Exhibit 10.1
EXECUTED COPY
$365,000,000
CREDIT AGREEMENT
Dated as of July 23, 1999
Among
LODGIAN FINANCING CORP.
as Borrower
and
LODGIAN, INC.
its Parent
and
IMPAC HOTEL GROUP, LLC,
SERVICO, INC.
and
THE OTHER AFFILIATE GUARANTORS
PARTY HERETO
as Affiliate Guarantors
and
THE INITIAL LENDERS AND INITIAL ISSUING BANK
NAMED HEREIN
as Initial Lenders and Initial Issuing Bank
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Administrative Agent and Collateral Agent
and
MORGAN STANLEY SENIOR FUNDING, INC.
as Co-Lead Arranger, Joint-Book Manager and Syndication Agent
and
LEHMAN BROTHERS INC.
as Co-Lead Arranger and Joint-Book Manager
and
LEHMAN COMMERCIAL PAPER INC.
as Documentation Agent
TABLE OF CONTENTS
Section Page
ARTICLE I DEFINITIONS AND ACCOUNTING TERMS 2
1.01. Certain Defined Terms 2
1.02. Computation of Time Periods; Other Definitional Provisions 30
1.03. Accounting Terms 30
ARTICLE II AMOUNTS AND TERMS OF THE ADVANCESAND THE LETTERS OF CREDIT 30
2.01. The Advances and the Letters of Credit 30
2.02. Making the Advances 32
2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit 35
2.04. Repayment of Advances 36
2.05. Termination or Reduction of the Commitments 39
2.06. Prepayments 40
2.07. Interest 43
2.08. Fees 44
2.09. Conversion of Advances 45
2.10. Increased Costs, Etc. 45
2.11. Payments and Computations 47
2.12. Taxes 49
2.13. Sharing of Payments, Etc. 52
2.14. Use of Proceeds 52
2.15. Defaulting Lenders 53
ARTICLE III CONDITIONS OF LENDING ANDISSUANCES OF LETTERS OF CREDIT 56
3.01. Conditions Precedent to Initial Extension of Credit 56
3.02. Conditions Precedent to Each Borrowing and Issuance
and Renewal 62
3.03. Determinations Under Section 3.01 63
ARTICLE IV REPRESENTATIONS AND WARRANTIES 64
4.01. Representations and Warranties of the Borrower 64
ARTICLE V COVENANTS OF THE BORROWER 70
5.01. Affirmative Covenants 70
5.02. Negative Covenants 77
5.03. Reporting Requirements 85
5.04. Financial Covenants 89
ARTICLE VI EVENTS OF DEFAULT 93
6.01. Events of Default 93
6.02. Actions in Respect of the Letters of Credit upon Default 96
ARTICLE VII AFFILIATE GUARANTY 97
7.01. Guaranty 97
7.02. Guaranty Absolute 98
7.03. Waiver 99
7.04. Subrogation 99
ARTICLE VIII THE AGENTS 100
8.01. Authorization and Action 100
8.02. Agents' Reliance, Etc. 101
8.03. Morgan Stanley, Lehman Brothers and Affiliates 101
8.04. Lender Party Credit Decision 101
8.05. Indemnification 102
8.06. Successor Agents 103
ARTICLE IX MISCELLANEOUS 104
9.01. Amendments, Etc. 104
9.02. Notices, Etc. 104
9.03. No Waiver; Remedies 105
9.04. Costs and Expenses 105
9.05. Right of Set-off 107
9.06. Binding Effect 107
9.07. Assignments and Participations 107
9.08. Execution in Counterparts 110
9.09. No Liability of the Issuing Bank 110
Section Page
9.10. Confidentiality 111
9.11. Release of Hotel Collateral 111
9.12. Jurisdiction, Etc. 111
9.14 Governing Law 112
9.15. Waiver of Jury Trial 112
SCHEDULES
Schedule I - Commitments and Applicable Lending Offices
Schedule 4.01(b) - Subsidiaries
Schedule 4.01(d) - Authorizations, Approvals, Actions, Notices and Filings
Schedule 4.01(o) - Plans, Multiemployer Plans and Welfare Plans
Schedule 4.01(p) - Environmental Disclosure
Schedule 4.01(s) - Existing Debt
Schedule 4.01(t) - Surviving Debt
Schedule 4.01(u) - Liens
Schedule 4.01(v) - Owned Real Property
Schedule 4.01(w) - Leased Real Property
Schedule 4.01(x) - Investments
Schedule 4.01(y) - Patents, Trademarks, Tradenames, Servicemarks and
Copyrights
Schedule 4.01(z) - Material Contracts
EXHIBITS
Exhibit A-1 - Form of Term A Note
Exhibit A-2 - Form of Term B Note
Exhibit A-3 - Form of Working Capital Note
Exhibit B - Form of Notice of Borrowing
Exhibit C - Form of Assignment and Acceptance
Exhibit D - Form of Security Agreement
Exhibit E - Form of Solvency Certificate
Exhibit F - Form of Opinion of Counsel to the Loan Parties
Exhibit G - Form of Term C Supplement
Exhibit H - Form of Affiliate Guaranty Supplement
CREDIT AGREEMENT
CREDIT AGREEMENT dated as of July 23, 1999 among LODGIAN FINANCING
CORP., a Delaware corporation (the "Borrower"), LODGIAN, INC., a Delaware
corporation (the "Parent"), SERVICO, INC., a Florida corporation ("Servico"),
IMPAC HOTEL GROUP, LLC, a Georgia limited liability company ("Impac"), the other
Affiliates (as hereinafter defined) of the Borrower listed on the signature
pages hereof under the caption "Affiliate Guarantors" and the Additional
Affiliate Guarantors (as hereinafter defined) (such Affiliates so listed,
together with the Additional Affiliate Guarantors, Servico and Impac, the
"Affiliate Guarantors"), the banks, financial institutions and other
institutional lenders listed on the signature pages hereof as the Initial
Lenders (the "Initial Lenders"), the bank listed on the signature pages hereof
as the Initial Issuing Bank (the "Initial Issuing Bank") and, together with the
Initial Lenders, the "Initial Lender Parties") and the Swing Line Bank (as
hereinafter defined), Morgan Stanley Senior Funding, Inc. ("Morgan Stanley"), as
collateral agent (together with any successor collateral agent appointed
pursuant to Article VIII, the "Collateral Agent"), Morgan Stanley, as
administrative agent (together with any successor administrative agent appointed
pursuant to Article VIII, the "Administrative Agent"), MORGAN STANLEY SENIOR
FUNDING, INC. ("MSSF") as co-lead arranger, joint-book manager and syndication
agent (in such capacity, together with any successor syndication agent appointed
pursuant to Article VIII, the "Syndication Agent") and LEHMAN BROTHERS INC.
("Lehman" and together with MSSF, the "Arrangers") as co-lead arranger and
joint-book manager, and LEHMAN COMMERCIAL PAPER INC. as documentation agent
(together with any successor documentation agent appointed pursuant to Article
VIII, the "Documentation Agent" and together with the Collateral Agent, the
Administrative Agent and the Syndication Agent, the "Agents") for the Lender
Parties (as hereinafter defined).
PRELIMINARY STATEMENTS:
(1) The Borrower was organized by the Parent in connection with the
refinancing of certain Existing Debt (as hereinafter defined) of the Parent and
certain of its Subsidiaries (as hereinafter defined) (the "Refinancing") and the
proposed financing of certain hotel development and repositioning projects (the
"Financing").
(2) The Financing and Refinancing will be funded, in part, by the
issuance by the Borrower (either by private placement or underwritten public
sale) of the Subordinated Notes.
(3) The Borrower has requested that, in connection with the
Refinancing and the Financing, the Lender Parties make loans and other financial
accommodations to the Borrower in an aggregate amount up to $375,000,000. The
Lender Parties have agreed to make such loans and financial accommodations on
the terms and conditions of this Agreement.
NOW, THEREFORE, in consideration of the premises and of the mutual
covenants and agreements contained herein, the parties hereto hereby agree as
follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING TERMS
SECTION 1.01. Certain 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):
"Additional Affiliate Guarantor" has the meaning specified in
Section 7.
"Administrative Agent" has the meaning specified in the recital of
parties to this Agreement.
"Administrative Agent's Account" means the account of the
Administrative Agent as the Administrative Agent shall specify in writing
to the Lender Parties.
"Advance" means a Term A Advance, a Term B Advance, a Term C
Advance, a Working Capital Advance, a Swing Line Advance or a Letter of
Credit Advance.
"Affiliate" means, as to any Person, any other Person that, directly
or indirectly, controls, is controlled by or is under common control with
such Person or is a director or officer of such Person. For purposes of
this definition, the term "control" (including the terms "controlling",
"controlled by" and "under common control with") of a Person means the
possession, direct or indirect, of the power to vote 10% or more of the
Voting Interests of such Person or to direct or cause the direction of the
management and policies of such Person, whether through the ownership of
Voting Interests, by contract or otherwise.
"Affiliate Guarantors" has the meaning specified in the recital of
parties to this Agreement.
"Affiliate Guaranty" means the guaranty of each of the Affiliate
Guarantors set forth in Article VII.
"Affiliate Guaranty Supplement" has the meaning specified in Section
7.05.
"Agents" has the meaning specified in the recital of parties to this
Agreement.
"Agreement Value" means, for each Hedge Agreement, on any date of
determination, an amount determined by the Administrative Agent equal to:
(a) in the case of a Hedge Agreement documented pursuant to the Master
Agreement (Multicurrency-Cross Border) published by the International Swap
and Derivatives
Association, Inc. (the "Master Agreement"), the amount, if any, that would
be payable by any Loan Party or any of its Subsidiaries to its
counterparty to such Hedge Agreement, as if (i) such Hedge Agreement was
being terminated early on such date of determination, (ii) such Loan Party
or Subsidiary was the sole "Affected Party", and (iii) the Administrative
Agent was the sole party determining such payment amount (with the
Administrative Agent making such determination pursuant to the provisions
of the form of Master Agreement); or (b) in the case of a Hedge Agreement
traded on an exchange, the mark-to-market value of such Hedge Agreement,
which will be the unrealized loss on such Hedge Agreement to the Loan
Party or Subsidiary of a Loan Party party to such Hedge Agreement
determined by the Administrative Agent based on the settlement price of
such Hedge Agreement on such date of determination, or (c) in all other
cases, the mark-to-market value of such Hedge Agreement, which will be the
unrealized loss on such Hedge Agreement to the Loan Party or Subsidiary of
a Loan Party party to such Hedge Agreement determined by the
Administrative Agent as the amount, if any, by which (i) the present value
of the future cash flows to be paid by such Loan Party or Subsidiary
exceeds (ii) the present value of the future cash flows to be received by
such Loan Party or Subsidiary pursuant to such Hedge Agreement (provided
that in determining the Agreement Value of a Hedge Agreement between a
Loan Party and a counterparty, there shall be taken into account any
offsetting gains under other hedging arrangements between such Loan Party
and such counterparty so long as such Loan Party and such counterparty are
party to a netting agreement); capitalized terms used and not otherwise
defined in this definition shall have the respective meanings set forth in
the above described Master Agreement.
"Applicable Lending Office" means, with respect to each Lender
Party, such Lender Party's Domestic Lending Office in the case of a Base
Rate Advance and such Lender Party's Eurodollar Lending Office in the case
of a Eurodollar Rate Advance.
"Applicable Margin" means, as of any date, a percentage per annum
determined by reference to the Public Debt Rating of the Parent, as of
such date, as set forth below:
================================================================================
Eurodollar
Eurodollar Base Rate Rate
Base Rate Rate Working Working
Term Term Capital Capital
Public Debt Rating Advances Advances Advances Advances
================================================================================
Level I
Rated Ba2/BB and above 2.25% 3.50% 2.00% 3.25%
- --------------------------------------------------------------------------------
Level II
Rated less than Level I
but at least Ba3/BB- 2.50% 3.75% 2.25% 3.50%
- --------------------------------------------------------------------------------
Level III
Rated less than Level II
but at least B1/B+ 2.75% 4.00% 2.50% 3.75%
================================================================================
Level IV
Rated less than Level III 3.00% 4.25% 2.75% 4.00%
================================================================================
The Applicable Margin for each Base Rate Advance shall be determined by
reference to the Public Debt Rating in effect from time to time and the
Applicable Margin for each Eurodollar Rate Advance shall be determined by
reference to the Public Debt Rating in effect on the first day of each
Interest Period for such Advance. The Applicable Margin in respect of the
Term C Facility shall be as set forth in the Term C Supplement.
"Appraisal" has the meaning specified in Section 3.01(a)(iii).
"Appraised Value" has the meaning specified in Section 3.01(a)(iii).
"Appropriate Lender" means, at any time, with respect to (a) any of
the Term A Facility, the Term B Facility, the Term C Facility or the
Working Capital Facility, a Lender that has a Commitment with respect to
such Facility at such time, (b) the Letter of Credit Facility, (i) the
Issuing Bank and (ii) if the other Working Capital Lenders have made
Letter of Credit Advances pursuant to Section 2.03(c) that are outstanding
at such time, each such other Working Capital Lender and (c) the Swing
Line Facility, (i) the Swing Line Bank and (ii) if the other Working
Capital Lenders have made Swing Line Advances pursuant to Section 2.02(b)
that are outstanding at such time, each such other Working Capital Lender.
"Approved Fund" means, with respect to any Lender that is a fund
that invests in bank loans, any other fund that invests in bank loans and
is advised or managed by the same investment advisor as such Lender or by
an Affiliate of such investment advisor.
"Arrangers" has the meaning specified in the recital of parties to
this Agreement.
"Assignment and Acceptance" means an assignment and acceptance
entered into by a Lender Party and an Eligible Assignee, and accepted by
the Administrative Agent, in accordance with Section 9.07 and in
substantially the form of Exhibit C hereto.
"Available Amount" of any Letter of Credit means, at any time, the
maximum amount available to be drawn under such Letter of Credit at such
time (assuming compliance at such time with all conditions to drawing).
"Banc One Facility" means the loan agreements, dated as of December
8, 1998, amount several operating Subsidiaries of the Parent and Banc One
Capital Funding Corporation.
"Bankruptcy Law" has the meaning specified in Section 7.01(b)(i).
"Base Rate" means a fluctuating interest rate per annum in effect
from time to time, which rate per annum shall at all times be equal to the
higher of:
(a) the rate of interest announced publicly by Citibank, N.A.
in New York, New York, from time to time, as it's base commercial lending
rate; and
(b) 1/2 of 1% per annum above the Federal Funds Rate.
"Base Rate Advance" means an Advance that bears interest as provided
in Section 2.07(a)(i).
"Borrower" has the meaning specified in the recital of parties to
this Agreement.
"Borrower's Account" means the account of the Borrower maintained by
the Borrower as the Borrower shall specify in writing to the
Administrative Agent.
"Borrowing" means a Term A Borrowing, a Term B Borrowing, a Term C
Borrowing, a Working Capital Borrowing or a Swing Line Borrowing.
"Business Day" means a day of the year on which banks are not
required or authorized by law to close in New York City and, if the
applicable Business Day relates to any Eurodollar Rate Advances, on which
dealings are carried on in the London interbank market.
"Canadian Documents" means (i) the Debenture Pledge Agreement dated
as of July 23, 1999 between Servico Windsor, Inc. and the Collateral
Agent, (ii) the Guarantee dated as of July 23, 1999 between Servico
Windsor, Inc. and the Collateral Agent and (iii) the Demand Debenture
dated July 23, 1999 between Servico Windsor, Inc. and the Collateral
Agent.
"Capital Expenditures" means, for any Person for any period, the sum
of, without duplication, (a) all expenditures made, directly or
indirectly, by such Person or any of its Subsidiaries during such period
for equipment, fixed assets, real property or improvements, or for
replacements or substitutions therefor or additions thereto, that have
been or should be, in accordance with GAAP, reflected as additions to
property, plant or equipment on a Consolidated balance sheet of such
Person or have a useful life of more than one year plus (b) the aggregate
principal amount of all Debt (including Obligations under Capitalized
Leases) assumed or incurred in connection with any such expenditures. For
purposes of this definition, the purchase price of equipment that is
purchased simultaneously with the trade-in of existing equipment or with
insurance proceeds shall be included in Capital Expenditures only to the
extent of the gross amount of such purchase price less the credit granted
by the seller of such equipment for the equipment being traded in at such
time or the amount of such proceeds, as the case may be.
"Capitalized Leases" means all leases that have been or should be,
in accordance with GAAP, recorded as capitalized leases.
"Cash Equivalents" means any of the following, to the extent owned
by the Borrower or any of its Subsidiaries free and clear of all Liens
other than Liens created under the Collateral Documents and having a
maturity of not greater than (i) in the case of clauses (a) and (b) below,
360 days from the date of issuance thereof and (ii) in the case of clause
(c) below, 270 days from the date of issuance thereof: (a) readily
marketable direct obligations of the Government of the United States or
any agency or instrumentality thereof or obligations unconditionally
guaranteed by the full faith and credit of the Government of the United
States, (b) insured certificates of deposit of or time deposits with any
commercial bank that is a Lender Party or a member of the Federal Reserve
System, issues (or the parent of which issues) commercial paper rated as
described in clause (c) below, is organized under the laws of the United
States or any State thereof and has combined capital and surplus of at
least $1 billion or (c) commercial paper in an aggregate amount of no more
than $2,500,000 per issuer outstanding at any time, issued by any
corporation organized under the laws of any State of the United States and
rated at least "Prime-1" (or the then equivalent grade) by Moody's or
"A-1" (or the then equivalent grade) by S&P.
"CERCLA" means the Comprehensive Environmental Response,
Compensation and Liability Act of 1980, as amended from time to time.
"CERCLIS" means the Comprehensive Environmental Response,
Compensation and Liability Information System maintained by the U.S.
Environmental Protection Agency.
"Change of Control" means the occurrence of any of the following:
(a) any Person or two or more Persons acting in concert shall have
acquired beneficial ownership (within the meaning of Rule 13d-3 of the
Securities and Exchange Commission under the Securities Exchange Act of
1934), directly or indirectly, of Voting Interests of the Parent (or other
securities convertible into such Voting Interests) representing 35% or
more of the combined voting power of all Voting Interests of the Parent;
or (b) during any period of up to 24 consecutive months, commencing after
the date of this Agreement, individuals who at the beginning of such
24-month period were directors of the Parent (together with any new
directors whose election by such board of directors was approved by a
majority of the directors then still in office who are entitled to vote to
elect such new directors and were either directors at the beginning of
such period or Persons whose election as directors was previously so
approved) shall cease for any reason to constitute a majority of the board
of directors of the Parent; or (c) any Person or two or more Persons
acting in concert shall have acquired by contract or otherwise, or shall
have entered into a contract or arrangement that, upon consummation, will
result in its or their acquisition of the power to exercise, directly or
indirectly, a controlling influence over the management or policies of the
Parent; or (d) the Parent shall cease to own 100% of the Equity Interests
in the Borrower; or (e) the Borrower shall cease to own, directly or
indirectly, 100% of the Equity Interests each of the Subsidiary
Guarantors.
"Clean-Down Period" means a period of 30 consecutive days commencing
on August 1, 2000 and on each anniversary thereof.
"Collateral Account" has the meaning specified in the Security
Agreement.
"Collateral Agent" has the meaning specified in the recital of
parties to this Agreement.
"Collateral Documents" means the Security Agreement, the Mortgages,
the Canadian Documents and any other agreement that creates or purports to
create a Lien in favor of the Collateral Agent or the Administrative Agent
for the benefit of the Secured Parties.
"Commitment" means a Term A Commitment, a Term B Commitment, a Term
C Commitment, a Working Capital Commitment or a Letter of Credit
Commitment.
"Confidential Information" means information that any Loan Party
furnishes to any Agent or any Lender Party on a confidential basis, but
does not include any such information that is or becomes generally
available to the public other than as a result of a breach by such Agent
or any Lender Party of its obligations hereunder or that is or becomes
available to such Agent or such Lender Party from a source other than the
Loan Parties that is not, to the best of such Agent's or such Lender
Party's knowledge, acting in violation of a confidentiality agreement with
a Loan Party.
"Consolidated" refers to the consolidation of accounts in accordance
with GAAP.
"Contingent Obligation" means, with respect to any Person, any
Obligation or arrangement of such Person to guarantee or intended to
guarantee any Debt, leases, dividends or other payment Obligations
("primary obligations") of any other Person (the "primary obligor") in any
manner, whether directly or indirectly, including, without limitation, (a)
the direct or indirect guarantee, endorsement (other than for collection
or deposit in the ordinary course of business), co-making, discounting
with recourse or sale with recourse by such Person of the Obligation of a
primary obligor, (b) the Obligation to make take-or-pay or similar
payments, if required, regardless of nonperformance by any other party or
parties to an agreement or (c) 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 (A) for the purchase or payment of any such
primary obligation or (B) 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, assets, 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. 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 less, the maximum
amount of such primary obligation for which such Person may be liable
pursuant to the terms of the instrument evidencing such
Contingent Obligation) 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.
"Conversion", "Convert" and "Converted" each refer to a conversion
of Advances of one Type into Advances of the other Type pursuant to
Section 2.09 or 2.10.
"CRESTS" means the $175 million of convertible redeemable equity
structure trust securities issued by Lodgian Capital Trust I in June,
1998.
"Debt" of any Person means, without duplication for purposes of
calculating financial ratios, (a) all indebtedness of such Person for
borrowed money, (b) all Obligations of such Person for the deferred
purchase price of property or services (other than trade payables not
overdue by more than 60 days incurred in the ordinary course of such
Person's business), (c) all Obligations of such Person evidenced by notes,
bonds, debentures or other similar instruments, (d) all Obligations of
such Person created or arising under any conditional sale or other title
retention agreement with respect to property acquired by such Person (even
though the rights and remedies of the seller or lender under such
agreement in the event of default are limited to repossession or sale of
such property), (e) all Obligations of such Person as lessee under
Capitalized Leases, (f) all Obligations of such Person under acceptance,
letter of credit or similar facilities, (g) all Obligations of such Person
to purchase, redeem, retire, defease or otherwise make any payment in
respect of any Equity Interests in such Person or any other Person or any
warrants, rights or options to acquire such capital stock, valued, in the
case of Redeemable Preferred Interests, at the greater of its voluntary or
involuntary liquidation preference plus accrued and unpaid dividends, (h)
all Obligations of such Person in respect of Hedge Agreements, (i) all
Contingent Obligations of such Person and (j) all indebtedness and other
payment Obligations referred to in clauses (a) through (i) above of
another Person secured by (or for which the holder of such Debt has an
existing right, contingent or otherwise, to be secured by) any Lien on
property (including, without limitation, accounts and contract rights)
owned by such Person, even though such Person has not assumed or become
liable for the payment of such indebtedness or other payment Obligations.
"Debt/EBITDA Ratio" means, at any date of determination, the ratio
of Consolidated total Debt for Borrowed Money of the Parent and its
Subsidiaries as at the end of the most recently ended fiscal quarter of
the Parent for which financial statements are required to be delivered to
the Lender Parties pursuant to Section 5.03(b) or (c), as the case may be,
to Consolidated EBITDA of the Parent and its Subsidiaries for such fiscal
quarter and the immediately preceding three fiscal quarters.
Notwithstanding the foregoing, Debt/EBITDA Ratio for the fiscal quarter
ending September 30, 1999 shall be determined on an annualized basis, by
multiplying Consolidated EBITDA of the Parent and its Subsidiaries for the
first three fiscal quarters of 1999 by one and one-third (1 ).
"Debt for Borrowed Money" of any Person means all items that, in
accordance with GAAP, would be classified as indebtedness on a
Consolidated balance sheet of such Person.
"Declining Lender" has the meaning specified in Section 2.06(c).
"Default" means any Event of Default or any event that would
constitute an Event of Default but for the requirement that notice be
given or time elapse or both.
"Defaulted Advance" means, with respect to any Lender Party at any
time, the portion of any Advance required to be made by such Lender Party
to the Borrower pursuant to Section 2.01 or 2.02 at or prior to such time
that has not been made by such Lender Party or by the Administrative Agent
for the account of such Lender Party pursuant to Section 2.02(e) as of
such time. In the event that a portion of a Defaulted Advance shall be
deemed made pursuant to Section 2.15(a), the remaining portion of such
Defaulted Advance shall be considered a Defaulted Advance originally
required to be made pursuant to Section 2.01 on the same date as the
Defaulted Advance so deemed made in part.
"Defaulted Amount" means, with respect to any Lender Party at any
time, any amount required to be paid by such Lender Party to any Agent or
any other Lender Party hereunder or under any other Loan Document at or
prior to such time that has not been so paid as of such time, including,
without limitation, any amount required to be paid by such Lender Party to
(a) the Swing Line Bank pursuant to Section 2.02(b) to purchase a portion
of a Swing Line Advance made by the Swing Line Bank, (b) the Issuing Bank
pursuant to Section 2.03(c) to purchase a portion of a Letter of Credit
Advance made by such Issuing Bank, (c) the Administrative Agent pursuant
to Section 2.02(d) to reimburse the Administrative Agent for the amount of
any Advance made by the Administrative Agent for the account of such
Lender Party, (d) any other Lender Party pursuant to Section 2.13 to
purchase any participation in Advances owing to such other Lender Party
and (e) any Agent or the Issuing Bank pursuant to Section 7.05 to
reimburse such Agent or the Issuing Bank for such Lender Party's ratable
share of any amount required to be paid by the Lender Parties to such
Agent or the Issuing Bank as provided therein. In the event that a portion
of a Defaulted Amount shall be deemed paid pursuant to Section 2.15(b),
the remaining portion of such Defaulted Amount shall be considered a
Defaulted Amount originally required to be paid hereunder or under any
other Loan Document on the same date as the Defaulted Amount so deemed
paid in part.
"Defaulting Lender" means, at any time, any Lender Party that, at
such time, (a) owes a Defaulted Advance or a Defaulted Amount or (b) shall
take any action or be the subject of any action or proceeding of a type
described in Section 6.01(f).
"Disclosed Litigation" has the meaning specified in Section 3.01(e).
"Documentation Agent" has the meaning specified in the recital of
parties to this Agreement.
"Domestic Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Domestic Lending Office"
opposite its name on Schedule I hereto or in the Assignment and Acceptance
pursuant to which it became a Lender Party, as the case may be, or such
other office of such Lender Party as such Lender Party may from time to
time specify to the Borrower and the Administrative Agent.
"Domestic Subsidiary" means any Subsidiary other than a Foreign
Subsidiary.
"EBITDA" means, for any period, the sum, determined on a
Consolidated basis, of (a) net income (or net loss), (b) interest expense,
(c) income tax expense, (d) depreciation expense, (e) amortization
expense, in each case of the Parent and its Subsidiaries, determined in
accordance with GAAP for such period; provided however that "EBITDA" shall
be calculated without taking into account (without duplication) (i)
extraordinary or non-recurring gains and losses, and (ii) gains and losses
from sales, transfers and other dispositions of assets outside the
ordinary course of business; provided further that "EBITDA" shall only
include the net income for such period of any Person that is not a
Subsidiary of the Parent to the extent of dividends or distributions or
other payments paid in cash to the Parent or any of its wholly-owned
Subsidiaries.
"Effective Date" means the first date on which the conditions set
forth in Article III shall have been satisfied.
"Eligible Assignee" means any commercial bank or financial
institution (including, without limitation, any fund that regularly
invests in loans similar to the Term B Advances) as approved by the
Administrative Agent and, so long as no Event of Default has occurred and
is continuing at the time of such assignment, by the Borrower (such
approval not to be unreasonably withheld); provided, however, that neither
any Loan Party nor any Affiliate of a Loan Party shall qualify as an
Eligible Assignee under this definition.
"Environmental Action" means any action, suit, demand, demand
letter, claim, notice of non-compliance or violation, notice of liability
or potential liability, investigation, proceeding, consent order or
consent agreement relating in any way to any Environmental Law, any
Environmental Permit or Hazardous Material or arising from alleged injury
or threat to health, safety or the environment, including, without
limitation, (a) by any governmental or regulatory authority for
enforcement, cleanup, removal, response, remedial or other actions or
damages and (b) by any governmental or regulatory authority or third party
for damages, contribution, indemnification, cost recovery, compensation or
injunctive relief.
"Environmental Law" means any Federal, state, local or foreign
statute, law, ordinance, rule, regulation, code, order, writ, judgment,
injunction, decree or judicial or
agency interpretation, policy or guidance relating to pollution or
protection of the environment, health, safety or natural resources,
including, without limitation, those relating to the use, handling,
transportation, treatment, storage, disposal, release or discharge of
Hazardous Materials.
"Environmental Permit" means any permit, approval, identification
number, license or other authorization required under any Environmental
Law.
"Equity Interests" means, with respect to any Person, shares of
capital stock of (or other ownership or profit interests in) such Person,
warrants, options or other rights for the purchase or other acquisition
from such Person of shares of capital stock of (or other ownership or
profit interests in) such Person, securities convertible into or
exchangeable for shares of capital stock of (or other ownership or profit
interests in) such Person or warrants, rights or options for the purchase
or other acquisition from such Person of such shares (or such other
interests), and other ownership or profit interests in such Person
(including, without limitation, partnership, member or trust interests
therein), whether voting or nonvoting, and whether or not such shares,
warrants, options, rights or other interests are authorized or otherwise
existing on any date of determination.
"ERISA" means the Employee Retirement Income Security Act of 1974,
as amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"ERISA Affiliate" means any Person that for purposes of Title IV of
ERISA is a member of the controlled group of any Loan Party, or under
common control with any Loan Party, within the meaning of Section 414 of
the Internal Revenue Code.
"ERISA Event" means (a)(i) the occurrence of a reportable event,
within the meaning of Section 4043 of ERISA, with respect to any Plan
unless the 30-day notice requirement with respect to such event has been
waived by the PBGC or (ii) the requirements of Section 4043(b) of ERISA
apply with respect to a contributing sponsor, as defined in Section
4001(a)(13) of ERISA, of a Plan, and an event described in paragraph (9),
(10), (11), (12) or (13) of Section 4043(c) of ERISA is reasonably
expected to occur with respect to such Plan within the following 30 days;
(b) the application for a minimum funding waiver with respect to a Plan;
(c) the provision by the administrator of any Plan of a notice of intent
to terminate such Plan, pursuant to Section 4041(a)(2) of ERISA (including
any such notice with respect to a plan amendment referred to in Section
4041(e) of ERISA); (d) the cessation of operations at a facility of any
Loan Party or any ERISA Affiliate in the circumstances described in
Section 4062(e) of ERISA; (e) the withdrawal by any Loan Party or any
ERISA Affiliate from a Multiple Employer Plan during a plan year for which
it was a substantial employer, as defined in Section 4001(a)(2) of ERISA;
(f) the conditions for imposition of a lien under Section 302(f) of ERISA
shall have been met with respect to any Plan; (g) the adoption of an
amendment to a Plan requiring the provision of security to such Plan
pursuant to Section 307 of ERISA; or (h) the institution by the PBGC of
proceedings to terminate a
Plan pursuant to Section 4042 of ERISA, or the occurrence of any event or
condition described in Section 4042 of ERISA that constitutes grounds for
the termination of, or the appointment of a trustee to administer, such
Plan.
"Eurocurrency Liabilities" has the meaning specified in Regulation D
of the Board of Governors of the Federal Reserve System, as in effect from
time to time.
"Eurodollar Lending Office" means, with respect to any Lender Party,
the office of such Lender Party specified as its "Eurodollar Lending
Office" opposite its name on Schedule I hereto or in the Assignment and
Acceptance pursuant to which it became a Lender Party (or, if no such
office is specified, its Domestic Lending Office), or such other office of
such Lender Party as such Lender Party may from time to time specify to
the Borrower and the Administrative Agent.
"Eurodollar Rate" means, for any Interest Period for all Eurodollar
Rate Advances comprising part of the same Borrowing, an interest rate per
annum equal to the rate per annum obtained by dividing (a) the rate per
annum (rounded upwards, if necessary, to the nearest 1/100 of 1%)
appearing on Telerate Page 3750 (or any successor page) as the London
interbank offered rate for deposits in U.S. dollars at 11:00 A.M. (London
time) two Business Days before the first day of such Interest Period for a
period equal to such Interest Period (provided that, if for any reason
such rate is not available, the term "Eurodollar Rate" shall mean, for any
Interest Period for all Eurodollar Rate Advances comprising part of the
same Borrowing, the rate per annum (rounded upwards, if necessary, to the
nearest 1/100 of 1%) appearing on Reuters Screen LIBO Page as the London
interbank offered rate for deposits in Dollars at approximately 11:00 A.M.
(London time) two Business Days prior to the first day of such Interest
Period for a term comparable to such Interest Period; provided, however,
if more than one rate is specified on Reuters Screen LIBO Page, the
applicable rate shall be the arithmetic mean of all such rates) by (b) a
percentage equal to 100% minus the Eurodollar Rate Reserve Percentage for
such Interest Period.
"Eurodollar Rate Advance" means an Advance that bears interest as
provided in Section 2.07(a)(ii).
"Eurodollar Rate Reserve Percentage" for any Interest Period for all
Eurodollar Rate Advances comprising part of the same Borrowing means the
reserve percentage applicable two Business Days before the first day of
such Interest Period under regulations issued from time to time by the
Board of Governors of the Federal Reserve System (or any successor) for
determining the maximum reserve requirement (including, without
limitation, any emergency, supplemental or other marginal reserve
requirement) for a member bank of the Federal Reserve System in New York
City with respect to liabilities or assets consisting of or including
Eurocurrency Liabilities (or with respect to any other category of
liabilities that includes deposits by reference to which the interest rate
on Eurodollar Rate Advances is determined) having a term equal to such
Interest Period.
"Events of Default" has the meaning specified in Section 6.01.
"Excess Cash Flow" means, for any period,
(a) the sum of:
(i) Consolidated net income (or loss) of the
Parent and its Subsidiaries for such period plus
(ii) the aggregate amount of all non-cash charges
deducted in arriving at such Consolidated net income (or loss)
less
(b) the sum of:
(i) the aggregate amount of all non-cash credits
included in arriving at such Consolidated net income (or loss)
plus
(ii) the aggregate amount of Capital Expenditures
of the Parent and its Subsidiaries paid in cash during such
period to the extent permitted by this Agreement plus
(iii) the aggregate amount of all regularly
scheduled principal payments of Funded Debt made during such
period plus
(iv) the aggregate principal amount of all
optional prepayments of Term Advances made during such period
pursuant to Section 2.06(a) plus
(v) the aggregate amount of all dividends paid by
the Parent during such period plus
(vi) the aggregate amount of Investments in Permitted
Joint Ventures by the Parent and its Subsidiaries paid in cash
during such period to the extent permitted by this Agreement.
"Existing Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before giving effect to the consummation of the
transactions contemplated by the Transaction Documents.
"Extraordinary Receipt" means any cash received by or paid to or for
the account of any Person not in the ordinary course of business,
including, without limitation, tax refunds, pension plan reversions,
proceeds of insurance (including, without limitation, any key man life
insurance but excluding proceeds of business interruption insurance to
the extent such proceeds constitute compensation for lost earnings),
condemnation awards (and payments in lieu thereof), indemnity payments and
any purchase price adjustment received in connection with any purchase
agreement; provided, however, that an Extraordinary Receipt shall not
include (a) tax refunds and (b) cash receipts received from proceeds of
insurance, condemnation awards (or payments in lieu thereof) or indemnity
payments to the extent that such proceeds, awards or payments (A) in
respect of loss or damage to equipment, fixed assets or real property are
applied (or in respect of which expenditures were previously incurred) to
replace or repair the equipment, fixed assets or real property in respect
of which such proceeds were received in accordance with the terms of the
Loan Documents, so long as such application is committed in writing to be
made within 6 months following the occurrence of such damage or loss and
actually made within 12 months after the occurrence of such damage or loss
or (B) are received by any Person in respect of any third party claim
against such Person and applied to pay (or to reimburse such Person for
its prior payment of) such claim and the costs and expenses of such Person
with respect thereto; provided further that, if in any Fiscal Year,
Extraordinary Receipts consisting of the type described in clause (b) in
the prior proviso exceeds $10 million, such Extraordinary Receipts shall
be applied as set forth in Annex A.
"Facility" means the Term A Facility, the Term B Facility, the Term
C Facility, the Working Capital Facility, the Swing Line Facility or the
Letter of Credit Facility.
"Federal Funds Rate" means, for any period, a fluctuating interest
rate per annum 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 that is a Business Day, the
average of the quotations for such day for such transactions received by
the Administrative Agent from three Federal funds brokers of recognized
standing selected by it.
"Fee Letter" means the fee letter dated July 22, 1999 between the
Parent and the Administrative Agent, as amended.
"Financing" has the meaning specified in the Preliminary Statements.
"Fiscal Year" means a fiscal year of the Parent and its Consolidated
Subsidiaries ending on December 31 in any calendar year.
"Fixed Charge Coverage Ratio" means, at any date of determination,
the ratio of (a) Consolidated EBITDA to (b) the sum of (i) interest
payable on, and amortization of debt discount in respect of, all Debt for
Borrowed Money plus (ii) the greater of (A) the recurring property Capital
Expenditures for such period and (B) 4% of the gross property revenue
derived by the Parent and its Subsidiaries from such property plus (iii)
all scheduled principal amortization (excluding balloon payments due at
maturity) of all Debt for Borrowed Money payable plus (iv) dividends and
other distributions on Equity
Interests, to the extent paid or payable in cash or Cash Equivalents plus
(v) cash payments payable in respect of taxes, in each case, of or by the
Parent and its Subsidiaries during the four consecutive fiscal quarters
most recently ended for which financial statements are required to be
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the
case may be.
