EXHIBIT 10(25)
TRANSFER AGREEMENT
THIS TRANSFER AGREEMENT, dated as of June 30, 1995, ("Transfer Agreement"),
among Embassy Suites, Inc. ("Transferor"), Promus Hotels, Inc. ("Transferee")
and NationsBank, N.A. (Carolinas) (formerly NationsBank of North Carolina,
N.A.)("NationsBank").
WITNESSETH:
WHEREAS, Transferor and NationsBank have executed and delivered an Interest Rate
and Currency Exchange Agreement dated May 18, 1993 (the "Transferor Swap
Agreement");
WHEREAS, Transferee and NationsBank have executed and delivered a Master
Agreement dated June 30, 1995 (the "Transferee Swap Agreement");
WHEREAS, Transferor desires to transfer and delegate to Transferee all of its
rights, duties and obligations under the Transferor Swap Agreement and
certain Transactions as evidenced by certain Confirmations (the
"Confirmations"), a copy of each of which, subject to the modifications that are
effective as of the Effective Date as hereinafter defined, are attached hereto
as Exhibit I (collectively, the "Obligations");
WHEREAS, Transferee desires to accept such transfer and delegation and to
assume the rights, duties and Obligations of the Transferor under each
Confirmation, by the incorporation thereof pursuant, hereto under the Transferee
Swap Agreement; and
WHEREAS, Transferor desires to obtain the written consent of NationsBank to such
transfer, delegation and assumption, and NationsBank desires to grant such
consent in accordance with the terms hereof;
NOW, THEREFORE, in consideration of the premises and of the mutual agreements
herein contained, the parties hereto agree as follows:
1. Release. Effective as of and from June 30, 1995 (the "Effective Date"),
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NationsBank hereby releases Transferor from all Obligations owed by Transferor
under and in respect of the Transferor Swap Agreement and each Confirmation, and
all of Transferor's rights in and to the same shall be terminated.
2. Transfer and Assumption. Effective as of and from the Effective Date,
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Transferee hereby assumes all the Transferor's rights, duties and Obligations
under each Confirmation (including all amounts accrued as of the Effective Date
but not yet payable); provided, however, that as of and from the Effective Date,
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each Confirmation will be governed by the terms and conditions of the Transferee
Swap Agreement. For all purposes of the Transferee Swap Agreement, the Trade
Date of each Transaction evidenced by a Confirmation at Exhibit I shall be
deemed to be the Effective Date.
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3. Consent and Acknowledgment. NationsBank hereby consents to the assignment,
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transfer and delegation by Transferor to Transferee of all the rights and
Obligations of Transferor under the Transferor Swap Agreement and each
Confirmation, and as and from the Effective Date, NationsBank shall look solely
to the Transferee for the fulfillment and enforcement of the same.
4. Representations. Each party hereby represents and warrants to the other
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that (i) it is validly existing and in good standing under the laws of its
jurisdiction of incorporation or organization, (ii) the execution, delivery and
performance of this Transfer Agreement by it are within its corporate powers,
and have been duly authorized by all necessary corporate or other action, and
(iii) this Transfer Agreement constitutes its legal, valid and binding
obligation.
5. Governing Law. This Transfer Agreement shall be governed by and construed
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in accordance with the law of the State of New York, without reference to its
conflicts of laws principles.
6. Counterparts. This Transfer Agreement may be executed in any number of
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Counterparts, each of which shall be deemed an original.
IN WITNESS WHEREOF, the parties hereto have executed this Transfer Agreement as
of the date first above written.
Embassy Suites, Inc.
By: /s/
--------------------------------
Name:
Title:
Promus Hotels, Inc.
By: /s/ Carol G. Champion
--------------------------------
Name: Carol G. Champion
Title: Vice President & Treasurer
NationsBank, N.A. (Carolinas)
By: /s/ R. Vaughan Dodd
-------------------------------
Name: R. Vaughan Dodd
Title: Senior Vice President
EXHIBIT I
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NationsBank
CONFIRMATION FOR U.S. DOLLAR RATE SWAP TRANSACTION
UNDER EXISTING IRCEA
TO: EMBASSY SUITES INC.
