the foregoing, any spouses
of any of the foregoing, or any trust or other entity established primarily for
the benefit of one or more of the foregoing.
"Marriott International" shall mean Marriott International, Inc., a
Delaware corporation.
"Marriott SBM One" shall mean Marriott SBM One Corporation, a Delaware
corporation.
"Marriott Suites Hotels" shall mean the Atlanta Marriott Suites Midtown and
the three other Hotel Properties owned by Marriott Suites L.P. listed on
Schedule III.
"Marriott Suites L.P." shall mean the Marriott Suites Limited Partnership,
a Delaware limited partnership.
"MI LOC" shall mean the Revolving Credit Line and Guarantee Reimbursement
Agreement, dated as of June 26, 1995, as amended, among Host Marriott, as
borrower, Marriott International, as lender, and certain Subsidiaries of Host
Marriott, as guarantors.
"Minimum Borrowing Amount" shall mean (i) for Revolving Loans, $2,000,000
and (ii) for Term Loans, $5,000,000.
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"Modified Interest Coverage Ratio" shall mean, for any period, the ratio of
Borrowing Base EBITDA to Bank Interest Expense for such period.
"Modified Leverage Ratio" shall mean, at any time, the ratio of Bank Debt
at such time to Borrowing Base EBITDA for the Test Period then last ended.
"Moody's" shall mean Moody's Investors Service, Inc.
"Mortgage" shall mean each mortgage, deed of trust or deed to secure debt
required to be delivered pursuant to the terms of this Agreement, together with
any assignment of leases and rents to be executed in connection therewith.
"Mortgaged Property" shall mean each Borrowing Base Property subject to a
Mortgage.
"Mortgage Policy" shall mean each mortgage title insurance policy (and all
endorsements thereto) required to be delivered pursuant to this Agreement.
"Multiemployer Plan" shall mean a multiemployer plan as defined in
Section 4001(a)(3) of ERISA subject to Title IV of ERISA.
"Net Insurance/Condemnation Proceeds" shall mean all Insurance proceeds on
account of any Casualty Event to any Borrowing Base Property or all Condemnation
Proceeds in respect of any Taking of any Borrowing Base Property, minus the
reasonable cost, if any, of recovering such proceeds and of paying out such
proceeds, including reasonable attorneys' fees and costs allocable to inspecting
the Work and the plans and specifications therefor.
"Net Sales Price" shall mean, with respect to any sale or other permanent
disposition by a Credit Party of a Borrowing Base Property, the gross purchase
price therefor less the sum of (i) the reasonable out-of-pocket costs and
expenses incurred by such Credit Party directly in connection with such sale or
other permanent disposition, including income taxes paid or estimated to be
actually payable as a result thereof, after taking into account any available
tax credits or deductions and any tax sharing arrangements (provided that the
amount of income taxes so estimated to be actually payable shall be approved by
the Administrative Agent, which approval shall not be unreasonably withheld,
conditioned or delayed), transfer taxes, brokers commissions and recording fees
and (ii) closing adjustments contemplated and reserved.
"New York Marriott Financial Center" shall mean the Borrower's Hotel
Property located at 85 West Street, New York, New York.
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"New York Marriott Financial Center Assignment and Pledge Agreement" shall
have the meaning provided in Section 4.09(a).
"New York Marriott Financial Center Assignment and Pledge Agreement
Collateral" shall mean all "Collateral" as defined in the New York Marriott
Financial Center Assignment and Pledge Agreement.
"New York Marriott Financial Center Contribution Agreement" shall mean the
Contribution Agreement, dated as of December 6, 1996, by and among HMH WTC,
Inc., the Borrower, West Street Hotels, Inc. and Marriott Hotel Services, Inc.,
as amended by the First Amendment thereto, dated as of April 30, 1997.
"Non-Borrowing Base Property EBITDA" shall mean, with respect to any Hotel
Property or Senior Living Care Facility owned or leased by a Specified
Subsidiary which has incurred Permitted Non-Recourse Indebtedness, the earnings
of such Hotel Property or Senior Living Care Facility before interest expense,
provisions for taxes based on income and depreciation and amortization expense.
"Non-Defaulting Bank" shall mean and include each Bank other than a
Defaulting Bank.
"Non-Recourse Indebtedness" shall have the meaning provided in the Host
Marriott Guaranty.
"Note" shall have the meaning provided in Section 1.05(a).
"Notice of Borrowing" shall have the meaning provided in Section 1.03(a).
"Notice of Conversion" shall have the meaning provided in Section 1.06.
"Notice of Renovation/Restoration" shall mean a notice, substantially in
the form of Exhibit S, delivered to the Administrative Agent pursuant to
Sections 7.18(a) and (c).
"Notice Office" shall mean the office of the Administrative Agent located
at 130 Liberty Street, New York, New York 10006, Attention: Frank Iantorno, or
such other office as the Administrative Agent may hereafter designate in writing
as such to the other parties hereto.
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"Obligations" shall mean all amounts owing to the Administrative Agent, any
Co-Agent, the Collateral Agent or any Bank pursuant to the terms of this
Agreement or any other Credit Document.
"Other Hedging Agreements" shall mean any foreign exchange contracts,
currency swap agreements, commodity agreements or other similar agreements or
arrangements designed to protect against the fluctuations in currency values.
"Parent Guarantor" shall mean and include each of Holdings and HMC Capital.
"Parents Guaranty" shall mean the guaranty of the Parent Guarantors
pursuant to Section 13.
"Partnership Acknowledgements" shall mean Acknowledgements in the form of
Annex C to the Partnership Pledge and Security Agreement.
"Partnership Notices" shall mean Partnership Notices in the form of Annex B
to the Partnership Pledge and Security Agreement.
"Partnership Pledge and Security Agreement" shall have the meaning provided
in Section 4.07.
"Partnership Pledge and Security Agreement Collateral" shall mean all
"Collateral" as defined in the Partnership Pledge and Security Agreement.
"Payment Office" shall mean the office of the Administrative Agent located
at 130 Liberty Street, New York, New York 10006, or such other office as the
Administrative Agent may hereafter designate in writing as such to the other
parties hereto.
"PBGC" shall mean the Pension Benefit Guaranty Corporation established
pursuant to Section 4002 of ERISA, or any successor thereto.
"Permitted Encumbrances" shall mean, with respect to any Borrowing Base
Property, such exceptions to title as are set forth in the Mortgage Policy or
title commitment delivered with respect thereto, all of which exceptions must be
acceptable to the Administrative Agent in its reasonable discretion.
"Permitted Facility Manager" shall mean, with respect to each Borrowing
Base Property, Marriott International, a Wholly-Owned Subsidiary of Marriott
Inter-
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national, Interstate Hotels Corporation, a Wholly-Owned Subsidiary of Interstate
Hotels Corporation or, so long as not more than five Borrowing Base Properties
in the aggregate at any one time are managed by a Facility Manager other than
Marriott International, a Wholly-Owned Subsidiary of Marriott International,
Interstate Hotels Corporation or a Wholly-Owned Subsidiary of Interstate Hotels
Corporation, another first-class nationally recognized hotel management company
in good standing.
"Permitted Liens" shall have the meaning provided in Section 8.01.
"Permitted Non-Recourse Indebtedness" shall mean, with respect to any
Specified Subsidiary, Indebtedness incurred by such Specified Subsidiary
pursuant to Section 8.04(viii) to finance the purchase of (or assumed at the
time of the purchase of) or to finance the renovation of a Hotel Property or
Senior Living Care Facility acquired pursuant to Section 8.02(ix), which
Indebtedness (i) shall be secured only by such Hotel Property or Senior Living
Care Facility, as the case may be, including any fixtures, furniture and
equipment related thereto, (ii) shall be made expressly non-recourse to Holdings
and its other Subsidiaries and (iii) shall have (A) a final maturity date of at
least six months beyond the Final Maturity Date, (B) a remaining amortization
schedule based upon a schedule of no less than 20 years and (C) a market rate of
interest.
"Person" shall mean any individual, partnership, limited liability company,
joint venture, firm, corporation, association, trust or other enterprise or any
government or political subdivision or any agency, department or instrumentality
thereof.
"Plan" shall mean any pension plan as defined in Section 3(2) of ERISA,
which is maintained or contributed to by (or to which there is an obligation to
contribute of) Holdings or any of its Subsidiaries or ERISA Affiliates, and
each such plan for the five-year period immediately following the latest date on
which Holdings or any of its Subsidiaries or ERISA Affiliates maintained,
contributed to or had an obligation to contribute to such plan.
"Pledge Agreement" shall have the meaning provided in Section 4.06.
"Pledge Agreement Collateral" shall mean all "Collateral" as defined in the
Pledge Agreement.
"Pledged Partnership Entity" shall have the meaning provided in the
Partnership Pledge and Security Agreement.
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"Pledged Securities" shall have the meaning provided in the Pledge
Agreement.
"Pledged Stock" shall have the meaning provided in the Pledge Agreement.
"Prime Lending Rate" shall mean the rate which BTCo announces from time to
time as its prime lending rate, the Prime Lending Rate to change when and as
such prime lending rate changes. The Prime Lending Rate is a reference rate and
does not necessarily represent the lowest or best rate actually charged to any
customer. BTCo may make commercial loans or other loans at rates of interest at,
above or below the Prime Lending Rate.