"Foreign Subsidiary" means a Subsidiary organized under the laws of
a jurisdiction other than the United States or any State thereof or the
District of Columbia.
"Funded Debt" of any Person means Debt in respect of the Advances,
in the case of the Borrower, and all other Debt of such Person that by its
terms matures more than one year after the date of determination or
matures within one year from such date but is renewable or extendible, at
the option of such Person, to a date more than one year after such date or
arises under a revolving credit or similar agreement that obligates the
lender or lenders to extend credit during a period of more than one year
after such date, including, without limitation, all amounts of Funded Debt
of such Person required to be paid or prepaid within one year after the
date of determination.
"GAAP" has the meaning specified in Section 1.03.
"Guaranties" means the Affiliate Guaranty and the Subsidiary
Guaranty.
"Guarantors" means the Affiliate Guarantors and the Subsidiary
Guarantors.
"Hazardous Materials" means (a) petroleum or petroleum products,
by-products or breakdown products, radioactive materials,
asbestos-containing materials, polychlorinated biphenyls and radon gas and
(b) any other chemicals, materials or substances designated, classified or
regulated as hazardous or toxic or as a pollutant or contaminant under any
Environmental Law.
"Hedge Agreements" means interest rate swap, cap or collar
agreements, interest rate future or option contracts, currency swap
agreements, currency future or option contracts and other hedging
agreements.
"Hedge Bank" means any Lender Party or an Affiliate of a Lender
Party in its capacity as a party to a Secured Hedge Agreement.
"Hotel Collateral" means all "Collateral" referred to in the
Collateral Documents and all other property that is or is intended to be
subject to any Lien in favor of the Collateral Agent or the Administrative
Agent for the benefit of the Secured Parties.
"Hotel Collateral EBITDA" means, in respect of any period, EBITDA
for such period derived solely from or attributable solely to Hotel
Collateral Properties less, to the extent not previously deducted, the sum
of (i) the greater of (A) actual management fees in respect of such Hotel
Collateral Properties during such period and (B) 4% of gross
revenues in respect of such Hotel Collateral Properties during such period
and (ii) the greater of (A) actual franchise fees in respect of such Hotel
Collateral Properties during such period and (B) 4% of gross room revenues
in respect of such Hotel Collateral Properties during such period.
"Hotel Collateral Properties" means all real property owned or
leased by any Loan Party or any of its Subsidiaries in which such Loan
Party or such Subsidiary has good, marketable and insurable fee simple
title to such real property or, in the case of leased properties, valid
and subsisting leasehold interests, free and clear of all Liens, other
than Liens created or permitted by the Loan Documents.
"Impac" has the meaning specified in the recital of parties to this
Agreement.
"Indemnified Party" has the meaning specified in Section 9.04(b).
"Information Memorandum" means the information memorandum dated June
19, 1999 used by the Arrangers in connection with the syndication of the
Commitments.
"Initial Extension of Credit" means the earlier to occur of the
initial Borrowing and the initial issuance of a Letter of Credit
hereunder.
"Initial Issuing Bank", "Initial Lender Parties" and "Initial
Lenders" each has the meaning specified in the recital of parties to this
Agreement.
"Insufficiency" means, with respect to any Plan, the amount, if any,
of its unfunded benefit liabilities, as defined in Section 4001(a)(18) of
ERISA.
"Interest Coverage Ratio" means, at any date of determination, the
ratio of (a) Consolidated EBITDA to (b) interest payable on, and
amortization of debt discount in respect of, all Debt for Borrowed Money,
in each case, of or by the Parent and its Consolidated Subsidiaries during
the four consecutive fiscal quarters most recently ended for which
financial statements are required to be delivered to the Lender Parties
pursuant to Section 5.03(b) or (c), as the case may be. Notwithstanding
the foregoing, Interest Coverage Ratio for the fiscal quarter ending
September 30, 1999 shall be determined on an annualized basis, by
multiplying each component thereof, in each case, of the Parent and its
Consolidated Subsidiaries for the first three fiscal quarters of 1999 by
one and one-third (11/3).
"Interest Period" means, for each Eurodollar Rate Advance comprising
part of the same Borrowing, the period commencing on the date of such
Eurodollar Rate Advance or the date of the Conversion of any Base Rate
Advance into such Eurodollar Rate Advance, and ending on the last day of
the period selected by the Borrower pursuant to the provisions below and,
thereafter, each subsequent period commencing on the last day of the
immediately preceding Interest Period and ending on the last day of the
period selected by the Borrower pursuant to the provisions below. The
duration of each such
Interest Period shall be one, two, three, six or, if available to all
Lenders, twelve months, as the Borrower may, upon notice received by the
Administrative Agent not later than 11:00 A.M. (New York City time) on the
third Business Day prior to the first day of such Interest Period, select;
provided, however, that:
(a) the Borrower may not select any Interest Period with
respect to any Eurodollar Rate Advance under a Facility that ends
after any principal repayment installment date for such Facility
unless, after giving effect to such selection, the aggregate
principal amount of Base Rate Advances and of Eurodollar Rate
Advances having Interest Periods that end on or prior to such
principal repayment installment date for such Facility shall be at
least equal to the aggregate principal amount of Advances under such
Facility due and payable on or prior to such date;
(b) Interest Periods commencing on the same date for
Eurodollar Rate Advances comprising part of the same Borrowing shall
be of the same duration;
(c) whenever the last day of any Interest Period would
otherwise occur on a day other than a Business Day, the last day of
such Interest Period shall be extended to occur on the next
succeeding Business Day, provided, however, that, if such extension
would cause the last day of such Interest Period to occur in the
next following calendar month, the last day of such Interest Period
shall occur on the next preceding Business Day; and
(d) whenever the first day of any Interest Period occurs
on a day of an initial calendar month for which there is no
numerically corresponding day in the calendar month that succeeds
such initial calendar month by the number of months equal to the
number of months in such Interest Period, such Interest Period shall
end on the last Business Day of such succeeding calendar month.
"Internal Revenue Code" means the Internal Revenue Code of 1986, as
amended from time to time, and the regulations promulgated and rulings
issued thereunder.
"Investment" in any Person means any loan or advance to such Person,
any purchase or other acquisition of any Equity Interests or Debt or the
assets comprising a division or business unit or a substantial part or all
of the business of such Person, any capital contribution to such Person or
any other direct or indirect investment in such Person, including, without
limitation, any acquisition by way of a merger or consolidation and any
arrangement pursuant to which the investor incurs Debt of the types
referred to in clause (i) or (j) of the definition of "Debt" in respect of
such Person.
"Issuing Bank" means the Initial Issuing Bank and any Eligible
Assignee to which the entire Letter of Credit Commitment hereunder has
been assigned pursuant to Section 9.07 so long as such Eligible Assignee
expressly agrees to perform in accordance with their terms all of the
obligations that by the terms of this Agreement are required to
be performed by it as the Issuing Bank and notifies the Administrative
Agent of its Applicable Lending Office and the amount of its Letter of
Credit Commitment (which information shall be recorded by the
Administrative Agent in the Register), for so long as the Initial Issuing
Bank or Eligible Assignee, as the case may be, shall have the Letter of
Credit Commitment.
"L/C Cash Collateral Account" has the meaning specified in the
Security Agreement.
"L/C Related Documents" has the meaning specified in Section
2.04(d)(ii).
"Lehman" has the meaning specified in the recital of parties to this
Agreement.
"Lender Party" means any Lender, the Issuing Bank or the Swing Line
Bank.
"Lenders" means the Initial Lenders and each Person that shall
become a Lender hereunder pursuant to Section 9.07 for so long as such
Initial Lender or Person, as the case may be, shall be a party to this
Agreement.
"Letter of Credit Advance" means an advance made by the Issuing Bank
or any Working Capital Lender pursuant to Section 2.03(c).
"Letter of Credit Agreement" has the meaning specified in Section
2.03(a).
"Letter of Credit Commitment" means, with respect to the Issuing
Bank at any time, the amount set forth opposite the Issuing Bank's name on
Schedule I hereto under the caption "Letter of Credit Commitment" or, if
the Issuing Bank has entered into an Assignment and Acceptance, set forth
for the Issuing Bank in the Register maintained by the Administrative
Agent pursuant to Section 9.07(d) as the Issuing Bank's "Letter of Credit
Commitment", as such amount may be reduced at or prior to such time
pursuant to Section 2.05.
"Letter of Credit Facility" means, at any time, an amount equal to
the Issuing Bank's Letter of Credit Commitments at such time, as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Letters of Credit" has the meaning specified in Section 2.01(d).
"Lien" means any lien, security interest or other similar charge or
encumbrance, or any other similar type of preferential arrangement,
including, without limitation, the lien or retained security title of a
conditional vendor and any easement, right of way or other encumbrance on
title to real property (and shall include the filing of a Financing
Statement under the Uniform Commercial Code of any jurisdiction and the
existence of any security agreement which authorizes any secured party
thereunder to file a Financing Statement).
"Loan Documents" means (a) for purposes of this Agreement and the
Notes and any amendment, supplement or modification hereof or thereof, (i)
this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the Collateral
Documents, (v) the Fee Letter, and (vi) each Letter of Credit Agreement
and (b) for purposes of the Guaranties and the Collateral Documents and
for all other purposes other than for purposes of this Agreement and the
Notes, (i) this Agreement, (ii) the Notes, (iii) the Guaranties, (iv) the
Collateral Documents, (v) the Fee Letter, (vi) each Letter of Credit
Agreement and (vii) each Secured Hedge Agreement, in each case as amended.
"Loan Parties" means the Parent, the Borrower and the Guarantors.
"Margin Stock" has the meaning specified in Regulation U.
"Material Adverse Change" means any material adverse change in the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries.
"Material Adverse Effect" means a material adverse effect on (a) the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries, (b)
the rights and remedies of any Agent or any Lender Party under any
Transaction Document or (c) the ability of any Loan Party to perform its
Obligations under any Transaction Document to which it is or is to be a
party.
"Material Contract" means, with respect to any Person, (i) each
Franchise Agreement described in Annex A and (ii) each other similar
franchise agreement between a Loan Party and a hotel franchisor.
"Moody's" means Moody's Investors Service, Inc.
"Mortgage Policies" has the meaning specified in Section
3.01(a)(iv)(B).
"Mortgages" has the meaning specified in Section 3.01(a)(iv).
"MSSF" has the meaning specified in the recital of parties to this
Agreement.
"Multiemployer Plan" means a multiemployer plan, as defined in
Section 4001(a)(3) of ERISA, to which any Loan Party or any ERISA
Affiliate is making or accruing an obligation to make contributions, or
has within any of the preceding five plan years made or accrued an
obligation to make contributions.
"Multiple Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or any ERISA Affiliate and at least one Person other than the
Loan Parties and the ERISA Affiliates or (b) was so maintained and in
respect of which any Loan Party or any ERISA
Affiliate could have liability under Section 4064 or 4069 of ERISA in the
event such plan has been or were to be terminated.
"Net Cash Proceeds" means, with respect to any sale, lease, transfer
or other disposition of any asset or the incurrence or issuance of any
Debt or the sale or issuance of any Equity Interests (including, without
limitation, any capital contribution) by any Person, or any Extraordinary
Receipt received by or paid to or for the account of any Person, the
aggregate amount of cash received from time to time (whether as initial
consideration or through payment or disposition of deferred consideration)
by or on behalf of such Person in connection with such transaction after
deducting therefrom only (without duplication) (a) reasonable and
customary brokerage commissions, underwriting fees and discounts, legal
fees, finder's fees and other similar fees and commissions, (b) the amount
of taxes payable in connection with or as a result of such transaction and
(c) the amount of any Debt secured by a Lien on such asset that, by the
terms of the agreement or instrument governing such Debt, is required to
be repaid upon such disposition, in each case to the extent, but only to
the extent, that the amounts so deducted are, at the time of receipt of
such cash, actually paid to a Person that is not an Affiliate of such
Person or any Loan Party or any Affiliate of any Loan Party and are
properly attributable to such transaction or to the asset that is the
subject thereof; provided, however, that in the case of taxes that are
deductible under clause (b) above but for the fact that, at the time of
receipt of such cash, such taxes have not been actually paid or are not
then payable, such Loan Party or such Subsidiary may deduct an amount (the
"Reserved Amount") equal to the amount reserved in accordance with GAAP
for such Loan Party's or such Subsidiary's reasonable estimate of such
taxes, other than taxes for which such Loan Party or such Subsidiary is
indemnified, provided further, however, that, at the time such taxes are
paid, an amount equal to the amount, if any, by which the Reserved Amount
for such taxes exceeds the amount of such taxes actually paid shall
constitute "Net Cash Proceeds" of the type for which such taxes were
reserved for all purposes hereunder; provided further that "Net Cash
Proceeds" from the sale, lease, transfer or other disposition of any asset
shall not include any amount of cash proceeds received in connection with
such transaction to the extent such cash proceeds are applied to replace
the asset in respect of which such cash proceeds were received or are
reinvested in the business of the Parent and its Subsidiaries in a manner
consistent with the requirements of Section 5.02(a), so long as the
commencement of such application is made within twelve months after the
occurrence of such sale, lease, transfer or other disposition.
"Nomura Impac I Facility" means the Loan Agreement, dated March 12,
1997, between Impac Hotels I, L.L.C. and Nomura Asset Capital Corporation.
"Non-Core Assets" means the asset set forth on Schedule 5.02(e).
"Nonratable Assignment" means an assignment by a Lender Party
pursuant to Section 9.07(a) of a portion of its rights and obligations
under this Agreement, other than an assignment of a uniform, and not a
varying, percentage of all of the rights and
obligations of such Lender Party under and in respect of all of the
Facilities (other than the Letter of Credit Facility and the Swing Line
Facility).
"Note" means a Term A Note, a Term B Note, a Term C Note or a
Working Capital Note.
"Notice of Borrowing" has the meaning specified in Section 2.02(a).
"Notice of Issuance" has the meaning specified in Section 2.03(a).
"Notice of Renewal" has the meaning specified in Section 2.01(d).
"Notice of Swing Line Borrowing" has the meaning specified in
Section 2.02(b).
"Notice of Termination" has the meaning specified in Section
2.01(d).
"NPL" means the National Priorities List under CERCLA.
"Obligation" means, with respect to any Person, any payment,
performance or other obligation of such Person of any kind, including,
without limitation, any liability of such Person on any claim, whether or
not the right of any creditor to payment in respect of such claim is
reduced to judgment, liquidated, unliquidated, fixed, contingent, matured,
disputed, undisputed, legal, equitable, secured or unsecured, and whether
or not such claim is discharged, stayed or otherwise affected by any
proceeding referred to in Section 6.01(f). Without limiting the generality
of the foregoing, the Obligations of any Loan Party under the Loan
Documents include (a) the obligation to pay principal, interest, Letter of
Credit commissions, charges, expenses, fees, attorneys' fees and
disbursements, indemnities and other amounts payable by such Loan Party
under any Loan Document and (b) the obligation of such Loan Party to
reimburse any amount in respect of any of the foregoing that any Lender
Party, in its sole discretion, may elect to pay or advance on behalf of
such Loan Party.
"OECD" means the Organization for Economic Cooperation and
Development.
"Open Year" has the meaning specified in Section 4.01(q)(iii).
"Other Taxes" has the meaning specified in Section 2.12(b).
"Parent" has the meaning specified in the recital of parties to this
Agreement
"PBGC" means the Pension Benefit Guaranty Corporation (or any
successor).
"Permitted Encumbrances" has the meaning specified in Annex A.
"Permitted Joint Venture" means a joint venture between a Subsidiary
of the Parent and a third party which owns or operates one or more hotel
properties that are not Hotel Collateral, and may include a joint venture
in which such Subsidiary owns greater than a 50% ownership interest.
"Permitted Liens" means such of the following as to which no
enforcement, collection, execution, levy or foreclosure proceeding shall
have been commenced: (a) Liens for taxes, assessments and governmental
charges or levies to the extent not required to be paid under Section
5.01(b); (b) Liens imposed by law, such as materialmen's, mechanics',
carriers', workmen's and repairmen's Liens and other similar Liens arising
in the ordinary course of business securing obligations that (i) are not
overdue for a period of more than 30 days and (ii) individually or
together with all other Permitted Liens outstanding on any date of
determination do not materially adversely affect the use of the property
to which they relate; (c) pledges or deposits to secure obligations under
workers' compensation laws or similar legislation or to secure public or
statutory obligations; and (d) Permitted Encumbrances; provided, however,
that with respect to any real property subject to a Mortgage, the term
"Permitted Liens" shall only mean Permitted Encumbrances.
"Person" means an individual, partnership, corporation (including a
business trust), limited liability company, joint stock company, trust,
unincorporated association, joint venture or other entity, or a government
or any political subdivision or agency thereof.
"Plan" means a Single Employer Plan or a Multiple Employer Plan.
"Pledged Debt" has the meaning specified in the Security Agreement.
"Preferred Interests" means, with respect to any Person, Equity
Interests issued by such Person that are entitled to a preference or
priority over any other Equity Interests issued by such Person upon any
distribution of such Person's property and assets, whether by dividend or
upon liquidation.
"Pro Rata Share" of any amount means, with respect to any Working
Capital Lender at any time, the product of such amount times a fraction
the numerator of which is the amount of such Lender's Working Capital
Commitment at such time (or, if the Commitments shall have been terminated
pursuant to Section 2.05 or 6.01, such Lender's Working Capital Commitment
as in effect immediately prior to such termination) and the denominator of
which is the Working Capital Facility at such time (or, if the Commitments
shall have been terminated pursuant to Section 2.05 or 6.01, the Working
Capital Facility as in effect immediately prior to such termination).
"Public Debt Rating" means, as of any date, the higher of (a) the
rating that has been most recently announced by either S&P or Moody's, as
the case may be, for any class of long-term senior secured debt issued by
the Parent, or (b) the senior implied or
corporate credit rating of the Parent as determined by either S&P or
Moody's, as the case may be. For purposes of the foregoing, (a) if only
one of S&P or Moody's shall have in effect a Public Debt Rating, the
Applicable Margin shall be determined by reference to the available
rating; (b) if neither of S&P or Moody's shall have in effect a Public
Debt Rating, the Applicable Margin will be set in accordance with Level IV
under the definition of "Applicable Margin"; (c) if any rating established
by S&P or Moody's shall be changed, such change shall be effective as of
the date on which such change is first announced publicly by the rating
agency making such change; (d) if S&P or Moody's shall change the basis on
which ratings are established, each reference to the Public Debt Rating
announced by S&P or Moody's, as the case may be, shall refer to the then
equivalent rating by S&P or Moody's, as the case may be; and (e) if the
ratings established by S&P or Moody's shall fall within different levels,
the Applicable Margin shall be based upon the lower rating..
"Redeemable" means, with respect to any Equity Interest, any Debt or
any other right or Obligation, any such Equity Interest, Debt, right or
Obligation that (a) the issuer has undertaken to redeem at a fixed or
determinable date or dates, whether by operation of a sinking fund or
otherwise, or upon the occurrence of a condition not solely within the
control of the issuer or (b) is redeemable at the option of the holder.
"Reduction Amount" has the meaning specified in Section 2.06(b)(vi).
"Refinancing" has the meaning specified in the Preliminary
Statements.
"Register" has the meaning specified in Section 9.07(d).
"Regulation U" means Regulation U of the Board of Governors of the
Federal Reserve System, as in effect from time to time.
"Related Documents" means the Subordinated Debt Documents, any
intercompany notes issued pursuant to Section 5.02(b)(i)(B) or (ii) and
the Tax Sharing Agreement.
"Required Lenders" means, at any time, Lenders owed or holding at
least a majority in interest of the sum of (a) the aggregate principal
amount of the Advances outstanding at such time, (b) the aggregate
Available Amount of all Letters of Credit outstanding at such time, (c)
the aggregate Unused Term A Commitments at such time, (d) the aggregate
Unused Term B Commitments at such time, (e) the aggregate Unused Working
Capital Commitments at such time and (f) the aggregate unused Term C
Commitments (if any) at such time; provided, however, that if any Lender
shall be a Defaulting Lender at such time, there shall be excluded from
the determination of Required Lenders at such time (A) the aggregate
principal amount of the Advances owing to such Lender (in its capacity as
a Lender) and outstanding at such time, (B) such Lender's Pro Rata Share
of the aggregate Available Amount of all Letters of Credit outstanding at
such time, (C) the Unused Term A Commitment of such Lender at such time,
(D) the Unused Term B Commitment at such time, (E) the Unused Working
Capital
Commitment of such Lender at such time and (F) the unused Term C
Commitment (if any) of such Lender at such time. For purposes of this
definition, the aggregate principal amount of Swing Line Advances owing to
the Swing Line Bank and of Letter of Credit Advances owing to the Issuing
Bank and the Available Amount of each Letter of Credit shall be considered
to be owed to the Working Capital Lenders ratably in accordance with their
respective Working Capital Commitments.
"Responsible Officer" means any officer of any Loan Party or any of
its Subsidiaries.
"S&P" means Standard & Poor's, a division of The McGraw-Hill
Companies, Inc.
"Secured Hedge Agreement" means any Hedge Agreement required or
permitted under Article V that is entered into by and between the Borrower
and any Hedge Bank.
"Secured Obligations" has the meaning specified in Section 2 of the
Security Agreement.
"Secured Parties" means the Agents, the Lender Parties and the Hedge
Banks..
"Security Agreement" has the meaning specified in Section
3.01(a)(ii).
"Senior Debt" shall mean the principal amount of (a) the Obligations
of the Borrower hereunder at any time outstanding and (b) any other
Consolidated total Debt for Borrowed Money of the Borrower and its
Subsidiaries (other than the Subordinated Debt) the repayment of which is
secured by a Lien upon or which otherwise constitutes a claim upon Hotel
Collateral EBITDA, in each case as of the end of the most recently ended
fiscal quarter of the Borrower.
"Senior Debt/Hotel Collateral EBITDA Ratio" means, at any date of
determination, the ratio of Consolidated total Senior Debt of the Borrower
and its Subsidiaries as at the end of the most recently ended fiscal
quarter of the Borrower for which financial statements are required to be
delivered to the Lender Parties pursuant to Section 5.03(b) or (c), as the
case may be, to Consolidated Hotel Collateral EBITDA of the Borrower and
its Subsidiaries for such fiscal quarter and the immediately preceding
three fiscal quarters. Notwithstanding the foregoing, Senior Debt/Hotel
Collateral EBITDA Ratio for the fiscal quarter ending September 30, 1999
shall be determined on an annualized basis, by multiplying Consolidated
Hotel Collateral EBITDA of the Borrower and its Subsidiaries for the first
three fiscal quarters of 1999 by one and one-third (11/3).
"Servico" has the meaning specified in the recital of parties to
this Agreement.
"Single Employer Plan" means a single employer plan, as defined in
Section 4001(a)(15) of ERISA, that (a) is maintained for employees of any
Loan Party or
any ERISA Affiliate and no Person other than the Loan Parties and the
ERISA Affiliates or (b) was so maintained and in respect of which any Loan
Party or any ERISA Affiliate could have liability under Section 4069 of
ERISA in the event such plan has been or were to be terminated.
"Solvent" and "Solvency" mean, with respect to any Person on a
particular date, that on such date (a) the fair value of the property of
such Person is greater than the total amount of liabilities, including,
without limitation, contingent liabilities, of such Person, (b) the
present fair salable value of the assets of such Person is not less than
the amount that will be required to pay the probable liability of such
Person on its debts as they become absolute and matured, (c) such Person
does not intend to, and does not believe that it will, incur debts or
liabilities beyond such Person's ability to pay such debts and liabilities
as they mature and (d) such Person is not engaged in business or a
transaction, and is not about to engage in business or a transaction, for
which such Person's property would constitute an unreasonably small
capital. The amount of contingent liabilities at any time shall be
computed as the amount that, in the light of all the facts and
circumstances existing at such time, represents the amount that can
reasonably be expected to become an actual or matured liability.
"Standby Letter of Credit" means any Letter of Credit issued under
the Letter of Credit Facility, other than a Trade Letter of Credit.
"Subordinated Debt" means the Subordinated Notes and any other Debt
of any Loan Party that is subordinated to the Obligations of such Loan
Party under the Loan Documents on, and that otherwise contains, terms and
conditions satisfactory to the Required Lenders.
"Subordinated Debt Documents" means the Indenture dated as of July
23, 1999, by and among the Borrower, the Parent, the Affiliate Guarantors
(other than Servico and Impac) and Bankers Trust Company, as trustee,
relating to the issuance by the Borrower of the Subordinated Notes, the
Placement Agreement, dated July 20, 1999, among the Borrower, the Parent,
the Affiliated Guarantors (other than Servico and Impac) and Morgan
Stanley & Co. Incorporated, Lehman Brothers Inc. and Bear, Stearns & Co.
Inc. as placement agents, the Registration Rights Agreement dated July 20,
1999 by and among the Borrower, the Parent, the Affiliate Guarantors
(other than Servico and Impac) and Morgan Stanley & Co. Incorporated,
Lehman Brothers Inc. and Bear Stearns & Co. Inc. and all other agreements,
indentures and instruments pursuant to which Subordinated Debt is issued,
in each case as amended, to the extent permitted under the Loan Documents.
"Subordinated Notes" means the 12.25% of Senior Subordinated Notes
due 2009 issued by the Borrower in an initial aggregate principal amount
of $200,000,000.
"Subsidiary" of any Person means any corporation, partnership, joint
venture, limited liability company, trust or estate of which (or in which)
more than 50% of (a) the
issued and outstanding capital stock having ordinary voting power to elect
a majority of the Board of Directors of such corporation (irrespective of
whether at the time capital stock of any other class or classes of such
corporation shall or might have voting power upon the occurrence of any
contingency), (b) the interest in the capital or profits of such
partnership, joint venture or limited liability company or (c) the
beneficial interest in such trust or estate is at the time directly or
indirectly owned or controlled by such Person, by such Person and one or
more of its other Subsidiaries or by one or more of such Person's other
Subsidiaries; provided, however, that for all purposes of the Loan
Documents, a Permitted Joint Venture shall be deemed not to be a
Subsidiary.
"Surviving Debt" means Debt of each Loan Party and its Subsidiaries
outstanding immediately before and after giving effect to the Transaction.
"Swing Line Advance" means an advance made by (a) the Swing Line
Bank pursuant to Section 2.01(f) or (b) any Working Capital Lender
pursuant to Section 2.02(b).
"Swing Line Bank" means Morgan Stanley or any successor or assign of
Morgan Stanley.
"Swing Line Borrowing" means a borrowing consisting of a Swing Line
Advance made by the Swing Line Bank pursuant to Section 2.01(e) or the
Working Capital Lenders pursuant to Section 2.02(b).
"Swing Line Facility" has the meaning specified in Section 2.01(e).
"Syndication Agent" has the meaning specified in the recital of
parties to this Agreement.
"Tax Returns" has the meaning specified in Section 4.01(q)(ii).
"Tax Sharing Agreement" means the Tax Sharing Agreement dated as of
July 23, 1999 by and among the Parent, the Borrower, Servico, Impac and
Sixteen Hotels, Inc., as amended, supplemented or otherwise modified from
time to time.
"Taxes" has the meaning specified in Section 2.12(a).
"Term Advances" means the Term A Advances, the Term B Advances and
the Term C Advances.
"Term A Advance" has the meaning specified in Section 2.01(a).
"Term A Borrowing" means a borrowing consisting of simultaneous Term
A Advances of the same Type made by the Term A Lenders.
"Term A Commitment" means, with respect to any Term A Lender at any
time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term A Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's "Term A Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"Term A Facility" means, at any time, the aggregate amount of the
Term A Lenders' Term A Commitments at such time.
"Term A Lender" means any Lender that has a Term A Commitment.
"Term A Note" means a promissory note of the Borrower payable to the
order of any Term A Lender, in substantially the form of Exhibit A-1
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from the Term A Advance made by such Lender, as amended.
"Term B Advance" has the meaning specified in Section 2.01(b).
"Term B Borrowing" means a borrowing consisting of simultaneous Term
B Advances of the same Type made by the Term B Lenders.
"Term B Commitment" means, with respect to any Term B Lender at any
time, the amount set forth opposite such Lender's name on Schedule I
hereto under the caption "Term B Commitment" or, if such Lender has
entered into one or more Assignment and Acceptances, set forth for such
Lender in the Register maintained by the Administrative Agent pursuant to
Section 9.07(d) as such Lender's "Term B Commitment", as such amount may
be reduced at or prior to such time pursuant to Section 2.05.
"Term B Facility" means, at any time, the aggregate amount of the
Term B Lenders' Term B Commitments at such time.
"Term B Lender" means any Lender that has a Term B Commitment.
"Term B Note" means a promissory note of the Borrower payable to the
order of any Term B Lender, in substantially the form of Exhibit A-2
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Term B Advance made by such Lender, as amended.
"Term C Advance" has the meaning specified in Section 2.16.
"Term C Borrowing" means a borrowing consisting of simultaneous Term
C Advances of the same Type made by the Term C Lenders.
"Term C Commitment" means, with respect to any Term C Lender at any
time, the amount set forth opposite such Lender's name on Schedule I to
the Term C Supplement under the caption "Term C Commitment" or, if such
Lender has entered into one or more Assignment and Acceptances, set forth
for such Lender in the Register maintained by the Administrative Agent
pursuant to Section 9.07(d) as such Lender's "Term C Commitment", as such
amount may be reduced at or prior to such time pursuant to Section 2.05.
"Term C Facility" means, at any time, the aggregate amount of the
Term C Lenders' Term C Commitments at such time.
"Term C Lender" means any Lender that executes a Term C Supplement.
"Term C Note" means a promissory note of the Borrower payable to the
order of any Term C Lender, in substantially the form of Exhibit A-4
hereto, evidencing the indebtedness of the Borrower to such Lender
resulting from a Term C Advance made by such Lender, as amended.
"Term C Supplement" means a supplement to this Agreement
substantially in the form of Exhibit G hereto which shall (i) be executed
and delivered by the Borrower and each Lender that has agreed to have a
Term C Commitment, (ii) set forth the maturity date and scheduled
amortization of the Term C Facility, (iii) set forth the interest rate,
commitment fees and other amounts which shall be payable in respect of the
Term C Facility. All of the matters set forth in a Term C Supplement shall
be subject to the restrictions and limitations set forth in Section 2.16.
"Term Facilities" means the Term A Facility, the Term B Facility and
the Term C Facility.
"Termination Date" means the earlier of (a) the date of termination
in whole of the Working Capital Commitments, the Letter of Credit
Commitments, the Term A Commitments and the Term B Commitments pursuant to
Section 2.05 or 6.01 and (b) (i) for purposes of the Working Capital
Facility and the Letter of Credit Facility, April 15, 2004, (ii) for
purposes of the Term A Facility, the Term B Facility and for all other
purposes, the earlier of (a) the final maturity date of the Banc One
Facility and (b) September 15, 2006 and (iii) for purposes of the Term C
Facility, the final maturity date for the Term C Facility set forth in the
Term C Supplement.
"Trade Letter of Credit" means any Letter of Credit that is issued
under the Letter of Credit Facility for the benefit of a supplier of
inventory to the Borrower or any of its Subsidiaries to effect payment for
such inventory.
"Transactions" means the Financing, the Refinancing and the
transactions contemplated by the Transaction Documents.
"Transaction Documents" means, collectively, the Loan Documents and
the Related Documents.
"Type" refers to the distinction between Advances bearing interest
at the Base Rate and Advances bearing interest at the Eurodollar Rate.
"Unused Term A Commitment" means, with respect to any Term A Lender
at any time, (a) such Lender's Term A Commitment at such time minus the
aggregate principal amount of all Term A Advances made by such Lender and
outstanding at such time.
"Unused Working Capital Commitment" means, with respect to any
Working Capital Lender at any time, (a) such Lender's Working Capital
Commitment at such time minus (b) the sum of (i) the aggregate principal
amount of all Working Capital Advances, Swing Line Advances and Letter of
Credit Advances made by such Lender (in its capacity as a Lender) and
outstanding at such time plus (ii) such Lender's Pro Rata Share of (A) the
aggregate Available Amount of all Letters of Credit outstanding at such
time, (B) the aggregate principal amount of all Letter of Credit Advances
made by the Issuing Bank pursuant to Section 2.03(c) and outstanding at
such time and (C) the aggregate principal amount of all Swing Line
Advances made by the Swing Line Bank pursuant to Section 2.01(e) and
outstanding at such time.
"Voting Interests" means shares of capital stock issued by a
corporation, or equivalent Equity Interests in any other Person, the
holders of which are ordinarily, in the absence of contingencies, entitled
to vote for the election of directors (or persons performing similar
functions) of such Person, even if the right so to vote has been suspended
by the happening of such a contingency.
"Welfare Plan" means a welfare plan, as defined in Section 3(1) of
ERISA, that is maintained for employees of any Loan Party or in respect of
which any Loan Party could have liability.
"Withdrawal Liability" has the meaning specified in Part I of
Subtitle E of Title IV of ERISA.
"Working Capital Advance" has the meaning specified in Section
2.01(c).
"Working Capital Borrowing" means a borrowing consisting of
simultaneous Working Capital Advances of the same Type made by the Working
Capital Lenders.
"Working Capital Commitment" means, with respect to any Working
Capital Lender at any time, the amount set forth opposite such Lender's
name on Schedule I hereto under the caption "Working Capital Commitment"
or, if such Lender has entered into one or more Assignment and
Acceptances, set forth for such Lender in the Register maintained by the
Administrative Agent pursuant to Section 9.07(d) as such Lender's "Working
Capital Commitment", as such amount may be reduced at or prior to such
time pursuant to Section 2.05.
"Working Capital Facility" means, at any time, the aggregate amount
of the Working Capital Lenders' Working Capital Commitments at such time.
"Working Capital Lender" means any Lender that has a Working Capital
Commitment.
"Working Capital Note" means a promissory note of the Borrower
payable to the order of any Working Capital Lender, in substantially the
form of Exhibit A-3 hereto, evidencing the aggregate indebtedness of the
Borrower to such Lender resulting from the Working Capital Advances,
Letter of Credit Advances and Swing Line Advances made by such Lender, as
amended.
SECTION 1.02. Computation of Time Periods; Other Definitional
Provisions. In this Agreement and the other Loan Documents in the computation of
periods of time from a specified date to a later specified date, the word "from"
means "from and including" and the words "to" and "until" each mean "to but
excluding". References in the Loan Documents to any agreement or contract "as
amended" shall mean and be a reference to such agreement or contract as amended,
amended and restated, supplemented or otherwise modified from time to time in
accordance with its terms.
SECTION 1.03. Accounting Terms. All accounting terms not
specifically defined herein shall be construed in accordance with generally
accepted accounting principles consistent with those applied in the preparation
of the financial statements referred to in Section 4.01(g) ("GAAP").
ARTICLE II
AMOUNTS AND TERMS OF THE ADVANCES
AND THE LETTERS OF CREDIT
SECTION 2.01. The Advances and the Letters of Credit. (a) The Term A
Advances. Each Term A Lender severally agrees, on the terms and conditions
hereinafter set forth, to make up to 12 advances (each a "Term A Advance") to
the Borrower on any Business Day during the period from the Effective Date until
October 30, 2000 in an amount for each such Advance not to exceed such Lender's
Unused Term A Commitment at such time. Each Term A Borrowing shall be in an
aggregate amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and shall consist of Term A Advances made simultaneously by the Term A
Lenders ratably according to their Term A Commitments. Amounts borrowed under
this Section 2.01(a) and repaid or prepaid may not be reborrowed.
(b) The Term B Advances. Each Term B Lender severally agrees, on the
terms and conditions hereinafter set forth, to make two advances (each a "Term B
Advance") to the Borrower. The first Term B Borrowing shall be made on the
Effective Date in an aggregate
amount not to exceed $107,500,000 and the second Term B Borrowing shall be made
on September 13, 1999 in an aggregate amount not to exceed $132,500,000
(provided that on the date of the second Term B Borrowing, the Borrower shall
deliver to each Term B Lender a Term B Note evidencing the Term B Advance made
by such Lender on such date). Each Term B Borrowing shall consist of Term B
Advances made simultaneously by the Term B Lenders ratably according to their
Term B Commitments. Amounts borrowed under this Section 2.01(b) and repaid or
prepaid may not be reborrowed.
(c) The Working Capital Advances. Each Working Capital Lender
severally agrees, on the terms and conditions hereinafter set forth, to make
advances (each a "Working Capital Advance") to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date in an amount for each such Advance not to exceed such Lender's Unused
Working Capital Commitment at such time. Each Working Capital Borrowing shall be
in an aggregate amount of $1,000,000 or an integral multiple of $1,000,000 in
excess thereof (other than a Borrowing the proceeds of which shall be used
solely to repay or prepay in full outstanding Letter of Credit Advances) and
shall consist of Working Capital Advances made simultaneously by the Working
Capital Lenders ratably according to their Working Capital Commitments. Within
the limits of each Working Capital Lender's Unused Working Capital Commitment in
effect from time to time, the Borrower may borrow under this Section 2.01(c),
prepay pursuant to Section 2.06(a) and reborrow under this Section 2.01(c).
