1
Exhibit 4.15(b)
PRIME HOSPITALITY CORP.
LIMITED WAIVER REGARDING
CERTAIN PROVISIONS OF SENIOR SUBORDINATED NOTES
This LIMITED WAIVER (this "WAIVER") is dated as of March 19, 1997
and entered into by and among Prime Hospitality Corp., a Delaware corporation
("COMPANY"), and Bankers Trust Company, as agent for lenders party to the Credit
Agreement referred to below ("AGENT"), and, for purposes of Section 6 hereof,
the subsidiaries of Company listed on the signature pages hereto and is made
with reference to that certain Senior Secured Revolving Credit Agreement dated
as of June 26, 1996, (the "CREDIT AGREEMENT"), by and among Company, the
financial institutions party thereto ("LENDERS"), Credit Lyonnais New York
Branch, as documentation agent ("DOCUMENTATION AGENT") and Agent. Capitalized
terms used herein without definition shall have the same meanings herein as set
forth in the Credit Agreement.
RECITALS
WHEREAS, Company has told Agent and Lenders that:
(i) Company wants to issue senior subordinated notes in an
aggregate principal amount of $200,000,000 (the "UNREGISTERED SENIOR
SUBORDINATED NOTES");
(ii) Company intends to exchange the Unregistered Senior
Subordinated Notes for registered senior subordinated notes (the
"REGISTERED SENIOR SUBORDINATED NOTES"; the Unregistered Senior
Subordinated Notes and the Registered Senior Subordinated Notes are
collectively referred to herein as the "SENIOR SUBORDINATED NOTES")
in the same aggregate principal amount and with substantially
identical terms;
(iii) the indenture or indentures pursuant to which the Senior
Subordinated Notes will be issued will contain provisions, among
other things, substantially to the effect that (a) if Company sells
assets and fails, within 365 days, to reinvest the net cash proceeds
from such sale in the hospitality business or to use such net cash
proceeds to repay senior indebtedness (including the Obligations),
the Company will be required to make an offer to the holders of the
Senior Subordinated Notes and holders of pari passu debt with
similar asset sale provisions to repurchase the Senior
1
2
Subordinated Notes (at a price equal to 100% of the principal
thereof plus accrued interest thereon plus specified liquidated
damages, if any) and such other debt in an aggregate amount equal to
the amount of such net cash proceeds, (b) if a change of control
with respect to Company occurs, Company will be required to make an
offer to the holders of the Senior Subordinated Notes to repurchase
the Senior Subordinated Notes (at a price equal to 101% of the
principal thereof plus accrued interest plus specified liquidated
damages, if any) and (c) unless a specified fixed charge coverage
ratio is satisfied, Company and its Subsidiaries will not incur any
intercompany indebtedness except indebtedness incurred by Company
and a restricted Subsidiary that is owed to Company and/or one or
more of its wholly owned, restricted Subsidiaries (the provisions in
clauses (a)-(c) being referred to herein as the "SPECIFIED
PROVISIONS"); and
(iv) certain debt Investments made by Company in connection
with proposed like-kind exchanges under Section 1031 of the Internal
Revenue Code are, contrary to the provisions of subsection 6.3(c) of
the Credit Agreement, secured by real property.
WHEREAS, Company has requested that Agent waive the provisions of
subsections 6.1(a), 6.2D and 6.3(c) in order to permit Company to (i) issue the
Senior Subordinated Notes pursuant to one or more indentures that contain
provisions substantially to the effect of the Specified Provisions and (ii) make
certain debt Investments secured by mortgages on real property and, subject to
the terms and conditions hereof, Agent is willing to consent to such waiver.