"Pro Forma Basis" shall mean, with respect to any incurrence of
Indebtedness or acquisition of a Hotel Property or Senior Living Care Facility
(or the equity interest of the Person or Persons owning such Hotel Property or
Senior Living Care Facility), the calculation of the consolidated results of the
Borrower and its Subsidiaries otherwise determined in accordance with this
Agreement as if the respective Indebtedness or acquisition (and all other
Indebtedness incurred or other such acquisition effected during the respective
Calculation Period or thereafter and on or prior to the date of determination)
(each such date, a "Determination Date") had been effected on the first day of
the respective Calculation Period; provided that all such calculations shall
take into account the following assumptions:
(i) pro forma effect shall be given to (1) any Indebtedness incurred
subsequent to the end of the Calculation Period and prior to the date of
determination, (2) any Indebtedness incurred during such period to the
extent such Indebtedness is outstanding at the date of determination and
(3) any Indebtedness to be incurred on the date of determination, in each
case as if such Indebtedness had been incurred on the first day of such
Calculation Period and after giving effect to the application of the
proceeds thereof;
(ii) with respect to each Hotel Property or Senior Living Care
Facility acquired within one year before the respective Determination Date,
and in addition to any Indebtedness actually incurred and required to be
included pursuant to the other clauses of this definition, it shall be
assumed (unless the respective Hotel Property or Senior Living Care
Facility has been sold or the Conversion Date has theretofore occurred)
either (A) that Revolving Loans in an amount equal to the remainder of (x)
the aggregate amount of costs specified with respect to such Hotel Property
and/or Senior Living Care Facility in the respective officer's certificate
delivered pursuant to Section 7.11(xiii) (including
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as said Section is incorporated by reference in Section 4.13) less (y) the
amount of Revolving Loans theretofore actually incurred for such purposes
on and after the date of the respective acquisition of such Hotel Property
and/or Senior Living Care Facility, had also been incurred and were
outstanding from the first day of the respective Calculation Period or (ii)
that Capital Expenditures had been made under Section 8.07(a)(i) in the
amount of Revolving Loans referred to in the preceding clause (i) during
such period (and that such Capital Expenditures were not funded with
Indebtedness), with the Borrower to indicate which assumption it has used
in making such calculations;
(iii) interest expense attributable to interest on any Indebtedness
(whether existing or being incurred) bearing a floating interest rate shall
be computed as if the rate in effect on the date of computation (taking
into account any Interest Rate Protection Agreement applicable to such
Indebtedness if such Interest Rate Protection Agreement has a remaining
term in excess of 12 months) had been the applicable rate for the entire
period;
(iv) except as provided in the preceding clause (ii), there shall be
excluded from interest expense any interest expense related to any amount
of Indebtedness that was outstanding during such Calculation Period or
thereafter but that is not outstanding or is to be permanently repaid on
the date of determination; and
(v) pro forma effect shall be given to all sales and acquisitions of
Hotel Properties and Senior Living Care Facilities, including the
capitalization of the Borrower with the Initial Hotel Properties (by
excluding or including, as the case may be, the historical financial
results for the respective Hotel Properties and/or Senior Living Care
Facilities) that occur during such Calculation Period or thereafter and on
or prior to the Determination Date (including any Indebtedness assumed or
acquired in connection therewith) as if they had occurred on the first day
of such Calculation Period, provided that in connection with any such
acquisitions, pro forma effect (for periods prior to such acquisition)
shall be given to the management fees payable pursuant to the respective
Management Agreement as if such management fees had been payable throughout
the Calculation Period.
"Projections" shall have the meaning provided in Section 6.05(d).
"Properties Notes" shall mean the $600,000,000 9-1/2% Senior Secured Notes
due 2005 which were issued by HMH Properties, Inc. (and any Indebtedness issued
to refinance the same).
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"Qualified Hotel Property" shall mean any Hotel Property meeting each of
the following criteria:
(i) such Hotel Property is a full-service hotel or suites hotels;
(ii) such Hotel Property has more than 200 rooms;
(iii) such Hotel Property is located in a Standard Metropolitan
Statistical Area of greater than 500,000 people;
(iv) such Hotel Property operates as a "Marriott", "Renaissance",
"Ritz-Carlton" or another upscale full-service brand/flag which, within six
months following the acquisition thereof by the Borrower or a Subsidiary
thereof, will be converted to a "Marriott", "Renaissance" or "Ritz-Carlton"
hotel; and
(v) all of the requirements set forth in Sections 7.11 and 8.02(viii)
with respect to such Hotel Property have been satisfied in accordance with
the provisions of such Sections.
"Qualified Senior Living Care Facility" shall mean any Senior Living
Care Facility with respect to which all of the requirements set forth in
Sections 7.11 and 8.02(viii) have been satisfied in accordance with the
provisions of such Sections, including obtaining the consent of the
Required Banks.
"Quarterly Excess Cash Flow" shall mean, in respect of any fiscal
quarter of the Borrower, the amount of Excess Cash Flow of the Borrower for
such fiscal quarter of the Borrower.
"RCRA" shall mean the Resource Conservation and Recovery Act, as the
same may be amended from time to time, 42 U.S.C. 6901 et seq.
"Real Property" of any Person shall mean all the right, title and
interest of such Person in and to land, improvements and fixtures,
including Leaseholds.
"Register" shall have the meaning provided in Section 12.16.
"Regulation D" shall mean Regulation D of the Board of Governors of
the Federal Reserve System as from time to time in effect and any successor
to all or a portion thereof establishing reserve requirements.
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"Regulation G" shall mean Regulation G of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation T" shall mean Regulation T of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation U" shall mean Regulation U of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Regulation X" shall mean Regulation X of the Board of Governors of the
Federal Reserve System as from time to time in effect and any successor to all
or a portion thereof.
"Release" shall mean any spilling, leaking, pumping, pouring, emitting,
emptying, discharging, injecting, escaping, leaching, dumping, disposing or
migration into the environment.
"Release Date" shall mean the date of any sale or other disposition of any
Borrowing Base Property, including the date of any Casualty Event or Taking with
respect thereto.
"Release Price" shall mean, with respect to any Borrowing Base Property as
of any Release Date, the amount that is the largest of:
(i) the amount equal to 125% of the Borrowing Base Property Amount
with respect to such Borrowing Base Property;
(ii) in the event of a sale or other permanent disposition of such
Borrowing Base Property, an amount equal to 75% of the Net Sales Price for
such Borrowing Base Property;
(iii) the amount necessary to ensure that the aggregate principal
amount of Loans outstanding shall not exceed the Borrowing Base then in
effect, after giving effect to any reduction in the Borrowing Base as a
result of such sale or other disposition of such Borrowing Base Property;
and
(iv) in the event of a Casualty Event or a Taking with respect to such
Borrowing Base Property, the Net Insurance/Condemnation Proceeds resulting
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therefrom but not to exceed 125% of the Borrowing Base Property Amount for
such Borrowing Base Property.
"Renovation" shall mean the expansion, rebuilding, repair, restoration,
refurbishment, fixturing and equipping of the Improvements at a Hotel Property
or Senior Living Care Facility. The term "Renovate" used as a verb has a
corresponding meaning.
"Replaced Bank" shall have the meaning provided in Section 1.13.
"Replacement Bank" shall have the meaning provided in Section 1.13.
"Reportable Event" shall mean an event described in Section 4043(c) of
ERISA with respect to a Single Employer Plan other than those events as to which
the 30-day notice period is waived under subsection .22, .23, .25, .27 or .28 of
PBGC Regulation Section 4043.
"Required Banks" shall mean Non-Defaulting Banks the sum of whose
Commitments (or after the termination thereof, outstanding Loans) represent an
amount greater than 50% of the Total Commitment (less the Commitments of
Defaulting Banks) (or after the termination thereof, the then total outstanding
Loans of Non-Defaulting Banks).
"Restoration" shall mean the repair, restoration (including demolition),
replacement and rebuilding of all or any portion of a Hotel Property or Senior
Living Care Facility (or the Improvement thereof) following the destruction,
damage, loss or Taking thereof. The term "Restore" used as a verb has a
corresponding meaning.
"Returns" shall have the meaning provided in Section 6.09.
"Revolving Loan" shall have the meaning provided in Section 1.01(a).
"S&P" shall mean Standard & Poor's Ratings Services.
"San Francisco Marriott" shall mean the Hotel Property owned by YBG
Associates located at 55 Fourth Street, San Francisco, California.
"Scheduled Repayment" shall have the meaning provided in Section 3.02(b).
"SEC" shall have the meaning provided in Section 7.01(h).
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"Section 3.04(b)(ii) Certificate" shall have the meaning provided in
Section 3.04(b).
"Secured Creditors" shall have the meaning provided in the respective
Security Documents.
"Securities Act" shall mean the Securities Act of 1933, as amended, and the
rules and regulations promulgated thereunder.
"Security Agreement" shall have the meaning provided in Section 4.07.
"Security Agreement Collateral" shall mean all "Collateral" as defined in
the Security Agreement.
"Security Documents" shall mean the Pledge Agreement, the Partnership
Pledge and Security Agreement, the Security Agreement, the New York Marriott
Financial Center Assignment and Pledge Agreement and each of the Mortgages.
"Senior Living Care Facility" shall mean each senior living care property
owned or leased by the Borrower or any of its Subsidiaries (including the
furniture, fixtures and equipment thereon, except for any furniture, fixtures
and equipment in individual rooms which are owned by individual tenants),
provided that such facility is predominantly an independent or assisted living
facility.
"Single Employer Plan" shall have the meaning set forth in Section 6.10.
"Specified Equipment" shall mean phones, computer equipment, other office
equipment and vehicles used in connection with any Hotel Property or Senior
Living Care Facility and any NGS System equipment used by any Hotel Property or
Senior Living Care Facility to communicate with the Marriott International
System.
"Specified Leased Equipment" shall mean leased phones, computer equipment,
other office equipment, in-room minibars, in-room safes, televisions, on-command
videos and vehicles used in connection with any Hotel Property or Senior Living
Care Facility and any NGS System equipment used by any Hotel Property and/or
Senior Living Care Facility to communicate with the Marriott International
System.
"Specified Subsidiary" shall mean any Subsidiary of the Borrower (other
than any Subsidiary Guarantor and Marriott Suites L.P.) so long as such
Subsidiary has no material assets other than the Hotel Property or Senior Living
Care Facility to be
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financed with Permitted Non-Recourse Indebtedness incurred (or assumed) pursuant
to Section 8.04(viii).
"Subsidiary" shall mean, as to any Person, (i) any corporation more than
50% of whose stock of any class or classes having by the terms thereof ordinary
voting power to elect a majority of the directors of such corporation
(irrespective of whether or not at the time stock of any class or classes of
such corporation shall have or might have voting power by reason of the
happening of any contingency) is at the time owned by such Person and/or one or
more Subsidiaries of such Person and (ii) any partnership, limited liability
company, association, joint venture or other entity in which such Person and/or
one or more Subsidiaries of such Person has more than a 50% equity interest at
the time.
"Subsidiary Guarantor" shall mean each Subsidiary of the Borrower that owns
or leases a Borrowing Base Property and/or owns directly or indirectly an equity
interest in a Subsidiary that owns or leases a Borrowing Base Property, provided
that until such time as Marriott Suites L.P. delivers a counterpart to the
Subsidiaries Guaranty pursuant to Section 7.19(b), Marriott Suites L.P. shall
not be a Subsidiary Guarantor.
"Subsidiaries Guaranty" shall have the meaning provided in Section 4.08.
"Supermajority Banks" shall mean those Non-Defaulting Banks which would
constitute the Required Banks under, and as defined in, this Agreement if the
percentage "50%" contained therein were changed to "66-2/3%".