1023 CHERRY ROAD
MEMPHIS, TN 38117
ATTN: CAROL CHAMPION
TEL: 901-762-8770
FAX: 901-762-4060
FROM: NationsBank, N.A. (Carolinas)
440 S. LaSalle
Chicago, Illinois 60605
JEFF MCNEIL / SEAN DOYLE
Date: 25JAN95
Our Reference #: 291790
The purpose of this letter agreement is to confirm the terms and conditions
of the Swap Transaction entered into between us on the Trade Date specified
below (the "Swap Transaction"). This letter agreement constitutes a
"Confirmation" as referred to in the Interest Rate and Currency Exchange
Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swaps and Derivatives Association, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
1. This Confirmation supplements, forms part of, and is subject to, the
Interest Rate and Currency Exchange Agreement dated as of 18MAY93, as
amended and supplemented from time to time (the "Agreement"), between you
and us. All provisions contained in the Agreement shall govern this
Confirmation except as expressly modified below.
2. The terms of the Swap Transaction to which this Confirmation
relates are as follows:
Currency/Notional Amount: USD 50,000,000.00
Trade Date: 24JAN95
Effective Date: 26JAN95
Termination Date: 28JUL97, subject to adjustment in
accordance with the Modified Following
Business Day Convention.
Fixed Amounts:
Payer of Fixed: EMBASSY SUITES INC.
EXHIBIT I
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Fixed Payer Payment Dates: EACH MARCH 15, JUNE 15,
SEPTEMBER 15, AND DECEMBER 15,
WITH FINAL PAYMENT JULY 28,
1997, COMMENCING MARCH 15,
1995 AND ENDING JULY 28, 1997,
SUBJECT TO ADJUSTMENT IN
ACCORDANCE WITH THE MODIFIED
FOLLOWING BUSINESS DAY CONVENTION.
Fixed Rate Payer Business
Day Convention: MODIFIED FOLLOWING BUSINESS DAY
Fixed Rate Payer
Business Days: NEW YORK, LONDON
Fixed Rate: 7.8625%
Fixed Rate Payer Day
Count Fraction: ACTUAL/360
Floating Amounts:
Payer of Floating: NATIONSBANK, N.A. (CAROLINAS)
Floating Payer Reset
Dates: First Day of each Calculation Period
Floating Payer Payment
Dates: EACH MARCH 15, JUNE 15,
SEPTEMBER 15, AND DECEMBER 15,
WITH FINAL PAYMENT JULY 28,
1997, COMMENCING MARCH 15,
1995 AND ENDING JULY 28, 1997,
SUBJECT TO ADJUSTMENT IN
ACCORDANCE WITH THE MODIFIED
FOLLOWING BUSINESS DAY CONVENTION.
Floating Rate Payer
Business Days: NEW YORK, LONDON
Floating Rate Payer
Business Day Convention: MODIFIED FOLLOWING BUSINESS DAY
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 3 MONTHS
Initial USD/LIBOR: 6.1875%
Spread: NONE
Floating Rate for Initial
Calculation Period: 6.1875%
Floating Rate Payer
Day Count Fraction: ACTUAL/360
Averaging: INAPPLICABLE
Rounding Factor: One-Hundred-Thousandth of One Percent
Calculation Agent: NationsBank, N.A. (Carolinas)
Assignment: This Swap Transaction may be assigned
only with prior written consent.
Legal and Out-of-Pocket
Expenses: For each party's own account.
Governing Law: The Laws of the State of New York.
2
EXHIBIT I
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Recording of Conversations: Each party to this Agreement
acknowledges and agrees to the tape or
electronic recording of conversations
between the parties to this Agreement
whether by one or other or both of the
parties, and that any such recordings
may be submitted in evidence in any
action or proceeding relating to the
Agreement or any Transaction.