(d) The Letters of Credit. The Issuing Bank agrees, on the terms and
conditions hereinafter set forth, to issue (or cause its Affiliate that is a
commercial bank to issue on its behalf) letters of credit (the "Letters of
Credit") for the account of the Borrower from time to time on any Business Day
during the period from the date hereof until 30 days before the Termination Date
in an aggregate Available Amount (i) for all Letters of Credit not to exceed at
any time the Issuing Bank's Letter of Credit Commitment at such time and (ii)
for each such Letter of Credit not to exceed the Unused Working Capital
Commitments of the Working Capital Lenders at such time. No Letter of Credit
shall have an expiration date (including all rights of the Borrower or the
beneficiary to require renewal) later than the earlier of 30 days before the
Termination Date and (A) in the case of a Standby Letter of Credit, one year
after the date of issuance thereof, but may by its terms be renewable annually
upon notice (a "Notice of Renewal") given to the Issuing Bank and the
Administrative Agent on or prior to any date for notice of renewal set forth in
such Letter of Credit but in any event at least three Business Days prior to the
date of the proposed renewal of such Standby Letter of Credit and upon
fulfillment of the applicable conditions set forth in Article III unless the
Issuing Bank has notified the Borrower (with a copy to the Administrative Agent)
on or prior to the date for notice of termination set forth in such Letter of
Credit but in any event at least 30 Business Days prior to the date of automatic
renewal of its election not to renew such Standby Letter of Credit (a "Notice of
Termination") and (B) in the case of a Trade Letter of Credit, 60 days after the
date of issuance thereof; provided that the terms of each Standby Letter of
Credit that is automatically renewable annually shall (x) require the Issuing
Bank to give the beneficiary named in such Standby Letter of Credit notice of
any Notice of Termination, (y) permit such beneficiary, upon receipt of such
notice, to draw under such Standby Letter of Credit prior to the date such
Standby Letter of Credit otherwise would have been automatically renewed and (z)
not permit the expiration date
(after giving effect to any renewal) of such Standby Letter of Credit in any
event to be extended to a date later than 15 days before the Termination Date.
If either a Notice of Renewal is not given by the Borrower or a Notice of
Termination is given by the Issuing Bank pursuant to the immediately preceding
sentence, such Standby Letter of Credit shall expire on the date on which it
otherwise would have been automatically renewed; provided, however, that even in
the absence of receipt of a Notice of Renewal the Issuing Bank may in its
discretion, unless instructed to the contrary by the Administrative Agent or the
Borrower, deem that a Notice of Renewal had been timely delivered and in such
case, a Notice of Renewal shall be deemed to have been so delivered for all
purposes under this Agreement. Within the limits of the Letter of Credit
Facility, and subject to the limits referred to above, the Borrower may request
the issuance of Letters of Credit under this Section 2.01(d), repay any Letter
of Credit Advances resulting from drawings thereunder pursuant to Section
2.03(c) and request the issuance of additional Letters of Credit under this
Section 2.01(d).
(e) The Swing Line Advances. The Borrower may request the Swing Line
Bank to make, and the Swing Line Bank shall make, on the terms and conditions
hereinafter set forth, Swing Line Advances to the Borrower from time to time on
any Business Day during the period from the date hereof until the Termination
Date (i) in an aggregate amount not to exceed at any time outstanding
$10,000,000 (the "Swing Line Facility") and (ii) in an amount for each such
Swing Line Borrowing not to exceed the aggregate of the Unused Working Capital
Commitments of the Working Capital Lenders at such time. No Swing Line Advance
shall be used for the purpose of funding the payment of principal of any other
Swing Line Advance. Each Swing Line Borrowing shall be in an amount of
$1,000,000 or an integral multiple of $100,000 in excess thereof and shall be
made as a Base Rate Advance within the limits of the Swing Line Facility and
within the limits referred to in clause (ii) above, the Borrower may borrow
under this Section 2.01(e), repay pursuant to Section 2.04(d) or prepay pursuant
to Section 2.06(a) and reborrow under this Section 2.01(e).
(f) Clean-Down. Notwithstanding the provisions of Sections 2.01(c)
and 2.01(d), no Borrowings may be made under Section 2.01(c) and no Letters of
Credit may be issued under Section 2.01(d), during any Clean-Down Period, unless
the sum of the aggregate principal amount of Working Capital Advances and Letter
of Credit Advances plus the aggregate Available Amount of Letters of Credit
outstanding after giving effect to such Borrowing or the issuance of such Letter
of Credit shall not exceed $35,000,000.
SECTION 2.02. Making the Advances. (a) Except as otherwise provided
in Sections 2.02(b) and 2.03, each Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the third Business Day prior to
the date of the proposed Borrowing in the case of a Borrowing consisting of
Eurodollar Rate Advances, or the first Business Day prior to the date of the
proposed Borrowing in the case of a Borrowing consisting of Base Rate Advances,
by the Borrower to the Administrative Agent, which shall give to each
Appropriate Lender prompt notice thereof by telex or telecopier. Each such
notice of a Borrowing (a "Notice of Borrowing") shall be by telephone, confirmed
immediately in writing, or telex or telecopier, in substantially the form of
Exhibit B hereto, specifying therein the requested (i) date of such Borrowing,
(ii) Facility under which such Borrowing is to be made,
(iii) Type of Advances comprising such Borrowing, (iv) aggregate amount of such
Borrowing and (v) in the case of a Borrowing consisting of Eurodollar Rate
Advances, initial Interest Period for each such Advance. Each Appropriate Lender
shall, before 11:00 A.M. (New York City time) on the date of such Borrowing,
make available for the account of its Applicable Lending Office to the
Administrative Agent at the Administrative Agent's Account, in same day funds,
such Lender's ratable portion of such Borrowing in accordance with the
respective Commitments under the applicable Facility of such Lender and the
other Appropriate Lenders. After the Administrative Agent's receipt of such
funds and upon fulfillment of the applicable conditions set forth in Article
III, the Administrative Agent will make such funds available to the Borrower by
crediting the Borrower's Account; provided, however, that, in the case of any
Working Capital Borrowing, the Administrative Agent shall first make a portion
of such funds equal to the aggregate principal amount of any Swing Line Advances
and Letter of Credit Advances made by the Swing Line Bank or the Issuing Bank,
as the case may be, and by any other Working Capital Lender and outstanding on
the date of such Working Capital Borrowing, plus interest accrued and unpaid
thereon to and as of such date, available to the Swing Line Bank or the Issuing
Bank, as the case may be, and such other Working Capital Lenders for repayment
of such Swing Line Advances and Letter of Credit Advances.
(b) Each Swing Line Borrowing shall be made on notice, given not
later than 11:00 A.M. (New York City time) on the date proposed Swing Line
Borrowing, by the Borrower to the Swing Line Bank and the Administrative Agent.
Each such notice of a Swing Line Borrowing (a "Notice of Swing Line Borrowing")
shall be by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (i) date of such Borrowing, (ii) amount of such
Borrowing and (iii) maturity of such Borrowing (which maturity shall be no later
than the seventh day after the requested date of such Borrowing). The Swing Line
Bank will make the amount thereof available to the Administrative Agent at the
Administrative Agent's Account, in same day funds. After the Administrative
Agent's receipt of such funds and upon fulfillment of the applicable conditions
set forth in Article III, the Administrative Agent will make such funds
available to the Borrower by crediting the Borrower's Account. Upon written
demand by the Swing Line Bank, with a copy of such demand to the Administrative
Agent, each other Working Capital Lender shall purchase from the Swing Line
Bank, and the Swing Line Bank shall sell and assign to each such other Working
Capital Lender, such other Lender's Pro Rata Share of such outstanding Swing
Line Advance as of the date of such demand, by making available for the account
of its Applicable Lending Office to the Administrative Agent for the account of
the Swing Line Bank, by deposit to the Administrative Agent's Account, in same
day funds, an amount equal to the portion of the outstanding principal amount of
such Swing Line Advance to be purchased by such Lender. The Borrower hereby
agrees to each such sale and assignment. Each Working Capital Lender agrees to
purchase its Pro Rata Share of an outstanding Swing Line Advance on (i) the
Business Day on which demand therefor is made by the Swing Line Bank, provided
that notice of such demand is given not later than 11:00 A.M. (New York City
time) on such Business Day or (ii) the first Business Day succeeding such demand
if notice of such demand is given after such time. Upon any such assignment by
the Swing Line Bank to any other Working Capital Lender of a portion of a Swing
Line Advance, the Swing Line Bank represents and warrants to such other Lender
that the Swing Line Bank is the legal and beneficial owner of such interest
being assigned by it, but makes no other
representation or warranty and assumes no responsibility with respect to such
Swing Line Advance, the Loan Documents or any Loan Party. If and to the extent
that any Working Capital Lender shall not have so made the amount of such Swing
Line Advance available to the Administrative Agent, such Working Capital Lender
agrees to pay to the Administrative Agent forthwith on demand such amount
together with interest thereon, for each day from the date of demand by the
Swing Line Bank until the date such amount is paid to the Administrative Agent,
at the Federal Funds Rate. If such Lender shall pay to the Administrative Agent
such amount for the account of the Swing Line Bank on any Business Day, such
amount so paid in respect of principal shall constitute a Swing Line Advance
made by such Lender on such Business Day for the purposes of this Agreement, and
the outstanding principal amount of the Swing Line Advance made by the Swing
Line Bank shall be reduced by such amount on such Business Day.
(c) Anything in subsection (a) above to the contrary
notwithstanding, (i) the Borrower may not select Eurodollar Rate Advances for
any Borrowing if the aggregate amount of such Borrowing is less than $1,000,000
or if the obligation of the Appropriate Lenders to make Eurodollar Rate Advances
shall then be suspended pursuant to Section 2.09 or 2.10 and (ii) the Term A
Advances may not be outstanding as part of more than 5 separate Borrowings, the
Term B Advances may not be outstanding as part of more than 5 separate
Borrowings and the Working Capital Advances may not be outstanding as part of
more than 5 separate Borrowings.
(d) Each Notice of Borrowing and Notice of Swing Line Borrowing
shall be irrevocable and binding on the Borrower. In the case of any Borrowing
that the related Notice of Borrowing specifies is to be comprised of Eurodollar
Rate Advances, the Borrower shall indemnify each Appropriate Lender against any
loss, cost or expense incurred by such Lender as a result of any failure to
fulfill on or before the date specified in such Notice of Borrowing for such
Borrowing the applicable conditions set forth in Article III, including, without
limitation, any loss (but, in any event, excluding loss of anticipated profits
or margin), cost or expense incurred by reason of the liquidation or
reemployment of deposits or other funds acquired by such Lender to fund the
Advance to be made by such Lender as part of such Borrowing when such Advance,
as a result of such failure, is not made on such date.
(e) Unless the Administrative Agent shall have received notice from
a Lender prior to the date of any Borrowing under a Facility under which such
Lender has a Commitment that such Lender will not make available to the
Administrative Agent such Lender's ratable portion of such Borrowing, the
Administrative Agent may assume that such Lender has made such portion available
to the Administrative Agent on the date of such Borrowing in accordance with
subsection (a) of this Section 2.02 and the Administrative Agent may, in
reliance upon such assumption, make available to the Borrower on such date a
corresponding amount. If and to the extent that such Lender shall not have so
made such ratable portion available to the Administrative Agent, such Lender and
the Borrower severally agree to repay or pay to the Administrative Agent
forthwith on demand such corresponding amount and to pay interest thereon, for
each day from the date such amount is made available to the Borrower until the
date such amount is repaid or paid to the Administrative Agent, at (i) in the
case of the Borrower, the interest rate applicable at such time under Section
2.07 to Advances comprising such Borrowing and (ii) in the case of such Lender,
the Federal Funds Rate. If such Lender shall pay to the
Administrative Agent such corresponding amount, such amount so paid shall
constitute such Lender's Advance as part of such Borrowing for all purposes.
(f) The failure of any Lender to make the Advance to be made by it
as part of any Borrowing shall not relieve any other Lender of its obligation,
if any, hereunder to make its Advance on the date of such Borrowing, but no
Lender shall be responsible for the failure of any other Lender to make the
Advance to be made by such other Lender on the date of any Borrowing.
SECTION 2.03. Issuance of and Drawings and Reimbursement Under
Letters of Credit. (a) Request for Issuance. Each Letter of Credit shall be
issued upon notice, given not later than 11:00 A.M. (New York City time) on the
fifth Business Day prior to the date of the proposed issuance of such Letter of
Credit (or such later Business Day as the Issuing Bank may agree), by the
Borrower to the Issuing Bank, which shall give to the Administrative Agent and
each Working Capital Lender prompt notice thereof by telex or telecopier. Each
such notice of issuance of a Letter of Credit (a "Notice of Issuance") shall be
by telephone, confirmed immediately in writing, or telex or telecopier,
specifying therein the requested (A) date of such issuance (which shall be a
Business Day), (B) Available Amount of such Letter of Credit, (C) expiration
date of such Letter of Credit, (D) name and address of the beneficiary of such
Letter of Credit and (E) form of such Letter of Credit, and shall be accompanied
by such application and agreement for letter of credit as the Issuing Bank may
specify to the Borrower for use in connection with such requested Letter of
Credit (a "Letter of Credit Agreement"). If (x) the requested form of such
Letter of Credit is acceptable to the Issuing Bank in its sole discretion and
(y) it has not received notice of objection to such issuance from the Required
Lenders, such Issuing Bank will, upon fulfillment of the applicable conditions
set forth in Article III, make such Letter of Credit available to the Borrower
at its office referred to in Section 9.02 or as otherwise agreed with the
Borrower in connection with such issuance. In the event and to the extent that
the provisions of any Letter of Credit Agreement shall conflict with this
Agreement, the provisions of this Agreement shall govern.
(b) Letter of Credit Reports. The Issuing Bank shall furnish (A) to
the Administrative Agent on the first Business Day of each week a written report
summarizing issuance and expiration dates of Letters of Credit issued during the
previous week and drawings during such week under all Letters of Credit issued
by the Issuing Bank, (B) to each Working Capital Lender on the first Business
Day of each month a written report summarizing issuance and expiration dates of
Letters of Credit during the preceding month and drawings during such month
under all Letters of Credit issued and (C) to the Administrative Agent and each
Working Capital Lender on the first Business Day of each calendar quarter a
written report setting forth the average daily aggregate Available Amount during
the preceding calendar quarter of all Letters of Credit issued.
(c) Drawing and Reimbursement. The payment by the Issuing Bank of a
draft drawn under the Letter of Credit shall constitute for all purposes of this
Agreement the making by the Issuing Bank of a Letter of Credit Advance, which
shall be a Base Rate Advance, in the amount of such draft. Upon written demand
by the Issuing Bank, with a copy of such demand to
the Administrative Agent, each Working Capital Lender shall purchase from the
Issuing Bank, and the Issuing Bank shall sell and assign to each such Working
Capital Lender, such Lender's Pro Rata Share of such outstanding Letter of
Credit Advance as of the date of such purchase, by making available for the
account of its Applicable Lending Office to the Administrative Agent for the
account of the Issuing Bank, by deposit to the Administrative Agent's Account,
in same day funds, an amount equal to the portion of the outstanding principal
amount of such Letter of Credit Advance to be purchased by such Lender. Promptly
after receipt thereof, the Administrative Agent shall transfer such funds to the
Issuing Bank. The Borrower hereby agrees to each such sale and assignment. Each
Working Capital Lender agrees to purchase its Pro Rata Share of an outstanding
Letter of Credit Advance on (i) the Business Day on which demand therefor is
made by the Issuing Bank, provided that notice of such demand is given not later
than 11:00 A.M. (New York City time) on such Business Day, or (ii) the first
Business Day next succeeding such demand if notice of such demand is given after
such time. Upon any such assignment by the Issuing Bank to any Working Capital
Lender of a portion of a Letter of Credit Advance, the Issuing Bank represents
and warrants to such other Lender that the Issuing Bank is the legal and
beneficial owner of such interest being assigned by it, free and clear of any
liens, but makes no other representation or warranty and assumes no
responsibility with respect to such Letter of Credit Advance, the Loan Documents
or any Loan Party. If and to the extent that any Working Capital Lender shall
not have so made the amount of such Letter of Credit Advance available to the
Administrative Agent, such Working Capital Lender agrees to pay to the
Administrative Agent forthwith on demand such amount together with interest
thereon, for each day from the date of demand by the Issuing Bank until the date
such amount is paid to the Administrative Agent, at the Federal Funds Rate for
its account or the account of the Issuing Bank, as applicable. If such Working
Capital Lender shall pay to the Administrative Agent such amount for the account
of the Issuing Bank on any Business Day, such amount so paid in respect of
principal shall constitute a Letter of Credit Advance made by such Lender on
such Business Day for purposes of this Agreement, and the outstanding principal
amount of the Letter of Credit Advance made by the Issuing Bank shall be reduced
by such amount on such Business Day.
(d) Failure to Make Letter of Credit Advances. The failure of any
Lender to make the Letter of Credit Advance to be made by it on the date
specified in Section 2.03(c) shall not relieve any other Lender of its
obligation hereunder to make its Letter of Credit Advance on such date, but no
Lender shall be responsible for the failure of any other Lender to make the
Letter of Credit Advance to be made by such other Lender on such date.
SECTION 2.04. Repayment of Advances. (a) Term A Advances. The
Borrower shall repay to the Administrative Agent for the ratable account of the
Term A Lenders the aggregate outstanding principal amount of the Term A Advances
outstanding on the following dates in an amount equal to the percentage set
forth below for such date of the aggregate amount of the Term A Advances
outstanding on December 31, 2000 (which amounts shall be reduced as a result of
the application of prepayments in accordance with the order of priority set
forth in Section 2.06):
Date Percentage
---- ----------
December 31, 2000 0.33%
March 31, 2001 0.33%
June 30, 2001 0.34%
September 30, 2001 1.25%
December 31, 2001 1.25%
March 31, 2002 1.25%
June 30, 2002 1.25%
September 30, 2002 2.50%
December 31, 2002 2.50%
March 31, 2003 2.50%
June 30, 2003 2.50%
September 30, 2003 3.75%
December 31, 2003 3.75%
March 31, 2004 3.75%
June 30, 2004 3.75%
September 30, 2004 6.25%
December 31, 2004 6.25%
March 31, 2005 6.25%
June 30, 2005 6.25%
September 30, 2005 11.00%
December 31, 2005 11.00%
March 31, 2006 11.00%
July 15, 2006 11.00%
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term A Advances outstanding on such date.
(b) Term B Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term B Lenders the aggregate outstanding
principal amount of the Term B Advances outstanding on the following dates in an
amount equal to the percentage set forth below for such date of the aggregate
amount of the Term B Advance outstanding on September 13, 1999 (which amounts
shall be reduced as a result of the application of prepayments in accordance
with the order of priority set forth in Section 2.06):
Date Percentage
---- ----------
September 30, 1999 0.25%
December 31, 1999 0.25%
March 31, 2000 0.25%
June 30, 2000 0.25%
September 30, 2000 0.25%
December 31, 2000 0.25%
March 31, 2001 0.25%
June 30, 2001 0.25%
September 30, 2001 0.25%
December 31, 2001 0.25%
March 31, 2002 0.25%
June 30, 2002 0.25%
September 30, 2002 0.25%
December 31, 2002 0.25%
March 31, 2003 0.25%
June 30, 2003 0.25%
September 30, 2003 0.25%
December 31, 2003 0.25%
March 31, 2004 0.25%
June 30, 2004 0.25%
September 30, 2004 3.75%
December 31, 2004 3.75%
March 31, 2005 3.75%
June 30, 2005 3.75%
September 30, 2005 20.00%
December 31, 2005 20.00%
March 31, 2006 20.00%
July 15, 2006 20.00%
provided, however, that the final principal installment shall be repaid on the
Termination Date and in any event shall be in an amount equal to the aggregate
principal amount of the Term B Advances outstanding on such date.
(c) Working Capital Advances. The Borrower shall repay to the
Administrative Agent for the ratable account of the Working Capital Lenders on
the Termination Date the aggregate principal amount of the Working Capital
Advances then outstanding.
(d) Swing Line Advances. The Borrower shall repay to the
Administrative Agent for the account of the Swing Line Bank and each other
Working Capital Lender that made a Swing Line Advance the outstanding principal
amount of each Swing Line Advance made by each of them on the earlier of the
maturity date specified in the applicable Notice of Swing Line Borrowing (which
maturity shall be no later than the seventh day after the requested date of such
Borrowing) and the Termination Date.
(e) Letter of Credit Advances. (i) The Borrower shall repay to the
Administrative Agent for the account of the Issuing Bank and each other Working
Capital Lender that has made a Letter of Credit Advance on the earlier of demand
and the Termination Date the outstanding principal amount of each Letter of
Credit Advance made by each of them.
(ii) The Obligations of the Borrower under this Agreement, any
Letter of Credit Agreement and any other agreement or instrument relating to any
Letter of Credit shall be unconditional and irrevocable, and shall be paid
strictly in accordance with the terms of this Agreement, such Letter of Credit
Agreement and such other agreement or instrument under all circumstances,
including, without limitation, the following circumstances (it being understood
that any such payment by the Borrower is without prejudice to, and does not
constitute a waiver of, any rights the Borrower might have or might acquire
(including, without limitation, against the Issuing Bank) as a result of the
payment by the Issuing Bank of any draft or the reimbursement by the Borrower
thereof):
(A) any lack of validity or enforceability of any Loan Document, any
Letter of Credit Agreement, any Letter of Credit or any other agreement or
instrument relating thereto (all of the foregoing being, collectively, the
"L/C Related Documents");
(B) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Obligations of the Borrower in respect of
any L/C Related Document or any other amendment or waiver of or any
consent to departure from all or any of the L/C Related Documents;
(C) the existence of any claim, set-off, defense or other right that
the Borrower may have at any time against any beneficiary or any
transferee of a Letter of Credit (or any Persons for which any such
beneficiary or any such transferee may be acting), any Issuing Bank or any
other Person, whether in connection with the transactions contemplated by
the L/C Related Documents or any unrelated transaction;
(D) any statement or any other document presented under a Letter of
Credit proving to be forged, fraudulent, invalid or insufficient in any
respect or any statement therein being untrue or inaccurate in any
respect;
(E) payment by the Issuing Bank under a Letter of Credit against
presentation of a draft or certificate that does not strictly comply with
the terms of such Letter of Credit;
(F) any exchange, release or non-perfection of any Hotel Collateral
or other collateral, or any release or amendment or waiver of or consent
to departure from the Guaranties or any other guarantee, for all or any of
the Obligations of the Borrower in respect of the L/C Related Documents;
or
(G) any other circumstance or happening whatsoever, whether or not
similar to any of the foregoing, including, without limitation, any other
circumstance that might otherwise constitute a defense available to, or a
discharge of, the Borrower or a guarantor.
(f) Term C Advances. The Borrower shall repay to the Administrative
Agent for the ratable account of the Term C Lenders the aggregate
principal amount of the Term C Capital Advances on the dates and in the
amounts set forth in the Term C Supplement. .
SECTION 2.05. Termination or Reduction of the Commitments. (a)
Optional. The Borrower may, upon at least five Business Days' notice to the
Administrative Agent, terminate in whole or reduce in part the unused portions
of the Term B Commitments, the Term C Commitments and the Letter of Credit
Facility, the Unused Term A Commitments and the Unused Working Capital
Commitments; provided, however, that each partial reduction of a Facility (i)
shall be in an aggregate amount of $1,000,000 or an integral multiple of
$1,000,000 in excess thereof and (ii) shall be made ratably among the
Appropriate Lenders in accordance with their Commitments with respect to such
Facility.
(b) Mandatory. (i) On each date of a Term A Borrowing, the aggregate
Term A Commitments of the Lenders shall be automatically and permanently
reduced, on a pro rata basis, by an amount equal to the amount of such Term A
Borrowing.
(ii) On the date of each Term B Borrowing, the aggregate Term B
Commitments of the Term B Lenders shall be automatically and permanently
reduced, on a pro rata basis, by an amount equal to the amount of such Term B
Borrowing.
(iii) The Letter of Credit Facility shall be permanently reduced
from time to time on the date of each reduction in the Working Capital Facility
by the amount, if any, by which the amount of the Letter of Credit Facility
exceeds the Working Capital Facility after giving effect to such reduction of
the Working Capital Facility.
(iv) The Working Capital Facility shall be automatically and
permanently reduced, on a pro rata basis, on each date on which prepayment
thereof is required to be made pursuant to Section 2.06(b)(i) or (ii) in an
amount equal to the applicable Reduction Amount, provided that each such
reduction of the Working Capital Facility shall be made ratably among the
Working Capital Lenders in accordance with their Working Capital Commitments.
SECTION 2.06. Prepayments. (a) Optional. The Borrower may, upon at
least one Business Day's notice in the case of Base Rate Advances and three
Business Days' notice in the case of Eurodollar Rate Advances, in each case to
the Administrative Agent stating the proposed date and aggregate principal
amount of the prepayment, and if such notice is given the Borrower shall, prepay
the outstanding aggregate principal amount of the Advances comprising part of
the same Borrowing in whole or ratably in part, together with (i) accrued
interest to the date of such prepayment on the aggregate principal amount
prepaid and (ii) in the case of any such prepayment on or prior to the third
anniversary of the Effective Date of any Advances other than Working Capital
Advances or Letter of Credit Advances, a premium of (a) 3% of the aggregate
principal amount so prepaid, if such prepayment is made on or prior to the first
anniversary of the Effective Date, (b) 2% of the aggregate principal amount so
prepaid, if such prepayment is made on or prior to the second anniversary of the
Effective Date and (c) 1% of the aggregate principal amount so prepaid, if such
prepayment is made on or prior to the third anniversary of the Effective Date;
provided, however, that (x) each partial prepayment shall be in an aggregate
principal amount of $5,000,000 or an integral multiple of $1,000,000 in excess
thereof and (y) if any prepayment of a Eurodollar Rate Advance is made on a date
other than the last day of an Interest Period for such Advance, the Borrower
shall also pay any amounts owing pursuant to Section 9.04(c). Any prepayment of
the Term Facilities with the Net Cash Proceeds from the incurrence or issuance
of any Debt by the Parent and its Subsidiaries or any refinancing of the Term
Facilities shall be deemed to be an optional prepayment for purposes of the
premium referred to in clause (ii) above.
(b) Mandatory. (i) The Borrower shall, on the 90th day following the
end of each Fiscal Year, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings and deposit an amount in the L/C Cash
Collateral Account in an amount equal
to 50% of the amount of Excess Cash Flow for such Fiscal Year. Each such
prepayment shall be applied as follows:
first, subject to subsection (c) below, ratably to the Term A
Facility, the Term B Facility and the Term C Facility and, in each case,
ratably to the principal installments thereof, and
second, to the extent that no Term Advances remain outstanding,
permanently to reduce the Working Capital Facility as set forth in clause
(vi) below.
(ii) The Borrower shall, on the date of receipt of the Net Cash
Proceeds by the Parent or any of its Subsidiaries from (A) the sale, lease,
transfer or other disposition of any assets of the Parent or any of its
Subsidiaries but excluding any sale, lease, transfer or other disposition of
assets pursuant to clause (i), (ii) or (iii) of Section 5.02(e), (B) the
incurrence or issuance by the Parent or any of its Subsidiaries of any Debt
(other than any Debt permitted by Section 5.02(b) as of the date hereof), (C)
the sale or issuance by the Parent or any of its Subsidiaries of any Equity
Interests (including, without limitation, receipt of any capital contribution,
but excluding any such proceeds that are applied to redeem or repay the CRESTS)
and (D) any Extraordinary Receipt received by or paid to or for the account of
the Parent or any of its Subsidiaries and not otherwise included in clause (A),
(B) or (C) above, prepay an aggregate principal amount of the Advances
comprising part of the same Borrowings and deposit an amount in the L/C Cash
Collateral Account in an amount equal to (x) in the case of Net Cash Proceeds
received pursuant to clause (A), (B) or (D) above, the amount of such Net Cash
Proceeds and (y) in the case of Net Cash Proceeds received pursuant to clause
(C) above, 50% of the amount of such Net Cash Proceeds. To the extent Net Cash
Proceeds are not required to be applied pursuant to this Section 2.06(b)(ii) as
a result of the last proviso of the definition of "Net Cash Proceeds", then the
remaining portion of such Net Cash Proceeds not reinvested in the business of
the Parent and its Subsidiaries as required by the last proviso of the
definition of "Net Cash Proceeds" by the last day of such applicable period
shall be applied to the prepayment of the Advances on such last day as otherwise
required by this Section 2.06(b)(ii). Each such prepayment which is made shall
be applied as follows:
first, subject to subsection (c) below, ratably to the Term A
Facility, the Term C Facility and the Term C Facility and, in each case,
ratably to the principal installments thereof, and
second, to the extent that no Term Advances remain outstanding,
permanently to reduce the Working Capital Facility as set forth in clause
(vi) below.
(iii) The Borrower shall, on each Business Day, prepay an aggregate
principal amount of the Working Capital Advances comprising part of the same
Borrowings and the Letter of Credit Advances and deposit an amount in the L/C
Cash Collateral Account in an amount equal to the amount by which (A) the sum of
the aggregate principal amount of (x) the Working Capital Advances, (y) the
Letter of Credit Advances and (z) the Swing Line Advances then
outstanding plus the aggregate Available Amount of all Letters of Credit then
outstanding exceeds the Working Capital Facility on such Business Day.
(iv) The Borrower shall, on each Business Day, pay to the
Administrative Agent for deposit in the L/C Cash Collateral Account an amount
sufficient to cause the aggregate amount on deposit in the L/C Cash Collateral
Account to equal the amount by which the aggregate Available Amount of all
Letters of Credit then outstanding exceeds the Letter of Credit Facility on such
Business Day.
(v) The Borrower shall pay to the Administrative Agent, on the first
day of each Clean-Down Period, an amount equal to the amount by which the
aggregate principal amount of the Working Capital Advances, the Letter of Credit
Advances and the Swing Line Advances plus the aggregate Available Amount of
outstanding Letters of Credit exceeds $35,000,000, first to be applied to prepay
the Working Capital Advances and the Letter of Credit Advances and second to be
deposited in the L/C Cash Collateral Account.
(vi) Prepayments of the Working Capital Facility made pursuant to
clause (i), (ii), (iii) or (v) above shall be first applied to prepay Letter of
Credit Advances then outstanding until such Advances are paid in full, second
applied to prepay Swing Line Advances then outstanding until such Advances are
paid in full, third applied to prepay Working Capital Advances then outstanding
comprising part of the same Borrowings until such Advances are paid in full and
fourth deposited in the L/C Cash Collateral Account to cash collateralize 100%
of the Available Amount of the Letters of Credit then outstanding; and, in the
case of prepayments of the Working Capital Facility required pursuant to clause
(i) or (ii) above, the amount remaining (if any) after the prepayment in full of
the Advances then outstanding and the 100% cash collateralization of the
aggregate Available Amount of Letters of Credit then outstanding (the sum of
such prepayment amounts, cash collateralization amounts and remaining amount
being referred to herein as the "Reduction Amount") may be retained by the
Borrower and the Working Capital Facility shall be permanently reduced as set
forth in Section 2.05(b)(iv). Upon the drawing of any Letter of Credit for which
funds are on deposit in the L/C Cash Collateral Account, such funds shall be
applied to reimburse the relevant Issuing Bank or Working Capital Lenders, as
applicable.
(vii) All prepayments under this subsection (b) shall be made
together with accrued interest to the date of such prepayment on the principal
amount prepaid.
(c) Term B Opt-Out. With respect to any prepayment of the Term B
Advances, any Term B Lender, at its option, may elect not to accept such
prepayment, in which event the provisions of the next sentence shall apply. Any
Term B Lender may elect not to accept its ratable share of the prepayment
referred to in any Prepayment Notice, by notice given to the Agent not later
than 11:00 A.M. (New York City time) on the first Business Day prior to the
scheduled Prepayment Date (such Term B Lender being a "Declining Lender"). On
the Prepayment Date an amount equal to that portion of the Prepayment Amount
available to prepay Term B Lenders (less any amounts that would otherwise be
payable to the Declining Lenders) shall be applied to prepay Term B Advances
owing to Term B Lenders other than Declining
Lenders and any amounts that would otherwise have been applied to prepay Term B
Advances owing to Declining Lenders shall instead be applied ratably to prepay
the remaining Term Advances as provided in Sections 2.06(a) and (b); provided,
however, that on prepayment in full of Term Advances owing to Term Lenders other
than Declining Lenders, the remainder of any Prepayment Amount shall be applied
ratably to prepay Term B Advances owing to Declining Lenders.
SECTION 2.07. Interest. (a) Scheduled Interest. The Borrower shall
pay interest on the unpaid principal amount of each Advance owing to each Lender
from the date of such Advance until such principal amount shall be paid in full,
at the following rates per annum:
(i) Base Rate Advances. During such periods as such Advance is a
Base Rate Advance, a rate per annum equal at all times to the sum of (A)
the Base Rate in effect from time to time plus (B) the Applicable Margin
in effect from time to time, payable in arrears quarterly on the last day
of each March, June, September and December during such periods and on the
date such Base Rate Advance shall be Converted or paid in full.
(ii) Eurodollar Rate Advances. During such periods as such Advance
is a Eurodollar Rate Advance, a rate per annum equal at all times during
each Interest Period for such Advance to the sum of (A) the Eurodollar
Rate for such Interest Period for such Advance plus (B) the Applicable
Margin in effect on the first day of such Interest Period, payable in
arrears on the last day of such Interest Period and, if such Interest
Period has a duration of more than three months, on each day that occurs
during such Interest Period every three months from the first day of such
Interest Period and on the date such Eurodollar Rate Advance shall be
Converted or paid in full.
(b) Default Interest. Upon the occurrence and during the continuance
of a Default, the Borrower shall pay interest on (i) the unpaid principal amount
of each Advance owing to each Lender, payable in arrears on the dates referred
to in clause (a)(i) or (a)(ii) above and on demand, at a rate per annum equal at
all times to 2% per annum above the rate per annum required to be paid on such
Advance pursuant to clause (a)(i) or (a)(ii) above and (ii) to the fullest
extent permitted by law, the amount of any interest, fee or other amount payable
under the Loan Documents that is not paid when due, from the date such amount
shall be due until such amount shall be paid in full, payable in arrears on the
date such amount shall be paid in full and on demand, at a rate per annum equal
at all times to 2% per annum above the rate per annum required to be paid, in
the case of interest, on the Type of Advance on which such interest has accrued
pursuant to clause (a)(i) or (a)(ii) above and, in all other cases, on Base Rate
Advances pursuant to clause (a)(i) above.
(c) Notice of Interest Period and Interest Rate. Promptly after
receipt of a Notice of Borrowing pursuant to Section 2.02(a), a notice of
Conversion pursuant to Section 2.09 or a notice of selection of an Interest
Period pursuant to the terms of the definition of "Interest Period", the
Administrative Agent shall give notice to the Borrower and each Appropriate
Lender of the applicable Interest Period and the applicable interest rate
determined by the Administrative Agent for purposes of clause (a)(i) or (a)(ii)
above.
(d) Special Canadian Provision(s). For purposes of the Interest Act
(Canada), (i) whenever any interest or fee under any Loan Document is calculate
using a rate based on a year of 360 days or 365 days, as the case may be, the
rate determined pursuant to such calculation, when expressed as an annual rate,
is equivalent to (x) the applicable rate based on a year of 360 days or 365
days, as the case may be, (y) multiplied by the actual number of days in the
calendar year in which the period for which such interest or fee is payable (or
compounded) ends, and (z) divided by 360 or 365, as the case may be, and (ii)
the principle of deemed reinvestment of interest does not apply to any interest
calculation under any Loan Document.
SECTION 2.08. Fees. (a) Commitment Fee. The Borrower shall pay to
the Administrative Agent for the account of the Lenders a commitment fee, from
the date hereof in the case of each Initial Lender and from the effective date
specified in the Assignment and Acceptance pursuant to which it became a Lender
in the case of each other Lender until the Termination Date, payable quarterly
in arrears on the last day of each March, June, September and December,
commencing September 30, 1999, and on the Termination Date, at the rate of (i)
in respect of the Term B Facility, 1% per annum on the average daily unused
portion of each Appropriate Lender's Term B Commitment during such quarter and
(ii) in respect of the Term A Facility and the Working Capital Facility, at any
time (x) that the average aggregate amount of Advances outstanding under the
Working Capital Facility and the Term A Facility is less than 50% of the Term A
Commitments and the Working Capital Commitments, 1% per annum, (y) that the
average aggregate amount of Advances outstanding under the Working Capital
Facility and the Term A Facility during such quarter is greater than or equal to
50%, but less than 75%, of the Term A Commitments and the Working Capital
Commitments, 3/4 of 1% per annum and (y) that the average aggregate amount of
Advances outstanding under the Working Capital Facility and the Term A Facility
during such quarter is greater than or equal to 75% of the Term A Commitments
and the Working Capital Commitments, 1/2 of 1% per annum, on the average daily
unused portion of each Appropriate Lender's Term A Commitment and Working
Capital Commitment during such quarter; provided, however, that any commitment
fee accrued with respect to any of the Commitments of a Defaulting Lender during
the period prior to the time such Lender became a Defaulting Lender and unpaid
at such time shall not be payable by the Borrower so long as such Lender shall
be a Defaulting Lender except to the extent that such commitment fee shall
otherwise have been due and payable by the Borrower prior to such time; and
provided further that no commitment fee shall accrue on any of the Commitments
of a Defaulting Lender so long as such Lender shall be a Defaulting Lender.
(b) Letter of Credit Fees, Etc. (i) The Borrower shall pay to the
Administrative Agent for the account of each Working Capital Lender a
commission, payable in arrears quarterly on the last day of each March, June,
September and December, commencing September 30, 1999, and on the Termination
Date, on such Lender's Pro Rata Share of the average daily aggregate Available
Amount during such quarter of all Letters of Credit outstanding from time to
time at a rate equal to the Applicable Margin.