NOW, THEREFORE, in consideration of the premises and the agreements,
provisions and covenants herein contained, the parties hereto agree as follows:
SECTION 1. WAIVER
Subject to the terms and conditions set forth herein and in reliance
on the representations and warranties of Company herein contained, Agent hereby
waives compliance with the provisions of:
(a) subsections 6.1(a) and 6.2D of the Credit Agreement to the
extent, and only to the extent, necessary to permit Company to issue the
Senior Subordinated Notes pursuant to an indenture that contains
provisions substantially to the effect of the Specified Provisions;
provided that any principal payment to holders of the Senior Subordinated
Notes or any repurchase of the Senior Subordinated Notes or other
Restricted Payment pursuant to the Specified Provisions shall constitute
an Event of Default for all purposes of the Loan Documents; and
2
3
(b) subsection 6.3(c) of the Credit Agreement to the extent and only
to the extent necessary to permit Company to make debt Investments in
Brown Trout Investments, Ltd. ("BROWN TROUT"), or another entity approved
by Lenders, secured by mortgages or deeds of trust on real property in
order to facilitate like-kind exchanges under Section 1031 of the Internal
Revenue Code; provided that (i) each such debt Investment shall be secured
by a perfected mortgage or deed of trust (a "RELATED MORTGAGE") on the
property (the "RELATED PROPERTY") acquired or financed with the proceeds
of such debt Investment, (ii) each Related Property shall be leased to
Company pursuant to a lease/option to purchase agreement (a "RELATED
LEASE/PURCHASE AGREEMENT") that, among other things, shall give Company a
valid and enforceable right to purchase, at Company's option, the Related
Property for consideration in an aggregate amount not to exceed the amount
of the applicable Investment by Company, (iii) each debt Investment shall
be evidenced by a promissory note (a "RELATED NOTE") that provides for (1)
a market rate of interest and (2) annual interest at least equal to the
rent payable by Company during such period pursuant to the applicable
Related Lease/Purchase Agreement, (iv) each Related Note, Related
Mortgage, and Related Lease/Purchase Agreement shall be valid and
enforceable and satisfactory in form and substance to Agent (provided,
that any Related Note, Related Mortgage or Related Lease/Purchase
Agreement that is delivered to Agent and is substantially in the form of
the Related Notes, Related Mortgages and Related Lease/Purchase
Agreements, as applicable, delivered to Agent prior to the date hereof
shall be deemed satisfactory to Agent), (v) at all times during which any
such Investment exists, Company shall have the right to appoint a member
of the Board of Directors of Brown Trout (or such other entity) and such
director's vote shall be necessary for Brown Trout (or such other entity)
to incur indebtedness (except in the ordinary course), make loans or other
advances of credit, declare or pay dividends, redeem or acquire any
outstanding stock, issue additional stock or other securities, merge or
consolidate Brown Trout (or such other entity) with any other Person, sell
substantially all of the assets of Brown Trout (or such other entity),
dissolve Brown Trout (or such other entity), commence a bankruptcy
reorganization or liquidation proceeding or adopt, amend or repeal any
bylaw or the certificate of incorporation of Brown Trout (or such other
entity) (collectively, the "DESIGNATED ACTIONS"), (vi) Brown Trout (or
such other entity) shall not have taken any Designated Action, and no
Designated Action shall have occurred, (vii) Brown Trout (or such other
entity) shall not engage in any business other than the ownership and
development of hotels subject to Related Mortgages in favor of Company and
shall not incur any indebtedness except indebtedness evidenced by Related
Notes and (viii) all real property of Brown Trout shall be subject to
liens in favor of Company pursuant to the Related Mortgages.
SECTION 2. LIMITATION OF WAIVER
Without limiting the generality of the provisions of subsection 8.6
of the Credit Agreement, the waiver set forth above shall be limited precisely
as written and
3
4
relates solely to the noncompliance by Company with the provisions of
subsections 6.1(a), 6.2D and 6.3(c) of the Credit Agreement in the manner and to
the extent described above, and nothing in this Waiver shall be deemed to:
(a) constitute a waiver of compliance by Company with respect to (i)
subsections 6.1(a), 6.2D and 6.3(c) of the Credit Agreement in any other
instance or (ii) any other term, provision or condition of the Credit
Agreement or any other instrument or agreement referred to therein; or
(b) prejudice any right or remedy that Agent or any Lender may now
have (except to the extent such right or remedy was based upon existing
defaults that will not exist after giving effect to this Waiver) or may
have in the future under or in connection with the Credit Agreement or any
other instrument or agreement referred to therein.