Payment Instructions:
Payments to NationsBank: Payment to EMBASSY SUITES INC.:
NATIONSBANK N.A. (CAROLINAS), FIRST TENNESSEE BANK
CHARLOTTE A/C# 841900
ABA 052000196 ABA# 084000026
ACCT: 10852016511 IN FAVOR OF: EMBASSY SUITES, INC.
ATTN: DERIVATIVE OPERATIONS REPETITIVE 427037
Please confirm that the foregoing correctly sets forth the terms and
conditions of our agreement by responding within three (3) Business Days by
either (i) returning via telecopier an executed copy of this Confirmation
to the attention of Marge Szymczak, Fax No. (312) 431-3160; Telephone No.
(312) 431-2934, or (ii) sending a telex to Marge Szymczak (Telex No.
4330469, answerback: CRT CCO) substantially to the following effect: "We
acknowledge receipt of your fax dated 25JAN95 with respect to a Swap
Transaction between EMBASSY SUITES, INC. and NationsBank, N.A. (Carolinas)
with a Notional Amount of USD 50,000,000.00 and Termination Date of 28JUL97
and confirm that such fax correctly sets forth the term of our agreement
relating to the Swap Transaction described therein. Very truly yours,
-----
, by (specific name and title of authorized officer)." Failure to
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respond within such period shall not affect the validity or enforceability
of this Swap Transaction, and shall be deemed to be an affirmation of the
terms and conditions contained herein, absent manifest error.
NationsBank, N.A. (Carolinas) is pleased to have concluded this transaction
with you.
Yours Sincerely,
NationsBank, N.A. (Carolinas)
By: /s/ Nick Kolick
--------------------------
Nick Kolick, Vice President
Authorized Signatory
Confirmed as of the date first written above:
EMBASSY SUITES INC.
By: /s/ Carol G. Champion, Asst. Treasurer
--------------------------
Authorized Signatory
3
EXHIBIT I
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NationsBank
CONFIRMATION FOR U.S. DOLLAR RATE SWAP TRANSACTION
UNDER EXISTING IRCEA
TO: EMBASSY SUITES, INC.
1023 CHERRY ROAD
MEMPHIS, TN 38117
ATTN: CAROL CHAMPION
TEL: 901-762-8770
FAX: 901-762-8637 and 901-762-4060
FROM: NationsBank, N.A. (Carolinas)
440 S. LaSalle
Chicago, Illinois 60605
JEFF MCNEIL / KEVIN SAKODA
Date: 17MAR95
Our Reference #: 324190
The purpose of this letter agreement is to confirm the terms and conditions
of the Swap Transaction entered into between us on the Trade Date specified
below (the "Swap Transaction"). This letter agreement constitutes a
"Confirmation" as referred to in the Interest Rate and Currency Exchange
Agreement specified below.
The definitions and provisions contained in the 1991 ISDA Definitions (as
published by the International Swaps and Derivatives Associations, Inc.)
are incorporated into this Confirmation. In the event of any inconsistency
between those definitions and provisions and this Confirmation, this
Confirmation will govern.
1. This Confirmation supplements, forms part of, and is subject to, the
Interest Rate and Currency Exchange Agreement dated as of 18MAY93, as
amended and supplemented from time to time (the "Agreement"), between you
and us. All provisions contained in the Agreement shall govern this
Confirmation except as expressly modified below.
2. The terms of the Swap International to which this Confirmation
relates are as follows:
Currency/Notional Amount: USD 50,000,000.00
Trade Date: 16MAR95
Effective Date: 20MAR95
Termination Date: 20MAR00, subject to
adjustment in accordance with
the Modified Following
Business Day Convention.
Fixed Amounts:
Payer of Fixed: EMBASSY SUITES, INC.
EXHIBIT I
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Fixed Payer Payment Dates: EACH MARCH 20, JUNE 20,
SEPTEMBER 20, AND DECEMBER 20,
COMMENCING JUNE 20, 1995 AND
ENDING MARCH 20, 2000, SUBJECT
TO ADJUSTMENT IN ACCORDANCE
WITH THE MODIFIED FOLLOWING
BUSINESS DAY CONVENTION.