"Taking" shall mean the taking or appropriation (including by deed in lieu
of condemnation or by voluntary sale or transfer under threat of condemnation or
while legal proceedings for condemnation are pending) of any Hotel Property or
Senior Living Care Facility, or any part thereof or interest therein, for public
or quasi-public use under the power of eminent domain, by reason of any public
improvement or condemnation proceeding, or in any other manner or any damage or
injury or diminution in value through condemnation, inverse condemnation or
other exercise of the power of eminent domain. The term "Taken" used as a verb
has a correlative meaning.
"Taxes" shall have the meaning provided in Section 3.04(a).
"Term Loan" shall mean each Revolving Loan that is converted into a term
loan on the Conversion Date pursuant to Section 1.01(b).
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"Test Period" shall mean the four consecutive fiscal quarters of the
Borrower then last ended, in each case taken as one accounting period, provided
that for purposes of making any financial covenant calculation which includes
periods prior to the Effective Date, such calculation shall be done on a Pro
Forma Basis as required by clause (ii) of the proviso to Section 12.07, even
though such period (or portion thereof) had occurred prior to the Effective
Date.
"Total Commitment" shall mean, at any time, the sum of the Commitments of
each of the Banks.
"Total Leverage Ratio" shall mean, at any time, the ratio of Consolidated
Debt at such time to Adjusted Consolidated EBITDA for the Test Period then last
ended.
"Total Unutilized Commitment" shall mean, at any time, an amount equal to
the remainder of (x) the Total Commitment then in effect less (y) the aggregate
principal amount of Revolving Loans outstanding.
"Treasury Regulation" shall mean regulations promulgated under the Code.
"Type" shall mean the type of Loan determined with regard to the interest
option applicable thereto, i.e., whether a Base Rate Loan or a Eurodollar Loan.
"UCC" shall mean the Uniform Commercial Code as from time to time in effect
in the relevant jurisdiction.
"Unfunded Current Liability" of any Plan shall mean the amount, if any, by
which the actuarial present value of the accumulated plan benefits under such
Plan as of the close of its most recent plan year exceeds the fair market value
of the assets allocable thereto, each determined in accordance with Statement of
Financial Accounting Standards No. 35, based upon the actuarial assumptions used
by such Plan's actuary in the most recent annual valuation of such Plan.
"Uniform System" shall mean the Uniform System of Accounts for Hotels, 8th
Revised Edition, 1986, as published by the Hotel Association of New York City,
as the same may be further revised from time to time.
"United States" and "U.S." shall each mean the United States of America.
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"Unutilized Commitment" with respect to any Bank at any time shall mean
such Bank's Commitment at such time, if any, less the aggregate outstanding
principal amount of all Revolving Loans made by such Bank at such time.
"Wholly-Owned Subsidiary" shall mean, as to any Person, (i) any corporation
100% of whose capital stock (other than director's qualifying shares) is at the
time owned by such Person and/or one or more Wholly-Owned Subsidiaries of such
Person and (ii) any partnership, limited liability company, association, joint
venture or other entity in which such Person and/or one or more Wholly-Owned
Subsidiaries of such Person has a 100% equity interest at such time.
"Work" shall have the meaning provided in Section 7.18(f).
"YBG Associates" shall mean YBG Associates LLC, a Delaware limited
liability company.
SECTION 11. The Agents.
11.01 Appointment. The Banks hereby designate BTCo as Administrative Agent
(for purposes of this Section 11, the term "Administrative Agent" shall include
BTCo in its capacity as Arranger pursuant to this Agreement and as Collateral
Agent pursuant to the Security Documents) to act as specified herein and in the
other Credit Documents. The Banks hereby designate Credit Lyonnais New York
Branch, The Bank of Nova Scotia and Wells Fargo Bank, National Association as
Co- Agents to act as specified herein and in the other Credit Documents. Each
Bank hereby irrevocably authorizes, and each holder of any Note by the
acceptance of such Note shall be deemed irrevocably to authorize, any Agent to
take such action on its behalf under the provisions of this Agreement, the other
Credit Documents and any other instruments and agreements referred to herein or
therein and to exercise such powers and to perform such duties hereunder and
thereunder as are specifically delegated to or required of such Agent by the
terms hereof and thereof and such other powers as are reasonably incidental
thereto. Each Agent may perform any of its duties hereunder by or through its
respective officers, directors, agents, employees or affiliates.
11.02 Nature of Duties. No Agent shall have any duties or responsibilities
except those expressly set forth in this Agreement and in the other Credit
Documents. Neither any Agent nor any of its respective officers, directors,
agents, employees or affiliates shall be liable for any action taken or omitted
by it or them hereunder or under any other Credit Document or in connection
herewith or therewith, unless caused by its or their gross negligence or willful
misconduct. The duties of each Agent shall be mechanical and administrative in
nature; no Agent shall
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have by reason of this Agreement or any other Credit Document a fiduciary
relationship in respect of any Bank or the holder of any Note; and nothing in
this Agreement or any other Credit Document, expressed or implied, is intended
to or shall be so construed as to impose upon any Agent any obligations in
respect of this Agreement or any other Credit Document except as expressly set
forth herein or therein.
11.03 Lack of Reliance on the Agents. Independently and without reliance
upon any Agent, each Bank and the holder of each Note, to the extent it deems
appropriate, has made and shall continue to make (i) its own independent
investigation of the financial condition and affairs of each Credit Party and
each of their Subsidiaries in connection with the making and the continuance of
the Loans and the taking or not taking of any action in connection herewith and
(ii) its own appraisal of the credit-worthiness of each Credit Party and each
of its Subsidiaries and, except as expressly provided in this Agreement, no
Agent shall have any duty or responsibility, either initially or on a continuing
basis, to provide any Bank or the holder of any Note with any credit or other
information with respect thereto, whether coming into its possession before the
making of the Loans or at any time or times thereafter. No Agent shall be
responsible to any Bank or the holder of any Note for any recitals, statements,
information, representations or warranties herein or in any document,
certificate or other writing delivered in connection herewith or for the
execution, effectiveness, genuineness, validity, enforceability, perfection,
collectibility, priority or sufficiency of this Agreement or any other Credit
Document or the financial condition of any Credit Party or any of its
Subsidiaries or be required to make any inquiry concerning either the
performance or observance of any of the terms, provisions or conditions of this
Agreement or any other Credit Document, or the financial condition of any Credit
Party or any of its Subsidiaries or the existence or possible existence of any
Default or Event of Default.
11.04 Certain Rights of the Agents. If any Agent shall request instructions
from the Required Banks with respect to any act or action (including failure to
act) in connection with this Agreement or any other Credit Document, such Agent
shall be entitled to refrain from such act or taking such action unless and
until such Agent shall have received instructions from the Required Banks or, if
required by Section 12.12, the Supermajority Banks or all of the Banks, as the
case may be; and such Agent shall not incur liability to any Person by reason of
so refraining. Without limiting the foregoing, no Bank or the holder of any Note
shall have any right of action whatsoever against any Agent as a result of such
Agent acting or refraining from acting hereunder or under any other Credit
Document in accordance with the instructions of the Required Banks or, if
required by Section 12.12, the Supermajority Banks or all of the Banks, as the
case may be.
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11.05 Reliance. Each Agent shall be entitled to rely, and shall be fully
protected in relying, upon any note, writing, resolution, notice, statement,
certificate, telex, teletype or telecopier message, cablegram, radiogram, order
or other document or telephone message signed, sent or made by any Person that
such Agent believed to be the proper Person, and, with respect to all legal
matters pertaining to this Agreement and any other Credit Document and its
duties hereunder and thereunder, upon advice of counsel selected by such Agent.
11.06 Indemnification. To the extent any Agent is not reimbursed and
indemnified by the Borrower, the Banks will reimburse and indemnify such Agent,
in proportion to their respective "percentages" as used in determining the
Required Banks, for and against any and all liabilities, obligations, losses,
damages, penalties, claims, actions, judgments, costs, expenses or disbursements
of whatsoever kind or nature which may be imposed on, asserted against or
incurred by such Agent in performing its respective duties hereunder or under
any other Credit Document, in any way relating to or arising out of this
Agreement or any other Credit Document; 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 gross negligence or willful misconduct.
11.07 Each Agent in its Individual Capacity. With respect to its obligation
to make Loans under this Agreement, each Agent shall have the rights and powers
specified herein for a "Bank" and may exercise the same rights and powers as
though it were not performing the duties specified herein; and the term "Banks,"
"Required Banks," "holders of Notes" or any similar terms shall, unless the
context clearly otherwise indicates, include each Agent in its individual
capacity. Each Agent may accept deposits from, lend money to, and generally
engage in any kind of banking, trust or other business with any Credit Party or
any Affiliate of any Credit Party as if they were not performing the duties
specified herein, and may accept fees and other consideration from the Borrower
or any other Credit Party for services in connection with this Agreement and
otherwise without having to account for the same to the Banks.
11.08 Holders. Each Agent may deem and treat the payee of any Note as the
owner thereof for all purposes hereof unless and until a written notice of the
assignment, transfer or endorsement thereof, as the case may be, shall have been
filed with such Agent. Any request, authority or consent of any Person who, at
the time of making such request or giving such authority or consent, is the
holder of any Note shall be conclusive and binding on any subsequent holder,
transferee, assignee or indorsee, as the case may be, of such Note or of any
Note or Notes issued in exchange therefor.
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11.09 Resignation by the Agents; Removal of the Administrative Agent. (a)
The Administrative Agent may resign from the performance of all its functions
and duties hereunder and/or under the other Credit Documents at any time by
giving 30 Business Days' prior written notice to the Borrower and the Banks.
Such resignation shall take effect upon the appointment of a successor
Administrative Agent pursuant to clauses (b) and (c) below or as otherwise
provided below. Each Co-Agent may resign from the performance of all of its
functions and duties hereunder and/or under the other Credit Documents at any
time by giving notice to the Borrower, the Administrative Agent and the Banks.
Such resignation shall take effect upon delivery of such notice.
(b) Upon any such notice of resignation by the Administrative Agent, the
Required Banks shall appoint a successor Administrative Agent hereunder or
there-under who shall be a commercial bank or trust company reasonably
acceptable to the Borrower.
(c) If a successor Administrative Agent shall not have been so appointed
within such 30 Business Day period, the Administrative Agent, with the consent
of the Borrower, shall then appoint a successor Administrative Agent who shall
serve as Administrative Agent hereunder or thereunder until such time, if any,
as the Required Banks appoint a successor Administrative Agent as provided
above.