(ii) The Borrower shall pay to each Issuing Bank, for its own
account, an issuance fee for each Letter of Credit issued by such Issuing Bank
in an amount equal to 1/8th of
1% of the Available Amount of such Letter of Credit on the date of issuance of
such Letter of Credit, payable on such date and together with such other
commissions, fronting fees, transfer fees and other fees and charges in
connection with the issuance or administration of each Letter of Credit as the
Borrower and such Issuing Bank shall agree.
(c) Agents' Fees. The Borrower shall pay to each Agent for its own
account such fees as may from time to time be agreed between the Borrower and
such Agent.
SECTION 2.09. Conversion of Advances. (a) Optional. The Borrower may
on any Business Day, upon notice given to the Administrative Agent not later
than 11:00 A.M. (New York City time) on the third Business Day prior to the date
of the proposed Conversion and subject to the provisions of Section 2.10,
Convert all or any portion of the Advances of one Type comprising the same
Borrowing into Advances of the other Type; provided, however, that any
Conversion of Eurodollar Rate Advances into Base Rate Advances shall be made
only on the last day of an Interest Period for such Eurodollar Rate Advances,
any Conversion of Base Rate Advances into Eurodollar Rate Advances shall be in
an amount not less than the minimum amount specified in Section 2.02(b), no
Conversion of any Advances shall result in more separate Borrowings than
permitted under Section 2.02(b) and each Conversion of Advances comprising part
of the same Borrowing under any Facility shall be made ratably among the
Appropriate Lenders in accordance with their Commitments under such Facility.
Each such notice of Conversion shall, within the restrictions specified above,
specify (i) the date of such Conversion, (ii) the Advances to be Converted and
(iii) if such Conversion is into Eurodollar Rate Advances, the duration of the
initial Interest Period for such Advances. Each notice of Conversion shall be
irrevocable and binding on the Borrower.
(b) Mandatory. (i) On the date on which the aggregate unpaid
principal amount of Eurodollar Rate Advances comprising any Borrowing shall be
reduced, by payment or prepayment or otherwise, to less than $1,000,000, such
Advances shall automatically Convert into Base Rate Advances.
(ii) If the Borrower shall fail to select the duration of any
Interest Period for any Eurodollar Rate Advances in accordance with the
provisions contained in the definition of "Interest Period" in Section 1.01, the
Administrative Agent will forthwith so notify the Borrower and the Appropriate
Lenders, whereupon each such Eurodollar Rate Advance will automatically, on the
last day of the then existing Interest Period therefor, be continued as a
Eurodollar Rate Advance having an Interest Period of one month.
(iii) Upon the occurrence and during the continuance of any Event of
Default, if so requested by the Required Lenders, (x) each Eurodollar Rate
Advance will automatically, on the last day of the then existing Interest Period
therefor, Convert into a Base Rate Advance and (y) the obligation of the Lenders
to make, or to Convert Advances into, Eurodollar Rate Advances shall be
suspended.
SECTION 2.10. Increased Costs, Etc. (a) If, due to either (i) the
introduction of or any change (other than any change by way of imposition or
increase of reserve requirements
included in the Eurodollar Rate Reserve Percentage) in or in the interpretation
of any law or regulation or (ii) the compliance with any guideline or request
from any central bank or other governmental authority (whether or not having the
force of law), there shall be any increase in the cost to any Lender Party of
agreeing to make or of making, funding or maintaining Eurodollar Rate Advances
or of agreeing to issue or of issuing or maintaining or participating in Letters
of Credit or of agreeing to make or of making or maintaining Letter of Credit
Advances (excluding, for purposes of this Section 2.10, any such increased costs
resulting from (x) Taxes or Other Taxes (as to which Section 2.12 shall govern)
and (y) changes in the basis of taxation of overall net income or overall gross
income by the United States or by the foreign jurisdiction or state under the
laws of which such Lender Party is organized or has its Applicable Lending
Office or any political subdivision thereof), then the Borrower shall from time
to time, upon demand by such Lender Party (with a copy of such demand to the
Administrative Agent), pay to the Administrative Agent for the account of such
Lender Party additional amounts sufficient to compensate such Lender Party for
such increased cost; provided, however, that a Lender Party claiming additional
amounts under this Section 2.10(a) agrees to use reasonable efforts (consistent
with its internal policy and legal and regulatory restrictions) to designate a
different Applicable Lending Office if the making of such a designation would
avoid the need for, or reduce the amount of, such increased cost that may
thereafter accrue and would not, in the reasonable judgment of such Lender
Party, be otherwise disadvantageous to such Lender Party. A certificate as to
the amount of such increased cost, setting forth the basis of the calculation of
such amount submitted to the Borrower by such Lender Party, shall be conclusive
and binding for all purposes, absent manifest error.
(b) If, due to either (i) the introduction of or any change in or in
the interpretation of any law or regulation or (ii) the compliance with any
guideline or request from any central bank or other governmental authority
(whether or not having the force of law), there shall be any increase in the
amount of capital required or expected to be maintained by any Lender Party or
any corporation controlling such Lender Party as a result of or based upon the
existence of such Lender Party's commitment to lend or to issue or participate
in Letters of Credit hereunder and other commitments of such type or the
issuance or maintenance of or participation in the Letters of Credit (or similar
contingent obligations), then, upon demand by such Lender Party or such
corporation (with a copy of such demand to the Administrative Agent), the
Borrower shall pay to the Administrative Agent for the account of such Lender
Party, from time to time as specified by such Lender Party, additional amounts
sufficient to compensate such Lender Party in the light of such circumstances,
to the extent that such Lender Party reasonably determines such increase in
capital to be allocable to the existence of such Lender Party's commitment to
lend or to issue or participate in Letters of Credit hereunder or to the
issuance or maintenance of or participation in any Letters of Credit. A
certificate as to such amounts setting forth the basis of the calculation of
such amount, submitted to the Borrower by such Lender Party, shall be conclusive
and binding for all purposes, absent manifest error.
(c) If, with respect to any Eurodollar Rate Advances under any
Facility, the Required Lenders notify the Administrative Agent that the
Eurodollar Rate for any Interest Period for such Advances will not adequately
reflect the cost to such Lenders of making, funding or maintaining their
Eurodollar Rate Advances for such Interest Period, the Administrative Agent
shall forthwith so notify the Borrower and the Appropriate Lenders, whereupon
(i) each such Eurodollar Rate Advance under such Facility will automatically, on
the last day of the then existing Interest Period therefor, Convert into a Base
Rate Advance and (ii) the obligation of the Appropriate Lenders to make, or to
Convert Advances into, Eurodollar Rate Advances shall be suspended until the
Administrative Agent shall notify the Borrower that such Lenders have determined
that the circumstances causing such suspension no longer exist.
(d) Notwithstanding any other provision of this Agreement, if the
introduction of or any change in or in the interpretation of any law or
regulation shall make it unlawful, or any central bank or other governmental
authority shall assert that it is unlawful, for any Lender or its Eurodollar
Lending Office to perform its obligations hereunder to make Eurodollar Rate
Advances or to continue to fund or maintain Eurodollar Rate Advances hereunder,
then, on notice thereof and demand therefor by such Lender to the Borrower
through the Administrative Agent, (i) each Eurodollar Rate Advance under each
Facility under which such Lender has a Commitment will automatically, upon such
demand, Convert into a Base Rate Advance and (ii) the obligation of the
Appropriate Lenders to make, or to Convert Advances into, Eurodollar Rate
Advances shall be suspended until the Administrative Agent shall notify the
Borrower that such Lender has determined that the circumstances causing such
suspension no longer exist; provided, however, that, before making any such
demand, such Lender agrees to use reasonable efforts (consistent with its
internal policy and legal and regulatory restrictions) to designate a different
Eurodollar Lending Office if the making of such a designation would allow such
Lender or its Eurodollar Lending Office to continue to perform its obligations
to make Eurodollar Rate Advances or to continue to fund or maintain Eurodollar
Rate Advances and would not, in the judgment of such Lender, be otherwise
disadvantageous to such Lender.
(e) If for any reason Eurodollar Rate Advances shall no longer be
available, the parties hereto will promptly negotiate in good faith to
substitute a determination of interest rates based on the federal funds rate
that substantially replicates the determination of interest rates based on the
Eurodollar Rate.
SECTION 2.11. Payments and Computations. (a) The Borrower shall make
each payment hereunder and under the Notes, irrespective of any right of
counterclaim or set-off (except as otherwise provided in Section 2.15), not
later than 11:00 A.M. (New York City time) on the day when due in U.S. dollars
to the Administrative Agent at the Administrative Agent's Account in same day
funds, with payments being received by the Administrative Agent after such time
being deemed to have been received on the next succeeding Business Day. The
Administrative Agent will promptly thereafter cause like funds to be distributed
(i) if such payment by the Borrower is in respect of principal, interest,
commitment fees or any other Obligation then payable hereunder and under the
Notes to more than one Lender Party, to such Lender Parties for the account of
their respective Applicable Lending Offices ratably in accordance with the
amounts of such respective Obligations then payable to such Lender Parties and
(ii) if such payment by the Borrower is in respect of any Obligation then
payable hereunder to one Lender Party, to such Lender Party for the account of
its Applicable Lending Office, in each case to be applied in accordance with the
terms of this Agreement. Upon its acceptance of an Assignment and Acceptance and
recording of the information contained therein in the
Register pursuant to Section 9.07(d), from and after the effective date of such
Assignment and Acceptance, the Administrative Agent shall make all payments
hereunder and under the Notes in respect of the interest assigned thereby to the
Lender Party assignee thereunder, and the parties to such Assignment and
Acceptance shall make all appropriate adjustments in such payments for periods
prior to such effective date directly between themselves.
(b) The Borrower hereby authorizes each Lender Party and each of its
Affiliates, if and to the extent payment owed to such Lender Party is not made
when due hereunder or, in the case of a Lender, under the Note held by such
Lender, to charge from time to time, to the fullest extent permitted by law,
against any or all of the Borrower's accounts with such Lender Party or such
Affiliate any amount so due.
(c) All computations of interest based on the Base Rate and of fees
and Letter of Credit commissions shall be made by the Administrative Agent on
the basis of a year of 365 or 366 days, as the case may be, and all computations
of interest based on the Eurodollar Rate or the Federal Funds Rate shall be made
by the Administrative Agent on the basis of a year of 360 days, in each case for
the actual number of days (including the first day but excluding the last day)
occurring in the period for which such interest, fees or commissions are
payable. Each determination by the Administrative Agent of an interest rate, fee
or commission hereunder shall be conclusive and binding for all purposes, absent
manifest error.
(d) Whenever any payment hereunder or under the Notes shall be
stated to be due on a day other than a Business Day, such payment shall be made
on the next succeeding Business Day, and such extension of time shall in such
case be included in the computation of payment of interest or commitment fee, as
the case may be; provided, however, that, if such extension would cause payment
of interest on or principal of Eurodollar Rate Advances to be made in the next
following calendar month, such payment shall be made on the next preceding
Business Day.
(e) Unless the Administrative Agent shall have received notice from
the Borrower prior to the date on which any payment is due to any Lender Party
hereunder that the Borrower will not make such payment in full, the
Administrative Agent may assume that the Borrower has made such payment in full
to the Administrative Agent on such date and the Administrative Agent may, in
reliance upon such assumption, cause to be distributed to each such Lender Party
on such due date an amount equal to the amount then due such Lender Party. If
and to the extent the Borrower shall not have so made such payment in full to
the Administrative Agent, each such Lender Party shall repay to the
Administrative Agent forthwith on demand such amount distributed to such Lender
Party together with interest thereon, for each day from the date such amount is
distributed to such Lender Party until the date such Lender Party repays such
amount to the Administrative Agent, at the Federal Funds Rate.
(f) If the Administrative Agent receives funds for application to
the Obligations under the Loan Documents under circumstances for which the Loan
Documents do not specify the Advances or the Facility to which, or the manner in
which, such funds are to be applied, the Administrative Agent may, but shall not
be obligated to, elect to distribute such
funds to each Lender Party ratably in accordance with such Lender Party's
proportionate share of the principal amount of all outstanding Advances and the
Available Amount of all Letters of Credit then outstanding, in repayment or
prepayment of such of the outstanding Advances or other obligations owed to such
Lender Party, and for application to such principal installments, as the
Administrative Agent shall direct.
SECTION 2.12. Taxes. (a) Any and all payments by, or for the account
of, the Borrower and the other Loan Parties hereunder and under, or in respect
of, the Notes shall be made, in accordance with Section 2.11, free and clear of
and without deduction for any and all present or future taxes, levies, imposts,
deductions, charges or withholdings, and all liabilities with respect thereto
imposed by the United States or any other jurisdiction in which the Borrower or
any of its Subsidiaries is subject to tax on a net income basis, excluding,
income taxes, branch profit taxes or franchise taxes imposed on any Lender Party
or Agent as a result of any present or former connection between such Lender
Party or Agent, as the case may be, and the jurisdiction imposing such income
taxes, branch profit taxes or franchise taxes, other than any such connection
arising from such Lender Party or Agent having executed, delivered or performed
its obligations or received a payment under, or enforced, this Agreement or any
Note or exercised any rights or remedies or otherwise collected amounts due
hereunder or in respect of any Note or from owning, holding or transferring any
Note (all such non-excluded taxes, levies, imposts, deductions, charges,
withholdings and liabilities in respect of payments hereunder or under the Notes
being hereinafter referred to as "Taxes"). If the Borrower shall be required by
law to deduct any taxes, levies, imposts, deductions, charges, withholdings or
liabilities from or in respect of any sum payable hereunder or under any Note to
any Lender Party or any Agent, (i) if such deduction is on account of Taxes, the
sum payable by the Borrower shall be increased as may be necessary so that after
the Borrower and the Administrative Agent have made all required deductions
(including deductions applicable to additional sums payable under this Section
2.12) such Lender Party or such Agent, as the case may be, receives an amount
equal to the sum it would have received had no such deductions been made, (ii)
the Borrower shall make all such deductions and (iii) the Borrower shall pay the
full amount deducted to the relevant taxation authority or other authority in
accordance with applicable law.
(b) In addition, the Borrower shall pay any present or future stamp,
documentary, excise, property, transfer or similar taxes, charges or levies
imposed by the United States or any other jurisdiction in which the Borrower or
any of its Subsidiaries is subject to tax on a net income basis that arise from
any payment made hereunder or under the Notes or from the execution, delivery or
registration of, performance under, or otherwise with respect to, this Agreement
or the Notes (hereinafter referred to as "Other Taxes").
(c) The Borrower shall pay each Lender Party and each Agent the full
amount of Taxes and Other Taxes, imposed on or paid by such Lender Party or such
Agent (as the case may be) and any liability (including penalties, additions to
tax, interest and expenses) arising therefrom or with respect thereto. This
payment shall be made within 30 days from the date such Lender Party or such
Agent (as the case may be) makes written demand therefor. Such written demand
shall be in a form providing reasonable detail and shall, when delivered to the
Borrower by a Lender Party or such Agent (as the case may be), be conclusive
absent manifest error.
(d) Within 30 days after the date of any payment of Taxes, the
Borrower shall furnish to the Administrative Agent, at its address referred to
in Section 9.02, the original or a certified copy of a receipt (or, if such a
receipt is not available, such other written documentation reasonably
satisfactory to the Administrative Agent) evidencing such payment. In the case
of any payment hereunder or under the Notes by or on behalf of the Borrower
through an account or branch outside the United States or by or on behalf of the
Borrower by a payor that is not a United States person, if the Borrower
determines that no Taxes are payable in respect thereof, the Borrower shall
furnish, or shall cause such payor to furnish, to the Administrative Agent, at
such address, an opinion of counsel acceptable to the Administrative Agent
stating that such payment is exempt from Taxes. For purposes of subsections (d)
and (e) of this Section 2.12, the terms "United States" and "United States
person" shall have the meanings specified in Section 7701 of the Internal
Revenue Code.
(e) Each Lender Party organized under the laws of a jurisdiction
outside the United States shall on or prior to the date of its execution and
delivery of this Agreement, in the case of each Initial Lender Party, and on the
date of the Assignment and Acceptance pursuant to which it becomes a Lender
Party, in the case of each other Lender Party, and from time to time thereafter
as requested in writing by the Borrower (but only so long thereafter as such
Lender Party remains lawfully able to do so), provide each of the Administrative
Agent and the Borrower with two original Internal Revenue Service forms 1001,
4224, form W-8, W-8ECI or W-8BEN (and, if such Lender Party delivers a form W-8
or W-8BEN, a certificate representing that such Lender Party is not a "bank" for
purposes of Section 881(c) of the Internal Revenue Code, is not a 10-percent
shareholder (within the meaning of Section 871(h)(3)(B) of the Internal Revenue
Code) of the Borrower and is not a controlled foreign corporation related to the
Borrower (within the meaning of Section 864(d)(4) of the Internal Revenue
Code)), as appropriate, or any successor or other form prescribed by the
Internal Revenue Service, certifying that such Lender Party is exempt from or
entitled to a reduced rate of United States withholding tax on payments pursuant
to this Agreement or the Notes or, in the case of a Lender Party providing a
form W-8 or W-8BEN, certifying that such Lender Party is a foreign corporation,
partnership, estate or trust. If the forms provided by a Lender Party at the
time such Lender Party first becomes a party to this Agreement indicate a United
States interest withholding tax rate in excess of zero, withholding tax at such
rate shall be considered excluded from Taxes unless and until such Lender Party
provides the appropriate forms certifying that a lesser rate applies, whereupon
withholding tax at such lesser rate only shall be considered excluded from Taxes
for periods governed by such forms; provided, however, that if, at the effective
date of the Assignment and Acceptance pursuant to which a Lender Party becomes a
party to this Agreement, the Lender Party assignor was entitled to payments
under subsection (a) of this Section 2.12 in respect of United States
withholding tax with respect to interest paid at such date, then, to such
extent, the term Taxes shall include (in addition to withholding taxes that may
be imposed in the future or other amounts otherwise includable in Taxes) United
States withholding tax, if any, applicable with respect to the Lender Party
assignee on such date. In addition, each Lender Party shall, at the written
request of the Borrower, provide each of the Administrative Agent and the
Borrower with such form or document, if any, as may be applicable and required
to avoid or minimize the imposition or assessment of Taxes by any jurisdiction
other than the
United States, but only to the extent that such Lender Party shall, under then
applicable law, be legally able to do so. If any form or document referred to in
this subsection (e) requires the disclosure of information, other than
information necessary to compute the tax payable and information required by
Internal Revenue Service form 1001, 4224, W-8, W-8BEN or W-8ECI (or the related
certificate described above) or comparable successor forms, that the applicable
Lender Party reasonably considers to be confidential, such Lender Party shall
give notice thereof to the Borrower and shall not be obligated to include in
such form or document such confidential information.
(f) For any period with respect to which a Lender Party has failed
to provide the Borrower with the appropriate form described in subsection (e)
above (other than if such failure is due to a change in law occurring after the
date on which a form originally was required to be provided or if such form
otherwise is not required under subsection (e) above), such Lender Party shall
not be entitled to the benefits of subsection (a) or (c) of this Section 2.12
with respect to Taxes imposed by the United States by reason of such failure;
provided, however, that should a Lender Party become subject to Taxes because of
its failure to deliver a form required hereunder, the Borrower shall take such
steps as such Lender Party shall reasonably request (and for which such Lender
Party shall reimburse the Borrower) to assist such Lender Party to recover such
Taxes.
(g) Any Lender Party claiming any additional amounts payable
pursuant to this Section 2.12 agrees to use reasonable efforts (consistent with
its internal policy and legal and regulatory restrictions) to change the
jurisdiction of its Eurodollar Lending Office if the making of such a change
would avoid the need for, or reduce the amount of, any such additional amounts
that may thereafter accrue and would not, in the reasonable judgment of such
Lender Party, be disadvantageous to such Lender Party.
(h) If any Lender requests compensation under or if the Borrower is
required to pay any additional amount to any Lender or any Governmental
Authority for the account of any Lender pursuant to this Section 2.12, or if any
Lender becomes a Defaulting Lender, then the Borrower may, at its sole expense
and effort, upon notice to such Lender and the administrative Agent, require
such Lender to assign and delegate, without recourse (in accordance with and
subject to the restrictions contained in Section 9.07), all its interests,
rights and obligations under this Agreement to an assignee that shall assume
such obligations (which assignee may be another Lender, if a Lender accepts such
assignment); provided that (i) unless such assignee is another Lender, the
Borrower shall have received the prior written consent of the Administrative
Agent (and, if a Working Capital Commitment is being assigned, the Issuing
Bank), which consent shall not unreasonably be withheld, and (ii) such Lender
shall have received payment of an amount equal to the outstanding principal of
its Loans and participations in Letter of Credit Advances, accrued interest
thereon, accrued fees and all other amounts payable to it hereunder, from the
assignee (to the extent of such outstanding principal and accrued interest and
fees) or the Borrower (in the case of all other amounts). A Lender shall not be
required to make any such assignment and delegation if, prior thereto, as a
result of a waiver by such Lender or otherwise, the circumstances entitling the
Borrower to require such assignment and delegation cease to apply.
SECTION 2.13. Sharing of Payments, Etc. If any Lender Party shall
obtain at any time any payment (whether voluntary, involuntary, through the
exercise of any right of set-off, or otherwise, other than as a result of an
assignment pursuant to Section 9.07) (a) on account of Obligations due and
payable to such Lender Party hereunder and under the Notes at such time in
excess of its ratable share (according to the proportion of (i) the amount of
such Obligations due and payable to such Lender Party at such time to (ii) the
aggregate amount of the Obligations due and payable to all Lender Parties
hereunder and under the Notes at such time) of payments on account of the
Obligations due and payable to all Lender Parties hereunder and under the Notes
at such time obtained by all the Lender Parties at such time or (b) on account
of Obligations owing (but not due and payable) to such Lender Party hereunder
and under the Notes at such time in excess of its ratable share (according to
the proportion of (i) the amount of such Obligations owing to such Lender Party
at such time to (ii) the aggregate amount of the Obligations owing (but not due
and payable) to all Lender Parties hereunder and under the Notes at such time)
of payments on account of the Obligations owing (but not due and payable) to all
Lender Parties hereunder and under the Notes at such time obtained by all of the
Lender Parties at such time, such Lender Party shall forthwith purchase from the
other Lender Parties such interests or participating interests in the
Obligations due and payable or owing to them, as the case may be, as shall be
necessary to cause such purchasing Lender Party to share the excess payment
ratably with each of them; provided, however, that if all or any portion of such
excess payment is thereafter recovered from such purchasing Lender Party, such
purchase from each other Lender Party shall be rescinded and such other Lender
Party shall repay to the purchasing Lender Party the purchase price to the
extent of such Lender Party's ratable share (according to the proportion of (i)
the purchase price paid to such Lender Party to (ii) the aggregate purchase
price paid to all Lender Parties) of such recovery together with an amount equal
to such Lender Party's ratable share (according to the proportion of (i) the
amount of such other Lender Party's required repayment to (ii) the total amount
so recovered from the purchasing Lender Party) of any interest or other amount
paid or payable by the purchasing Lender Party in respect of the total amount so
recovered; provided further that, so long as the Obligations under the Loan
Documents shall not have been accelerated, any excess payment received by any
Appropriate Lender shall be shared on a pro rata basis only with other
Appropriate Lenders. The Borrower agrees that any Lender Party so purchasing an
interest or participating interest from another Lender Party pursuant to this
Section 2.13 may, to the fullest extent permitted by law, exercise all its
rights of payment (including the right of set-off) with respect to such interest
or participating interest, as the case may be, as fully as if such Lender Party
were the direct creditor of the Borrower in the amount of such interest or
participating interest, as the case may be.
SECTION 2.14. Use of Proceeds. The proceeds of the Advances and
issuances of Letters of Credit shall be available (and the Borrower agrees that
it shall use such proceeds and Letters of Credit) (i) in the case of the Term A
Facility for the Financing (provided that such proceeds are used in connection
with the Hotel Collateral) and to pay transaction fees and expenses incurred in
connection therewith, (ii) in the case of the Term B Facility for the
Refinancing and to pay transaction fees and expenses incurred in connection
therewith and (iii) in the case of the Working Capital Facility and the Letter
of Credit Facility, to provide working capital for the Parent and its
Subsidiaries, to finance hotel development and repositioning
projects and for other general corporate purposes (provided that no more than
$25,000,000 of the Working Capital Advances shall be used in connection with
non-Hotel Collateral).
SECTION 2.15. Defaulting Lenders. (a) In the event that, at any one
time, (i) any Lender Party shall be a Defaulting Lender, (ii) such Defaulting
Lender shall owe a Defaulted Advance to the Borrower and (iii) the Borrower
shall be required to make any payment hereunder or under any other Loan Document
to or for the account of such Defaulting Lender, then the Borrower may, so long
as no Default shall occur or be continuing at such time and to the fullest
extent permitted by applicable law, set off and otherwise apply the Obligation
of the Borrower to make such payment to or for the account of such Defaulting
Lender against the obligation of such Defaulting Lender to make such Defaulted
Advance. In the event that, on any date, the Borrower shall so set off and
otherwise apply its obligation to make any such payment against the obligation
of such Defaulting Lender to make any such Defaulted Advance on or prior to such
date, the amount so set off and otherwise applied by the Borrower shall
constitute for all purposes of this Agreement and the other Loan Documents an
Advance by such Defaulting Lender made on the date of such setoff under the
Facility pursuant to which such Defaulted Advance was originally required to
have been made pursuant to Section 2.01. Such Advance shall be considered, for
all purposes of this Agreement, to comprise part of the Borrowing in connection
with which such Defaulted Advance was originally required to have been made
pursuant to Section 2.01, even if the other Advances comprising such Borrowing
shall be Eurodollar Rate Advances on the date such Advance is deemed to be made
pursuant to this subsection (a). The Borrower shall notify the Administrative
Agent at any time the Borrower exercises its right of set-off pursuant to this
subsection (a) and shall set forth in such notice (A) the name of the Defaulting
Lender and the Defaulted Advance required to be made by such Defaulting Lender
and (B) the amount set off and otherwise applied in respect of such Defaulted
Advance pursuant to this subsection (a). Any portion of such payment otherwise
required to be made by the Borrower to or for the account of such Defaulting
Lender which is paid by the Borrower, after giving effect to the amount set off
and otherwise applied by the Borrower pursuant to this subsection (a), shall be
applied by the Administrative Agent as specified in subsection (b) or (c) of
this Section 2.15.
(b) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall owe a Defaulted Amount
to any Agent or any of the other Lender Parties and (iii) the Borrower shall
make any payment hereunder or under any other Loan Document to the
Administrative Agent for the account of such Defaulting Lender, then the
Administrative Agent may, on its behalf or on behalf of such other Agents or
such other Lender Parties and to the fullest extent permitted by applicable law,
apply at such time the amount so paid by the Borrower to or for the account of
such Defaulting Lender to the payment of each such Defaulted Amount to the
extent required to pay such Defaulted Amount. In the event that the
Administrative Agent shall so apply any such amount to the payment of any such
Defaulted Amount on any date, the amount so applied by the Administrative Agent
shall constitute for all purposes of this Agreement and the other Loan Documents
payment, to such extent, of such Defaulted Amount on such date. Any such amount
so applied by the Administrative Agent shall be retained by the Administrative
Agent or distributed by the Administrative Agent to such other Agents or such
other Lender Parties, ratably in accordance
with the respective portions of such Defaulted Amounts payable at such time to
the Administrative Agent, such other Agents and such other Lender Parties and,
if the amount of such payment made by the Borrower shall at such time be
insufficient to pay all Defaulted Amounts owing at such time to the
Administrative Agent, such other Agents and such other Lender Parties, in the
following order of priority:
(i) first, to the Agents for any Defaulted Amounts then owing to
them, in their capacities as such, ratably in accordance with such
respective Defaulted Amounts then owing to the Agents;
(ii) second, to the Issuing Bank and the Swing Line Bank for any
Defaulted Amounts then owing to them, in their capacities as such, ratably
in accordance with such respective Defaulted Amounts then owing to the
Issuing Bank and the Swing Line Bank; and
(iii) third, to any other Lender Parties for any Defaulted Amounts
then owing to such other Lender Parties, ratably in accordance with such
respective Defaulted Amounts then owing to such other Lender Parties.
Any portion of such amount paid by the Borrower for the account of such
Defaulting Lender remaining, after giving effect to the amount applied by the
Administrative Agent pursuant to this subsection (b), shall be applied by the
Administrative Agent as specified in subsection (c) of this Section 2.15.
(c) In the event that, at any one time, (i) any Lender Party shall
be a Defaulting Lender, (ii) such Defaulting Lender shall not owe a Defaulted
Advance or a Defaulted Amount and (iii) the Borrower, any Agent or any other
Lender Party shall be required to pay or distribute any amount hereunder or
under any other Loan Document to or for the account of such Defaulting Lender,
then the Borrower or such Agent or such other Lender Party shall pay such amount
to the Administrative Agent to be held by the Administrative Agent, to the
fullest extent permitted by applicable law, in escrow or the Administrative
Agent shall, to the fullest extent permitted by applicable law, hold in escrow
such amount otherwise held by it. Any funds held by the Administrative Agent in
escrow under this subsection (c) shall be deposited by the Administrative Agent
in such account as the Administrative Agent shall designate in writing to the
Borrower and the Defaulting Lender, in the name and under the control of the
Administrative Agent, but subject to the provisions of this subsection (c). The
terms applicable to such account, including the rate of interest payable with
respect to the credit balance of such account from time to time, shall be the
Administrative Agent's standard terms applicable to escrow accounts maintained
with it. Any interest credited to such account from time to time shall be held
by the Administrative Agent in escrow under, and applied by the Administrative
Agent from time to time in accordance with the provisions of, this subsection
(c). The Administrative Agent shall, to the fullest extent permitted by
applicable law, apply all funds so held in escrow from time to time to the
extent necessary to make any Advances required to be made by such Defaulting
Lender and to pay any amount payable by such Defaulting Lender hereunder and
under the other Loan Documents to the Administrative Agent or any other Lender
Party, as and when such Advances
or amounts are required to be made or paid and, if the amount so held in escrow
shall at any time be insufficient to make and pay all such Advances and amounts
required to be made or paid at such time, in the following order of priority:
(i) first, to the Agents for any amounts then due and payable by
such Defaulting Lender to them hereunder, in their capacities as such,
ratably in accordance with such respective amounts then due and payable to
the Agents;
(ii) second, to the Issuing Bank and the Swing Line Bank for any
amounts then due and payable to them hereunder, in their capacities as
such, by such Defaulting Lender, ratably in accordance with such
respective amounts then due and payable to the Issuing Bank and the Swing
Line Bank;
(iii) third, to any other Lender Parties for any amount then due and
payable by such Defaulting Lender to such other Lender Parties hereunder,
ratably in accordance with such respective amounts then due and payable to
such other Lender Parties; and
(iv) fourth, to the Borrower for any Advance then required to be
made by such Defaulting Lender pursuant to a Commitment of such Defaulting
Lender.
In the event that any Lender Party that is a Defaulting Lender shall, at any
time, cease to be a Defaulting Lender, any funds held by the Administrative
Agent in escrow at such time with respect to such Lender Party shall be
distributed by the Administrative Agent to such Lender Party and applied by such
Lender Party to the Obligations owing to such Lender Party at such time under
this Agreement and the other Loan Documents ratably in accordance with the
respective amounts of such Obligations outstanding at such time.
(d) The rights and remedies against a Defaulting Lender under this
Section 2.15 are in addition to other rights and remedies that the Borrower may
have against such Defaulting Lender with respect to any Defaulted Advance and
that any Agent or any Lender Party may have against such Defaulting Lender with
respect to any Defaulted Amount.
SECTION 2.16. Term C Facility. (a) On and after the date hereof, the
Borrower may request one or more of the Lenders or any other Person that would
become a Lender pursuant to the provisions of this Agreement upon its execution
of a Tranche C Supplement, to provide commitments to make one or more term
advances to the Borrower (each a "Term C Advance"); each of which Term C
Advances shall be deemed to be an Advance under this Agreement and shall be
entitled to the benefits of this Agreement and the other Loan Documents,
provided that (i) the aggregate principal amount of the Term C Advances shall
not exceed $50 million, (ii) the final maturity date and the scheduled
amortization of the Term C Advances shall be as set forth in the Tranche C
Supplement so long as (A) no Term C Advance shall have a final maturity date
earlier than July 15, 2006 and (B) the weighted average life of the Tranche C
Advances shall be greater than the weighted average life of the Tranche B
Advances, (iii) both before and after giving effect to the making of the Tranche
C Advances, no Default shall have occurred and be continuing and (iv) the
interest rate, commitment fees and other amounts
payable in respect of the Term C Advances shall be as set forth on the Tranche C
Supplement so long as such interest rate shall be expressed as a margin in
excess of the Base Rate or the Eurodollar Rate.
ARTICLE III
CONDITIONS OF LENDING AND
ISSUANCES OF LETTERS OF CREDIT
SECTION 3.01. Conditions Precedent to Initial Extension of Credit.
The obligation of each Lender to make an Advance or of the Issuing Bank to issue
a Letter of Credit on the occasion of the Initial Extension of Credit hereunder
is subject to the satisfaction of the following conditions precedent before or
concurrently with the Initial Extension of Credit:
(a) The Administrative Agent shall have received on or before the
day of the Initial Extension of Credit the following, each dated such day
(unless otherwise specified), in form and substance satisfactory to the
Lender Parties (unless otherwise specified) and (except for the Notes) in
sufficient copies for each Lender Party:
(i) The Notes (other than the Term C Notes) payable to
the Lenders or their registered assigns (provided that in the case
of the Term B Facility, the Borrower shall deliver a Term B Note for
each B Lender evidencing the first Term B Advance to be made by such
Lender).
(ii) A security agreement in substantially the form of
Exhibit D hereto (together with each other security agreement and
security agreement supplement delivered pursuant to Section 5.01(j),
in each case as amended, the "Security Agreement"), duly executed by
each Loan Party, together with:
(A) certificates representing the Pledged
Shares referred to therein accompanied by undated stock powers
executed in blank and instruments evidencing the Pledged Debt
indorsed in blank,
(B) acknowledgment copies of proper
financing statements, duly filed on or before the day of the
Initial Extension of Credit under the Uniform Commercial Code
of all jurisdictions that the Administrative Agent may deem
necessary or desirable in order to perfect and protect the
first priority liens and security interests created under the
Security Agreement, covering the Hotel Collateral described in
the Security Agreement,
(C) completed requests for information,
dated on or before the date of the Initial Extension of
Credit, listing the financing statements referred to in clause
(B) above and all other effective financing
statements filed in the jurisdictions referred to in clause
(B) above that name any Loan Party as debtor, together with
copies of such other financing statements,
(D) evidence of the completion of all other
recordings and filings of or with respect to the Security
Agreement that the Administrative Agent may deem necessary or
desirable in order to perfect and protect the Liens created
thereby,
(E) evidence of the insurance required by
the terms of the Security Agreement,
(F) copies of the Assigned Agreements
referred to in the Security Agreement, together with a consent
to such assignment, in substantially the form of Exhibit B to
the Security Agreement, duly executed by each party to such
Assigned Agreements other than the Loan Parties,
(G) the Pledged Account Letters referred to
in the Security Agreement, duly executed by each Pledged
Account Bank referred to in the Security Agreement, and
(H) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order
to perfect and protect the first priority liens and security
interests created under the Security Agreement has been taken
(including, without limitation, receipt of duly executed
payoff letters, UCC-3 termination statements and landlords'
and bailees' waiver and consent agreements).
(iii) Deeds of trust, trust deeds, mortgages, leasehold
mortgages, leasehold deeds of trust and/or assignments and/or
amendments and restatements of deeds of trust, trust deeds,
mortgages, leasehold mortgages and leasehold deeds of trust in form
and substance acceptable to the Administrative Agent and covering
the Hotel Collateral Properties listed on Part I of Schedules
4.01(w) and 4.01(x) hereto (together with the Assignments of Leases
and Rents referred to therein and each other mortgage or similar
document delivered pursuant to Section 5.01(j) or 5.01(p), in each
case as amended, the "Mortgages"), duly executed by the appropriate
Loan Party, together with:
(A) evidence that counterparts of the
Mortgages have been duly recorded on or before the day of the
Initial Extension of Credit in all filing or recording offices
that the Administrative Agent may deem necessary or desirable
in order to create a valid first and subsisting Lien on the
property described therein in favor of the Collateral Agent
for
the benefit of the Secured Parties and that all filing and
recording taxes and fees have been paid,
(B) fully paid American Land Title
Association Lender's Extended Coverage title insurance
policies (the "Mortgage Policies") in form and substance, with
endorsements and in amount acceptable to the Administrative
Agent, issued, coinsured and reinsured by title insurers
acceptable to the Administrative Agent, insuring the Mortgages
to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including,
but not limited to, mechanics' and materialmen's Liens) and
encumbrances, excepting only Permitted Encumbrances, and
providing for such other affirmative insurance (including
endorsements for future advances under the Loan Documents and
for mechanics' and materialmen's Liens) and such coinsurance
and direct access reinsurance as the Administrative Agent may
reasonably deem necessary or desirable,
(C) American Land Title Association form
surveys, dated no more than 9 months before the day of the
Initial Extension of Credit (or, in the case of newly
constructed properties, no more than 30 days before the day of
the Initial Extension of Credit), certified to the
Administrative Agent and the issuer of the Mortgage Policies
in a manner satisfactory to the Administrative Agent by a land
surveyor duly registered and licensed in the States in which
the property described in such surveys is located and
acceptable to the Administrative Agent, showing all buildings
and other improvements, any off-site improvements, the
location of any easements, parking spaces, rights of way,
building set-back lines and other dimensional regulations and
the absence of encroachments, either by such improvements or
on to such property, and other defects, other than
encroachments and other defects acceptable to the
Administrative Agent,
(D) the Assignments of Leases and Rents
referred to in the Mortgages, duly executed by the appropriate
Loan Party,
(E) such consents and agreements of lessors
and other third parties, and such estoppel letters and other
confirmations, as the Administrative Agent may deem necessary
or desirable,
(F) evidence of the insurance required by
the terms of the Mortgages,
(G) an appraisal (each, an "Appraisal") of
each of the properties described in the Mortgages complying
with the requirements of the Federal Financial Institutions
Reform, Recovery and
Enforcement Act of 1989 (the Value set forth in an Appraisal
being the "Appraisal Value") ,
(H) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order
to create valid first and subsisting Liens on the property
described in the Mortgages has been taken, and
(I) any other actions required pursuant to
the terms set forth in Annex A.