Fixed Rate Payer Business
Day Convention: MODIFIED FOLLOWING BUSINESS DAY
Fixed Rate Payer
Business Days: NEW YORK, LONDON
Fixed Rate: 6.99%
Fixed Rate Payer Day
Count Fraction: ACTUAL/360
Floating amounts:
Payer of Floating: NATIONSBANK, N.A. (CAROLINAS)
Floating Payer Reset
Dates: First Day of each Calculation Period
Floating Payer Payment
Dates: EACH MARCH 20, JUNE 20,
SEPTEMBER 20, AND DECEMBER 20,
COMMENCING JUNE 20, 1995 AND
ENDING MARCH 20, 2000, SUBJECT
TO ADJUSTMENT IN ACCORDANCE
WITH THE MODIFIED FOLLOWING
BUSINESS DAY CONVENTION.
Floating Rate Payer
Business Days: NEW YORK, LONDON
Floating Rate Payer
Business Day Convention: MODIFIED FOLLOWING BUSINESS DAY
Floating Rate Option: USD-LIBOR-BBA
Designated Maturity: 3 MONTHS
Initial USD/LIBOR: 6.25%
Spread: NONE
Floating Rate for Initial
Calculation Period: 6.25%
Floating Rate Payer
Day Count Fraction: ACTUAL/360
Averaging: INAPPLICABLE
Rounding Factor: One-Hundred-Thousandth of One Percent
Calculation Agent: NationsBank, N.A. (Carolinas)
Assignment: This Swap Transaction may be assigned
only with prior written consent.
Legal and Out-of-Pocket
Expenses: For each party's own account.
Governing law: The Laws of the State of New York.
EXHIBIT I
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Recording of Conversations: Each party to this Agreement
acknowledges and agrees to the tape or
electronic recording of conversations
between the parties to this Agreement
whether by one or other or both of the
parties, and that any such recordings
may be submitted in evidence in any
action or proceeding relating to the
Agreement or any Transaction.
Payment Instructions:
Payments to NationsBank: Payment to EMBASSY SUITES, INC.:
NATIONSBANK N.A. (CAROLINAS), FIRST TENNESSEE BANK
CHARLOTTE A/C# 841900
ABA 053000196 ABA# 084000026
ACCT: 10852016511 IN FAVOR OF: EMBASSY SUITES, INC.
ATTN: DERIVATIVE OPERATIONS REPETITIVE 427037
Please confirm that the foregoing correctly sets forth the terms and
conditions of our agreement by responding within three (3) Business Days by
either (i) returning via telecopier an executed copy of this Confirmation
to the attention of Marge Szymczak, Fax No. (312) 431-3160; Telephone No.
(312) 431-2934, or (ii) sending a telex to Marge Szymczak (Telex No.
4330469, answerback: CRT CGO) substantially to the following effect: "We
acknowledge receipt of your fax dated 17MAR95 with respect to a Swap
Transaction between EMBASSY SUITES, INC. and NationsBank, N.A. (Carolinas)
with a Notional Amount of USD 50,000,000.00 and Termination Date of 20MAR00
and confirm that such fax correctly sets forth the term of our agreement
relating to the Swap Transaction described therein. Very truly yours,
-----
, by (specific name and title of authorized officer)." Failure to
---------
respond within such period shall not affect the validity or enforceability
of this Swap Transaction, and shall be deemed to be an affirmation of the
terms and conditions contained herein, absent manifest error.
NationsBank, N.A. (Carolinas) is pleased to have concluded this transaction
with you.
Yours Sincerely,
NationsBank, N.A. (Carolinas)
By: /s/ Nick Kolick
--------------------------
Nick Kolick, Vice President
Authorized Signatory
Confirmed as of the date first written above:
EMBASSY SUITES INC.
By: /s/ Carol G. Champion, Assistant Treasurer
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Authorized Signatory