(d) If no successor Administrative Agent has been appointed pursuant to
clause (b) or (c) above by the 35th Business Day after the date such notice of
resignation was given by the Administrative Agent, the Administrative Agent's
resignation shall become effective and the Co-Agents (if one or more so agrees),
or if there are no Co-Agents or no Co-Agent so agrees, then the Banks, shall
thereafter perform all the duties of the Administrative Agent hereunder and/or
under any other Credit Document until such time, if any, as the Required Banks
appoint a successor Administrative Agent as provided above.
(e) In addition, the Required Banks shall have the right to remove the
Administrative Agent and appoint a successor Administrative Agent who shall be a
commercial bank or trust company reasonably acceptable to the Borrower in the
event that the Administrative Agent has been grossly negligent or has willfully
misconducted itself in performing its functions and duties under this Agreement
or any other Credit Document.
SECTION 12. Miscellaneous.
12.01 Payment of Expenses, etc. The Borrower agrees that it shall: (i)
whether or not the transactions contemplated herein are consummated, pay all
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reasonable out-of-pocket costs and expenses of the Administrative Agent
(including, without limitation, the reasonable fees and disbursements of White &
Case, local counsel and environmental, engineering, real estate and insurance
independent consultants retained by the Administrative Agent) in connection
with the preparation, execution, delivery and performance of this Agreement
and the other Credit Documents and the documents and instruments referred to
herein and therein, any amendment, waiver or consent relating hereto or thereto,
of the Administrative Agent in connection with its syndication efforts with
respect to this Agreement and, upon the occurrence and during the continuance of
an Event of Default, the reasonable costs and expenses of each of the Banks in
connection with the enforcement of this Agreement and the other Credit Documents
and the documents and instruments referred to herein and therein (including,
without limitation, the reasonable fees and disbursements of counsel for the
Administrative Agent and, following an Event of Default, for each of the Banks);
(ii) pay and hold each of the Banks harmless from and against any and all
present and future stamp, excise and other similar taxes with respect to the
foregoing matters and save each of the Banks harmless from and against any and
all liabilities with respect to or resulting from any delay or omission (other
than to the extent attributable to such Bank) to pay such taxes; and (iii)
indemnify each Agent and each Bank, and each of their respective officers,
directors, employees, representatives and agents from and hold each of them
harmless against any and all liabilities, obligations (including removal or
remedial actions), losses, damages, penalties, claims, actions, judgments,
suits, costs, expenses and disbursements (including reasonable attorneys' and
consultants' fees and disbursements) incurred by, imposed on or assessed against
any of them as a result of, or arising out of, or in any way related to, or by
reason of, (a) any investigation, litigation or other proceeding (whether or not
such Agent or any Bank is a party thereto) related to the entering into and/or
performance of this Agreement or any other Credit Document or the use of the
proceeds of any Loans hereunder or the consummation of any transactions
contemplated herein or in any other Credit Document or the exercise of any of
their rights or remedies provided herein or in the other Credit Documents, or
(b) the actual or alleged presence of Hazardous Materials in the air, surface
water or groundwater or on the surface or subsurface of any Real Property owned
or at any time operated by Holdings or any of its Subsidiaries, the Release,
generation, storage, transportation, handling or disposal of Hazardous Materials
at any location, whether or not owned or operated by Holdings or any of its
Subsidiaries, the non-compliance of any Real Property with foreign, federal,
state and local laws, regulations, and ordinances (including applicable permits
thereunder) applicable to any Real Property, or any Environmental Claim asserted
against Holdings, any of its Subsidiaries or any Real Property owned or at any
time operated by Holdings or any of its Subsidiaries, including, in each case,
without limitation, the reasonable fees and disbursements of counsel and other
consultants incurred in connection with any such investigation, litigation or
other proceeding (but excluding any losses, liabilities, claims,
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damages or expenses to the extent incurred by reason of the gross negligence or
willful misconduct of the Person to be indemnified). To the extent that the
undertaking to indemnify, pay or hold harmless any Agent or any Bank set forth
in the preceding sentence may be unenforceable because it is violative of any
law or public policy, the Borrower shall make the maximum contribution to the
payment and satisfaction of each of the indemnified liabilities which is
permissible under applicable law.
12.02 Right of Setoff. In addition to any rights now or hereafter granted
under applicable law or otherwise, and not by way of limitation of any such
rights, upon the occurrence and during the continuance of an Event of Default,
each Bank is hereby authorized at any time or from time to time, without
presentment, demand, protest or other notice of any kind to any Credit Party
or to any other Person, any such notice being hereby expressly waived, to set
off and to appropriate and apply any and all deposits (general or special) and
any other Indebtedness at any time held or owing by such Bank (including,
without limitation, by branches and agencies of such Bank wherever located) to
or for the credit or the account of any Credit Party against and on account of
the Obligations and liabilities of such Credit Party to such Bank under this
Agreement or under any of the other Credit Documents, including, without
limitation, all interests in Obligations purchased by such Bank pursuant to
Section 12.06(b), and all other claims of any nature or description arising out
of or connected with this Agreement or any other Credit Document, irrespective
of whether or not such Bank shall have made any demand hereunder and although
said Obligations, liabilities or claims, or any of them, shall be contingent or
unmatured. Notwithstanding anything to the contrary contained in this Section
12.02, no Bank shall exercise any such right of set-off without the prior
consent of the Administrative Agent or the Required Banks so long as the
Obligations shall be secured by any Real Property located in the State of
California, it being understood and agreed, however, that this sentence is for
the sole benefit of the Banks and may be amended, modified or waived in any
respect by the Required Banks without the requirement of prior notice to or
consent by any Credit Party and does not constitute a waiver of any rights
against any Credit Party or against any Collateral.
12.03 Notices. Except as otherwise expressly provided herein, all notices
and other communications provided for hereunder shall be in writing (including
telegraphic, telex, telecopier or cable communication) and mailed, telegraphed,
telexed, telecopied, cabled or delivered: if to the Borrower, at the Borrower's
address specified opposite its signature below; if to Holdings, at Holdings'
address specified opposite its signature below; if to HMC Capital, at HMC
Capital's address specified opposite its signature below; if to any Co-Agent or
Bank, at its address specified opposite its name on Schedule II; and if to the
Administrative Agent, at the Notice Office; or, as to the Borrower or any Agent,
at such other address as shall be designated by such party in
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a written notice to the other parties hereto and, as to each Bank, at such other
address as shall be designated by such Bank in a written notice to the Borrower
and the Administrative Agent. All such notices and communications shall, when
mailed, telegraphed, telexed, telecopied, or cabled or sent by overnight
courier, be effective when deposited in the mails, delivered to the telegraph
company, cable company or overnight courier, as the case may be, or sent by
telex or telecopier, except that notices and communications to the
Administrative Agent and the Borrower shall not be effective until received by
the Administrative Agent or the Borrower, as the case may be.
12.04 Benefit of Agreement. (a) This Agreement shall be binding upon and
inure to the benefit of and be enforceable by the respective successors and
assigns of the parties hereto; provided, however, the Borrower may not assign or
transfer any of its rights, obligations or interest hereunder or under any other
Credit Document without the prior written consent of the Banks and, provided
further, that, although any Bank may transfer, assign or grant participations in
its rights hereunder, such Bank shall remain a "Bank" for all purposes hereunder
(and may not transfer or assign all or any portion of its Commitment hereunder
except as provided in Section 12.04(b)) and the transferee, assignee or
participant, as the case may be, shall not constitute a "Bank" hereunder and,
provided further, that no Bank shall transfer or grant any participation under
which the participant shall have rights to approve any amendment to or waiver of
this Agreement or any other Credit Document except to the extent such amendment
or waiver would (i) extend the final scheduled maturity of any Loan or Note in
which such participant is participating, or reduce the rate or extend the time
of payment of interest or Fees thereon (except in connection with a waiver of
applicability of any post-default increase in interest rates) or reduce the
principal amount thereof, or increase the amount of the participant's
participation over the amount thereof then in effect (it being understood that a
waiver of any Default or Event of Default or of a mandatory reduction in the
Total Commitment shall not constitute a change in the terms of such
participation, and that an increase in any Commitment or Loan shall be permitted
without the consent of any participant if the participant's participation is not
increased as a result thereof), (ii) consent to the assignment or transfer by
the Borrower of any of its rights and obligations under this Agreement or (iii)
release all or substantially all of the Collateral under all of the Security
Documents (except as expressly provided in the Credit Documents) supporting the
Loans hereunder in which such participant is participating. In the case of any
such participation, the participant shall not have any rights under this
Agreement or any of the other Credit Documents (the participant's rights against
such Bank in respect of such participation to be those set forth in the
agreement executed by such Bank in favor of the participant relating thereto)
and all amounts payable by the Borrower hereunder shall be determined as if such
Bank had not sold such participation.
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(b) Notwithstanding the foregoing, any Bank (or any Bank together with one
or more other Banks) may (x) assign all or a portion of its Commitment (and
related outstanding Obligations hereunder) to (i) its parent company and/or any
affiliate of such Bank which is at least 50% owned by such Bank or its parent
company or to one or more Banks or (ii) in the case of any Bank that is a fund
that invests in bank loans, any other fund that invests in bank loans and is
managed by the same investment advisor of such Bank or by an Affiliate of such
investment advisor or (y) assign all, or if less than all, a portion equal to at
least $5,000,000 in the aggregate for the assigning Bank or assigning Banks, of
such Commitment (and related outstanding Obligations hereunder) to one or more
Eligible Transferees (treating any fund that invests in bank loans and any other
fund that invests in bank loans and is managed by the same investment advisor of
such fund or by an Affiliate of such investment advisor as a single Eligible
Transferee), each of which assignees shall become a party to this Agreement as
a Bank by execution of an Assignment and Assumption Agreement, provided that (i)
at such time Schedule I shall be deemed modified to reflect the Commitments
(and/or outstanding Loans, as the case may be) of such new Bank and of the
existing Banks, (ii) upon surrender of the old Notes, new Notes will be issued
to such new Bank and to the assigning Bank, such new Notes to be in conformity
with the requirements of Section 1.05 (with appropriate modifications) to the
extent needed to reflect the revised Commitments (and/or outstanding Loans, as
the case may be), (iii) the consent of the Administrative Agent shall be
required in connection with any such assignment pursuant to clause (y) above
(which consent shall not be unreasonably withheld) and (iv) the Administrative
Agent shall receive at the time of each such assignment, from the assigning or
assignee Bank, the payment of a non-refundable assignment fee of $3,500 and,
provided further, that such transfer or assignment will not be effective until
recorded by the Administrative Agent on the Register pursuant to Section 12.16.