(iv) Certified copies of the resolutions of the Board of
Directors of each Loan Party approving the Transaction and each
Transaction Document to which it is or is to be a party, and of all
documents evidencing other necessary corporate action and
governmental and other third party approvals and consents, if any,
with respect to the Transaction and each Transaction Document to
which it is or is to be a party.
(v) A copy of a certificate of the Secretary of State of
the jurisdiction of incorporation of each Loan Party, dated
reasonably near the date of the Initial Extension of Credit,
certifying (A) as to a true and correct copy of the charter of such
Loan Party and each amendment thereto on file in such Secretary's
office and (B) that (1) such amendments are the only amendments to
such Loan Party's charter on file in such Secretary's office and (2)
such Loan Party has paid all franchise taxes to the date of such
certificate and (C) such Loan Party is duly incorporated and in good
standing or presently subsisting under the laws of the State of the
jurisdiction of its incorporation.
(vi) A copy of a certificate of the Secretary of State
of the jurisdiction of organization of each Loan Party, dated
reasonably near the date of the Initial Extension of Credit, stating
that each Loan Party is duly qualified and in good standing as a
foreign corporation in such State and has filed all annual reports
required to be filed to the date of such certificate.
(vii) A certificate of each Loan Party, signed on behalf
of such Loan Party by its President or a Vice President and its
Secretary or any Assistant Secretary, dated the date of the Initial
Extension of Credit (the statements made in which certificate shall
be true on and as of the date of the Initial Extension of Credit),
certifying as to (A) the absence of any amendments to the charter of
such Loan Party since the date of the Secretary of State's
certificate referred to in Section 3.01(a)(v), (B) a true and
correct copy of the bylaws of such Loan Party as in effect on the
date on which the resolutions referred to in Section 3.01(a)(iv)
were adopted and on the date of the Initial Extension of Credit, (C)
the due incorporation and good standing or valid existence of such
Loan Party as a corporation organized under the laws of the
jurisdiction of its incorporation, and
the absence of any proceeding for the dissolution or liquidation of
such Loan Party, (D) the truth of the representations and warranties
contained in the Loan Documents as though made on and as of the date
of the Initial Extension of Credit and (E) the absence of any event
occurring and continuing, or resulting from the Initial Extension of
Credit, that constitutes a Default.
(viii) A certificate of the Secretary or an Assistant
Secretary of each Loan Party certifying the names and true
signatures of the officers of such Loan Party authorized to sign
each Transaction Document to which it is or is to be a party and the
other documents to be delivered hereunder and thereunder.
(ix) Certified copies of each of the Related Documents,
duly executed by the parties thereto and in form and substance
satisfactory to the Lender Parties, together with all agreements,
instruments and other documents delivered in connection therewith as
the Administrative Agent shall request.
(x) Certificates, in substantially the form of Exhibit F
hereto, attesting to the Solvency of each Loan Party before and
after giving effect to the Transaction, from its Chief Financial
Officer.
(xi) Such financial, business and other information
regarding each Loan Party and its Subsidiaries as the Lender Parties
shall have requested, including, without limitation, information as
to possible contingent liabilities, tax matters, environmental
matters, obligations under Plans, Multiemployer Plans and Welfare
Plans, collective bargaining agreements and other arrangements with
employees, audited annual financial statements dated December 31,
1998, interim financial statements dated the end of the most recent
fiscal quarter for which financial statements are available (or, in
the event the Lender Parties' due diligence review reveals material
changes since such financial statements, as of a later date within
45 days of the day of the Initial Extension of Credit), pro forma
financial statements as to the Parent and it Subsidiaries and
forecasts prepared by management of the Company, in form and
substance satisfactory to the Lender Parties, of balance sheets,
income statements and cash flow statements on a quarterly basis for
the first year following the day of the Initial Extension of Credit
and on an annual basis for each year thereafter until the
Termination Date.
(xii) Evidence of insurance naming the Collateral Agent
as additional insured and loss payee with such responsible and
reputable insurance companies or associations, and in such amounts
and covering such risks, as is satisfactory to the Lender Parties,
including, without limitation, business interruption insurance.
(xiii) Certified copies of all Material Contracts of
each Loan Party and its Subsidiaries as the Administrative Agent
shall request.
(xiv) A Notice of Borrowing or Notice of Issuance, as
applicable, relating to the Initial Extension of Credit.
(xv) A favorable opinion of Cadwalder, Wickersham &
Taft, counsel for the Loan Parties, in substantially the form of
Exhibit G hereto and as to such other matters as any Lender Party
through the Administrative Agent may reasonably request.
(xvi) A favorable opinion of each local counsel to the
Parties listed on Schedule 3.01(a), in form and substance
satisfactory to the Lender Parties.
(xvii) Each of the Canadian Documents duly executed by
Servico Windsor, Inc.
(b) The Lender Parties shall be satisfied with the corporate and
legal structure and capitalization of each Loan Party and each of its
Subsidiaries the Equity Interests in which Subsidiaries is being pledged
pursuant to the Loan Documents, including the terms and conditions of the
charter, bylaws and each class of Equity Interest in each Loan Party and
each such Subsidiary and of each agreement or instrument relating to such
structure or capitalization.
(c) The Lender Parties shall be satisfied that all Existing Debt,
other than Surviving Debt, has been prepaid, redeemed or defeased in full
or otherwise satisfied and extinguished and that all Surviving Debt shall
be on terms and conditions satisfactory to the Lender Parties.
(d) Before giving effect to the Transactions, there shall have
occurred no Material Adverse Change since December 31, 1998.
(e) There shall exist no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries pending or
threatened before any court, governmental agency or arbitrator that (i)
could reasonably be expected to have a Material Adverse Effect other than
the matters listed on Schedule 4.01(f) hereto (the "Disclosed Litigation")
or (ii) purports to affect the legality, validity or enforceability of any
Transaction Document or the consummation of the Transactions, and there
shall have been no adverse change in the status, or financial effect on
any Loan Party or any of its Subsidiaries, of the Disclosed Litigation
from that described on Schedule 4.01(f) hereto.
(f) All governmental and third party consents and approvals
necessary in connection with the Transaction shall have been obtained
(without the imposition of any conditions that are not acceptable to the
Lender Parties) and shall remain in effect; all applicable waiting periods
in connection with the Transaction shall have expired without any action
being taken by any competent authority, and no law or regulation shall be
applicable in the judgment of the Lender Parties, in each case that
restrains, prevents or
imposes materially adverse conditions upon the Transactions or the rights
of the Loan Parties or their Subsidiaries freely to transfer or otherwise
dispose of, or to create any Lien on, any properties now owned or
hereafter acquired by any of them.
(g) The Lender Parties shall have completed a due diligence
investigation of the Parent and its Subsidiaries in scope, and with
results, satisfactory to the Lender Parties, and nothing shall have come
to the attention of the Lender Parties during the course of such due
diligence investigation to lead them to believe that the Information
Memorandum was or has become misleading, incorrect or incomplete in any
material respect; without limiting the generality of the foregoing, the
Lender Parties shall have been given such access to the management,
records, books of account, contracts and properties of the Parent and its
Subsidiaries as they shall have requested; including, without limitation,
information as to possible contingent liabilities, tax matters, collective
bargaining agreements and other arrangements with employees, annual
financial statements dated December 31, 1998, interim financial statements
dated the end of the most recent fiscal quarter for which financial
statements are available (or, in the event the Lender Parties' due
diligence review reveals material changes since such financial statements,
as of a later date within 45 days of the Effective Date), pro forma
consolidated financial statements as to the Parent and its subsidiaries,
and forecasts prepared by management of the Parent, in a form satisfactory
to the Lender Parties, of balance sheets, income statements and cash flow
statements on a quarterly basis for the first year following the Effective
Date.
(h) The Borrower shall have paid all accrued fees of the Agents and
the Lender Parties and all accrued and invoiced expenses of the Agents
(including the accrued fees and expenses of counsel to the Arranger and
local counsel to the Lender Parties).
(i) The Lender Parties shall be satisfied with the terms and
conditions of the Subordinated Notes. The Borrower shall have received at
least $200 million in gross cash proceeds from the sale of the
Subordinated Notes, and all such proceeds shall have been used or shall be
used simultaneously with the Initial Extension of Credit by the Borrower
to finance the Transaction.
(j) The Lender Parties shall be reasonably satisfied with the nature
and amount of any liabilities related to existing and potential
environmental concerns associated with any Hotel Collateral Properties.
SECTION 3.02. Conditions Precedent to Each Borrowing and Issuance
and Renewal. The obligation of each Appropriate Lender to make an Advance (other
than a Letter of Credit Advance made by the Issuing Bank or a Working Capital
Lender pursuant to Section 2.03(c) and a Swing Line Advance made by a Working
Capital Lender pursuant to Section 2.02(b)) on the occasion of each Borrowing
(including the initial Borrowing), and the obligation of the Issuing Bank to
issue a Letter of Credit (including the initial issuance) or renew a Letter of
Credit, shall be subject to the further conditions precedent that on the date of
such Borrowing or issuance or renewal (a) the following statements shall be true
and each of the
giving of the applicable Notice of Borrowing, Notice of Swing Line Borrowing,
Notice of Issuance or Notice of Renewal and the acceptance by the Borrower of
the proceeds of such Borrowing or of such Letter of Credit or the renewal of
such Letter of Credit shall constitute a representation and warranty by the
Borrower that both on the date of such notice and on the date of such Borrowing
or issuance or renewal such statements are true):
(i) the representations and warranties contained in each Loan
Document are correct in all material respects on and of such date, before
and after giving effect to such Borrowing or issuance or renewal and to
the application of the proceeds therefrom, as though made on and as of
such date, other than any such representations or warranties that, by
their terms, refer to a specific date other than the date of such
Borrowing or issuance or renewal, in which case as of such specific date;
and
(ii) no Default has occurred and is continuing, or would result from
such Borrowing or issuance or renewal or from the application of the
proceeds therefrom;
and (b) the Administrative Agent shall have received such other approvals,
opinions or documents consistent with the requirements of this Agreement as any
Appropriate Lender through the Administrative Agent may reasonably request.
Notwithstanding the foregoing, no Advance shall be made and no Letter of Credit
shall be issued on and after the date of the initial Borrowing hereunder unless
and until the Administrative Agent shall be satisfied that (i) the Secured
Parties have a perfected first and subsisting Lien on the property described in
Part I of Schedule 4.01(w) and 4.01(x), (ii) all action that the Administrative
Agent deems necessary or desirable in order to create such Lien has been taken,
(iii) all requested consents, estoppel letters, assignments and other agreements
as the Administrative Agent may reasonably request have been delivered to the
Administrative Agent, (iv) local counsel opinions in form and substance
satisfactory to the Administrative Agent shall have been delivered to the
Administrative Agent and (v) all other action that the Administrative Agent
deems necessary or desirable in connection with such Mortgages (including,
without limitation, in respect of title insurance) has been taken.
SECTION 3.03. Determinations Under Section 3.01. For purposes of
determining compliance with the conditions specified in Section 3.01, each
Lender Party shall be deemed to have consented to, approved or accepted or to be
satisfied with each document or other matter required thereunder to be consented
to or approved by or acceptable or satisfactory to the Lender Parties unless an
officer of the Administrative Agent responsible for the transactions
contemplated by the Loan Documents shall have received notice from such Lender
Party prior to the Initial Extension of Credit specifying its objection thereto
and, if the Initial Extension of Credit consists of a Borrowing, such Lender
Party shall not have made available to the Administrative Agent such Lender
Party's ratable portion of such Borrowing.
ARTICLE IV
REPRESENTATIONS AND WARRANTIES
SECTION 4.01. Representations and Warranties of the Borrower. The
Borrower represents and warrants as follows:
(a) Each Loan Party and each of its Subsidiaries (i) is a
corporation duly organized, validly existing and in good standing under
the laws of the jurisdiction of its incorporation, (ii) is duly qualified
and in good standing as a foreign corporation in each other jurisdiction
in which it owns or leases property or in which the conduct of its
business requires it to so qualify or be licensed except where the failure
to so qualify or be licensed would not be reasonably likely to have a
Material Adverse Effect and (iii) has all requisite corporate power and
authority (including, without limitation, all governmental licenses,
permits and other approvals) to own or lease and operate its properties
and to carry on its business as now conducted and as proposed to be
conducted. All of the outstanding Equity Interests in the Borrower have
been validly issued, are fully paid and non-assessable and is owned by
Parent free and clear of all Liens, except those created under the
Collateral Documents.
(b) Set forth on Schedule 4.01(b) hereto is a complete and accurate
list of all Subsidiaries of each Loan Party, showing as of the date hereof
(as to each such Subsidiary) the jurisdiction of its incorporation, the
number of shares of each class of its Equity Interests authorized, and the
number outstanding, on the date hereof and the percentage of each such
class of its Equity Interests owned (directly or indirectly) by such Loan
Party and the number of shares covered by all outstanding options,
warrants, rights of conversion or purchase and similar rights at the date
hereof. All of the outstanding Equity Interests in each Loan Party's
Subsidiaries has been validly issued, are fully paid and non-assessable
and are owned by such Loan Party or one or more of its Subsidiaries free
and clear of all Liens, except those created under the Collateral
Documents.
(c) The execution, delivery and performance by each Loan Party of
each Transaction Document to which it is or is to be a party, and the
consummation of the Transaction, are within such Loan Party's corporate
powers, have been duly authorized by all necessary corporate action, and
do not (i) contravene such Loan Party's charter or bylaws, (ii) violate
any law, rule, regulation (including, without limitation, Regulation X of
the Board of Governors of the Federal Reserve System), order, writ,
judgment, injunction, decree, determination or award, (iii) conflict with
or result in the breach of, or constitute a default or require any payment
to be made under, any material contract, loan agreement, indenture,
mortgage, deed of trust, lease or other instrument binding on or affecting
any Loan Party, any of its Subsidiaries or any of their properties or (iv)
except for the Liens created under the Loan Documents, result in or
require the creation or imposition of any Lien upon or with respect to any
of the properties of any Loan Party or
any of its Subsidiaries. No Loan Party or any of its Subsidiaries is in
violation of any such law, rule, regulation, order, writ, judgment,
injunction, decree, determination or award or in breach of any such
contract, loan agreement, indenture, mortgage, deed of trust, lease or
other instrument, the violation or breach of which could be reasonably
likely to have a Material Adverse Effect.
(d) No authorization or approval or other action by, and no notice
to or filing with, any governmental authority or regulatory body or any
other third party is required for (i) the due execution, delivery,
recordation, filing or performance by any Loan Party of any Transaction
Document to which it is or is to be a party, or for the consummation of
the Transaction, (ii) the grant by any Loan Party of the Liens granted by
it pursuant to the Collateral Documents, (iii) the perfection or
maintenance of the Liens created under the Collateral Documents (including
the first priority nature thereof) or (iv) the exercise by any Agent or
any Lender Party of its rights under the Loan Documents or the remedies in
respect of the Hotel Collateral pursuant to the Collateral Documents,
except for the authorizations, approvals, actions, notices and filings
listed on Schedule 4.01(d) hereto, all of which have been duly obtained,
taken, given or made and are in full force and effect. All applicable
waiting periods in connection with the Transaction have expired without
any action having been taken by any competent authority restraining,
preventing or imposing materially adverse conditions upon the Transaction
or the rights of the Loan Parties or their Subsidiaries freely to transfer
or otherwise dispose of, or to create any Lien on, any properties now
owned or hereafter acquired by any of them.
(e) This Agreement has been, and each other Transaction Document
when delivered hereunder will have been, duly executed and delivered by
each Loan Party party thereto. This Agreement is, and each other
Transaction Document when delivered hereunder will be, the legal, valid
and binding obligation of each Loan Party party thereto, enforceable
against such Loan Party in accordance with its terms.
(f) There is no action, suit, investigation, litigation or
proceeding affecting any Loan Party or any of its Subsidiaries, including
any Environmental Action, pending or threatened before any court,
governmental agency or arbitrator that (i) could be reasonably likely to
have a Material Adverse Effect or (ii) purports to affect the legality,
validity or enforceability of any Transaction Document or the consummation
of the Transaction.
(g) The Consolidated balance sheet of the Parent and its
Subsidiaries as at December 31, 1998, and the related Consolidated
statement of income and Consolidated statement of cash flows of the Parent
and its Subsidiaries for the fiscal year then ended, accompanied by an
unqualified opinion of Ernst & Young LLP, independent public accountants,
and the Consolidated balance sheet of the Parent and its Subsidiaries as
at March 31, 1999, and the related Consolidated statement of income and
Consolidated statement of cash flows of the Parent and its Subsidiaries
for the three months then ended, duly certified by the Chief Financial
Officer of the Parent, copies of which have been furnished to each Lender
Party, fairly present, subject, in the case of said balance sheet as
at March 31, 1999, and said statements of income and cash flows for the
three months then ended, to year-end audit adjustments, the Consolidated
financial condition of the Parent and its Subsidiaries as at such dates
and the Consolidated results of operations of the Parent and its
Subsidiaries for the periods ended on such dates, all in accordance with
generally accepted accounting principles applied on a consistent basis,
and since December 31, 1998, there has been no Material Adverse Change.
(h) The Consolidated forecasted balance sheet, statement of income
and statement of cash flows of the Parent and its Subsidiaries delivered
to the Lender Parties pursuant to Section 3.01(a)(xii) or 5.03 were
prepared in good faith on the basis of the assumptions stated therein,
which assumptions were fair in light of the conditions existing at the
time of delivery of such forecasts, and represented, at the time of
delivery, the Borrower's good faith estimate of its future financial
performance.
(i) Neither the Information Memorandum nor any other information,
exhibit or report furnished by or on behalf of any Loan Party to any Agent
or any Lender Party in connection with the negotiation and syndication of
the Loan Documents or pursuant to the terms of the Loan Documents, when
taken as a whole, contained any untrue statement of a material fact or
omitted to state a material fact necessary to make the statements made
therein not misleading.
(j) The Borrower is not engaged in the business of extending credit
for the purpose of purchasing or carrying Margin Stock, and no proceeds of
any Advance or drawings under any Letter of Credit will be used to
purchase or carry any Margin Stock or to extend credit to others for the
purpose of purchasing or carrying any Margin Stock.
(k) Neither any Loan Party nor any of its Subsidiaries is an
"investment company", or an "affiliated person" of, or "promoter" or
"principal underwriter" for, an "investment company", as such terms are
defined in the Investment Company Act of 1940, as amended. Neither any
Loan Party 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", as
such terms are defined in the Public Utility Holding Company Act of 1935,
as amended. Neither the making of any Advances, nor the issuance of any
Letters of Credit, nor the application of the proceeds or repayment
thereof by the Borrower, nor the consummation of the other transactions
contemplated by the Transaction Documents, will violate any provision of
any such Act or any rule, regulation or order of the Securities and
Exchange Commission thereunder.
(l) Neither any Loan Party nor any of its Subsidiaries is a party to
any indenture, loan or credit agreement or any lease or other agreement or
instrument or subject to any charter or corporate restriction that could
be reasonably likely to have a Material Adverse Effect.
(m) All filings and other actions necessary or desirable to perfect
and protect the security interest in the Hotel Collateral created under
the Collateral Documents have been duly made or taken and are in full
force and effect, and the Collateral Documents create in favor of the
Collateral Agent for the benefit of the Secured Parties a valid and,
together with such filings and other actions, perfected first priority
security interest in the Hotel Collateral, securing the payment of the
Secured Obligations, and all filings and other actions necessary or
desirable to perfect and protect such security interest have been duly
taken. The Loan Parties are the legal and beneficial owners of the Hotel
Collateral free and clear of any Lien, except for the liens and security
interests created or permitted under the Loan Documents.
(n) Each Loan Party is, individually and together with its
Subsidiaries, Solvent.
(o) (i) Set forth on Schedule 4.01(o) hereto is a complete and
accurate list of all Plans, Multiemployer Plans and Welfare Plans.
(ii) No ERISA Event has occurred or is reasonably expected to occur
with respect to any Plan that has resulted in or is reasonably expected to
result in a material liability of any Loan Party or any ERISA Affiliate.
(iii) Schedule B (Actuarial Information) to the most recent annual
report (Form 5500 Series) for each Plan, copies of which have been filed
with the Internal Revenue Service and furnished to the Lender Parties, is
complete and accurate and fairly presents the funding status of such Plan,
and since the date of such Schedule B there has been no material adverse
change in such funding status.
(iv) Neither any Loan Party nor any ERISA Affiliate has incurred or
is reasonably expected to incur any Withdrawal Liability exceeding
$2,500,000 to any Multiemployer Plan.
(v) Neither any Loan Party nor any ERISA Affiliate has been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or has been terminated, within the meaning of Title IV of
ERISA, and no such Multiemployer Plan is reasonably expected to be in
reorganization or to be terminated, within the meaning of Title IV of
ERISA.
(p) (i) Except as otherwise set forth on Part I of Schedule 4.01(p)
hereto, the operations and properties of each Loan Party and each of its
Subsidiaries comply in all material respects with all applicable
Environmental Laws and Environmental Permits, all past non-compliance with
such Environmental Laws and Environmental Permits that has been the
subject of an Environmental Action against any Loan Party has been
resolved without ongoing obligations or costs, and no circumstances exist
that could be reasonably likely to (A) form the basis of an Environmental
Action against any Loan Party or any of its Subsidiaries or any of their
properties that could have a Material Adverse Effect or
(B) cause any such property to be subject to any restrictions on
ownership, occupancy, use or transferability under any Environmental Law.
(ii) Except as otherwise set forth on Part II of Schedule 4.01(p)
hereto, none of the properties currently or formerly owned or operated by
any Loan Party or any of its Subsidiaries is listed or proposed for
listing on the NPL or on the CERCLIS or any analogous foreign, state or
local list or is adjacent to any such property; there are no and never
have been any underground or aboveground storage tanks or any surface
impoundments, septic tanks, pits, sumps or lagoons in which Hazardous
Materials are being or have been treated, stored or disposed on any
property currently owned or operated by any Loan Party or any of its
Subsidiaries or, to the best of its knowledge, on any property formerly
owned or operated by any Loan Party or any of its Subsidiaries; there is
no asbestos or asbestos-containing material on any property currently
owned or operated by any Loan Party or any of its Subsidiaries; and
Hazardous Materials have not been released, discharged or disposed of on
any property currently or formerly owned or operated by any Loan Party or
any of its Subsidiaries other than in material compliance with
Environmental Law.
(iii) Except as otherwise set forth on Part III of Schedule 4.01(p)
hereto, neither any Loan Party nor any of its Subsidiaries is undertaking,
and has not completed, either individually or together with other
potentially responsible parties, any investigation or assessment or
remedial or response action relating to any actual or threatened release,
discharge or disposal of Hazardous Materials at any site, location or
operation, either voluntarily or pursuant to the order of any governmental
or regulatory authority or the requirements of any Environmental Law; and
all Hazardous Materials generated, used, treated, handled or stored at, or
transported to or from, any property currently or formerly owned or
operated by any Loan Party or any of its Subsidiaries have been disposed
of in a manner not reasonably expected to result in material liability to
any Loan Party or any of its Subsidiaries.
(q) (i) Neither any Loan Party nor any of its Subsidiaries is party
to any tax sharing agreement other than the Tax Sharing Agreement or any
other tax sharing agreement approved in writing by the Required Lenders.
(ii) Each Loan Party and its Subsidiaries has filed or caused to be
filed all material tax returns which are required to be filed, said
returns are true and correct in all material respects, and has paid all
taxes shown to be due and payable on said returns or on any assessments
made against each Loan Party and its Subsidiaries or any of their property
and all other material taxes, fees or other charges imposed on them or on
any of their property by any governmental authority (other than amounts
the validity of which are currently being contested in good faith and with
respect to which reserves in conformity with GAAP are reflected on the
financial statements delivered hereunder); no tax Lien had been filed with
respect to any such tax, fee or other charge (other than Liens for current
taxes not yet due and payable).
(r) Neither the business nor the properties of any Loan Party or any
of its Subsidiaries are affected by any fire, explosion, accident, strike,
lockout or other labor dispute, drought, storm, hail, earthquake, embargo,
act of God or of the public enemy or other casualty (whether or not
covered by insurance) that could be reasonably likely to have a Material
Adverse Effect.
(s) Set forth on Schedule 4.01(s) hereto is a complete and accurate
list of all Existing Debt (other than Surviving Debt), showing as of the
date hereof the obligor and the principal amount outstanding thereunder.
(t) Set forth on Schedule 4.01(t) hereto is a complete and accurate
list of all Surviving Debt, showing as of the date hereof the obligor and
the principal amount outstanding thereunder, the maturity date thereof and
the amortization schedule therefor.
(u) Set forth on Schedule 4.01(u) hereto is a complete and accurate
list of all Liens of record on the property or assets of any Loan Party or
any of its Subsidiaries as of the date hereof, showing the lienholder
thereof, the principal amount of the obligations secured thereby and the
property or assets of such Loan Party or such Subsidiary subject thereto.
(v) Set forth on Schedule 4.01(v) hereto is a complete and accurate
list of all real property owned by any Loan Party or any of its
Subsidiaries as of the date hereof, showing the street address, county or
other relevant jurisdiction, state, record owner and book and estimated
fair value thereof. Except as set forth on Schedule 4.01(v), each Loan
Party or such Subsidiary has good, marketable and insurable fee simple
title to such real property, free and clear of all Liens, other than Liens
created or permitted by the Loan Documents.
(w) Set forth on Schedule 4.01(w) hereto is a complete and accurate
list of all leases of real property under which any Loan Party or any of
its Subsidiaries is the lessee, as of the date hereof, showing the street
address, county or other relevant jurisdiction, state, lessor, lessee,
expiration date and annual rental cost thereof. Except as set forth on
Schedule 4.01(w) hereto, each such lease is the legal, valid and binding
obligation of the lessor thereof, enforceable in accordance with its
terms.
(x) Set forth on Schedule 4.01(x) hereto is a complete and accurate
list of all Investments in excess of $5,000,000 held by any Loan Party or
any of its Subsidiaries on the date hereof, showing the amount, obligor or
issuer and maturity, if any, thereof.
(y) Set forth on Schedule 4.01(y) hereto is a complete and accurate
list of all patents, trademarks, trade names, service marks and
copyrights, and all applications therefor and licenses thereof, of each
Loan Party or any of its Subsidiaries, as of the date hereof, showing the
jurisdiction in which registered, the registration number, the date of
registration and the expiration date.
(z) Set forth on Schedule 4.01(z) hereto is a complete and accurate
list of all Material Contracts of each Loan Party and its Subsidiaries, as
of the date hereof, showing the parties, subject matter and term thereof.
As of the date hereof, each such Material Contract has been duly
authorized, executed and delivered by all parties thereto, has not been
amended or otherwise modified, is in full force and effect and is binding
upon and enforceable against all parties thereto in accordance with its
terms, and there exists no default under any Material Contract by any
party thereto.
(aa) The Parent has (i) initiated a review and assessment of all
areas within its and each of its Subsidiaries' business and operations
(including those affected by suppliers, vendors and customers) that could
be adversely affected by the risk that computer applications used by the
Parent or any of its Subsidiaries (or suppliers, vendors and customers)
may be unable to recognize and perform properly date-sensitive functions
involving certain dates prior to and any date after December 31, 1999 (the
"Year 2000 Problem"), (ii) developed a plan and timetable for addressing
the Year 2000 Problem on a timely basis and (iii) to date, implemented
that plan in accordance with such timetable. Based on the foregoing, the
Parent and the Borrower believe that all computer applications (including
those of its suppliers, vendors and customers) that are material to its or
any of its Subsidiaries' business and operations are reasonably expected
on a timely basis to be able to perform properly date-sensitive functions
for all dates before and after January 1, 2000 ("Year 2000 Compliant"),
except to the extent that a failure to do so could not reasonably be
expected to have a Material Adverse Effect.
ARTICLE V
COVENANTS OF THE BORROWER
SECTION 5.01. Affirmative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Parent and the Borrower shall:
(a) Compliance with Laws, Etc. Comply, and cause each of its
Subsidiaries to comply, in all material respects, with all applicable
laws, rules, regulations and orders, such compliance to include, without
limitation, compliance with ERISA and the Racketeer Influenced and Corrupt
Organizations Chapter of the Organized Crime Control Act of 1970.
(b) Payment of Taxes, Etc. Pay and discharge, and cause each of its
Subsidiaries to pay and discharge, before the same shall become
delinquent, (i) all taxes, assessments and governmental charges or levies
imposed upon it or upon its property and (ii) all lawful claims that, if
unpaid, might by law become a Lien upon its property; provided, however,
that neither the Parent, Borrower nor any of their respective Subsidiaries
shall be required to pay or discharge any such tax, assessment, charge or
claim that is being contested in good faith and by proper proceedings and
as to which appropriate reserves are being maintained, unless and until
any Lien resulting therefrom attaches to its property and becomes
enforceable against its other creditors.
(c) Compliance with Environmental Laws. Comply, and cause each of
its Subsidiaries and all lessees and other Persons operating or occupying
its properties to comply, in all material respects, with all applicable
Environmental Laws and Environmental Permits; obtain and renew and cause
each of its Subsidiaries to obtain and renew all Environmental Permits
necessary for its operations and properties; and conduct, and cause each
of its Subsidiaries to conduct, any investigation, study, sampling and
testing, and undertake any cleanup, removal, remedial or other action
required under Environmental Law to remove and clean up Hazardous
Materials from any of its properties, in accordance with the requirements
of all Environmental Laws; provided, however, that neither the Parent nor
any of its Subsidiaries shall be required to undertake any such cleanup,
removal, remedial or other action to the extent that its obligation to do
so is being contested in good faith and by proper proceedings and
appropriate reserves are being maintained with respect to such
circumstances.
(d) Maintenance of Insurance. Maintain, and cause each of its
Subsidiaries to maintain, insurance with responsible and reputable
insurance companies or associations in such amounts and covering such
risks as is usually carried by companies engaged in similar businesses and
owning similar properties in the same general areas in which the Parent or
such Subsidiary operates.
(e) Preservation of Corporate Existence, Etc. Preserve and maintain,
and cause each of its Subsidiaries to preserve and maintain, its
existence, legal structure, legal name, rights (charter and statutory),
permits, licenses, approvals, privileges and franchises; provided,
however, that the Parent and its Subsidiaries may consummate any merger or
consolidation permitted under Section 5.02(d) and provided further that
neither the Parent nor any of its Subsidiaries shall be required to
preserve any right, permit, license, approval, privilege or franchise if
the Board of Directors of the Parent or such Subsidiary shall determine
that the preservation thereof is no longer desirable in the conduct of the
business of the Parent or such Subsidiary, as the case may be, and that
the loss thereof is not disadvantageous in any material respect to the
Parent, the Borrower, the Parent and its Subsidiaries, taken as a whole,
or the Lender Parties.
(f) Visitation Rights. At any reasonable time and from time to time
on reasonable notice, permit any of the Agents or any of the Lender
Parties, or any agents or representatives thereof, to examine and make
copies of and abstracts from the records and books of account of, and
visit the properties of, the Parent and any of its Subsidiaries, and to
discuss the affairs, finances and accounts of the Parent and any of its
Subsidiaries with any of their officers or directors and with their
independent certified public accountants.
(g) Keeping of Books. Keep, and cause each of its Subsidiaries to
keep, proper books of record and account, in which full and correct
entries shall be made of all
financial transactions and the assets and business of the Parent and each
such Subsidiary in accordance with generally accepted accounting
principles in effect from time to time.
(h) Maintenance of Properties, Etc. Maintain and preserve, and cause
each of its Subsidiaries to maintain and preserve, all of its properties
that are used or useful in the conduct of its business in good working
order and condition, ordinary wear and tear excepted, other than where the
failure to so maintain and preserve would not, either individually or in
the aggregate, be reasonably likely to have a Material Adverse Effect.
(i) Transactions with Affiliates. Conduct, and cause each of its
Subsidiaries to conduct, all transactions otherwise permitted under the
Loan Documents with any of their Affiliates on terms that are fair and
reasonable and no less favorable to the Parent or such Subsidiary than it
would obtain in a comparable arm's-length transaction with a Person not an
Affiliate.
(j) Covenant to Guarantee Obligations and Give Security. Upon (x)
the request of the Collateral Agent following the occurrence and during
the continuance of an Event of Default, (y) the formation or acquisition
of any new direct or indirect Domestic Subsidiaries by any Loan Party or
(z) the acquisition of any property by any Loan Party, and such property,
in the judgment of the Collateral Agent, shall not already be subject to a
perfected first priority security interest in favor of the Collateral
Agent for the benefit of the Secured Parties, then the Parent shall, in
each case at the Parent's expense:
(i) in connection with the formation or acquisition of a
Subsidiary, within 15 days after such formation or acquisition,
cause each such Subsidiary, and cause each direct and indirect
parent of such Subsidiary (if it has not already done so), to duly
execute and deliver to the Collateral Agent a guaranty or guaranty
supplement, in form and substance satisfactory to the Collateral
Agent, guaranteeing the other Loan Parties' obligations under the
Loan Documents,
(ii) within 15 days after such request, formation or
acquisition, furnish to the Collateral Agent a description of the
real and personal properties of the Loan Parties and their
respective Subsidiaries in detail satisfactory to the Collateral
Agent,
(iii) within 30 days after such request, formation or
acquisition, to the extent requested by the Administrative Agent or
the Required Lenders, duly execute and deliver, and cause each such
Subsidiary and each direct and indirect parent of such Subsidiary
(if it has not already done so) to duly execute and deliver, to the
Collateral Agent mortgages, pledges, assignments, security agreement
supplements and other security agreements, as specified by and in
form and substance satisfactory to the Collateral Agent, securing
payment of all the Obligations of the applicable Loan Party, such
Subsidiary or such parent, as the case may be, under the Loan
Documents and constituting Liens on all such properties,
(iv) within 45 days after such request, formation or
acquisition, take, and cause such Subsidiary or such parent to take,
whatever action (including, without limitation, the recording of
mortgages, the filing of Uniform Commercial Code financing
statements, the giving of notices and the endorsement of notices on
title documents) may be necessary or advisable in the opinion of the
Collateral Agent to vest in the Collateral Agent (or in any
representative of the Collateral Agent designated by it) valid and
subsisting Liens on the properties purported to be subject to the
mortgages, pledges, assignments, security agreement supplements and
security agreements delivered pursuant to this Section 5.01(j),
enforceable against all third parties in accordance with their
terms,
(v) within 60 days after such request, formation or
acquisition, deliver to the Collateral Agent, upon the request of
the Collateral Agent in its sole discretion, a signed copy of a
favorable opinion, addressed to the Collateral Agent and the other
Secured Parties, of counsel for the Loan Parties acceptable to the
Collateral Agent as to the matters contained in clauses (i), (iii)
and (iv) above, as to such guaranties, guaranty supplements,
mortgages, pledges, assignments, security agreement supplements and
security agreements being legal, valid and binding obligations of
each Loan Party party thereto enforceable in accordance with their
terms, as to the matters contained in clause (iv) above, as to such
recordings, filings, notices, endorsements and other actions being
sufficient to create valid perfected Liens on such properties, and
as to such other matters as the Collateral Agent may reasonably
request,
(vi) as promptly as practicable after such request, formation
or acquisition, deliver, upon the request of the Collateral Agent in
its reasonable discretion, to the Collateral Agent with respect to
each parcel of real property owned or held by the entity that is the
subject of such request, formation or acquisition title reports,
surveys and engineering, soils and other reports, and environmental
assessment reports, each in scope, form and substance satisfactory
to the Collateral Agent, provided, however, that to the extent that
any Loan Party or any of its Subsidiaries shall have otherwise
received any of the foregoing items with respect to such real
property, such items shall, promptly after the receipt thereof, be
delivered to the Collateral Agent,
(vii) upon the occurrence and during the continuance of an
Event of Default, upon the request of the Required Lenders, promptly
cause to be deposited any and all cash dividends paid or payable to
it or any of its Subsidiaries from any of its Subsidiaries from time
to time into the Collateral Account, and with respect to all other
dividends paid or payable to it or any of its Subsidiaries from time
to time, promptly execute and deliver, or cause such Subsidiary to
promptly execute and deliver, as the case may be, any and all
further instruments and take or cause such Subsidiary to take, as
the case may be, all such other action as the Collateral Agent may
deem necessary or desirable in order to obtain and maintain from and
after the time such dividend is paid or payable a perfected, first
priority lien on and security interest in such dividends, and
(viii) at any time and from time to time, promptly execute and
deliver any and all further instruments and documents and take all
such other action as the Collateral Agent may deem necessary or
desirable in obtaining the full benefits of, or in perfecting and
preserving the Liens of, such guaranties, mortgages, pledges,
assignments, security agreement supplements and security agreements.