Except as expressly set forth herein, the terms, provisions and
conditions of the Credit Agreement and the other Loan Documents shall remain in
full force and effect and in all other respects are hereby ratified and
confirmed.
SECTION 3. REPRESENTATIONS AND WARRANTIES
In order to induce Agent to enter into this Waiver, Company hereby
represents and warrants to Agent and Lenders that after giving effect to this
Waiver:
(a) as of the date hereof, there exists no Event of Default or
Potential Event of Default under the Credit Agreement;
(b) all representations and warranties contained in the Credit
Agreement and the other Loan Documents are true, correct and complete in
all material respects on and as of the date hereof except to the extent
such representations and warranties specifically relate to an earlier
date, in which case they were true, correct and complete in all material
respects on and as of such earlier date; and
(c) as of the date hereof, Company has performed all agreements to
be performed on its part as set forth in the Credit Agreement.
SECTION 4. COUNTERPARTS; EFFECTIVENESS
This Waiver may be executed in any number of counterparts and by
different parties hereto in separate counterparts, each of which when so
executed and delivered shall be deemed an original, but all such counterparts
together shall constitute but one and the same instrument; signature pages may
be detached from multiple separate counterparts and attached to a single
counterpart so that all signature pages are physically attached to the same
document. This Waiver shall become effective as of the date hereof upon the
execu-
4
5
tion of counterparts hereof by Company, Guarantors and Agent and
acknowledgment by Lenders holding more than 50% of the Commitments and receipt
by Company and Agent of written or telephonic notification of such execution and
authorization of delivery thereof.
SECTION 5. GOVERNING LAW
THIS WAIVER AND THE RIGHTS AND OBLIGATIONS OF THE PARTIES HEREUNDER
SHALL BE GOVERNED BY, AND SHALL BE CONSTRUED AND ENFORCED IN ACCORDANCE WITH,
THE INTERNAL LAWS OF THE STATE OF NEW YORK (INCLUDING WITHOUT LIMITATION SECTION
5-1401 OF THE GENERAL OBLIGATIONS LAW OF THE STATE OF NEW YORK), WITHOUT REGARD
TO CONFLICTS OF LAWS PRINCIPLES.
SECTION 6. ACKNOWLEDGEMENT AND CONSENT BY GUARANTORS
Each Guarantor hereby acknowledges that it has read this Waiver and
consents to the terms thereof and further hereby confirms and agrees that,
notwithstanding the effectiveness of this Waiver, the obligations of such
Guarantor under the Subsidiary Guaranty shall not be impaired or affected and
the Subsidiary Guaranty is, and shall continue to be, in full force and effect
and is hereby confirmed and ratified in all respects.
[Remainder of page intentionally left blank]
5
6
IN WITNESS WHEREOF, the parties hereto have caused this Waiver to be
duly executed and delivered by their respective officers thereunto duly
authorized as of the date first written above.
COMPANY:
PRIME HOSPITALITY CORP.
By: _________________________
Title:
GUARANTORS:
EACH OF THE GUARANTORS LISTED
ON SCHEDULE I HERETO
By: _________________________
Title:
AGENT:
BANKERS TRUST COMPANY
By: _________________________
Title:
S-1
7
ACKNOWLEDGED AND AGREED TO:
CREDIT LYONNAIS NEW YORK BRANCH,
individually and as Documentation Agent
By: ____________________________
Title:
MIDLANTIC BANK, NATIONAL ASSOCIATION
By: ____________________________
Title:
IMPERIAL BANK
By: ____________________________
Title:
SOUTHERN PACIFIC THRIFT &
LOAN ASSOCIATION
By: ____________________________
Title:
SOCIETE GENERALE
By: ____________________________
Title:
S-2
8
SCHEDULE I
GUARANTORS
S-3