The Administrative Agent will promptly give the Borrower notice of any
assignment to an Eligible Transferee pursuant to clause (y) of the first
sentence of this Section 12.04(b), although the failure to give any such notice
shall not affect such assignment or result in any liability by the
Administrative Agent. To the extent of any assignment pursuant to this Section
12.04(b), the assigning Bank shall be relieved of its obligations hereunder with
respect to its assigned Commitments. At the time of each assignment pursuant to
this Section 12.04(b) to a Person which is not already a Bank hereunder and
which is not a United States person (as such term is defined in Section
7701(a)(30) of the Code) for Federal income tax purposes, the respective
assignee Bank shall provide to the Borrower and the Administrative Agent the
appropriate Internal Revenue Service Forms (and, if applicable a Section
3.04(b)(ii) Certificate) described in Section 3.04(b). To the extent that an
assignment of all or any portion of a Bank's Commitment and related outstanding
Obligations pursuant to Section 1.13 or this Section 12.04(b) would, at the time
of such assignment, result in increased costs under Section 1.10, 1.11 or 3.04
from those being charged by the respective assigning Bank prior to such
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assignment, then the Borrower shall not be obligated to pay or reimburse such
increased costs (although the Borrower shall be obligated to pay any other
increased costs of the type described above resulting from changes after the
date of the respective assignment).
(c) Nothing in this Agreement shall prevent or prohibit any Bank from
pledging its Loans and Notes hereunder to a Federal Reserve Bank in support of
borrowings made by such Bank from such Federal Reserve Bank and, with the
consent of the Administrative Agent, any Bank which is a fund may pledge all or
any portion of its Loans and Notes to its trustee in support of its obligations
to its trustee. No pledge pursuant to this clause (c) shall release the
transferor Bank from any of its obligations hereunder.
12.05 No Waiver; Remedies Cumulative. No failure or delay on the part of
any Agent or any Bank or any holder of any Note in exercising any right, power
or privilege hereunder or under any other Credit Document and no course of
dealing between any Borrower or any other Credit Party and any Agent or any Bank
or the holder of any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any right, power or privilege hereunder or under
any other Credit Document preclude any other or further exercise thereof or the
exercise of any other right, power or privilege hereunder or thereunder. The
rights, powers and remedies herein or in any other Credit Document expressly
provided are cumulative and not exclusive of any rights, powers or remedies
which any Agent or any Bank or the holder of any Note would otherwise have. No
notice to or demand on any Credit Party in any case shall entitle any Credit
Party to any other or further notice or demand in similar or other circumstances
or constitute a waiver of the rights of any Agent or any Bank or the holder of
any Note to any other or further action in any circumstances without notice or
demand.
12.06 Payments Pro Rata. (a) Except as otherwise provided in this
Agreement, the Administrative Agent agrees that promptly after its receipt of
each payment from or on behalf of the Borrower in respect of any Obligations
hereunder, it shall distribute such payment to the Banks (other than any Bank
that has consented in writing to waive its pro rata share of any such payment)
pro rata based upon their respective shares, if any, of the Obligations with
respect to which such payment was received.
(b) Each of the Banks agrees that, if it should receive any amount
hereunder (whether by voluntary payment, by realization upon security, by the
exercise of the right of setoff or banker's lien, by counterclaim or cross
action, by the enforcement of any right under the Credit Documents, or
otherwise), which is
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applicable to the payment of the principal of, or interest on, the Loans or
Commitment Commission, of a sum which with respect to the related sum or sums
received by other Banks is in a greater proportion than the total of such
Obligation then owed and due to such Bank bears to the total of such Obligation
then owed and due to all of the Banks immediately prior to such receipt, then
such Bank receiving such excess payment shall purchase for cash without recourse
or warranty from the other Banks an interest in the Obligations of the
respective Credit Party to such Banks in such amount as shall result in a
proportional participation by all the Banks in such amount; provided that if all
or any portion of such excess amount is thereafter recovered from such Bank,
such purchase shall be rescinded and the purchase price restored to the extent
of such recovery, but without interest.
(c) Notwithstanding anything to the contrary contained herein, the
provisions of the preceding Sections 12.06(a) and (b) shall be subject to the
express provisions of this Agreement which require, or permit, differing
payments to be made to Non-Defaulting Banks as opposed to Defaulting Banks.
12.07 Calculations; Computations. (a) The financial statements to be
furnished to the Banks pursuant hereto shall be made and prepared in accordance
with generally accepted accounting principles in the United States consistently
applied throughout the periods involved (except as set forth in the notes
thereto or as otherwise disclosed in writing by the Borrower to the Banks)
("GAAP"); provided that, (i) except as otherwise specifically provided herein,
all computations of Quarterly Excess Cash Flow and Annual Excess Cash Flow, all
computations determining compliance with Sections 8.07 through 8.12, inclusive,
and all computations of the Borrowing Base shall utilize accounting principles
and policies in conformity with those used to prepare the historical financial
statements referred to in Section 6.05(a), (ii) for purposes of determining the
Borrowing Base and compliance with Sections 8.08 through 8.12 (in each case) for
any portion of a Test Period ended prior to the Effective Date, such
calculations shall be determined on a Pro Forma Basis as if the Initial Capital
Contributions had occurred on the first day of such Test Period and (iii) for
purposes of determining Quarterly Excess Cash Flow, Annual Excess Cash Flow and
compliance with Sections 8.08 through 8.12, such definitions and covenants shall
be determined as if the Existing New York Marriott Financial Center Notes did
not exist and as if there were no interest expense related thereto.
(b) All computations of interest, Commitment Commission and other Fees
hereunder shall be made on the basis of a year of 360 days for the actual number
of days (including the first day but excluding the last day) occurring in the
period for which such interest, Commitment Commission or other Fees are payable.
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12.08 GOVERNING LAW; SUBMISSION TO JURISDICTION; VENUE; WAIVER OF JURY
TRIAL. (a) THIS AGREEMENT AND THE OTHER CREDIT DOCUMENTS AND THE RIGHTS AND
OBLIGATIONS OF THE PARTIES HEREUNDER AND THEREUNDER SHALL, EXCEPT AS OTHERWISE
PROVIDED IN CERTAIN OF THE MORTGAGES, BE CONSTRUED IN ACCORDANCE WITH AND BE
GOVERNED BY THE LAW OF THE STATE OF NEW YORK. ANY LEGAL ACTION OR PROCEEDING
WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT MAY BE BROUGHT IN
THE COURTS OF THE STATE OF NEW YORK OR OF THE UNITED STATES FOR THE SOUTHERN
DISTRICT OF NEW YORK, AND, BY EXECUTION AND DELIVERY OF THIS AGREEMENT, EACH OF
HOLDINGS, HMC CAPITAL AND THE BORROWER HEREBY IRREVOCABLY ACCEPTS FOR ITSELF AND
IN RESPECT OF ITS PROPERTY, GENERALLY AND UNCONDITIONALLY, THE JURISDICTION OF
THE AFORESAID COURTS. EACH OF HOLDINGS, HMC CAPITAL AND THE BORROWER HEREBY
FURTHER IRREVOCABLY WAIVES ANY CLAIM THAT ANY SUCH COURTS LACK JURISDICTION OVER
SUCH CREDIT PARTY, AND AGREES NOT TO PLEAD OR CLAIM, IN ANY LEGAL ACTION OR
PROCEEDING WITH RESPECT TO THIS AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT
IN ANY OF THE AFORESAID COURTS, THAT ANY SUCH COURT LACKS JURISDICTION OVER SUCH
CREDIT PARTY. EACH OF HOLDINGS, HMC CAPITAL AND THE BORROWER FURTHER IRREVOCABLY
CONSENTS TO THE SERVICE OF PROCESS OUT OF ANY OF THE AFOREMENTIONED COURTS IN
ANY SUCH ACTION OR PROCEEDING BY THE MAILING OF COPIES THEREOF BY REGISTERED OR
CERTIFIED MAIL, POSTAGE PREPAID, TO SUCH CREDIT PARTY AT ITS ADDRESS SET FORTH
OPPOSITE ITS SIGNATURE BELOW, SUCH SERVICE TO BECOME EFFECTIVE 30 DAYS AFTER
SUCH MAILING. EACH OF HOLDINGS, HMC CAPITAL AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION TO SUCH SERVICE OF PROCESS AND FURTHER IRREVOCABLY WAIVES
AND AGREES NOT TO PLEAD OR CLAIM IN ANY ACTION OR PROCEEDING COMMENCED HEREUNDER
OR UNDER ANY OTHER CREDIT DOCUMENT THAT SERVICE OF PROCESS WAS IN ANY WAY
INVALID OR INEFFECTIVE. NOTHING HEREIN SHALL AFFECT THE RIGHT OF ANY AGENT, ANY
BANK OR THE HOLDER OF ANY NOTE TO SERVE PROCESS IN ANY OTHER MANNER PERMITTED BY
LAW OR TO COMMENCE LEGAL PROCEEDINGS OR OTHERWISE PROCEED AGAINST ANY CREDIT
PARTY IN ANY OTHER JURISDICTION.
(b) EACH OF HOLDINGS, HMC CAPITAL AND THE BORROWER HEREBY IRREVOCABLY
WAIVES ANY OBJECTION WHICH IT MAY NOW OR HEREAFTER HAVE TO THE LAYING OF VENUE
OF ANY OF THE
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AFORESAID ACTIONS OR PROCEEDINGS ARISING OUT OF OR IN CONNECTION WITH THIS
AGREEMENT OR ANY OTHER CREDIT DOCUMENT BROUGHT IN THE COURTS REFERRED TO IN
CLAUSE (a) ABOVE AND HEREBY FURTHER IRREVOCABLY WAIVES AND AGREES NOT TO PLEAD
OR CLAIM IN ANY SUCH COURT THAT ANY SUCH ACTION OR PROCEEDING BROUGHT IN ANY
SUCH COURT HAS BEEN BROUGHT IN AN INCONVENIENT FORUM.
(c) EACH OF THE PARTIES TO THIS AGREEMENT HEREBY IRREVOCABLY WAIVES ALL
RIGHT TO A TRIAL BY JURY IN ANY ACTION, PROCEEDING OR COUNTERCLAIM ARISING OUT
OF OR RELATING TO THIS AGREEMENT, THE OTHER CREDIT DOCUMENTS OR THE TRANSACTIONS
CONTEMPLATED HEREBY OR THEREBY.