(k) Further Assurances. (i) Promptly upon request by any Agent, or
any Lender Party through the Administrative Agent, correct, and cause each
of its Subsidiaries promptly to correct, any material defect or error that
may be discovered in any Loan Document or in the execution,
acknowledgment, filing or recordation thereof, and
(ii) Promptly upon the reasonable request by any Agent, or any
Lender Party through the Administrative Agent, do, execute, acknowledge,
deliver, record, re-record, file, re-file, register and re-register any
and all such further acts, deeds, conveyances, pledge agreements,
mortgages, deeds of trust, trust deeds, assignments, financing statements
and continuations thereof, termination statements, notices of assignment,
transfers, certificates, assurances and other instruments as any Agent, or
any Lender Party through the Administrative Agent, may reasonably require
from time to time in order to (A) carry out more effectively the purposes
of the Loan Documents, (B) to the fullest extent permitted by applicable
law, subject any Loan Party's or any of its Subsidiaries' properties,
assets, rights or interests to the Liens now or hereafter intended to be
covered by any of the Collateral Documents, (C) perfect and maintain the
validity, effectiveness and priority of any of the Collateral Documents
and any of the Liens intended to be created thereunder and (D) assure,
convey, grant, assign, transfer, preserve, protect and confirm more
effectively unto the Secured Parties the rights granted or now or
hereafter intended to be granted to the Secured Parties under any Loan
Document or under any other instrument executed in connection with any
Loan Document to which any Loan Party or any of its Subsidiaries is or is
to be a party, and cause each of its Subsidiaries to do so.
(l) Performance of Related Documents. Perform and observe, and cause
each of its Subsidiaries to perform and observe, all of the terms and
provisions of each Related Document to be performed or observed by it,
maintain each such Related Document in full force and effect, enforce such
Related Document in accordance with its terms, take all such action to
such end as may be from time to time requested by the Administrative Agent
and, upon request of the Administrative Agent, make to each other party to
each such Related Document such demands and requests for information and
reports or for action as any Loan Party or any of its Subsidiaries is
entitled to make under such Related Document.
(m) Preparation of Environmental Reports. At the reasonable request
of the Administrative Agent or the Collateral Agent from time to time but
no more frequently than once every two years, provide to the Lender
Parties within 60 days after such request, at the expense of the Parent,
an environmental site assessment report for any of its or its
Subsidiaries' properties described in the Mortgages, prepared by an
environmental consulting firm acceptable to the Administrative Agent or
the Collateral Agent, indicating the presence or absence of Hazardous
Materials and the estimated cost of any compliance, removal or remedial
action in connection with any Hazardous Materials on such properties;
without limiting the generality of the foregoing, if the Administrative
Agent or the Collateral Agent determines at any time that a material risk
exists that any such report will not be provided within the time referred
to above, the Administrative Agent or the Collateral Agent may retain an
environmental consulting firm to prepare such report at the expense of the
Borrower, and the Borrower hereby grants and agrees to cause any
Subsidiary that owns any property described in the Mortgages to grant at
the time of such request to the Agents, the Lender Parties, such firm and
any agents or representatives thereof an irrevocable non-exclusive
license, subject to the rights of tenants, to enter onto their respective
properties to undertake such an assessment.
(n) Compliance with Terms of Leaseholds. Make all payments and
otherwise perform all obligations in respect of all leases of real
property to which the Parent or any of its Subsidiaries is a party, keep
such leases in full force and effect and not allow such leases to lapse or
be terminated or any rights to renew such leases to be forfeited or
canceled, notify the Administrative Agent of any default by any party with
respect to such leases and cooperate with the Administrative Agent in all
respects to cure any such default, and cause each of its Subsidiaries to
do so, except, in any case, where the failure to do so, either
individually or in the aggregate, would not be reasonably likely to have a
Material Adverse Effect.
(o) Performance of Material Contracts. Perform and observe all the
terms and provisions of each Material Contract to be performed or observed
by it, maintain each such Material Contract in full force and effect,
enforce each such Material Contract in accordance with its terms, take all
such action to such end as may be from time to time requested by the
Administrative Agent and, upon request of the Administrative Agent, make
to each other party to each such Material Contract such demands and
requests for information and reports or for action as any Loan Party or
any of its Subsidiaries is entitled to make under such Material Contract,
and cause each of its Subsidiaries to do so, except, in any case, where
the failure to do so, either individually or in the aggregate, could not
be reasonably likely to have a Material Adverse Effect.
(p) Nomura IMPAC I Facility. On or prior to September 13, 1999, (i)
repay, redeem or otherwise satisfy in full all obligations under the
Nomura IMPAC I Facility and (ii) deliver to the Administrative Agent
Mortgages covering the Hotel Collateral Properties listed on Schedule
5.01(p) hereto, duly executed by the appropriate Loan Party, together
with:
(A) evidence that counterparts of the Mortgages have
been duly recorded on or before such date in all filing or recording
offices that the Administrative Agent may deem necessary or
desirable in order to create a valid first and subsisting Lien on
the property described therein in favor of the Collateral Agent for
the benefit of the Secured Parties and that all filing and recording
taxes and fees have been paid,
(B) fully paid American Land Title Association Lender's
Extended Coverage title insurance policies (the "Mortgage Policies")
in form and substance, with endorsements and in amount acceptable to
the Administrative Agent, issued, coinsured and reinsured by title
insurers acceptable to the Administrative Agent, insuring the
Mortgages to be valid first and subsisting Liens on the property
described therein, free and clear of all defects (including, but not
limited to, mechanics' and materialmen's Liens) and encumbrances,
excepting only Permitted Encumbrances, and providing for such other
affirmative insurance (including endorsements for future advances
under the Loan Documents and for mechanics' and materialmen's Liens)
and such coinsurance and direct access reinsurance as the
Administrative Agent may reasonably deem necessary or desirable,
(C) American Land Title Association form surveys, dated
no more than 30 days before such date, certified to the
Administrative Agent and the issuer of the Mortgage Policies in a
manner satisfactory to the Administrative Agent by a land surveyor
duly registered and licensed in the States in which the property
described in such surveys is located and acceptable to the
Administrative Agent, showing all buildings and other improvements,
any off-site improvements, the location of any easements, parking
spaces, rights of way, building set-back lines and other dimensional
regulations and the absence of encroachments, either by such
improvements or on to such property, and other defects, other than
encroachments and other defects acceptable to the Administrative
Agent,
(D) the Assignments of Leases and Rents referred to in
the Mortgages, duly executed by the appropriate Loan Party,
(E) such consents and agreements of lessors and other
third parties, and such estoppel letters and other confirmations, as
the Administrative Agent may deem necessary or desirable,
(F) evidence of the insurance required by the terms of
the Mortgages,
(G) an appraisal of each of the properties described in
the Mortgages complying with the requirements of the Federal
Financial Institutions Reform, Recovery and Enforcement Act of 1989,
and
(H) evidence that all other action that the
Administrative Agent may deem necessary or desirable in order to
create valid first and subsisting Liens on the property described in
the Mortgages has been taken.
(q) Capital Investments. Make capital investments in the Hotel
Collateral Properties of not less than 4% of the gross room revenue
generated on the Hotel Collateral Properties for the purpose of
maintaining or renovating such properties, all in accordance with prudent
business practices.
SECTION 5.02. Negative Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, neither the Parent nor the Borrower shall, at any time:
(a) Liens, Etc. Create, incur, assume or suffer to exist, or permit
any of its Subsidiaries to create, incur, assume or suffer to exist, any
Lien on or with respect to any of its properties of any character
(including, without limitation, accounts) whether now owned or hereafter
acquired, or sign or file or suffer to exist, or permit any of its
Subsidiaries to sign or file or suffer to exist, under the Uniform
Commercial Code of any jurisdiction, a financing statement that names the
Parent or any of its Subsidiaries as debtor, or sign or suffer to exist,
or permit any of its Subsidiaries to sign or suffer to exist, any security
agreement authorizing any secured party thereunder to file such financing
statement, or assign, or permit any of its Subsidiaries to assign, any
accounts or other right to receive income, except:
(i) Liens created under the Loan Documents;
(ii) Permitted Liens;
(iii) Liens existing on the date hereof and described on
Schedule 4.01(v) hereto;
(iv) purchase money Liens upon or in real property or
equipment acquired or held by the Parent or any of its Subsidiaries
in the ordinary course of business to secure the purchase price of
such property or equipment or to secure Debt incurred solely for the
purpose of financing the acquisition, construction or improvement of
any such property or equipment to be subject to such Liens, or Liens
existing on any such property or equipment at the time of
acquisition (other than any such Liens created in contemplation of
such acquisition that do not secure the purchase price), or
extensions, renewals or replacements of any of the foregoing for the
same or a lesser amount; provided, however, that no such Lien shall
extend to or cover any property other than the property or equipment
being acquired, constructed or improved, and no such extension,
renewal or replacement shall extend to or cover any property not
theretofore subject to the Lien being extended, renewed or replaced;
and provided
further that the aggregate principal amount of the Debt secured by
Liens permitted by this clause (iv) shall not exceed the amount
permitted under Section 5.02(b)(iii)(B) at any time outstanding;
(v) Liens arising in connection with Capitalized Leases
permitted under Section 5.02(b)(iii)(C); provided that no such Lien
shall extend to or cover any Hotel Collateral or assets other than
the assets subject to such Capitalized Leases;
(vi) other Liens securing Debt outstanding in an
aggregate principal amount not to exceed $35,000,000, provided that
no such Lien shall extend to or cover any Hotel Collateral; and
(vii) the replacement, extension or renewal of any Lien
permitted by clause (iii) above upon or in the same property
theretofore subject thereto or the replacement, extension or renewal
(without increase in the amount or change in any direct or
contingent obligor) of the Debt secured thereby.
(b) Debt. Create, incur, assume or suffer to exist, or permit any of
its Subsidiaries to create, incur, assume or suffer to exist, any Debt,
except:
(i) in the case of the Parent and its Subsidiaries
(other than the Subsidiary Guarantors), Debt in respect of Hedge
Agreements designed to hedge against fluctuations in interest rates
incurred in the ordinary course of business and consistent with
prudent business practice;
(ii) in the case of any Subsidiary of the Parent, Debt
owed to the Parent or to a wholly owned Subsidiary of the Parent,
provided that, in each case, such Debt (x) shall, in the case of
Debt owed to a Loan Party, constitute Pledged Debt and (y) shall be
evidenced by promissory notes in form and substance satisfactory to
the Administrative Agent and such promissory notes shall, in the
case of Debt owed to a Loan Party, be pledged as security for the
Obligations of the holder thereof under the Loan Documents to which
such holder is a party and delivered to the Collateral Agent
pursuant to the terms of the Security Agreement; and
(iii) in the case of the Parent and its Subsidiaries,
(A) Debt under the Loan Documents,
(B) Debt secured by Liens permitted by
Section 5.02(a)(iv) not to exceed in the aggregate $25,000,000
at any time outstanding,
(C) in addition to Debt referred to in clause (B), (x)
Capitalized Leases not to exceed in the aggregate $15,000,000
at any time outstanding, and (y) in the case of Capitalized
Leases to which any Subsidiary of the Parent is a party, Debt
of the Parent of the type described in clause (i) of the
definition of "Debt" guaranteeing the Obligations of such
Subsidiary under such Capitalized Leases,
(D) the Surviving Debt, and any Debt
extending the maturity of, or refunding or refinancing, in
whole or in part, any Surviving Debt, provided that the terms
of any such extending, refunding or refinancing Debt, and of
any agreement entered into and of any instrument issued in
connection therewith, are otherwise permitted by the Loan
Documents, provided further that the principal amount of such
Surviving Debt shall not be increased above the greater of (1)
the original principal amount thereof and (2) the principal
amount thereof outstanding immediately prior to such
extension, refunding or refinancing, and the direct obligors
therefor shall not be changed, as a result of or in connection
with such extension, refunding or refinancing, provided still
further that the terms relating to subordination (if any) of
any such extending, refunding or refinancing Debt, are no less
favorable in any material respect to the Loan Parties or the
Lender Parties than such terms of the Surviving Debt being
extended, refunded or refinanced and the interest rate
applicable to any such extending, refunding or refinancing
Debt does not exceed the then applicable market interest rate,
provided still further that any extending refunding or
refinancing Debt shall not have the benefit of any Debt of the
Parent or any of its subsidiaries of the type described in
clause (i) of the definition of "Debt" guaranteeing the
Obligations of the direct obligor of such extending, refunding
or refinancing Debt,
(E) Subordinated Debt in respect of the
Subordinated Notes not to exceed in the aggregate $200,000,000
at any time outstanding, and
(F) other Subordinated Debt, on terms and conditions
substantially similar to the terms and conditions of the
Subordinated Notes, not to exceed in the aggregate
$100,000,000 at any time outstanding.
(c) Change in Nature of Business. Make, or permit any of its
Subsidiaries to make, any material change in the nature of its business as
carried on at the date hereof.
(d) Mergers, Etc. Merge into or consolidate with any Person or
permit any Person to merge into it, or permit any of its Subsidiaries to
do so, except that:
(i) any Subsidiary of the Borrower may merge into or
consolidate with any other Subsidiary of the Borrower, provided
that, in the case of any such merger or consolidation, the Person
formed by such merger or consolidation shall be a wholly owned
Subsidiary of the Borrower, provided further that, in the case of
any such merger or consolidation to which a Subsidiary Guarantor is
a party, the Person formed by such merger or consolidation shall be
a Subsidiary Guarantor;
(ii) in connection with any acquisition permitted under
Section 5.02(f), any Subsidiary of the Borrower may merge into or
consolidate with any other Person or permit any other Person to
merge into or consolidate with it; provided that the Person
surviving such merger shall be a wholly owned Subsidiary of the
Borrower; and
(iii) in connection with any sale or other disposition
permitted under Section 5.02(e) (other than clause (ii) thereof),
any Subsidiary of the Borrower may merge into or consolidate with
any other Person or permit any other Person to merge into or
consolidate with it;
provided, however, that in each case, immediately after giving effect
thereto, no event shall occur and be continuing that constitutes a Default
and, in the case of any such merger to which the Borrower is a party, the
Borrower is the surviving corporation.
(e) Sales, Etc., of Assets. Sell, lease, transfer or otherwise
dispose of, or permit any of its Subsidiaries to sell, lease, transfer or
otherwise dispose of, any assets, or grant any option or other right to
purchase, lease or otherwise acquire any assets other than Inventory to be
sold in the ordinary course of its business, except:
(i) sales of Inventory in the ordinary course of its
business;
(ii) in a transaction authorized by Section 5.02(d);
(iii) sales of Non-Core Assets for cash;
(iv) the sale of any asset by the Parent or any Subsidiary
(other than a bulk sale of inventory and a sale of receivables other
than delinquent accounts for collection purposes only) so long as
(A) at least 75% of the purchase price paid to the Parent or such
Subsidiary for such asset shall be no less than the fair market
value of such asset at the time of such sale, (B) the purchase price
for such asset shall be paid to the Parent or such Subsidiary solely
in cash and (C) (i) the aggregate book value of all Hotel Collateral
sold by the Parent and its Subsidiaries during the same Fiscal Year
pursuant to this clause (iv) shall not exceed $25,000,000 and (ii)
the aggregate book value of all assets not constituting Hotel
Collateral sold by the Parent and its Subsidiaries during the same
Fiscal Year pursuant to this clause (iv) (together with the
aggregate book value of all such
assets transferred pursuant to clause (v) below) shall not exceed
10% of the aggregate book value of all of the assets of the Parent
and its Subsidiaries (other than the Hotel Collateral); and
(v) transfers of assets (other than Hotel Collateral not
consisting of parcels of undeveloped real property ("Developed Hotel
Collateral") to Permitted Joint Ventures in an aggregate amount
(together with the aggregate book value of all such assets sold
pursuant to clause (iv) above) not to exceed 10% of the aggregate
book value of all of the assets of the Parent and its Subsidiaries
(other than Developed Hotel Collateral);
provided that in the case of sales of assets pursuant to clause (iv)
above, the Borrower shall, on the date of receipt by the Parent or any of
its Subsidiaries of the Net Cash Proceeds from such sale, prepay the
Advances pursuant to, and in the amount and order of priority set forth
in, Section 2.06(b)(ii), as specified therein.
(f) Investments in Other Persons. Make or hold, or permit any of its
Subsidiaries to make or hold, any Investment in any Person, except:
(i) equity Investments by the Parent and its
Subsidiaries in their Subsidiaries outstanding on the date hereof
and additional investments in Loan Parties or other persons that as
a result of such investment become Loan Parties;
(ii) loans and advances to employees in the ordinary
course of the business of the Parent and its Subsidiaries as
presently conducted in an aggregate principal amount not to exceed
$2,000,000 at any time outstanding;
(iii) Investments by the Parent and its Subsidiaries in
cash or Cash Equivalents;
(iv) Investments existing on the date hereof and
described on Schedule 4.01(x) hereto;
(v) Investments by the Borrower in Hedge Agreements
permitted under Section 5.02(b)(i)(A);
(vi) Investments consisting of intercompany Debt
permitted under Section 5.02(b)(i)(B) or 5.02(b)(ii);
(vii) Investments in Permitted Joint Ventures, provided
that (1) the aggregate amount of all such Investments does not
exceed the sum of (A) 10% of the aggregate book value of all of the
assets of the Parent and its Subsidiaries plus (B) the portion of
Excess Cash Flow not required to be applied to the prepayment of the
Advances pursuant to Section 2.06(b)(i) plus (C) the portion of
the proceeds of an offering of Equity Interests of the Parent not
required to be applied to the prepayment of the Advances pursuant to
Section 2.06(b)(ii) to the extent that such portion shall not have
been otherwise applied as permitted hereunder and (2) any such
Investment is made with either cash generated by properties of the
Parent and its Subsidiaries other than the Hotel Collateral or
assets that do not constitute Hotel Collateral; and
(viii) other Investments in an aggregate amount invested
not to exceed $10,000,000; provided that with respect to Investments
made under this clause (viii): (1) immediately before and after
giving effect thereto, no Default shall have occurred and be
continuing or would result therefrom; (2) any company or business
acquired or invested in pursuant to this clause (vii) shall be in
the same line of business as the business of the Borrower or any of
its Subsidiaries; and (3) immediately after giving effect to the
acquisition of a company or business pursuant to this clause (vii),
the Borrower shall be in pro forma compliance with the covenants
contained in Section 5.04, calculated based on the financial
statements most recently delivered to the Lender Parties pursuant to
Section 5.03 and as though such acquisition had occurred at the
beginning of the four-quarter period covered thereby, as evidenced
by a certificate of the Chief Financial Officer of the Parent
delivered to the Lender Parties demonstrating such compliance.
(g) Restricted Payments. Declare or pay any dividends, purchase,
redeem, retire, defease or otherwise acquire for value any of its Equity
Interests now or hereafter outstanding, return any capital to its
stockholders, partners or members (or the equivalent Persons thereof) as
such, make any distribution of assets, Equity Interests, obligations or
securities to its stockholders, partners or members (or the equivalent
Persons thereof) as such or issue or sell any Equity Interests or accept
any capital contributions, or permit any of its Subsidiaries to do any of
the foregoing, or permit any of its Subsidiaries to purchase, redeem,
retire, defease or otherwise acquire for value any Equity Interests in the
Borrower or to issue or sell any Equity Interests therein, except that, so
long as no Default shall have occurred and be continuing at the time of
any action described in clause (i) or (ii) below or would result
therefrom:
(i) the Borrower may (A) declare and pay dividends and
distributions payable only in common stock of the Borrower, (B)
issue and sell shares of its capital stock to the Parent and (C)
accept capital contributions from the Parent,
(ii) Lodgian Capital Trust I may pay required dividends on the
CRESTS if, at the time of any such payment, no Default under Section
5.04(b) shall have occurred and be continuing or would result
therefrom;
(iii) any Subsidiary of the Borrower may (A) declare and
pay cash dividends to the Borrower, (B) declare and pay cash
dividends to any other
Loan Party of which it is a Subsidiary and (C) accept capital
contributions from its parent to the extent permitted under Section
5.01(f)(i);
(iv) the Parent may declare and pay cash dividends to its
stockholders in an aggregate amount (together with any amounts paid
pursuant to Section 5.02(j)(iii)(A)) not to exceed the sum of
$25,000,000 plus the aggregate amount of cash consideration from the
sale of the Non-Core Assets plus the portion of the proceeds of an
offering of Equity Interests of the Parent not required to be
applied to the prepayment of the Advances pursuant to Section
2.06(b)(ii) to the extent that such portion shall not have been
otherwise applied as permitted hereunder; and
(v) payments may be made by each of the Borrower and the
Affiliate Guarantors pursuant to the Tax Sharing Agreement, provided
that upon the occurrence and during the continuance of an Event of
Default, the amount of payments made by the Borrower or an Affiliate
Guarantor pursuant to the Tax Sharing Agreement shall not exceed the
lesser of (x) the aggregate amount payable at such time by such
Persons under the Tax Sharing Agreement and (y) the amount of
federal and state income taxes payable to taxing authorities during
the period of such continuance by the affiliated group for income
tax purposes of which the Company is the common parent.
(h) Amendments of Constitutive Documents. Amend, or permit any of
its Subsidiaries to amend, its certificate of incorporation or bylaws or
other constitutive documents.
(i) Accounting Changes. Make or permit, or permit any of its
Subsidiaries to make or permit, any change in (i) accounting policies or
reporting practices, except as permitted or required by generally accepted
accounting principles, or (ii) Fiscal Year.
(j) Prepayments, Etc., of Debt. Prepay, redeem, purchase, defease or
otherwise satisfy prior to the scheduled maturity thereof in any manner,
or make any payment in violation of any subordination terms of, any Debt,
except (i) the prepayment of the Advances in accordance with the terms of
this Agreement, (ii) regularly scheduled or required repayments or
redemptions of Surviving Debt, (iii) the redemption in full of the CRESTS
(A) in an amount (together with any amounts paid pursuant to Section
5.02(g)(iv)) not to exceed the sum of $25,000,000 plus the aggregate
amount of cash consideration from the sale of Non-Core Assets or (B) with
the proceeds (to the extent such proceeds are not required to be applied
to the prepayment of the Advances pursuant to Section 2.06(b)) from the
issuance of Equity Interests and (iv) the refinancing in full of any Debt
otherwise permitted hereunder, or amend, modify or change in any manner
materially adverse to the Lender Parties any term or condition of any
Surviving Debt or Subordinated Debt (it being understood that it shall be
materially adverse to the Lenders to amend, modify or change any surviving
Debt in order to reinstate any Debt of the type described in clause (i) of
the definition thereof in respect of such Surviving Debt), or
permit any of its Subsidiaries to do any of the foregoing other than to
prepay any Debt payable to the Borrower.
(k) Amendment, Etc., of Related Documents. Cancel or terminate any
Related Document or consent to or accept any cancellation or termination
thereof, amend, modify or change in any manner any term or condition of
any Related Document or give any consent, waiver or approval thereunder,
waive any default under or any breach of any term or condition of any
Related Document, agree in any manner to any other amendment, modification
or change of any term or condition of any Related Document or take any
other action in connection with any Related Document that would impair the
value of the interest or rights of any Loan Party thereunder or that would
impair the rights or interests of any Agent or any Lender Party, or permit
any of its Subsidiaries to do any of the foregoing.
(l) Negative Pledge. Enter into or suffer to exist, or permit any of
its Subsidiaries to enter into or suffer to exist, any agreement
prohibiting or conditioning the creation or assumption of any Lien upon
any of its property or assets except (i) in favor of the Secured Parties
or (ii) in connection with (A) any Surviving Debt, (B) any purchase money
Debt permitted by Section 5.02(b)(iii)(B) solely to the extent that the
agreement or instrument governing such Debt prohibits a Lien on the
property acquired with the proceeds of such Debt, or (C) any Capitalized
Lease permitted by Section 5.02(b)(iii)(C) solely to the extent that such
Capitalized Lease prohibits a Lien on the property subject thereto, or (D)
any Debt outstanding on the date any Subsidiary of the Borrower becomes
such a Subsidiary (so long as such agreement was not entered into solely
in contemplation of such Subsidiary becoming a Subsidiary of the
Borrower).
(m) Partnerships, Etc. Become a general partner in any general or
limited partnership or joint venture, or permit any of its Subsidiaries to
do so, other than any Subsidiary the sole assets of which consist of its
interest in such partnership or joint venture.
(n) Speculative Transactions. Engage, or permit any of its
Subsidiaries to engage, in any transaction involving commodity options or
futures contracts or any similar speculative transactions.
(o) Capital Expenditures. Make, or permit any of its Subsidiaries to
make, any Capital Expenditures that would cause the aggregate of all such
Capital Expenditures made by the Parent and its Subsidiaries in any Fiscal
Year exceed the sum of (i) $5,000,000 and (ii) 5% of the gross revenue
generated on properties of the Parent and its Subsidiaries to the extent
such Capital Expenditures (other than $5,000,000 of such Capital
Expenditures) are expended on furniture, fixtures and equipment for such
properties; provided that the Parent and its Subsidiaries may make
additional Capital Expenditures in any Fiscal Year with respect to the
acquisition, construction or renovation of hotel properties so long as at
the time of making any such Capital Expenditure (i) the Collateral Agent
has or is granted a perfected first priority security
interest in such property pursuant to Section 5.01(j), (ii) no Default has
then occurred and is continuing or would result therefrom and (iii) both
before and after such Capital Expenditure, the Parent and its Subsidiaries
are and will be in compliance with the covenants set forth in Section
5.04.
(p) Formation of Subsidiaries. Organize or invest, or permit any
Subsidiary to organize or invest, in any new Subsidiary except as
permitted under Section 5.02(f)(i) or (vii)
(q) Payment Restrictions Affecting Subsidiaries. Directly or
indirectly, enter into or suffer to exist, or permit any of its
Subsidiaries to enter into or suffer to exist, any agreement or
arrangement limiting the ability of any of its Subsidiaries to declare or
pay dividends or other distributions in respect of its Equity Interests or
repay or prepay any Debt owed to, make loans or advances to, or otherwise
transfer assets to or invest in, the Borrower or any Subsidiary of the
Borrower (whether through a covenant restricting dividends, loans, asset
transfers or investments, a financial covenant or otherwise), except (i)
the Loan Documents, (ii) any agreement or instrument evidencing Surviving
Debt and (iii) any agreement in effect at the time such Subsidiary becomes
a Subsidiary of the Borrower, so long as such agreement was not entered
into solely in contemplation of such Person becoming a Subsidiary of the
Borrower.
(r) Amendment, Etc., of Material Contracts. Cancel or terminate any
Material Contract or consent to or accept any cancellation or termination
thereof, amend or otherwise modify any Material Contract or give any
consent, waiver or approval thereunder, waive any default under or breach
of any Material Contract, agree in any manner to any other amendment,
modification or change of any term or condition of any Material Contract
or take any other action in connection with any Material Contract, in each
case, that would impair the value of the interest or rights of any Loan
Party thereunder or that would reasonably be expected to have a Material
Adverse Effect.
SECTION 5.03. Reporting Requirements. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Parent will furnish to the Agents and the Lender
Parties:
(a) Default Notice. As soon as possible and in any event within two
days after the occurrence of each Default or any event, development or
occurrence reasonably likely to have a Material Adverse Effect continuing
on the date of such statement, a statement of the chief financial officer
of the Parent setting forth details of such Default and the action that
the Parent and the Borrower have taken and proposes to take with respect
thereto.
(b) Annual Financials. As soon as available and in any event within
90 days after the end of each Fiscal Year, (i) a copy of the annual audit
report for such year for the Parent and its Subsidiaries, including
therein a Consolidated balance sheet of the Parent and its Subsidiaries as
of the end of such Fiscal Year and a Consolidated statement of income and
a Consolidated statement of
cash flows of the Parent and its Subsidiaries for such Fiscal Year and
(ii) a copy of the annual audit report for such year for the Borrower and
its Subsidiaries including therein a Consolidated balance sheet of the
Borrower and its Subsidiaries as of the end of such Fiscal Year and a
Consolidated statement of income and a Consolidated statement of cash
flows of the Borrower and its Subsidiaries for such Fiscal Year, in each
case accompanied by an opinion acceptable to the Required Lenders of
independent public accountants of nationally recognized standing
acceptable to the Required Lenders, together with (i) a certificate of
such accounting firm to the Lender Parties stating that in the course of
the regular audit of the business of the Parent and its Subsidiaries,
which audit was conducted by such accounting firm in accordance with
generally accepted auditing standards, such accounting firm has obtained
no knowledge that a Default has occurred and is continuing, or if, in the
opinion of such accounting firm, a Default has occurred and is continuing,
a statement as to the nature thereof, (ii) a schedule in form satisfactory
to the Administrative Agent of the computations used by such accountants
in determining, as of the end of such Fiscal Year, compliance with the
covenants contained in Section 5.04, provided that in the event of any
change in GAAP used in the preparation of such financial statements, the
Parent shall also provide, if necessary for the determination of
compliance with Section 5.04, a statement of reconciliation conforming
such financial statements to GAAP and (iii) a certificate of the Chief
Financial Officer of the Parent stating that no Default has occurred and
is continuing or, if a default has occurred and is continuing, a statement
as to the nature thereof and the action that the Parent and the Borrower
have taken and proposes to take with respect thereto.
(c) Quarterly Financials. As soon as available and in any event
within 45 days after the end of each of the first three quarters of each
Fiscal Year, (i) a Consolidated balance sheet of the Parent and its
Subsidiaries as of the end of such quarter and a Consolidated statement of
income and a Consolidated statement of cash flows of the Parent and its
Subsidiaries for the period commencing at the end of the previous fiscal
quarter and ending with the end of such fiscal quarter and a Consolidated
statements of income and a Consolidated statement of cash flows of the
Parent and its Subsidiaries for the period commencing at the end of the
previous Fiscal Year and ending with the end of such quarter and (ii) a
Consolidated balance sheet of the Borrower and its Subsidiaries as of the
end of such quarter and a Consolidated statement of income and a
Consolidated statement of cash flows of the Borrower and its Subsidiaries
for the period commencing at the end of the previous fiscal quarter and
ending with the end of such fiscal quarter and a Consolidated statements
of income and a Consolidated statement of cash flows of the Borrower and
its Subsidiaries for the period commencing at the end of the previous
Fiscal Year and ending with the end of such quarter, setting forth in each
case in comparative form the corresponding figures for the corresponding
date or period of the preceding Fiscal Year, all in reasonable detail and
duly certified (subject to normal year-end audit adjustments) by the Chief
Financial Officer of the Parent as having been prepared in accordance with
GAAP, together with (i) a certificate of said officer stating that no
Default has occurred and is continuing or, if a Default has occurred and
is continuing, a statement as to the nature thereof and the action that
the Parent and the Borrower have
taken and proposes to take with respect thereto and (ii) a schedule in
form satisfactory to the Administrative Agent of the computations used by
the Parent in determining compliance with the covenants contained in
Section 5.04, provided that in the event of any change in GAAP used in the
preparation of such financial statements, the Parent shall also provide,
if necessary for the determination of compliance with Section 5.04, a
statement of reconciliation conforming such financial statements to GAAP.
(d) Annual Forecasts. As soon as available and in any event no later
than 15 days before the end of each Fiscal Year, forecasts prepared by
management of the Parent, in form satisfactory to the Administrative
Agent, of balance sheets, income statements and cash flow statements on a
quarterly basis for the Fiscal Year following such Fiscal Year and on an
annual basis for each Fiscal Year thereafter until the Termination Date.
(e) Litigation. Promptly after the commencement thereof, notice of
all actions, suits, investigations, litigation and proceedings before any
court or governmental department, commission, board, bureau, agency or
instrumentality, domestic or foreign, affecting any Loan Party or any of
its Subsidiaries of the type described in Section 4.01(f), and promptly
after the occurrence thereof, notice of any adverse change in the status
or the financial effect on any Loan Party or any of its Subsidiaries of
the Disclosed Litigation from that described on Schedule 4.01(e) hereto.
(f) Securities Reports. Promptly after the sending or filing
thereof, copies of all proxy statements, financial statements and reports
that any Loan Party or any of its Subsidiaries sends to its stockholders,
and copies of all regular, periodic and special reports, and all
registration statements, that any Loan Party or any of its Subsidiaries
files with the Securities and Exchange Commission or any governmental
authority that may be substituted therefor, or with any national
securities exchange.
(g) Agreement Notices. Promptly upon receipt thereof, copies of all
notices, requests and other documents received by any Loan Party or any of
its Subsidiaries under or pursuant to any Related Document or Material
Contract or instrument, indenture, loan or credit or similar agreement
regarding or related to any breach or default by any party thereto or any
other event that could materially impair the value of the interests or the
rights of any Loan Party or otherwise have a Material Adverse Effect and
copies of any amendment, modification or waiver of any provision of any
Related Document or Material Contract or instrument, indenture, loan or
credit or similar agreement and, from time to time upon request by the
Administrative Agent, such information and reports regarding the Related
Documents, the Material Contracts and such instruments, indentures and
loan and credit and similar agreements as the Administrative Agent may
reasonably request.
(h) Revenue Agent Reports. Within 10 days after receipt, copies of
all Revenue Agent Reports (Internal Revenue Service Form 886), or other
written proposals of the Internal Revenue Service, that propose, determine
or otherwise set forth positive adjustments to the Federal income tax
liability of the affiliated group (within the meaning
of Section 1504(a)(1) of the Internal Revenue Code) of which the Borrower
is a member aggregating $10,000,000 or more.
(i) ERISA. (i) ERISA Events and ERISA Reports. (A) Promptly and in
any event within 10 days after any Loan Party or any ERISA Affiliate knows
or has reason to know that any ERISA Event has occurred, a statement of
the Chief Financial Officer of the Parent describing such ERISA Event and
the action, if any, that such Loan Party or such ERISA Affiliate has taken
and proposes to take with respect thereto and (B) on the date any records,
documents or other information must be furnished to the PBGC with respect
to any Plan pursuant to Section 4010 of ERISA, a copy of such records,
documents and information.
(ii) Plan Terminations. Promptly and in any event within two
Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate, copies of each notice from the PBGC stating its intention to
terminate any Plan or to have a trustee appointed to administer any Plan.
(iii) Plan Annual Reports. Promptly and in any event within 30 days
after the filing thereof with the Internal Revenue Service, copies of each
Schedule B (Actuarial Information) to the annual report (Form 5500 Series)
with respect to each Plan.
(iv) Multiemployer Plan Notices. Promptly and in any event within
five Business Days after receipt thereof by any Loan Party or any ERISA
Affiliate from the sponsor of a Multiemployer Plan, copies of each notice
concerning (A) the imposition of Withdrawal Liability by any such
Multiemployer Plan, (B) the reorganization or termination, within the
meaning of Title IV of ERISA, of any such Multiemployer Plan or (C) the
amount of liability incurred, or that may be incurred, by such Loan Party
or any ERISA Affiliate in connection with any event described in clause
(A) or (B).
(j) Environmental Conditions. Promptly after the assertion or
occurrence thereof, notice of any Environmental Action against or of any
receipt of notice from any governmental authority alleging noncompliance
by any Loan Party or any of its Subsidiaries with any Environmental Law or
Environmental Permit that could (i) reasonably be expected to have a
Material Adverse Effect or (ii) cause any property described in the
Mortgages to be subject to any restrictions on ownership, occupancy, use
or transferability under any Environmental Law.
(k) Real Property. As soon as available and in any event within 30
days after the end of each Fiscal Year, a report supplementing Schedules
4.01(w) and 4.01(x) hereto, including an identification of all owned and
leased real property disposed of by the Parent or any of its Subsidiaries
during such Fiscal Year, a list and description (including the street
address, county or other relevant jurisdiction, state, record owner, book
value thereof and, in the case of leases of property, lessor, lessee,
expiration date and annual rental cost thereof) of all real property
acquired or leased during such Fiscal
Year and a description of such other changes in the information included
in such Schedules as may be necessary for such Schedules to be accurate
and complete.
(l) Insurance. As soon as available and in any event within 30 days
after the end of each Fiscal Year, a report summarizing the insurance
coverage (specifying type, amount and carrier) in effect for each Loan
Party and its Subsidiaries and containing such additional information as
any Agent, or any Lender Party through the Administrative Agent, may
reasonably specify.
(m) Year 2000 Compliance. Promptly after the Parent's discovery or
determination thereof, notice (in reasonable detail) that any computer
application (including those of its suppliers, vendors and customers) that
is material to its or any of its Subsidiaries' business and operations
will not be Year 2000 Compliant (as defined in Section 4.01(bb)), except
to the extent that such failure could not reasonably be expected to have a
Material Adverse Effect.
(n) Management Letters. Promptly, and in any event within five days
or receipt thereof, copies of any "management letter" or similar letter
received by the Parent or any of its Subsidiaries (or the board or
directors or any committee thereof of any of the foregoing) from its
auditors.
(o) Other Information. Such other information respecting the
business, condition (financial or otherwise), operations, performance,
properties or prospects of any Loan Party or any of its Subsidiaries as
any Agent, or any Lender Party through the Administrative Agent, may from
time to time reasonably request.
SECTION 5.04. Financial Covenants. So long as any Advance or any
other Obligation of any Loan Party under any Loan Document shall remain unpaid,
any Letter of Credit shall be outstanding or any Lender Party shall have any
Commitment hereunder, the Parent and it Subsidiaries will:
(a) Debt to EBITDA Ratio. Maintain at all times a Debt/EBITDA Ratio
(calculated on any day of determination using EBITDA for the most recently
ended fiscal quarter for which financial statements have been delivered
pursuant to Section 5.03) of not more than the amount set forth below for
each period set forth below:
===========================================
Quarter Ending Ratio
===========================================
September 30, 1999 6.25:1
===========================================
December 31, 1999 6.25:1
===========================================
March 31, 2000 6.25:1
===========================================
June 30, 2000 6.25:1
===========================================
September 30, 2000 6.25:1
===========================================
December 31, 2000 6.00:1
===========================================
March 31, 2001 6.00:1
===========================================
June 30, 2001 6.00:1
===========================================
September 30, 2001 6.00:1
===========================================
December 31, 2001 5.50:1
===========================================
March 31, 2002 5.50:1
===========================================
June 30, 2002 5.50:1
===========================================
September 30, 2002 5.50:1
===========================================
December 31, 2002 5.50:1
===========================================
March 31, 2003 5.50:1
===========================================
June 30, 2003 5.50:1
===========================================
September 30, 2003 5.50:1
===========================================
December 31, 2003 5.00:1
===========================================
March 31, 2004 5.00:1
===========================================
June 30, 2004 5.00:1
===========================================
September 30, 2004 5.00:1
===========================================
December 31, 2004 4.75:1
===========================================
March 31, 2005 4.75:1
===========================================
June 30, 2005 4.75:1
===========================================
September 30, 2005 4.75:1
===========================================
December 31, 2005 4.50:1
and thereafter
===========================================
(b) Fixed Charge Coverage Ratio. Maintain at the end of each fiscal
quarter of the Parent a Fixed Charge Coverage Ratio of not less than the
amount set forth below for each period set forth below:
===========================================
Quarter Ending Ratio
===========================================
December 31, 1999 1.00:1
===========================================
March 31, 2000 1.00:1
===========================================
June 30, 2000 1.00:1
===========================================
September 30, 2000 1.00:1
===========================================
December 31, 2000 1.05:1
and thereafter
===========================================
(c) Interest Coverage Ratio. Maintain at the end of each fiscal
quarter of the Parent an Interest Coverage Ratio of not less than the
amount set forth below for each period set forth below:
===========================================
Quarter Ending Ratio
===========================================
September 30, 1999 1.75:1
===========================================
December 31, 1999 1.75:1
===========================================
March 31, 2000 1.75:1
===========================================
June 30, 2000 1.75:1
===========================================
September 30, 2000 1.75:1
===========================================
December 31, 2000 1.85:1
===========================================
March 31, 2001 1.85:1
===========================================
June 30, 2001 1.85:1
===========================================
September 30, 2001 1.85:1
===========================================
December 31, 2001 1.95:1
===========================================
March 31, 2002 1.95:1
===========================================
June 30, 2002 1.95:1
===========================================
September 30, 2002 1.95:1
===========================================
December 31, 2002 2.05:1
===========================================
March 31, 2003 2.05:1
===========================================
June 30, 2003 2.05:1
===========================================
September 30, 2003 2.05:1
===========================================
December 31, 2003 2.15:1
===========================================
March 31, 2004 2.15:1
===========================================
June 30, 2004 2.15:1
===========================================
September 30, 2004 2.15:1
===========================================
December 31, 2004 2.25:1
===========================================
March 31, 2005 2.25:1
===========================================
June 30, 2005 2.25:1
===========================================
September 30, 2005 2.25:1
===========================================
December 31, 2005 2.50:1
and thereafter
===========================================
(d) Consolidated Senior Debt to Hotel Collateral EBITDA Ratio.
Maintain at all times a Senior Debt/to Hotel Collateral EBITDA Ratio
(calculated on any day of determination using Hotel Collateral EBITDA for
the most recently ended fiscal quarter for which financial statements have
been delivered pursuant to Section 5.03) of not more than the amount set
forth below for each period set forth below:
===========================================
Quarter Ending Ratio
===========================================
September 30, 1999 4.00:1
===========================================
December 31, 1999 4.00:1
===========================================
March 31, 2000 4.00:1
===========================================
June 30, 2000 4.00:1
===========================================
September 30, 2000 4.00:1
===========================================
December 31, 2000 4.50:1
===========================================
March 31, 2001 4.50:1
===========================================
June 30, 2001 4.50:1
===========================================
September 30, 2001 4.50:1
===========================================
December 31, 2001 4.00:1
===========================================
March 31, 2002 4.00:1
===========================================
June 30, 2002 4.00:1
===========================================
September 30, 2002 4.00:1
===========================================
December 31, 2002 4.00:1
===========================================
March 31, 2003 4.00:1
===========================================
June 30, 2003 4.00:1
===========================================
September 30, 2003 4.00:1
===========================================
December 31, 2003 3.50:1
===========================================
March 31, 2004 3.50:1
===========================================
June 30, 2004 3.50:1
===========================================
September 30, 2004 3.50:1
===========================================
December 31, 2004 3.25:1
===========================================
March 31, 2005 3.25:1
===========================================
June 30, 2005 3.25:1
===========================================
September 30, 2005 3.25:1
===========================================
December 31, 2005 3.00:1
===========================================
March 31, 2006 3.00:1
===========================================
June 30, 2006 3.00:1
===========================================
September 30, 2006 3.00:1
===========================================
December 31, 2006 2.75:1
and thereafter
===========================================
ARTICLE VI
EVENTS OF DEFAULT
SECTION 6.01. Events of Default. If any of the following events
("Events of Default") shall occur and be continuing:
(a) (i) the Borrower shall fail to pay any principal of any Advance
when the same shall become due and payable or (ii) the Borrower shall fail
to pay any interest on any Advance, or any Loan Party shall fail to make
any other payment under any Loan Document, in each case under this clause
(ii) within three Business Days after the same becomes due and payable; or
(b) any representation or warranty made by any Loan Party (or any of
its officers) under or in connection with any Loan Document shall prove to
have been incorrect in any material respect when made; or
(c) the Borrower or the Parent, as applicable, shall fail to perform
or observe any term, covenant or agreement contained in Section 2.14,
5.01(e) (solely as to existence), (j), (m) or (p), 5.02, 5.03(a) or 5.04;
or
(d) any Loan Party shall fail to perform or observe any other term,
covenant or agreement contained in any Loan Document on its part to be
performed or observed if such failure shall remain unremedied for 30 days
after the earlier of the date on which (i) a Responsible Officer becomes
aware of such failure or (ii) written notice thereof shall have been given
to the Borrower by any Agent or any Lender Party; or
(e) any Loan Party or any of its Subsidiaries shall fail to pay any
principal of, premium or interest on or any other amount payable in
respect of any Debt of such Loan Party or such Subsidiary (as the case may
be) that is outstanding in a principal amount (or, in the case of any
Hedge Agreement, an Agreement Value) of at least $10,000,000 either
individually or in the aggregate (but excluding Debt outstanding
hereunder), when the same becomes due and payable (whether by scheduled
maturity, required prepayment, acceleration, demand or otherwise), and
such failure shall continue after the applicable grace period, if any,
specified in the agreement or instrument relating to such Debt; or any
other event shall occur or condition shall exist under any agreement or
instrument relating
to any such Debt and shall continue after the applicable grace period, if
any, specified in such agreement or instrument, if the effect of such
event or condition is to accelerate, or to permit the acceleration of, the
maturity of such Debt or otherwise to cause, or to permit the holder
thereof to cause, such Debt to mature; or any such Debt shall be declared
to be due and payable or required to be prepaid or redeemed (other than by
a regularly scheduled required prepayment or redemption), purchased or
defeased, or an offer to prepay, redeem, purchase or defease such Debt
shall be required to be made, in each case prior to the stated maturity
thereof; or
(f) any Loan Party or any of its Subsidiaries shall generally not
pay its debts as such debts become due, or shall admit in writing its
inability to pay its debts generally, or shall make a general assignment
for the benefit of creditors; or any proceeding shall be instituted by or
against any Loan Party or any of its Subsidiaries seeking to adjudicate it
a bankrupt or insolvent, or seeking liquidation, winding up,
reorganization, arrangement, adjustment, protection, relief, or
composition of it or its debts under any law relating to bankruptcy,
insolvency or reorganization or relief of debtors, or seeking the entry of
an order for relief or the appointment of a receiver, trustee or other
similar official for it or for any substantial part of its property and,
in the case of any such proceeding instituted against it (but not
instituted by it) that is being diligently contested by it in good faith,
either such proceeding shall remain undismissed or unstayed for a period
of 60 days or any of the actions sought in such proceeding (including,
without limitation, the entry of an order for relief against, or the
appointment of a receiver, trustee, custodian or other similar official
for, it or any substantial part of its property) shall occur; or any Loan
Party or any of its Subsidiaries shall take any corporate action to
authorize any of the actions set forth above in this subsection (f); or
(g) any judgments or orders, either individually or in the
aggregate, for the payment of money in excess of $10,000,000 shall be
rendered against any Loan Party or any of its Subsidiaries and either (i)
enforcement proceedings shall have been commenced by any creditor upon
such judgment or order and shall have been pending for a period of 10 days
without being stayed or (ii) there shall be any period of 10 consecutive
days during which a stay of enforcement of such judgment or order, by
reason of a pending appeal or otherwise, shall not be in effect; or
(h) any non-monetary judgment or order shall be rendered against any
Loan Party or any of its Subsidiaries that could be reasonably likely to
have a Material Adverse Effect, and there shall be any period of 10
consecutive days during which a stay of enforcement of such judgment or
order, by reason of a pending appeal or otherwise, shall not be in effect;
or
(i) any provision of any Loan Document after delivery thereof
pursuant to Section 3.01 or 5.01(j) shall for any reason cease to be valid
and binding on or enforceable against any Loan Party party to it, or any
such Loan Party shall so state in writing; or
(j) any Collateral Document or financing statement after delivery
thereof pursuant to Section 3.01 or 5.01(j) shall for any reason (other
than pursuant to the terms thereof) cease to create a valid and perfected
first priority lien on and security interest in the Hotel Collateral
purported to be covered thereby; or
(k) a Change of Control shall occur; or
(l) any ERISA Event shall have occurred with respect to a Plan and
the sum (determined as of the date of occurrence of such ERISA Event) of
the Insufficiency of such Plan and the Insufficiency of any and all other
Plans with respect to which an ERISA Event shall have occurred and then
exist (or the liability of the Loan Parties and the ERISA Affiliates
related to such ERISA Event) exceeds $10,000,000; or
(m) any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that it has incurred Withdrawal
Liability to such Multiemployer Plan in an amount that, when aggregated
with all other amounts required to be paid to Multiemployer Plans by the
Loan Parties and the ERISA Affiliates as Withdrawal Liability (determined
as of the date of such notification), exceeds $10,000,000 or requires
payments exceeding $2,500,000 per annum; or
(n) any Loan Party or any ERISA Affiliate shall have been notified
by the sponsor of a Multiemployer Plan that such Multiemployer Plan is in
reorganization or is being terminated, within the meaning of Title IV of
ERISA, and as a result of such reorganization or termination the aggregate
annual contributions of the Loan Parties and the ERISA Affiliates to all
Multiemployer Plans that are then in reorganization or being terminated
have been or will be increased over the amounts contributed to such
Multiemployer Plans for the plan years of such Multiemployer Plans
immediately preceding the plan year in which such reorganization or
termination occurs by an amount exceeding $2,500,000; or
(o) an "Event of Default" (as defined in any Mortgage or in Annex A)
shall have occurred and be continuing;
then, and in any such event, the Administrative Agent (i) shall at the request,
or may with the consent, of the Required Lenders, by notice to the Borrower,
declare the Commitments of each Lender Party and the obligation of each Lender
Party to make Advances (other than Letter of Credit Advances by an Issuing Bank
or a Working Capital Lender pursuant to Section 2.03(c)) and of each Bank to
issue Letters of Credit to be terminated, whereupon the same shall forthwith
terminate, and (ii) shall at the request, or may with the consent, of the
Required Lenders, (A) by notice to the Borrower, declare the Notes, all interest
thereon and all other amounts payable under this Agreement and the other Loan
Documents to be forthwith due and payable, whereupon the Notes, all such
interest and all such amounts shall become and be forthwith due and payable,
without presentment, demand, protest or further notice of any kind, all of which
are hereby expressly waived by the Borrower, and (B) by notice to each party
required under the terms of any agreement in support of which a Standby Letter
of Credit is issued, request that all
Obligations under such agreement be declared to be due and payable; provided,
however, that in the event of an actual or deemed entry of an order for relief
with respect to the Borrower under the Federal Bankruptcy Code, (x) the
Commitments of each Lender Party and the obligation of each Lender Party to make
Advances (other than Letter of Credit Advances by the Issuing Bank or a Working
Capital Lender pursuant to Section 2.03(c) and Swing Line Advances by a Working
Capital Lender pursuant to Section 2.02(b)) and of the Issuing Bank to issue
Letters of Credit shall automatically be terminated and (y) the Notes, all such
interest and all such amounts shall automatically become and be due and payable,
without presentment, demand, protest or any notice of any kind, all of which are
hereby expressly waived by the Borrower. Notwithstanding anything to be contrary
in the Loan Documents, the Term B Advances comprising the initial Term B
Borrowing shall be deemed the last to be repaid.
SECTION 6.02. Actions in Respect of the Letters of Credit upon
Default. If any Event of Default shall have occurred and be continuing, the
Administrative Agent may, or shall at the request of the Required Lenders,
irrespective of whether it is taking any of the actions described in Section
6.01 or otherwise, make demand upon the Borrower to, and forthwith upon such
demand the Borrower will, pay to the Collateral Agent on behalf of the Lender
Parties in same day funds at the Collateral Agent's office designated in such
demand, for deposit in the L/C Cash Collateral Account, an amount equal to the
aggregate Available Amount of all Letters of Credit then outstanding. If at any
time the Administrative Agent or the Collateral Agent determines that any funds
held in the L/C Cash Collateral Account are subject to any right or claim of any
Person other than the Agents and the Lender Parties or that the total amount of
such funds is less than the aggregate Available Amount of all Letters of Credit,
the Borrower will, forthwith upon demand by the Administrative Agent or the
Collateral Agent, pay to the Collateral Agent, as additional funds to be
deposited and held in the L/C Cash Collateral Account, an amount equal to the
excess of (a) such aggregate Available Amount over (b) the total amount of
funds, if any, then held in the L/C Cash Collateral Account that the
Administrative Agent or the Collateral Agent, as the case may be, determines to
be free and clear of any such right and claim. Upon the drawing of any Letter of
Credit for which funds are on deposit in the L/C Cash Collateral Account, such
funds shall be applied to reimburse the relevant Issuing Bank or Working Capital
Lenders, as applicable, to the extent permitted by applicable law.
ARTICLE VII
AFFILIATE GUARANTY
SECTION 7.01. Guaranty. (a) Each Affiliate Guarantor hereby
unconditionally and irrevocably guarantees the punctual payment when due,
whether at stated maturity, by acceleration or otherwise, of all Obligations of
each other Loan Party now or hereafter existing under the Loan Documents,
whether for principal, interest, fees, expenses or otherwise (such Obligations
being the "Guaranteed Obligations"), and agrees to pay any and all expenses
(including reasonable counsel fees and expenses) incurred by the Administrative
Agent or the Lender Parties in enforcing any rights under this Guaranty. Without
limiting the generality of the foregoing, each Affiliate Guarantor s liability
shall extend to all amounts that constitute part of the Guaranteed Obligations
and would be owed by each such Loan Party to the Agent or any Lender Party under
the Loan Documents but for the fact that they are unenforceable or not allowable
due to the existence of a bankruptcy, reorganization or similar proceeding
involving any Loan Party.
(b) (i) Each Affiliate Guarantor, the Administrative Agent and each
other Secured Party, hereby confirms that it is the intention of all such
parties that this Affiliate Guaranty not constitute a fraudulent transfer or
conveyance for purposes of Bankruptcy Law, the Uniform Fraudulent Conveyance
Act, the Uniform Fraudulent Transfer Act or any similar federal or state law to
the extent applicable to this Affiliate Guaranty. To effectuate the foregoing
intention, the Administrative Agent, the other Secured Parties and the Affiliate
Guarantors hereby irrevocably agree that the Obligations of each Affiliate
Guarantor under this Affiliate Guaranty shall not exceed the greater of (A) the
net benefit realized by such Affiliate Guarantor from the proceeds of the
Advances made from time to time by the Borrower to such Affiliate Guarantor or
any Subsidiary of such Affiliate Guarantor and (B) the maximum amount that will,
after giving effect to such maximum amount and all other contingent and fixed
liabilities of such Affiliate Guarantor that are relevant under such laws, and
after giving effect to any collections from, rights to receive contribution from
or payments made by or on behalf of any other Affiliate Guarantor in respect of
the Obligations of such other Affiliate Guarantor under this Affiliate Guaranty,
result in the Obligations of such Affiliate Guarantor under this Affiliate
Guaranty not constituting a fraudulent transfer or conveyance. For purposes
hereof, "Bankruptcy Law" means Title 11, U.S. Code, or any similar Federal or
state law for the relief of debtors.
(ii) Each Affiliate Guarantor agrees that in the event any payment
shall be required to be made to the Secured Parties under this Affiliate
Guaranty or any other guaranty, such Affiliate Guarantor will contribute, to the
maximum extent permitted by law, such amounts to each other Affiliate Guarantor
and each other guarantor so as to maximize the aggregate amount paid to the
Secured Parties under the Loan Documents.
(c) Notwithstanding anything else in the Loan Documents to the
contrary, on or prior to September 13, 1999, the obligations of Impac Hotel
Group, LLC under this Affiliate Guaranty shall not exceed $88,500,000.
SECTION 7.02. Guaranty Absolute. Each Affiliate Guarantor guarantees
that the Guaranteed Obligations will be paid strictly in accordance with the
terms of the Loan Documents, regardless of any law, regulation or order now or
hereafter in effect in any jurisdiction affecting any of such terms or the
rights of the Agents or the Lenders with respect thereto. The Obligations of
each Affiliate Guarantor under this Guaranty are independent of the Guaranteed
Obligations or any other Obligations of any other Loan Party under the Loan
Documents, and a separate action or actions may be brought and prosecuted
against each Affiliate Guarantor to enforce this Guaranty, irrespective of
whether any action is brought against any other Loan Party or whether any other
Loan Party is joined in any such action or actions. The liability of each
Affiliate Guarantor under this Guaranty shall be irrevocable, absolute and
unconditional irrespective of, and each Affiliate Guarantor hereby irrevocably
waives any defenses it may now or hereinafter have in any way relating to, any
or all of the following:
(a) any lack of validity or enforceability of any Loan Document or
any agreement or instrument relating thereto;
(b) any change in the time, manner or place of payment of, or in any
other term of, all or any of the Guaranteed Obligations or any other
Obligations of any other Loan Party under the Loan Documents, or any other
amendment or waiver of or any consent to departure from any Loan Document,
including, without limitation, any increase in the Guaranteed Obligations
resulting from the extension of additional credit to the Borrower or
otherwise;
(c) any taking, exchange, release or non-perfection of any
collateral, or any taking, release or amendment or waiver of or consent to
departure from any other guaranty, for all or any of the Guaranteed
Obligations;
(d) any manner of application of collateral, or proceeds thereof, to
all or any of the Guaranteed Obligations, or any manner of sale or other
disposition of any collateral for all or any of the Guaranteed Obligations
or any other Obligations of any other Loan Party under the Loan Documents
or any other assets of any Loan Party or any of their Subsidiaries;
(e) any change, restructuring or termination of the corporate
structure or existence of any Loan Party or any of their Subsidiaries; or
(f) any other circumstance (including, without limitation, any
statute of limitations) or any existence of or reliance on any
representation by the Administrative Agent or any Lender Party that might
otherwise constitute a defense available to, or a discharge of, the
Borrower, any Guarantor or any other guarantor or surety.
This Guaranty shall continue to be effective or be reinstated, as
the case may be, if at any time any payment of any of the Guaranteed Obligations
is rescinded or must otherwise be returned by the Administrative Agent or any
Lender Party upon the insolvency, bankruptcy or
reorganization of any Loan Party or any of their Subsidiaries or otherwise, all
as though such payment had not been made.
SECTION 7.03. Waiver. Each Affiliate Guarantor hereby waives
promptness, diligence, notice of acceptance and any other notice with respect to
any of the Guaranteed Obligations and this Guaranty and any requirement that the
Administrative Agent or any Lender Party protect, secure, perfect or insure any
Lien or any property subject thereto or exhaust any right or take any action
against any Loan Party or any other Person or any collateral. Each Affiliate
Guarantor acknowledges that it will receive direct and indirect benefits from
the financing arrangements contemplated by the Loan Documents and that the
waiver set forth in this Section 7.03 is knowingly made in contemplation of such
benefits.
SECTION 7.04. Subrogation. Each Affiliate Guarantor agrees it will
not exercise any rights that it may now or hereafter acquire against any the
Borrower, any Guarantor or any other guarantor that arise from the existence,
payment, performance or enforcement of such Affiliate Guarantor s Obligations
under this Agreement or any other Loan Document, including, without limitation,
any right of subrogation, reimbursement, exoneration, contribution or
indemnification and any right to participate in any claim or remedy of the
Administrative Agent or any Lender Party against the Borrower, any Guarantor or
any other guarantor or any collateral, whether or not such claim, remedy or
right arises in equity or under contract, statute or common law, including,
without limitation, the right to take or receive from the Borrower, any
Guarantor or any other guarantor, directly or indirectly, in cash or other
property or by set-off or in any other manner, payment or security on account of
such claim, remedy or right, unless and until all of the Obligations and all
other amounts payable under this Guaranty shall have been paid in full in cash
and the Commitments shall have expired or terminated. If any amount shall be
paid to such Affiliate Guarantor in violation of the preceding sentence at any
time prior to the later of the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Guaranty and the
Termination Date, such amount shall be held in trust for the benefit of the
Administrative Agent and the Lender Parties and shall forthwith be paid to the
Administrative Agent to be credited and applied to the Guaranteed Obligations
and all other amounts payable under this Guaranty, whether matured or unmatured,
in accordance with the terms of the Loan Documents, or to be held as collateral
for any Guaranteed Obligations or other amounts payable under this Guaranty
thereafter arising. If (i) an Affiliate Guarantor shall make payment to the
Administrative Agent or any Lender Party of all or any part of the Guaranteed
Obligations, (ii) all of the Guaranteed Obligations and all other amounts
payable under this Guaranty shall be paid in full in cash and (iii) the Final
Maturity Date shall have occurred, the Administrative Agent and the Lender
Parties will, at such Affiliate Guarantor s request and expense, execute and
deliver to such Affiliate Guarantor appropriate documents, without recourse and
without representation or warranty, necessary to evidence the transfer by
subrogation to such Affiliate Guarantor of an interest in the Guaranteed
Obligations resulting from such payment by such Affiliate Guarantor.
SECTION 7.05. Affiliate Guaranty Supplements. Upon the execution and
delivery by any Person of a guaranty supplement in substantially the form of
Exhibit H hereto (each, an "Affiliate Guaranty Supplement"), (a) such Person
shall be referred to as an "Additional Affiliate Guarantor" and shall become and
be a "Affiliate Guarantor" hereunder,
and each reference in this Affiliate Guaranty to an "Affiliate Guarantor" shall
also mean and be a reference to such Additional Affiliate Guarantor, and each
reference in any other Loan Document to an "Affiliate Guarantor" shall also mean
and be a reference to such Additional Affiliate Guarantor, and (b) each
reference herein to "this Affiliate Guaranty", "hereunder", "hereof" or words of
like import referring to this Affiliate Guaranty, and each reference in any
other Loan Document to the "Affiliate Guaranty", "thereunder", "thereof" or
words of like import referring to this Affiliate Guaranty, shall mean and be a
reference to this Affiliate Guaranty as supplemented by suvh Affiliate Guaranty
Supplement.
SECTION 7.06. Continuing Guaranty; Assignments. This Affiliate
Guaranty is a continuing guaranty and shall (a) remain in full force and effect
until the latest of (i) the payment in full in cash of the Guaranteed
Obligations and all other amounts payable under this Affiliate Guaranty, (ii)
the Termination Date and (iii) the latest date of expiration or termination of
all Letters of Credit, (b) be binding upon each Affiliate Guarantor, its
successors and assigns and (c) inure to the benefit of and be enforceable by the
Secured Parties and their successors, transferees and assigns. Without limiting
the generality of clause (c) of the immediately preceding sentence, any Secured
Party may assign or otherwise transfer all or any portion of its rights and
obligations under this Agreement (including, without limitation, all or any
portion of its Commitments, the Advances owing to it and the Note or Notes held
by it) to any other Person, and such other Person shall thereupon become vested
with all the benefits in respect thereof granted to such Secured Party herein or
otherwise, in each case as and to the extent provided in Section 9.07. No
Affiliate Guarantor shall have the right to assign its rights hereunder or any
interest herein without the prior written consent of the Secured Parties.
ARTICLE VIII
THE AGENTS
SECTION 8.01. Authorization and Action. Each Lender Party (in its
capacities as a Lender, the Swing Line Bank (if applicable), the Issuing Bank
(if applicable) and on behalf of itself and its Affiliates as potential Hedge
Banks) hereby appoints and authorizes each Agent to take such action as agent on
its behalf and to exercise such powers and discretion under this Agreement and
the other Loan Documents as are delegated to such Agent by the terms hereof and
thereof, together with such powers and discretion as are reasonably incidental
thereto. As to any matters not expressly provided for by the Loan Documents
(including, without limitation, enforcement or collection of the Notes), no
Agent shall be required to exercise any discretion or take any action, but shall
be required to act or to refrain from acting (and shall be fully protected in so
acting or refraining from acting) upon the instructions of the Required Lenders,
and such instructions shall be binding upon all Lender Parties and all holders
of Notes; provided, however, that no Agent shall be required to take any action
that exposes such Agent to personal liability or that is contrary to this
Agreement or applicable law. Each Agent agrees to give to each Lender Party
prompt notice of each notice given to it by the Borrower pursuant to the terms
of this Agreement.
SECTION 8.02. Agents' Reliance, Etc. Neither any Agent nor any of
their respective directors, officers, agents or employees shall be liable for
any action taken or omitted to be taken by it or them under or in connection
with the Loan Documents, except for its or their own gross negligence or willful
misconduct. Without limitation of the generality of the foregoing, each Agent:
(a) may treat the payee of any Note as the holder thereof until, in the case of
the Administrative Agent, the Administrative Agent receives and accepts an
Assignment and Acceptance entered into by the Lender that is the payee of such
Note, as assignor, and an Eligible Assignee, as assignee, or, in the case of any
other Agent, such Agent has received notice from the Administrative Agent that
it has received and accepted such Assignment and Acceptance, in each case as
provided in Section 9.07; (b) may consult with legal counsel (including counsel
for any Loan Party), independent public accountants and other experts selected
by it and shall not be liable for any action taken or omitted to be taken in
good faith by it in accordance with the advice of such counsel, accountants or
experts; (c) makes no warranty or representation to any Lender Party and shall
not be responsible to any Lender Party for any statements, warranties or
representations (whether written or oral) made in or in connection with the Loan
Documents; (d) shall not have any duty to ascertain or to inquire as to the
performance or observance of any of the terms, covenants or conditions of any
Loan Document on the part of any Loan Party or to inspect the property
(including the books and records) of any Loan Party; (e) shall not be
responsible to any Lender Party for the due execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; and (f) shall incur no liability under or
in respect of any Loan Document by acting upon any notice, consent, certificate
or other instrument or writing (which may be by telegram, telecopy or telex)
believed by it to be genuine and signed or sent by the proper party or parties.
SECTION 8.03. Morgan Stanley, Lehman Brothers and Affiliates. With
respect to its Commitments, the Advances made by it and the Notes issued to it,
Morgan Stanley Senior Fundings, Inc., Lehman Brothers, and their respective
Affiliates shall have the same rights and powers under the Loan Documents as any
other Lender Party and may exercise the same as though it were not an Agent; and
the term "Lender Party" or "Lender Parties" shall, unless otherwise expressly
indicated, include Morgan Stanley Senior Fundings, Inc. and Lehman Brothers in
their respective individual capacities. Morgan Stanley Senior Fundings, Inc.,
Lehman Brothers and their respective Affiliates may accept deposits from, lend
money to, act as trustee under indentures of, accept investment banking
engagements from and generally engage in any kind of business with, any Loan
Party, any of its Subsidiaries and any Person that may do business with or own
securities of any Loan Party or any such Subsidiary, all as if Morgan Stanley
Senior Fundings, Inc., and Lehman Brothers were not Agents and without any duty
to account therefor to the Lender Parties.
SECTION 8.04. Lender Party Credit Decision. Each Lender Party
acknowledges that it has, independently and without reliance upon any Agent or
any other Lender Party and based on the financial statements referred to in
Section 4.01 and such other documents and information as it has deemed
appropriate, made its own credit analysis and decision to enter into this
Agreement. Each Lender Party also acknowledges that it will, independently and
without
reliance upon any Agent or any other Lender Party and based on such documents
and information as it shall deem appropriate at the time, continue to make its
own credit decisions in taking or not taking action under this Agreement.
SECTION 8.05. Indemnification. (a) Each Lender Party severally
agrees to indemnify each Agent (to the extent not promptly reimbursed by the
Borrower) from and against such Lender Party's ratable share (determined as
provided below) of any and all liabilities, obligations, losses, damages,
penalties, actions, judgments, suits, costs, expenses or disbursements of any
kind or nature whatsoever that may be imposed on, incurred by, or asserted
against such Agent in any way relating to or arising out of the Loan Documents
or any action taken or omitted by such Agent under the Loan Documents; provided,
however, that no Lender Party 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 as found in a final, non-appealable judgment by a court of
competent jurisdiction. Without limitation of the foregoing, each Lender Party
agrees to reimburse each Agent promptly upon demand for its ratable share of any
costs and expenses (including, without limitation, fees and expenses of counsel)
payable by the Borrower under Section 9.04, to the extent that such Agent is not
promptly reimbursed for such costs and expenses by the Borrower.
(b) Each Lender Party severally agrees to indemnify the Issuing Bank
(to the extent not promptly reimbursed by the Borrower) from and against such
Lender Party's ratable share (determined as provided below) of any and all
liabilities, obligations, losses, damages, penalties, actions, judgments, suits,
costs, expenses or disbursements of any kind or nature whatsoever that may be
imposed on, incurred by, or asserted against the Issuing Bank in any way
relating to or arising out of the Loan Documents or any action taken or omitted
by the Issuing Bank under the Loan Documents; provided, however, that no Lender
Party shall be liable for any portion of such liabilities, obligations, losses,
damages, penalties, actions, judgments, suits, costs, expenses or disbursements
resulting from the Issuing Bank's gross negligence or willful misconduct as
found in a final, non-appealable judgment by a court of competent jurisdiction.
Without limitation of the foregoing, each Lender Party agrees to reimburse such
Issuing Bank promptly upon demand for its ratable share of any costs and
expenses (including, without limitation, fees and expenses of counsel) payable
by the Borrower under Section 9.04, to the extent that the Issuing Bank is not
promptly reimbursed for such costs and expenses by the Borrower.
(c) For purposes of this Section 8.05, the Lender Parties'
respective ratable shares of any amount shall be determined, at any time,
according to the sum of (i) the aggregate principal amount of the Advances
outstanding at such time and owing to the respective Lender Parties, (ii) their
respective Pro Rata Shares of the aggregate Available Amount of all Letters of
Credit outstanding at such time, (iii) the aggregate unused portion of their
respective Term B Commitments and Term C Commitments (if any) at such time and
their respective Unused Term A Commitments at such time and (iv) their
respective Unused Working Capital Commitments at such time; provided that the
aggregate principal amount of Swing Line Advances owing to the Swing Line Bank
and of Letter of Credit Advances owing to the Issuing Bank shall be considered
to be owed to the Working Capital Lenders ratably in accordance with their
respective Working
Capital Commitments. The failure of any Lender Party to reimburse any Agent or
the Issuing Bank, as the case may be, promptly upon demand for its ratable share
of any amount required to be paid by the Lender Parties to such Agent or the
Issuing Bank, as the case may be, as provided herein shall not relieve any other
Lender Party of its obligation hereunder to reimburse such Agent or the Issuing
Bank, as the case may be, for its ratable share of such amount, but no Lender
Party shall be responsible for the failure of any other Lender Party to
reimburse such Agent or the Issuing Bank, as the case may be, for such other
Lender Party's ratable share of such amount. Without prejudice to the survival
of any other agreement of any Lender Party hereunder, the agreement and
obligations of each Lender Party contained in this Section 8.05 shall survive
the payment in full of principal, interest and all other amounts payable
hereunder and under the other Loan Documents.
SECTION 8.06. Successor Agents. Any Agent may resign at any time by
giving written notice thereof to the Lender Parties and the Borrower and may be
removed at any time with or without cause by the Required Lenders. Upon any such
resignation or removal, the Required Lenders shall have the right to appoint a
successor Agent. If no successor Agent shall have been so appointed by the
Required Lenders, and shall have accepted such appointment, within 30 days after
the retiring Agent's giving of notice of resignation or the Required Lenders'
removal of the retiring Agent, then the retiring Agent may, on behalf of the
Lender Parties, appoint a successor Agent, which shall be a commercial bank
organized under the laws of the United States or of any State thereof and having
a combined capital and surplus of at least $250,000,000. Upon the acceptance of
any appointment as Agent hereunder by a successor Agent and, in the case of a
successor Collateral Agent, upon the execution and filing or recording of such
financing statements, or amendments thereto, and such amendments or supplements
to the Mortgages, and such other instruments or notices, as may be necessary or
desirable, or as the Required Lenders may request, in order to continue the
perfection of the Liens granted or purported to be granted by the Collateral
Documents, such successor Agent shall succeed to and become vested with all the
rights, powers, discretion, privileges and duties of the retiring Agent, and the
retiring Agent shall be discharged from its duties and obligations under the
Loan Documents. If within 45 days after written notice is given of the retiring
Agent's resignation or removal under this Section 8.06 no successor Agent shall
have been appointed and shall have accepted such appointment, then on such 45th
day (a) the retiring Agent's resignation or removal shall become effective, (b)
the retiring Agent shall thereupon be discharged from its duties and obligations
under the Loan Documents and (c) the Required Lenders shall thereafter perform
all duties of the retiring Agent under the Loan Documents until such time, if
any, as the Required Lenders appoint a successor Agent as provided above. After
any retiring Agent's resignation or removal hereunder as Agent shall have become
effective, the provisions of this Article VIII shall inure to its benefit as to
any actions taken or omitted to be taken by it while it was Agent under this
Agreement.
ARTICLE IX
MISCELLANEOUS
SECTION 9.01. Amendments, Etc. No amendment or waiver of any
provision of this Agreement or the Notes or any other Loan Document, nor consent
to any departure by any Loan Party therefrom, shall in any event be effective
unless the same shall be in writing and signed (or, in the case of the
Collateral Documents, consented to) by the Required Lenders, and then such
waiver or consent shall be effective only in the specific instance and for the
specific purpose for which given; provided, however, that (a) no amendment,
waiver or consent shall, unless in writing and signed by all of the Lenders
(other than any Lender Party that is, at such time, a Defaulting Lender), do any
of the following at any time: (i) waive any of the conditions specified in
Section 3.01 or, in the case of the Initial Extension of Credit, Section 3.02,
(ii) change the number of Lenders or the percentage of (x) the Commitments, (y)
the aggregate unpaid principal amount of the Advances or (z) the aggregate
Available Amount of outstanding Letters of Credit that, in each case, shall be
required for the Lenders or any of them to take any action hereunder, (iii)
reduce or limit the obligations of any Guarantor under Section 1 of the Guaranty
issued by it, in the case of a Subsidiary Guarantor or 7.01, in the case of the
Parent Guarantor or release such Guarantor or otherwise limit such Guarantor's
liability with respect to the Obligations owing to the Agents and the Lender
Parties (other than, in the case of any Subsidiary Guarantor, to the extent
permitted under the Subsidiary Guaranty), (iv) release all or substantially all
of the Hotel Collateral in any transaction or series of related transactions or
permit the creation, incurrence, assumption or existence of any Lien on all or
substantially all of the Hotel Collateral in any transaction or series of
related transactions to secure any Obligations other than Obligations owing to
the Secured Parties under the Loan Documents, (v) amend Section 2.13 or this
Section 9.01 and (b) no amendment, waiver or consent shall, unless in writing
and signed by the Required Lenders and each Lender (other than any Lender that
is, at such time, a Defaulting Lender) that has a Commitment under the Term A
Facility, Term B Facility, Term C Facility or Working Capital Facility if such
Lender is directly affected by such amendment, waiver or consent, (i) increase
the Commitments of such Lender, (ii) reduce the principal of, or interest on,
the Notes held by such Lender or any fees or other amounts payable hereunder to
such Lender, (iii) postpone any date fixed for any payment of principal of, or
interest on, the Notes held by such Lender or any fees or other amounts payable
hereunder to such Lender, (iv) change the order of application of any prepayment
set forth in Section 2.06 in any manner that materially affects such Lender;
provided further that no amendment, waiver or consent shall, unless in writing
and signed by the Swing Line Bank or the Issuing Bank, as the case may be, in
addition to the Lenders required above to take such action, affect the rights or
obligations of the Swing Line Bank or the Issuing Bank, as the case may be,
under this Agreement; and provided further that no amendment, waiver or consent
shall, unless in writing and signed by an Agent in addition to the Lenders
required above to take such action, affect the rights or duties of such Agent
under this Agreement or the other Loan Documents.