12.09 Counterparts. This Agreement may be executed in any number of
counterparts and by the different parties hereto on separate counterparts, each
of which when so executed and delivered shall be an original, but all of which
shall together constitute one and the same instrument. A set of counterparts
executed by all the parties hereto shall be lodged with the Borrower and the
Administrative Agent.
12.10 Effectiveness. This Agreement shall become effective on the date (the
"Effective Date") on which (i) Holdings, HMC Capital, the Borrower, each Agent
and each of the Banks set forth on Schedule I shall have signed a counterpart
hereof (whether the same or different counterparts) and shall have delivered the
same to the Administrative Agent at the Notice Office or, in the case of the
Banks, shall have given to the Administrative Agent telephonic (confirmed in
writing) or written notice at such office that the same has been signed and
mailed to it and (ii) the conditions contained in Section 4 are met to the
satisfaction of the Administrative Agent and the Required Banks. Unless the
Administrative Agent has received actual notice from any Bank that the
conditions described in clause (ii) of the preceding sentence have not been met
to its satisfaction, upon the satisfaction of the condition described in clause
(i) of the immediately preceding sentence and upon the Administrative Agent's
good faith determination that the conditions described in clause (ii) of the
immediately preceding sentence have been met, then the Effective Date shall have
deemed to have occurred, regardless of any subsequent determination that one or
more of the conditions thereto had not been met (although the occurrence of the
Effective Date shall not release the Borrower from any liability for failure to
satisfy one or more of the applicable conditions contained in Section 4). The
Administrative Agent will give Holdings, HMC Capital, the Borrower, each
Co-Agent and each Bank prompt written notice of the occurrence of the Effective
Date.
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12.11 Headings Descriptive. The headings of the several sections and
subsections of this Agreement are inserted for convenience only and shall not in
any way affect the meaning or construction of any provision of this Agreement.
12.12 Amendment or Waiver; etc. (a) Neither this Agreement nor any other
Credit Document nor any terms hereof or thereof may be changed, waived,
discharged or terminated unless such change, waiver, discharge or termination is
in writing signed by the respective Credit Parties party thereto and the
Required Banks, provided that no such change, waiver, discharge or termination
shall, without the consent of each Bank (other than a Defaulting Bank) (with the
term "Bank" meaning each Bank having Obligations being directly affected thereby
in the case of following clause (i)), (i) extend the final scheduled maturity of
any Loan or Note, or reduce the rate or extend the time of payment of interest
or Fees thereon, or reduce the principal amount thereof (except to the extent
repaid in cash), or reduce the amount of, or extend the date of, any Scheduled
Repayment, (ii) release all or substantially all of the Collateral (except as
expressly provided in the Credit Documents), (iii) release Host Marriott from
its obligations under the Host Marriott Guaranty, (iv) amend, modify or waive
any provision of this Section 12.12, (v) reduce the percentage specified in the
definition of Required Banks (it being understood that, with the consent of the
Required Banks, additional extensions of credit pursuant to this Agreement may
be included in the determination of the Required Banks on substantially the
same basis as the extensions of Loans are included on the Effective Date), (vi)
amend or modify the definition of Applicable EBITDA Factor or any of the
percentages set forth in the proviso to the definition of Borrowing Base
Property Amount or (vii) consent to the assignment or transfer by the Borrower
of any of its rights and obligations under this Agreement; provided further,
that no such change, waiver, discharge or termination shall (w) increase the
Commitment of any Bank over the amount thereof then in effect without the
consent of such Bank (it being understood that waivers or modifications of
conditions precedent, covenants, Defaults or Events of Default or of a mandatory
reduction in the Total Commitment shall not constitute an increase of the
Commitment of any Bank, and that an increase in the available portion of the
Commitment of any Bank shall not constitute an increase in the Commitment of
such Bank), (x) without the consent of each Agent affected thereby, amend,
modify or waive any provision of Section 11 as same applies to such Agent or any
other provision as same relates to the rights or obligations of such Agent, (y)
without the consent of the Collateral Agent, amend, modify or waive any
provision relating to the rights or obligations of the Collateral Agent or (z)
without the consent of the Supermajority Banks, (i) amend or modify the
definition of Supermajority Banks, (ii) amend or modify any provision of the
Agreement which would permit Holdings or any of its Subsidiaries to pay
additional Dividends to, or make additional Investments in or to, Host Marriott
or any of its other Subsidiaries, (iii) release any Parent Guarantor or
Subsidiary Guarantor from its obligations under the
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Parents Guaranty or the Subsidiaries Guaranty, as the case may be (in each case,
except as expressly provided in the Credit Documents) or (iv) release any
Borrowing Base Property from the Liens created by the respective Mortgage
(except as expressly provided in the Credit Documents).
(b) If, in connection with any proposed change, waiver, discharge or
termination with respect to any of the provisions of this Agreement as
contemplated by clauses (i) through (vii), inclusive, of the first proviso to
Section 12.12(a), the consent of the Required Banks is obtained but the consent
of one or more of such other Banks whose consent is required is not obtained,
then the Borrower shall have the right, so long as all non-consenting Banks
whose individual consent is required are treated as described in either clause
(A) or (B) below, to either (A) replace each such non- consenting Bank or Banks
with one or more Replacement Banks pursuant to Section 1.13 so long as at the
time of such replacement, each such Replacement Bank consents to the proposed
change, waiver, discharge or termination or (B) terminate such non- consenting
Bank's Commitment and repay such non-consenting Bank's outstanding Loans in
accordance with Sections 2.02(b) and/or 3.01(b), provided that, unless the
Commitments are terminated, and Loans repaid, pursuant to the preceding clause
(B) are immediately replaced in full at such time through the addition of new
Banks or the increase of the Commitments and/or outstanding Loans of existing
Banks (who in each case must specifically consent thereto), then in the case of
any action pursuant to the preceding clause (B) the Required Banks (determined
before giving effect to the proposed action) shall specifically consent thereto,
provided further, that in any event the Borrower shall not have the right to
replace a Bank, terminate any of its Commitments or repay its Loans solely as a
result of the exercise of such Bank's rights (and the withholding of any
required consent by such Bank) pursuant to the second proviso to Section
12.12(a).
12.13 Survival. All indemnities set forth herein including, without
limitation, in Sections 1.10, 1.11, 3.04, 12.01 and 12.06 shall survive the
execution, delivery and termination of this Agreement and the Notes and the
making and repayment of the Loans.
12.14 Domicile of Loans. Each Bank may transfer and carry its Loans at, to
or for the account of any office, Subsidiary or Affiliate of such Bank.
Notwithstanding anything to the contrary contained herein, to the extent that a
transfer of Loans pursuant to this Section 12.14 would, at the time of such
transfer, result in increased costs under Section 1.10, 1.11, or 3.04 from those
being charged by the respective Bank prior to such transfer, then the Borrower
shall not be obligated to pay such increased costs (although the Borrower shall
be obligated to pay any other
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increased costs of the type described above resulting from changes after the
date of the respective transfer).
12.15 Confidentiality. (a) Subject to the provisions of clause (b) of this
Section 12.15, each Bank agrees that it will use its reasonable efforts not to
disclose without the prior consent of the Borrower (other than to its employees,
auditors, advisors or counsel or to another Bank if such Bank or such Bank's
holding or parent company in its reasonable good faith discretion determines
that any such party should have access to such information, provided such
Persons shall be subject to the provisions of this Section 12.15 to the same
extent as such Bank) any information with respect to any Credit Party or any of
its Subsidiaries which has been, is now or in the future furnished pursuant to
this Agreement or any other Credit Document and which is designated by any
Credit Party to the Banks in writing as confidential, provided that any Bank may
disclose any such information (a) as has become generally available to the
public, (b) as may be required or appropriate in any report, statement or
testimony submitted to any municipal, state or Federal regulatory body having or
claiming to have jurisdiction over such Bank or to the Federal Reserve Board or
the Federal Deposit Insurance Corporation or similar organizations (whether in
the United States or else- where) or their successors, (c) as may be required or
appropriate in respect to any summons or subpoena or in connection with any
litigation, (d) in order to comply with any law, order, regulation or ruling
applicable to such Bank, (e) to any Agent or the Collateral Agent and (f) to any
prospective or actual transferee or participant in connection with any
contemplated transfer or participation of any of the Notes or Commitments or any
interest therein by such Bank, provided, that such prospective transferee agrees
with such Bank to be subject to the provisions of this Section 12.15(a).
(b) Holdings and the Borrower hereby acknowledge and agree that each Bank
may share with any of its affiliates any information related to Credit Parties
or any of their respective Subsidiaries (including, without limitation, any
nonpublic customer information regarding the creditworthiness of the Credit
Parties and their respective Subsidiaries, provided such Persons shall be
subject to the provisions of this Section 12.15 to the same extent as such
Bank), it being understood that for purposes of this Section 12.15(b) the term
"affiliate" shall mean any direct or indirect holding company of a Bank as well
as any direct or indirect Subsidiary of such holding company.
12.16 Register. The Borrower hereby designates the Administrative Agent to
serve as the Borrower's agent, solely for purposes of this Section 12.16, to
maintain a register (the "Register") on which it will record the Commitments
from time to time of each of the Banks, the Loans made by each of the Banks and
each repayment
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in respect of the principal amount of the Loans of each Bank. Failure to make
any such recordation, or any error in such recordation, shall not affect the
Borrower's obligations in respect of such Loans. With respect to any Bank, the
transfer of the Commitment of such Bank and the rights to the principal of, and
interest on, any Loan made pursuant to such Commitment shall not be effective
until such transfer is recorded on the Register maintained by the Administrative
Agent with respect to ownership of such Commitment and Loans and prior to such
recordation all amounts owing to the transferor with respect to such Commitment
and Loans shall remain owing to the transferor. The registration of assignment
or transfer of all or part of any Commitments and Loans shall be recorded by the
Administrative Agent on the Register only upon the acceptance by the
Administrative Agent of a properly executed and delivered Assignment and
Assumption Agreement pursuant to Section 12.04(b). Coincident with the delivery
of such an Assignment and Assumption Agreement to the Administrative Agent for
acceptance and registration of assignment or transfer of all or part of a Loan,
or as soon thereafter as practicable, the assigning or transferor Bank shall
surrender the Note evidencing such Loan, and thereupon one or more new Notes in
the same aggregate principal amount shall be issued to the assigning or
transferor Bank and/or the new Bank. The Borrower agrees to indemnify the Agent
from and against any and all losses, claims, damages and liabilities of
whatsoever nature which may be imposed on, asserted against or incurred by the
Administrative Agent in performing its duties under this Section 12.16, provided
that the Borrower shall have no obligation to indemnify the Administrative Agent
for any loss, claim, damage, liability or expense which resulted solely from the
gross negligence or willful misconduct of the Administrative Agent.
12.17 Purchase of Loans by Marriott International. In the event that the
Obligations have been declared (or have become) due and payable or the
Collateral Agent shall have commenced foreclosure proceedings on the Collateral,
each of the Agents and the Banks hereby acknowledges and agrees for the sole
benefit of Marriott International that Marriott International or a Wholly-Owned
Subsidiary thereof shall have the right to purchase all (but not less than all)
of the Loans and Commitments of all (but not less than all) of the Banks
pursuant to this Agreement by paying the Agents and the Banks in cash an amount
equal to all outstanding principal, interest, Fees and other amounts pursuant to
this Agreement and the other Credit Documents. Each of Holdings, HMC Capital and
the Borrower hereby acknowledges and agrees that the provisions of this Section
12.17 are for the sole benefit of Marriott International (and may not be
amended, modified or waived without the consent of Marriott International) and
shall not affect the obligations that Holdings, HMC Capital, the Borrower or any
other Credit Party may have under this Agreement or any other Credit Document.
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12.18 Commercial Loan Transactions. Each of the Banks acknowledges that the
making of its Loans and the issuance by the Borrower of a Note to such Bank are
in the nature of a commercial loan transaction, and that no such Bank shall
assert that such actions are a securities transaction regulated under the
Exchange Act, the Securities Act or any other Federal or state securities laws,
it being understood that nothing in this Section 12.18 shall limit the rights of
the Banks pursuant to Section 12.04.
SECTION 13. Parents Guaranty.
13.01 The Guaranty. In order to induce each Agent and the Banks to enter
into this Agreement and to extend credit hereunder and in recognition of the
direct benefits to be received by each Parent Guarantor from the proceeds of the
Loans and the entering into by the Borrower of Interest Rate Protection
Agreements or Other Hedging Agreements, each Parent Guarantor hereby agrees with
each Agent and the Banks as follows: each Parent Guarantor hereby jointly and
severally, and absolutely, unconditionally and irrevocably, guarantees as
primary obligor and not merely as surety all of the Guaranteed Obligations of
the Borrower to each Creditor. If any or all of the Guaranteed Obligations
becomes due and payable hereunder, each Parent Guarantor, jointly and severally,
and absolutely, unconditionally and irrevocably promises to pay such
indebtedness to the Creditors or order, on demand, together with any and all
reasonable expenses which may be incurred by the Creditors in collecting any of
the Guaranteed Obligations. This Parents Guaranty shall constitute a guaranty of
payment, and not of collection.
13.02 Bankruptcy. Additionally, each Parent Guarantor, jointly and
severally, and absolutely, unconditionally, irrevocably, guarantees the payment
of any and all of the Guaranteed Obligations of the Borrower to the Creditors
whether or not then due or payable by the Borrower upon the occurrence in
respect of the Borrower of any of the events specified in Section 9.05, and
unconditionally and irrevocably promises to pay such Guaranteed Obligations to
the Creditors, or order, on demand, in lawful money of the United States.
13.03 Nature of Liability. The liability of each Parent Guarantor hereunder
is exclusive and independent of any security for or other guaranty of the
Guaranteed Obligations of the Borrower whether executed by such Parent
Guarantor, the other Parent Guarantor, any other guarantor or by any other
party, and the liability of each Parent Guarantor hereunder shall not be
affected or impaired by (a) any direction as to application of payment by the
Borrower or by any other party, or (b) any other continuing or other guaranty,
undertaking or maximum liability of a guarantor or of any other party as to the
Guaranteed Obligations of the Borrower, or (c) any pay-
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ment on or in reduction of any such other guaranty or undertaking except to the
extent that such payment actually results in a permanent reduction of the
Guaranteed Obligations, or (d) any dissolution, termination or increase,
decrease or change in personnel by the Borrower, or (e) any payment made to
any Creditor on the indebtedness which such Creditor repays the Borrower
pursuant to court order in any bankruptcy, reorganization, arrangement,
moratorium or other debtor relief proceeding, and each Parent Guarantor waives
any right to the deferral or modification of its obligations hereunder by reason
of any such proceeding.
13.04 Independent Obligation. The obligations of each Parent Guarantor
hereunder are independent of the obligations of the other Parent Guarantor, any
other guarantor or the Borrower, and a separate action or actions may be brought
and prosecuted against either Parent Guarantor whether or not action is
brought against the other Parent Guarantor, any other guarantor or the Borrower
and whether or not the other Parent Guarantor, any other guarantor or the
Borrower be joined in any such action or actions. Each Parent Guarantor waives,
to the fullest extent permitted by law, the benefit of any statute of
limitations affecting its liability hereunder or the enforcement thereof. Any
payment by the Borrower or other circumstance which operates to toll any statute
of limitations as to the Borrower shall operate to toll the statute of
limitations as to each Parent Guarantor.
13.05 Authorization. Each Parent Guarantor authorizes each Agent and the
other Creditors without notice or demand or consent (except as shall be required
by applicable statute and cannot be waived), and without affecting or impairing
its liability hereunder, from time to time to:
(a) change the manner, place or terms of payment of, and/or change or
extend the time of payment of, renew, increase, accelerate or alter, any of
the Guaranteed Obligations (including any increase or decrease in the rate
of interest thereon), any security therefor, or any liability incurred
directly or indirectly in respect thereof, and the Guaranty herein made
shall apply to the Guaranteed Obligations as so changed, extended, renewed
or altered;
(b) take and hold security for the payment of the Guaranteed
Obligations and sell, exchange, release, surrender, impair, realize upon or
otherwise deal with in any manner and in any order any property by
whomsoever at any time pledged or mortgaged to secure, or howsoever
securing, the Guaranteed Obligations or any liabilities (including any of
those hereunder) incurred directly or indirectly in respect thereof or
hereof, and/or any offset thereagainst;
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(c) exercise or refrain from exercising any rights against the
Borrower, any other Credit Party or any other Person or otherwise act or
refrain from acting;
(d) release or substitute any one or more endorsers, guarantors, the
Borrower or other obligors;
(e) settle or compromise any of the Guaranteed Obligations, any
security therefor or any liability (including any of those hereunder)
incurred directly or indirectly in respect thereof or hereof, and
subordinate the payment of all or any part thereof to the payment of any
liability (whether due or not) of the Borrower to its creditors other than
the Creditors, provided that the Creditors will not, without the prior
written consent of each Parent Guarantor, contractually subordinate the
payment of all or any part of the Guaranteed Obligations to any other
creditor or creditors of the Borrower, provided further that if any consent
required by the immediately preceding proviso is not obtained and
contractual subordination as described therein is agreed to, then (x) any
part of the Guaranteed Obligations not so subordinated will continue to be
entitled to the full benefits of this Parents Guaranty and (y) with respect
to any part of the Guaranteed Obligations so contractually subordinated,
each Parent Guarantor will be relieved of its obligations hereunder only to
the extent each establishes that it has been actually damaged by such
contractual subordination;
(f) apply any sums by whomsoever paid or howsoever realized to any
liability or liabilities of the Borrower to the Creditors regardless of
what liability or liabilities of the Borrower remain unpaid;
(g) consent to or waive any breach of, or any act, omission or default
under, this Agreement or any of the instruments or agreements referred to
herein, or otherwise amend, modify or supplement this Agreement or any of
such other instruments or agreements; and/or
(h) take any other action which would, under otherwise applicable
principles of common law, give rise to a legal or equitable discharge of
any Parent Guarantor from its liabilities under this Section 13.
13.06 Reliance. It is not necessary for any Agent or the other Creditors to
inquire into the capacity or powers of the Borrower or any other Credit Party or
the officers, directors, partners or agents acting or purporting to act on its
behalf, and any Guaranteed Obligations made or created in reliance upon the
professed exercise of such powers shall be guaranteed hereunder.
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13.07 Subordination. Any of the indebtedness of the Borrower now or
hereafter owing to any Parent Guarantor is hereby subordinated to the Guaranteed
Obligations of the Borrower owing to the Agents and the other Creditors; and if
the Administrative Agent so requests at a time when an Event of Default exists,
all such indebtedness of the Borrower to such Parent Guarantor shall be
collected, enforced and received by such Parent Guarantor for the benefit of the
Creditors and be paid over to the Administrative Agent on behalf of the
Creditors on account of the Guaranteed Obligations of the Borrower to the
Creditors, but without affecting or impairing in any manner the liability of
such Parent Guarantor under the other provisions of this Parents Guaranty. Prior
to the transfer by any Parent Guarantor of any note or negotiable instrument
evidencing any of the indebtedness relating to the Guaranteed Obligations of the
Borrower to such Parent Guarantor, such Parent Guarantor shall mark such note or
negotiable instrument with a legend that the same is subject to this
subordination. Without limiting the generality of the foregoing, each Parent
Guarantor hereby agrees with the Creditors that it will not exercise any right
of subrogation which it may at any time otherwise have as a result of this
Parents Guaranty (whether contractual, under Section 509 of the Bankruptcy Code,
or otherwise) until all Guaranteed Obligations have been paid in full in cash
(it being understood that no Parent Guarantor is waiving any right of
subrogation that it may otherwise have but is only waiving the exercise thereof
as provided above).
13.08 Waiver. (a) Each Parent Guarantor waives any right (except as shall
be required by applicable statute and cannot be waived) to require any Agent or
the other Creditors to (i) proceed against the Borrower, any other guarantor or
any other party, (ii) proceed against or exhaust any security held from the
Borrower, any other guarantor or any other party or (iii) pursue any other
remedy in such Agent's or the other Creditors' power whatsoever. Each Parent
Guarantor waives any defense based on or arising out of any defense of the
Borrower, such Parent Guarantor the other Parent Guarantor, any other guarantor
or any other party, other than payment in full of the Guaranteed Obligations,
based on or arising out of the disability of the Borrower, any other guarantor
or any other party, or the unenforceability of the Guaranteed Obligations or
any part thereof from any cause, or the cessation from any cause of the
liability of the Borrower other than payment in full of the Guaranteed
Obligations. Each Agent and the other Creditors may, at their election,
foreclose on any security held by such Agent, the Collateral Agent or the other
Creditors by one or more judicial or nonjudicial sales, whether or not every
aspect of any such sale is commercially reasonable (to the extent such sale is
permitted by applicable law), or exercise any other right or remedy any Agent
and the other Creditors may have against the Borrower or any other party, or any
security, without affecting or impairing in any way the liability of any Parent
Guarantor hereunder except to the extent the Guaranteed Obligations have been
paid. Each Parent Guarantor waives any defense arising out of any such election
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by any Agent and the other Creditors, even though such election operates to
impair or extinguish any right of reimbursement or subrogation or other right or
remedy of such Parent Guarantor against the Borrower or any other party or any
security.
(b) Each Parent Guarantor waives all presentments, demands for performance,
protests and notices, including, without limitation, notices of nonperformance,
notices of protest, notices of dishonor, notices of acceptance of this Guaranty,
and notices of the existence, creation or incurring of new or additional
Guaranteed Obligations. Each Parent Guarantor assumes all responsibility for
being and keeping itself informed of the Borrower's financial condition and
assets, and of all other circumstances bearing upon the risk of nonpayment of
the Guaranteed Obligations and the nature, scope and extent of the risks which
such Parent Guarantor assumes and incurs hereunder, and agrees that the Agents
and the other Creditors shall have no duty to advise any Parent Guarantor of
information known to them regarding such circumstances or risks.
(c) Each Parent Guarantor hereby acknowledges and affirms that each
understands that to the extent the Guaranteed Obligations are secured by Real
Property located in the State of California, each Parent Guarantor shall be
liable for the full amount of the liability hereunder notwithstanding the
foreclosure on such Real Property by trustee sale or any other reason impairing
such Parent Guarantor's or any Creditor's right to proceed against the Borrower
or any other guarantor of the Guaranteed Obligations. In accordance with Section
2856 of the California Civil Code, each Parent Guarantor hereby waives:
(i) all rights of subrogation, reimbursement, indemnification, and
contribution and any other rights and defenses that are or may become
available to such Parent Guarantor by reason of Sections 2787 to 2855,
inclusive, 2899 and 3433 of the California Civil Code;
(ii) all rights and defenses that such Parent Guarantor may have
because the Guaranteed Obligations are secured by Real Property located in
the State of California. This means, among other things: (A) the Creditors
may collect from any Parent Guarantor without first foreclosing on any real
or personal property collateral pledged by the Borrower; and (B) if the
Creditors foreclose on any Real Property collateral pledged by the
Borrower, (1) the amount of the Guaranteed Obligations may be reduced only
by the price for which that collateral is sold at the foreclosure sale,
even if the collateral is worth more than the sale price, and (2) the
Creditors may collect from any Parent Guarantor even if the Creditors, by
foreclosing on the Real Property collateral, have destroyed any right such
Parent Guarantor may have to collect
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from the Borrower. This is an unconditional and irrevocable waiver of any
rights and defenses each Parent Guarantor may have because the Guaranteed
Obligations are secured by Real Property. These rights and defenses
include, but are not limited to, any rights or defenses based upon Section
580a, 580b, 580d or 726 of the California Code of Civil Procedure; and
(iii) all rights and defenses arising out of an election of remedies
by the Creditors, even though that election of remedies, such as a
nonjudicial foreclosure with respect to security for the Guaranteed
Obligationis, has destroyed any Parent Guarantor's rights of subrogation
and reimbursement against the Borrower by the operation of Section 580d of
the California Code of Civil Procedure or otherwise.
Each Parent Guarantor warrants and agrees that each of the waivers set forth
above is made with full knowledge of its significance and consequences and that
if any of such waivers is determined to be contrary to any applicable law or
public policy, such waivers shall be effective only to the maximum extent
permitted by law.
13.09 Nature of Liability. It is the desire and intent of each Parent
Guarantor and the Creditors that this Parents Guaranty shall be enforced against
each Parent Guarantor to the fullest extent permissible under the laws and
public policies applied in each jurisdiction in which enforcement is sought. If,
however, and to the extent that, the obligations of any Parent Guarantor under
this Parents Guaranty shall be adjudicated to be invalid or unenforceable for
any reason (including, without limitation, because of any applicable state or
federal law relating to fraudulent conveyances or transfers), then the amount of
the Guaranteed Obligations shall be deemed to be reduced and such Parent
Guarantor shall pay the maximum amount of the Guaranteed Obligations which would
be permissible under applicable law.
13.10 Interest Rate Protection Agreements and Other Hedging Agreements.
Notwithstanding anything to the contrary contained in this Parents Guaranty, no
Interest Rate Protection Agreement or Other Hedging Agreement shall be entitled
to the benefits of this Parents Guaranty unless such Interest Rate Protection
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Agreement or Other Hedging Agreement is reasonably related to the Loans
(including, in any event, any Interest Rate Protection Agreement entered into to
satisfy the requirements of Section 7.16) or such Interest Rate Protection
Agreement or Other Hedging Agreement provides that it is to be entitled to the
benefits of this Parents Guaranty or the Security Documents generally.
-155-
IN WITNESS WHEREOF, the parties hereto have caused their duly authorized
officers to execute and deliver this Agreement as of the date first above
written.
Address:
10400 Fernwood Road HMC CAPITAL RESOURCES HOLDINGS
Bethesda, Maryland 20817 CORP.
Telecopier No.: (301) 380-3588 /s/ Karen J. Schramm
Attention: Assistant General Counsel, ---------------------------------
Asset Management, Dept. 923 By Karen J. Schramm
Title: Vice President
with a copy to:
10400 Fernwood Road
Bethesda, Maryland 20817
Telecopier No.: (301) 380-8260
Attention: Asset Management,
Dept. 908
10400 Fernwood Road HMC CAPITAL CORPORATION
Bethesda, Maryland 20817 /s/ Karen J. Schramm
Telecopier No.:(301) 380-3588 --------------------------------
Attention: Assistant General Counsel, By Karen J. Schramm
Asset Management, Dept. 923 Title: Vice President
with a copy to:
10400 Fernwood Road
Bethesda, Maryland 20817
Telecopier No.: (301) 380-8260
Attention: Asset Management, Dept. 908
10400 Fernwood Road HMC CAPITAL RESOURCES CORP.
Bethesda, Maryland 20817 /s/ Karen J. Schramm
Telecopier No.: (301) 380-3588 --------------------------------
Attention: Assistant General Counsel, By Karen J. Schramm
Asset Management, Dept. 923 Title: Vice President
with a copy to:
10400 Fernwood Road
Bethesda, Maryland 20817
Telecopier No.: (301) 380-8260
Attention: Asset Management, Dept. 908
BANKERS TRUST COMPANY,
Individually and as Arranger
and Administrative Agent
/s/ Laura S. Burwick
-------------------------------
By Laura S. Burwick
Title: Vice President
CREDIT LYONNAIS NEW YORK
BRANCH, Individually and
as Co-Agent
/s/ Mary Daly
-------------------------------
By Mary Daly
Title: Vice President
THE BANK OF NOVA SCOTIA,
Individually and as Co-Agent
and Documentation Agent
/s/ M. Mandelbourn
-------------------------------
By M. Mandelbourn
Title: Unit Head
WELLS FARGO BANK, NATIONAL
ASSOCIATION, Individually
and as Co-Agent and Syndication
Agent
/s/ Sean Flannery
-------------------------------
By Sean Flannery
Title: Vice President
CITICORP USA, INC.
/s/ Theordore Beck
-------------------------------
By Theordore Beck
Title: Managing Director
DRESDNER BANK AG, NEW YORK
BRANCH AND GRAND CAYMAN
BRANCH
/s/ Neil J. Crawford
------------------------------
By Neil J. Crawford
Title: Vice President
/s/ Michael A. Seton
-------------------------------
By Michael A. Seton
Title: Assistant Vice President
MELLON BANK, N.A.
/s/ Carol Lynch
-------------------------------
By Carol Lynch
Title: Vice President
PNC BANK, NATIONAL ASSOCIATION
/s/ Mark Melchione
-------------------------------
By Mark Melchione
Title: Assistant Vice President
SOCIETE GENERALE, SOUTHWEST
AGENCY
/s/ Thomas K. Day
-------------------------------
By Thomas K. Day
Title: Vice President
THE BANK OF NEW YORK
/s/ David Fowler
------------------------------
By David Fowler
Title: Vice President
BANK OF SCOTLAND
/s/ Annie Chin Tat
------------------------------
By Annie Chin Tat
Title: Vice President
MASSACHUSETTS MUTUAL LIFE
INSURANCE COMPANY
/s/ Robert F. Little
------------------------------
By Robert F. Little
Title: Managing Director
PACIFIC MUTUAL LIFE INSURANCE
COMPANY
/s/ Mark Levy
------------------------------
By Mark Levy
Title:Assistant Vice President
/s/ Richard S. Eastlyn
------------------------------
By Richard S. Eastlyn
Title: Vice President
THE MITSUI TRUST AND BANKING
COMPANY LIMITED, NEW YORK
BRANCH
/s/ Margaret Holloway
------------------------------
By Margaret Holloway
Title:Vice President & Manager
THE SANWA BANK LIMITED,
NEW YORK BRANCH
/s/ Kevin Kai
------------------------------
By Kevin Kai
Title:Assistant Vice President
AMSOUTH BANK OF ALABAMA
/s/ Arthur J. Sharbell, III
------------------------------
By Arthur J. Sharbell, III
Title: Vice President
CHANG HWA COMMERCIAL BANK,
LTD., NEW YORK BRANCH
/s/ Wan-Tu Yeh
------------------------------
By Wan-Tu Yeh
Title:Vice President &
General Manager
FIRST AMERICAN BANK TEXAS, SSB
/s/ Jeffrey C. Schultz
------------------------------
By Jeffrey C. Schultz
Title:Assistant Vice President
COMERICA BANK
/s/ Linda A. Powrie
------------------------------
By Linda A. Powrie
Title: Account Officer
SOUTHERN PACIFIC THRIFT & LOAN
LOAN ASSOCIATION
/s/ Chris Kelleher
---------------------------------
By Chris Kelleher
Title: Vice President
BANK BOSTON, N.A.
/s/ Lori Litow
---------------------------------
By Lori Litow
Title: Vice President
THE INDUSTRIAL BANK OF JAPAN
TRUST COMPANY
/s/ Masahiro Ito
---------------------------------
By Masahiro Ito
Title: Senior Vice President
THE INTERNATIONAL COMMERCIAL
BANK OF CHINA, NEW YORK AGENCY
/s/ Robin C. C. Lin
---------------------------------
By Robin C. C. Lin
Title: Vice President &
Deputy General Manager
RIGGS BANK N.A.
/s/ David Olson
---------------------------------
By David Olson
Title: Vice President