SECTION 9.02. Notices, Etc. All notices and other communications
provided for hereunder shall be in writing (including telegraphic, telecopy or
telex communication) and
mailed, telegraphed, telecopied, telexed or delivered, if to the Parent, at its
address at 3445 Peachtree Road, Suite 700, Atlanta, GA 30326, Attention: Kenneth
Posner; if to the Borrower, at its address at 3445 Peachtree Road, Suite 700,
Atlanta, GA 30326, Attention: Kenneth Posner; if to any Initial Lender Party, at
its Domestic Lending Office specified opposite its name on Schedule I hereto; if
to any other Lender Party, at its Domestic Lending Office specified in the
Assignment and Acceptance pursuant to which it became a Lender Party; if to the
Collateral Agent, at its address at 1285 Broadway, 10th Floor, New York, NY
10036, Attention: James Morgan, with a copy to it at 1221 Avenue of the
Americas, 35th Floor, New York, NY 10020, Attention: Morgan Edwards; and if to
the Administrative Agent, at its address at 1285 Broadway, 10th Floor, New York,
NY 10036, Attention: James Morgan, with a copy to it at 1221 Avenue of the
Americas, 35th Floor, New York, NY 10020, Attention: Morgan Edwards; or, as to
the Borrower or the Administrative Agent, at such other address as shall be
designated by such party in a written notice to the other parties and, as to
each other party, at such other address as shall be designated by such party in
a written notice to the Borrower and the Administrative Agent. All such notices
and other communications shall, when mailed, telegraphed, telecopied or telexed,
be effective when deposited in the mails, delivered to the telegraph company,
transmitted by telecopier or confirmed by telex answerback, respectively, except
that notices and communications to any Agent pursuant to Article II, III or VIII
shall not be effective until received by such Agent. Delivery by telecopier of
an executed counterpart of any amendment or waiver of any provision of this
Agreement or the Notes or of any Exhibit hereto to be executed and delivered
hereunder shall be effective as delivery of an original executed counterpart
thereof.
SECTION 9.03. No Waiver; Remedies. No failure on the part of any
Lender Party or any Agent to exercise, and no delay in exercising, any right
hereunder or under any Note shall operate as a waiver thereof; nor shall any
single or partial exercise of any such right preclude any other or further
exercise thereof or the exercise of any other right. The remedies herein
provided are cumulative and not exclusive of any remedies provided by law.
SECTION 9.04. Costs and Expenses. (a) The Borrower agrees to pay on
demand (i) all costs and expenses of each Agent in connection with the
preparation, execution, delivery, administration, modification and amendment of
the Loan Documents (including, without limitation, (A) all due diligence,
collateral review, syndication, transportation, computer, duplication,
appraisal, audit, insurance, consultant, search, filing and recording fees and
expenses and (B) the reasonable fees and expenses of counsel for each Agent with
respect thereto, with respect to advising such Agent as to its rights and
responsibilities, or the perfection, protection or preservation of rights or
interests, under the Loan Documents, with respect to negotiations with any Loan
Party or with other creditors of any Loan Party or any of its Subsidiaries
arising out of any Default or any events or circumstances that may give rise to
a Default and with respect to presenting claims in or otherwise participating in
or monitoring any bankruptcy, insolvency or other similar proceeding involving
creditors' rights generally and any proceeding ancillary thereto) and (ii) all
costs and expenses of each Agent and each Lender Party in connection with the
enforcement of the Loan Documents, whether in any action, suit or litigation, or
any bankruptcy, insolvency or other similar proceeding affecting creditors'
rights generally (including, without limitation, the reasonable fees and
expenses of counsel for the Administrative Agent and each Lender Party with
respect thereto).
(b) The Borrower agrees to indemnify, defend and save and hold
harmless each Agent, each Lender Party and each of their Affiliates and their
respective officers, directors, employees, agents and advisors (each, an
"Indemnified Party") from and against, and shall pay on demand, any and all
claims, damages, losses, liabilities and expenses (including, without
limitation, reasonable fees and expenses of counsel) that may be incurred by or
asserted or awarded against any Indemnified Party, in each case arising out of
or in connection with or by reason of (including, without limitation, in
connection with any investigation, litigation or proceeding or preparation of a
defense in connection therewith) (i) the Facilities, the actual or proposed use
of the proceeds of the Advances or the Letters of Credit, the Transaction
Documents or any of the transactions contemplated thereby or (ii) the actual or
alleged presence of Hazardous Materials on any property of any Loan Party or any
of its Subsidiaries or any Environmental Action relating in any way to any Loan
Party or any of its Subsidiaries, except to the extent such claim, damage, loss,
liability or expense is found in a final, non-appealable judgment by a court of
competent jurisdiction to have resulted from such Indemnified Party's gross
negligence or willful misconduct. In the case of an investigation, litigation or
other proceeding to which the indemnity in this Section 9.04(b) applies, such
indemnity shall be effective whether or not such investigation, litigation or
proceeding is brought by any Loan Party, its directors, shareholders or
creditors or an Indemnified Party, whether or not any Indemnified Party is
otherwise a party thereto and whether or not the Transaction is consummated.
(c) If any payment of principal of, or Conversion of, any Eurodollar
Rate Advance is made by the Borrower to or for the account of a Lender Party
other than on the last day of the Interest Period for such Advance, as a result
of a payment or Conversion pursuant to Section 2.06, 2.09(b)(i) or 2.10(d),
acceleration of the maturity of the Notes pursuant to Section 6.01 or for any
other reason, or by an Eligible Assignee to a Lender Party other than on the
last day of the Interest Period for such Advance upon an assignment of rights
and obligations under this Agreement pursuant to Section 9.07 as a result of a
demand by the Borrower pursuant to Section 9.07(a), or if the Borrower fails to
make any payment or prepayment of an Advance for which a notice of prepayment
has been given or that is otherwise required to be made, whether pursuant to
Section 2.04, 2.06 or 6.01 or otherwise, the Borrower shall, upon demand by such
Lender Party (with a copy of such demand to the Administrative Agent), pay to
the Administrative Agent for the account of such Lender Party any amounts
required to compensate such Lender Party for any additional losses, costs or
expenses that it may reasonably incur as a result of such payment or Conversion
or such failure to pay or prepay, as the case may be, including, without
limitation, any loss (excluding loss of anticipated profits or margin), cost or
expense incurred by reason of the liquidation or reemployment of deposits or
other funds acquired by any Lender Party to fund or maintain such Advance.
(d) If any Loan Party fails to pay when due any costs, expenses or
other amounts payable by it under any Loan Document, including, without
limitation, fees and expenses of counsel and indemnities, such amount may be
paid on behalf of such Loan Party by the Administrative Agent or any Lender
Party, in its sole discretion.
(e) Without prejudice to the survival of any other agreement of any
Loan Party hereunder or under any other Loan Document, the agreements and
obligations of the Borrower contained in Sections 2.10 and 2.12 and this Section
9.04 shall survive the payment in full of principal, interest and all other
amounts payable hereunder and under any of the other Loan Documents.
SECTION 9.05. Right of Set-off. Upon (a) the occurrence and during
the continuance of any Event of Default and (b) the making of the request or the
granting of the consent specified by Section 6.01 to authorize the
Administrative Agent to declare the Notes due and payable pursuant to the
provisions of Section 6.01, each Agent and each Lender Party and each of their
respective Affiliates is hereby authorized at any time and from time to time, to
the fullest extent permitted by law, to set off and otherwise apply any and all
deposits (general or special, time or demand, provisional or final) at any time
held and other indebtedness at any time owing by such Agent, such Lender Party
or such Affiliate to or for the credit or the account of the Borrower against
any and all of the Obligations of the Borrower now or hereafter existing under
the Loan Documents, irrespective of whether such Agent or such Lender Party
shall have made any demand under this Agreement or such Note or Notes and
although such Obligations may be unmatured. Each Agent and each Lender Party
agrees promptly to notify the Borrower after any such set-off and application;
provided, however, that the failure to give such notice shall not affect the
validity of such set-off and application. The rights of each Agent and each
Lender Party and their respective Affiliates under this Section are in addition
to other rights and remedies (including, without limitation, other rights of
set-off) that such Agent, such Lender Party and their respective Affiliates may
have.
SECTION 9.06. Binding Effect. This Agreement shall become effective
when it shall have been executed by the Borrower and each Agent and the
Administrative Agent shall have been notified by each Initial Lender Party that
such Initial Lender Party has executed it and thereafter shall be binding upon
and inure to the benefit of the Borrower, each Agent and each Lender Party and
their respective successors and assigns, except that the Borrower shall not have
the right to assign its rights hereunder or any interest herein without the
prior written consent of the Lender Parties.
SECTION 9.07. Assignments and Participations. (a) Each Lender may
and, so long as no Event of Default shall have occurred and be continuing, if
demanded by the Borrower pursuant to Section 2.12(h), upon at least five
Business Days' notice to such Lender and the Administrative Agent, will assign
to one or more Eligible Assignees all or a portion of its rights and obligations
under this Agreement (including, without limitation, all or a portion of its
Commitment or Commitments, the Advances owing to it and the Note or Notes held
by it); provided, however, that (i) each such assignment shall be of a uniform,
and not a varying, percentage of all rights and obligations under and in respect
of one or more Facilities, (ii) except in the case of an assignment to a Person
that, immediately prior to such assignment, was a Lender, an Affiliate of any
Lender or an Approved Fund of any Lender, or an assignment of all of a Lender's
rights and obligations under this Agreement, the aggregate amount of the
Commitments being assigned to such Eligible Assignee pursuant to such assignment
(determined as of the date of the Assignment and Acceptance with respect to such
assignment) shall in no
event be less than $5,000,000 (or such lesser amount as shall be approved by the
Administrative Agent and, so long as no Default shall have occurred and be
continuing at the time of effectiveness of such assignment, the Borrower) under
each Facility for which a Commitment is being assigned, (iii) each such
assignment shall be to an Eligible Assignee, (iv) no such assignments shall be
permitted without the consent of the Administrative Agent and the Syndication
Agent (such consent not to be unreasonably withheld or delayed) and (v) the
parties to each such assignment shall execute and deliver to the Administrative
Agent, for its acceptance and recording in the Register, an Assignment and
Acceptance, together with any Note or Notes subject to such assignment and a
processing and recordation fee of (x) $3,000, in the case of any assignment
other than an assignment described in clause (y) or (z) below, (y) $1,500, in
the case of an assignment to an existing Lender and (z) $0 in the case of an
assignment by an existing Lender to its Affiliates, of $3,000.
(b) Upon such execution, delivery, acceptance and recording, from
and after the effective date specified in such Assignment and Acceptance, (i)
the assignee thereunder shall be a party hereto and, to the extent that rights
and obligations hereunder have been assigned to it pursuant to such Assignment
and Acceptance, have the rights and obligations of a Lender or Issuing Bank, as
the case may be, hereunder and (ii) the Lender or Issuing Bank assignor
thereunder shall, to the extent that rights and obligations hereunder have been
assigned by it pursuant to such Assignment and Acceptance, relinquish its rights
(other than its rights under Sections 2.10, 2.12 and 9.04 to the extent any
claim thereunder relates to an event arising prior to such assignment) and be
released from its obligations under this Agreement (and, in the case of an
Assignment and Acceptance covering all of the remaining portion of an assigning
Lender's or Issuing Bank's rights and obligations under this Agreement, such
Lender or Issuing Bank shall cease to be a party hereto).
(c) By executing and delivering an Assignment and Acceptance, each
Lender Party assignor thereunder and each assignee thereunder confirm to and
agree with each other and the other parties thereto and hereto as follows: (i)
other than as provided in such Assignment and Acceptance, such assigning Lender
Party makes no representation or warranty and assumes no responsibility with
respect to any statements, warranties or representations made in or in
connection with any Loan Document or the execution, legality, validity,
enforceability, genuineness, sufficiency or value of, or the perfection or
priority of any lien or security interest created or purported to be created
under or in connection with, any Loan Document or any other instrument or
document furnished pursuant thereto; (ii) such assigning Lender Party makes no
representation or warranty and assumes no responsibility with respect to the
financial condition of any Loan Party or the performance or observance by any
Loan Party of any of its obligations under any Loan Document or any other
instrument or document furnished pursuant thereto; (iii) such assignee confirms
that it has received a copy of this Agreement, together with copies of the
financial statements referred to in Section 4.01 and such other documents and
information as it has deemed appropriate to make its own credit analysis and
decision to enter into such Assignment and Acceptance; (iv) such assignee will,
independently and without reliance upon any Agent, such assigning Lender Party
or any other Lender Party and based on such documents and information as it
shall deem appropriate at the time, continue to make its own credit decisions in
taking or not taking action under this Agreement; (v) such assignee confirms
that it
is an Eligible Assignee; (vi) such assignee appoints and authorizes each Agent
to take such action as agent on its behalf and to exercise such powers and
discretion under the Loan Documents as are delegated to such Agent by the terms
hereof and thereof, together with such powers and discretion as are reasonably
incidental thereto; and (vii) such assignee agrees that it will perform in
accordance with their terms all of the obligations that by the terms of this
Agreement are required to be performed by it as a Lender or Issuing Bank, as the
case may be.
(d) The Administrative Agent, acting for this purpose (but only for
this purpose) as the agent of the Borrower, shall maintain at its address
referred to in Section 9.02 a copy of each Assignment and Acceptance delivered
to and accepted by it and a register for the recordation of the names and
addresses of the Lender Parties and the Commitment under each Facility of, and
principal amount of the Advances owing under each Facility to, each Lender Party
from time to time (the "Register"). The entries in the Register shall be
conclusive and binding for all purposes, absent manifest error, and the
Borrower, the Agents and the Lender Parties may treat each Person whose name is
recorded in the Register as a Lender Party hereunder for all purposes of this
Agreement. The Register shall be available for inspection by the Borrower or any
Agent or any Lender Party at any reasonable time and from time to time upon
reasonable prior notice.
(e) Upon its receipt of an Assignment and Acceptance executed by an
assigning Lender Party and an assignee, together with any Note or Notes subject
to such assignment, the Administrative Agent shall, if such Assignment and
Acceptance has been completed and is in substantially the form of Exhibit C
hereto, (i) accept such Assignment and Acceptance, (ii) record the information
contained therein in the Register and (iii) give prompt notice thereof to the
Borrower and each other Agent. In the case of any assignment by a Lender, within
five Business Days after its receipt of such notice, the Borrower, at its own
expense, shall execute and deliver to the Administrative Agent in exchange for
the surrendered Note or Notes a new Note to the order of such Eligible Assignee
in an amount equal to the Commitment assumed by it under each Facility pursuant
to such Assignment and Acceptance and, if any assigning Lender has retained a
Commitment hereunder under such Facility, a new Note to the order of such
assigning Lender in an amount equal to the Commitment retained by it hereunder.
Such new Note or Notes shall be in an aggregate principal amount equal to the
aggregate principal amount of such surrendered Note or Notes, shall be dated the
effective date of such Assignment and Acceptance and shall otherwise be in
substantially the form of Exhibit A-1, A-2 or A-3 hereto, as the case may be.
(f) The Issuing Bank may assign to an Eligible Assignee all of its
rights and obligations under its Letter of Credit Commitment at any time;
provided, however, that the parties to each such assignment shall execute and
deliver to the Administrative Agent, for its acceptance and recording in the
Register, an Assignment and Acceptance, together with a processing and
recordation fee of $3,000.
(g) Each Lender Party may sell participations to one or more Persons
(other than any Loan Party or any of its Affiliates) in or to all or a portion
of its rights and obligations under this Agreement (including, without
limitation, all or a portion of its Commitments, the
Advances owing to it and the Note or Notes (if any) held by it); provided,
however, that (i) such Lender Party's obligations under this Agreement
(including, without limitation, its Commitments) shall remain unchanged, (ii)
such Lender Party shall remain solely responsible to the other parties hereto
for the performance of such obligations, (iii) such Lender Party shall remain
the holder of any such Note for all purposes of this Agreement, (iv) the
Borrower, the Agents and the other Lender Parties shall continue to deal solely
and directly with such Lender Party in connection with such Lender Party's
rights and obligations under this Agreement and (v) no participant under any
such participation shall have any right to approve any amendment or waiver of
any provision of any Loan Document, or any consent to any departure by any Loan
Party therefrom, except to the extent that such amendment, waiver or consent
would reduce the principal of, or interest on, the Notes or any fees or other
amounts payable hereunder, in each case to the extent subject to such
participation, postpone any date fixed for any payment of principal of, or
interest on, the Notes or any fees or other amounts payable hereunder, in each
case to the extent subject to such participation, or release all or
substantially all of the Hotel Collateral.
(h) Any Lender Party may, in connection with any assignment or
participation or proposed assignment or participation pursuant to this Section
9.07, disclose to the assignee or participant or proposed assignee or
participant any information relating to the Borrower furnished to such Lender
Party by or on behalf of the Borrower; provided, however, that, prior to any
such disclosure, the assignee or participant or proposed assignee or participant
shall agree to preserve the confidentiality of any Confidential Information
received by it from such Lender Party.
(i) Notwithstanding any other provision set forth in this Agreement,
any Lender Party may at any time create a security interest in all or any
portion of its rights under this Agreement (including, without limitation, the
Advances owing to it and the Note or Notes held by it) in favor of any Federal
Reserve Bank in accordance with Regulation A of the Board of Governors of the
Federal Reserve System.
SECTION 9.08. Execution in Counterparts. This Agreement may be
executed in any number of counterparts and by different parties hereto in
separate counterparts, each of which when so executed shall be deemed to be an
original and all of which taken together shall constitute one and the same
agreement. Delivery of an executed counterpart of a signature page to this
Agreement by telecopier shall be effective as delivery of an original executed
counterpart of this Agreement.
SECTION 9.09. No Liability of the Issuing Bank. The Borrower assumes
all risks of the acts or omissions of any beneficiary or transferee of any
Letter of Credit with respect to its use of such Letter of Credit. Neither the
Issuing Bank nor any of its officers or directors shall be liable or responsible
for: (a) the use that may be made of any Letter of Credit or any acts or
omissions of any beneficiary or transferee in connection therewith; (b) the
validity, sufficiency or genuineness of documents, or of any endorsement
thereon, even if such documents should prove to be in any or all respects
invalid, insufficient, fraudulent or forged; (c) payment by the Issuing Bank
against presentation of documents that do not comply with the terms of a Letter
of Credit, including failure of any documents to bear any reference or adequate
reference to the
Letter of Credit; or (d) any other circumstances whatsoever in making or failing
to make payment under any Letter of Credit, except that the Borrower shall have
a claim against the Issuing Bank, and the Issuing Bank shall be liable to the
Borrower, to the extent of any direct, but not consequential, damages suffered
by the Borrower that the Borrower proves were caused by (i) the Issuing Bank's
willful misconduct or gross negligence as determined in a final, non-appealable
judgment by a court of competent jurisdiction in determining whether documents
presented under any Letter of Credit comply with the terms of the Letter of
Credit or (ii) the Issuing Bank's willful failure to make lawful payment under a
Letter of Credit after the presentation to it of a draft and certificates
strictly complying with the terms and conditions of the Letter of Credit. In
furtherance and not in limitation of the foregoing, such Issuing Bank may accept
documents that appear on their face to be in order, without responsibility for
further investigation, regardless of any notice or information to the contrary.
SECTION 9.10. Confidentiality. Neither any Agent nor any Lender
Party shall disclose any Confidential Information to any Person without the
consent of the Borrower, other than (a) to such Agent's or such Lender Party's
Affiliates and their officers, directors, employees, agents and advisors and to
actual or prospective Eligible Assignees and participants, and then only on a
confidential basis, (b) as required by any law, rule or regulation or judicial
process, (c) as requested or required by any state, Federal or foreign authority
or examiner regulating such Lender Party and (d) to any rating agency when
required by it, provided that, prior to any such disclosure, such rating agency
shall undertake to preserve the confidentiality of any Confidential Information
relating to the Loan Parties received by it from such Lender Party.
SECTION 9.11. Release of Hotel Collateral. Upon the sale, lease,
transfer or other disposition of any item of Hotel Collateral of any Loan Party
(including, without limitation, as a result of the sale, in accordance with the
terms of the Loan Documents, of the Loan Party that owns such Hotel Collateral)
in accordance with the terms of the Loan Documents, the Collateral Agent or the
Administrative Agent will, at the Borrower's expense, execute and deliver to
such Loan Party such documents as such Loan Party may reasonably request to
evidence the release of such item of Hotel Collateral from the assignment and
security interest granted under the Collateral Documents in accordance with the
terms of the Loan Documents.
SECTION 9.12. Jurisdiction, Etc. (a) Each of the parties hereto
hereby irrevocably and unconditionally submits, for itself and its property, to
the nonexclusive jurisdiction of any New York State court or Federal court of
the United States of America sitting in New York City, and any appellate court
from any thereof, in any action or proceeding arising out of or relating to this
Agreement or any of the other Loan Documents to which it is a party, or for
recognition or enforcement of any judgment, and each of the parties hereto
hereby irrevocably and unconditionally agrees that all claims in respect of any
such action or proceeding may be heard and determined in any such New York State
court or, to the fullest extent permitted by law, in such Federal court. Each of
the parties hereto agrees that a final judgment in any such action or proceeding
shall be conclusive and may be enforced in other jurisdictions by suit on the
judgment or in any other manner provided by law. Nothing in this Agreement shall
affect any right that any party may otherwise have to bring any action or
proceeding relating to this Agreement or any of the other Loan Documents in the
courts of any jurisdiction.
(b) Each of the parties hereto irrevocably and unconditionally
waives, to the fullest extent it may legally and effectively do so, any
objection that it may now or hereafter have to the laying of venue of any suit,
action or proceeding arising out of or relating to this Agreement or any of the
other Loan Documents to which it is a party in any New York State or Federal
court. Each of the parties hereto hereby irrevocably waives, to the fullest
extent permitted by law, the defense of an inconvenient forum to the maintenance
of such action or proceeding in any such court.
SECTION 9.13. Co-Obligors. Each of the Affiliate Guarantors (other
than Impac and Servico) shall be co-obligors with the Borrower in connection
with the Advances. Each of such Affiliate Guarantor, the Administrative Agent
and each other Secured Party hereby confirms that it is the intention of all
such parties that the Obligations of such Affiliate Guarantors under the Loan
Documents shall not constitute a fraudulent transfer or conveyance for purposes
of Bankruptcy Law, the Uniform Fraudulent Conveyance Act, the Uniform Fraudulent
Transfer Act or any similar Federal or state law to the extent applicable to
such Obligations. To effectuate the foregoing intention, the Administrative
Agent, the other Secured Parties and such Affiliate Guarantors hereby
irrevocably agree that the Obligations of each such Affiliate Guarantor under
the Loan Documents shall not exceed the greater of (A) the net benefit realized
by such Affiliate Guarantor from the proceeds of the Advances made from time to
time by the Borrower to such Affiliate Guarantor or any Subsidiary of such
Affiliate Guarantor and (B) the maximum amount that will, after giving effect to
such maximum amount and all other contingent and fixed liabilities of such
Affiliate Guarantor that are relevant under such laws, and after giving effect
to any collections from, rights to receive contribution from or payments made by
or on behalf of any other Affiliate Guarantor in respect of the Obligations of
such other Affiliate Guarantor under the Loan Documents, result in the
Obligations of such Affiliate Guarantor under this Affiliate Guaranty not
constituting a fraudulent transfer or conveyance.
SECTION 9.14 Governing Law. This Agreement and the Notes shall be
governed by, and construed in accordance with, the laws of the State of New
York.
SECTION 9.15. Waiver of Jury Trial. Each of the Parent, the
Borrower, the Agents and the Lender Parties irrevocably waives all right to
trial by jury in any action, proceeding or counterclaim (whether based on
contract, tort or otherwise) arising out of or relating to any of the Loan
Documents, the Advances, the Letters of Credit or the actions of any Agent or
any Lender Party in the negotiation, administration, performance or enforcement
thereof.
IN WITNESS WHEREOF, the parties hereto have caused this Agreement to
be executed by their respective officers thereunto duly authorized, as of the
date first above written.
LODGIAN FINANCING CORP.
By /s/ Robert M. Flanders
Title:
LODGIAN, INC.
By /s/ Robert M. Flanders
Title:
MORGAN STANLEY SENIOR
FUNDING, INC., as Administrative
Agent
By /s/ Michael T. McLaughlin
-----------------------------------
Title: MICHAEL T. McLAUGHLIN
Principal
MORGAN STANLEY SENIOR FUNDING, INC.,
as Co-Lead Arranger and Joint-Book
Manager and Syndication Agent
By /s/ Michael T. McLaughlin
-----------------------------------
Title: MICHAEL T. McLAUGHLIN
Principal
LEHMAN BROTHERS INC.,
as Co-Lead Arranger and Joint-Book
Manager
By /s/ Francis Gilhool
-----------------------------------
Title: Authorized Signatory
LEHMAN COMMERCIAL PAPER INC.,
as Documentation Agent
By /s/ Francis Gilhool
-----------------------------------
Title: Authorized Signatory
Initial Lenders
MORGAN STANLEY SENIOR FUNDING, INC.
By /s/ Michael T. McLaughlin
-----------------------------------
Title: MICHAEL T. McLAUGHLIN
Principal
LEHMAN COMMERCIAL PAPER INC.
By /s/ Francis Gilhool
-----------------------------------
Title: Authorized Signatory
Initial Issuing Bank
MORGAN STANLEY SENIOR FUNDING, INC.
By /s/ Michael T. McLaughlin
-----------------------------------
Title: MICHAEL T. McLAUGHLIN
Principal
AFFILIATE GUARANTORS
SERVICO, INC.
By /s/ Robert M. Flanders
-----------------------------------
Title:
IMPAC HOTEL GROUP, LLC
By /s/ Robert M. Flanders
-----------------------------------
Title:
SHEFFIELD MOTEL ENTERPRISES, INC.
DOTHAN HOSPITALITY 3053, INC.
DOTHAN HOSPITALITY 3071, INC.
GADSDEN HOSPITALITY, INC.
LODGIAN ANAHEIM INC.
LODGIAN ONTARIO INC.
SERVICO PENSACOLA, INC.
SERVICO PENSACOLA 7200, INC.
SERVICO PENSACOLA 7330, INC.
SERVICO FT. PIERCE, INC.
AMI OPERATING PARTNERS, L.P.
SERVICO CENTRE ASSOCIATES, LTD.
SERVICO WEST PALM BEACH, INC.
SERVICO WINTER HAVEN, INC.
ALBANY HOTEL, INC.
SERVICO NORTHWOODS, INC.
BRUNSWICK MOTEL ENTERPRISES, INC.
LITTLE ROCK LODGING ASSOCIATES I, L.P.
ATLANTA HILLSBORO LODGING, LLC
LODGIAN RICHMOND, L.L.C.
SERVICO ROLLING MEADOWS, INC.
SERVICO CEDAR RAPIDS, INC.
SERVICO METAIRIE, INC.
SERVICO COLUMBIA, INC.
SERVICO COLESVILLE, INC.
SERVICO MARYLAND, INC.
NH MOTEL ENTERPRISES, INC.
MINNEAPOLIS MOTEL ENTERPRISES, INC.
SERVICO ROSEVILLE, INC.
LODGIAN MOUNT LAUREL, INC.
SERVICO JAMESTOWN, INC.
SERVICO NEW YORK, INC.
SERVICO NIAGARA FALLS, INC.
SERVICO GRAND ISLAND, INC.
FAYETTEVILLE MOTEL
ENTERPRISES, INC.
APICO INNS OF GREEN TREE, INC.
APICO HILLS, INC.
SERVICO HILTON HEAD, INC.
SERVICO AUSTIN, INC.
SERVICO MARKET CENTER, INC.
SERVICO HOUSTON, INC.
By: /s/ Robert M. Flanders
----------------------------------
Title:
SCHEDULE I
COMMITMENTS AND APPLICABLE LENDING OFFICES
=============================================================================================================
Working Letter of Domestic Eurodollar
Term A Term B Capital Credit Lending Lending
Name of Initial Lender Commitment Commitment Commitment Commitment Office Office
=============================================================================================================
Morgan Stanley Senior $17,500,000 $75,250,000 $35,000,000 $10,000,000
Funding, Inc.
- -------------------------------------------------------------------------------------------------------------
Lehman Commercial Paper $7,500,000 $32,250,000 $15,000,000
Inc.
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------
=============================================================================================================
SCHEDULE 4.01(b)
Subsidiaries
See Attached.
CW&T Draft 7/16/99
Schedule 4.01(b)
LODGIAN SUBSIDIARIES AND STATES OF INCORPORATION
- -------------------------------------------------------------------------------------------------------------------------
Name of Subsidiary State of Shares Issued & Outstanding % Owned by
Organization Authorized Loan Party
- -------------------------------------------------------------------------------------------------------------------------
SHEFFIELD MOTEL ENTERPRISES, INC. Alabama 50 50 (Certificate No. 4 issued to 100%
Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
DOTHAN HOSPITALITY 3053, INC. Alabama 1000 1000 (Certificate No. 3 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
DOTHAN HOSPITALITY 3071, INC. Alabama 1000 1000 (Certificate No. 3 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
GADSDEN HOSPITALITY, INC. Alabama 1000 1000 (Certificate No. 3 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
LODGIAN ANAHEIM INC California 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
LODGIAN ONTARIO INC. California 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
AMIOP ACQUISITION CORP. Delaware 1,000 100 (Certificate No. 3 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
AMI OPERATING PARTNERS, L.P. Delaware
- -------------------------------------------------------------------------------------------------------------------------
SERVICO PENSACOLA, INC. Delaware 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO PENSACOLA 7200, INC. Delaware 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO PENSACOLA 7330, INC. Delaware 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO FT. PIERCE, INC. Delaware 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO, INC. Florida
- -------------------------------------------------------------------------------------------------------------------------
PALM BEACH MOTEL ENTERPRISES, INC., Florida 60 60 (Certificate No. 7 issued to 100%
as sole general partner of Servico Centre Lodgian Financing Corp.)
Associates, Ltd., a Florida limited partnership.
- -------------------------------------------------------------------------------------------------------------------------
SERVICO CENTRE ASSOCIATES, LTD. Florida
- -------------------------------------------------------------------------------------------------------------------------
SERVICO WEST PALM BEACH, INC. Florida 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO WINTER HAVEN, INC. Florida 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
ALBANY HOTEL, INC. Florida 1,000 1,000 (Certificate No. 2 issued 100%
- -------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Name of Subsidiary Class (CS or PS) Shares Validly Issued,
and % of Class Covered by Fully Paid,
Owned Options, Non-assessable
Warrants and Free and
Clear of all
Liens
- -----------------------------------------------------------------------------------------------
SHEFFIELD MOTEL ENTERPRISES, INC. Common None Y
- -----------------------------------------------------------------------------------------------
DOTHAN HOSPITALITY 3053, INC. Common None Y
- -----------------------------------------------------------------------------------------------
DOTHAN HOSPITALITY 3071, INC. Common None Y
- -----------------------------------------------------------------------------------------------
GADSDEN HOSPITALITY, INC. Common None Y
- -----------------------------------------------------------------------------------------------
LODGIAN ANAHEIM INC Common None Y
- -----------------------------------------------------------------------------------------------
LODGIAN ONTARIO INC. Common None Y
- -----------------------------------------------------------------------------------------------
AMIOP ACQUISITION CORP. Common None Y
- -----------------------------------------------------------------------------------------------
AMI OPERATING PARTNERS, L.P.
- -----------------------------------------------------------------------------------------------
SERVICO PENSACOLA, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO PENSACOLA 7200, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO PENSACOLA 7330, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO FT. PIERCE, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO, INC.
- -----------------------------------------------------------------------------------------------
PALM BEACH MOTEL ENTERPRISES, INC., Common Y
as sole general partner of Servico Centre
Associates, Ltd., a Florida limited partnership.
- -----------------------------------------------------------------------------------------------
SERVICO CENTRE ASSOCIATES, LTD.
- -----------------------------------------------------------------------------------------------
SERVICO WEST PALM BEACH, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO WINTER HAVEN, INC. Common None Y
- -----------------------------------------------------------------------------------------------
ALBANY HOTEL, INC. Common None Y
- -----------------------------------------------------------------------------------------------
- -------------------------------------------------------------------------------------------------------------------------
Name of Subsidiary State of Shares Issued & Outstanding % Owned by
Organization Authorized Loan Party
- -------------------------------------------------------------------------------------------------------------------------
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO NORTHWOODS, INC. Florida 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO WINDSOR, INC. Florida 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
BRUNSWICK MOTEL ENTERPRISES, INC. Georgia 200 200 (Certificate No. 5 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
IMPAC HOTEL GROUP, LLC Georgia
- -------------------------------------------------------------------------------------------------------------------------
IMPAC HOTELS I, LLC Georgia
- -------------------------------------------------------------------------------------------------------------------------
IMPAC SPE #3, INC., as sole general partner of Georgia 100 100 (Certificate No. 2 issued 100%
Little Rock Lodging Associates I, L.P., a to Lodgian Financing Corp.)
Georgia limited partnership.
- -------------------------------------------------------------------------------------------------------------------------
LITTLE ROCK LODGING ASSOCIATES I, L.P.
- -------------------------------------------------------------------------------------------------------------------------
ATLANTA HILLSBORO LODGING, LLC Georgia
- -------------------------------------------------------------------------------------------------------------------------
LODGIAN RICHMOND SPE, INC., as sole Georgia 1,000 1,000 (Certificate No. 2 issued 100%
general partner of Lodgian Richmond, L.L.C., a to Lodgian Financing Corp.)
Georgia limited liability company.
- -------------------------------------------------------------------------------------------------------------------------
LODGIAN RICHMOND, L.L.C. Georgia
- -------------------------------------------------------------------------------------------------------------------------
SERVICO ROLLING MEADOWS, INC. Illinois 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO CEDAR RAPIDS, INC. Iowa 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO METAIRIE, INC. Louisiana 1,000 1,000 (Certificate No. 3 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO COLUMBIA, INC. Maryland 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO COLESVILLE, INC. Maryland 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO MARYLAND, INC. Maryland 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
NH MOTEL ENTERPRISES, INC. Michigan 50,000 1,000 (Certificate No. 6 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
MINNEAPOLIS MOTEL ENTERPRISES, INC. Minnesota 1,000 1,000 (Certificate No. 4 issued 100%
to Sharon Motel Enterprises, Inc.
- -------------------------------------------------------------------------------------------------------------------------
SERVICO ROSEVILLE, INC. Minnesota 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
LODGIAN MOUNT LAUREL, INC. New Jersey 1,000 1,000 (Certificate No. 2 issued 100%
- -------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Name of Subsidiary Class (CS or PS) Shares Validly Issued,
and % of Class Covered by Fully Paid,
Owned Options, Non-assessable
Warrants and Free and
Clear of all
Liens
- -----------------------------------------------------------------------------------------------
SERVICO NORTHWOODS, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO WINDSOR, INC. Common None Y
- -----------------------------------------------------------------------------------------------
BRUNSWICK MOTEL ENTERPRISES, INC. Common None Y
- -----------------------------------------------------------------------------------------------
IMPAC HOTEL GROUP, LLC
- -----------------------------------------------------------------------------------------------
IMPAC HOTELS I, LLC
- -----------------------------------------------------------------------------------------------
IMPAC SPE #3, INC., as sole general partner of Common None Y
Little Rock Lodging Associates I, L.P., a
Georgia limited partnership.
- -----------------------------------------------------------------------------------------------
LITTLE ROCK LODGING ASSOCIATES I, L.P.
- -----------------------------------------------------------------------------------------------
ATLANTA HILLSBORO LODGING, LLC
- -----------------------------------------------------------------------------------------------
LODGIAN RICHMOND SPE, INC., as sole Common None Y
general partner of Lodgian Richmond, L.L.C., a
Georgia limited liability company.
- -----------------------------------------------------------------------------------------------
LODGIAN RICHMOND, L.L.C.
- -----------------------------------------------------------------------------------------------
SERVICO ROLLING MEADOWS, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO CEDAR RAPIDS, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO METAIRIE, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO COLUMBIA, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO COLESVILLE, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO MARYLAND, INC. Common None Y
- -----------------------------------------------------------------------------------------------
NH MOTEL ENTERPRISES, INC. Common None Y
Stock
- -----------------------------------------------------------------------------------------------
MINNEAPOLIS MOTEL ENTERPRISES, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO ROSEVILLE, INC. Common None Y
- -----------------------------------------------------------------------------------------------
LODGIAN MOUNT LAUREL, INC. Common None Y
- -----------------------------------------------------------------------------------------------
-2-
- -------------------------------------------------------------------------------------------------------------------------
Name of Subsidiary State of Shares Issued & Outstanding % Owned by
Organization Authorized Loan Party
- -------------------------------------------------------------------------------------------------------------------------
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO JAMESTOWN, INC. New York 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO NEW YORK, INC. New York 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO NIAGARA FALLS, INC. New York 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO GRAND ISLAND, INC. New York 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
FAYETTEVILLE MOTEL ENTERPRISES, INC. North Carolina 100,000 100 (Certificate No. 4 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
APICO INNS OF GREEN TREE, INC. Pennsylvania 100,000 1,000 (Certificate No. 7 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
APICO HILLS, INC. Pennsylvania 100,000 1,000 (Certificate No. 4 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO HILTON HEAD, INC. South Carolina 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO AUSTIN, INC. Texas 1,000 1,000 (Certificate No. 3 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO MARKET CENTER, INC. Texas 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
SERVICO HOUSTON, INC. Texas 1,000 1,000 (Certificate No. 2 issued 100%
to Lodgian Financing Corp.)
- -------------------------------------------------------------------------------------------------------------------------
- -----------------------------------------------------------------------------------------------
Name of Subsidiary Class (CS or PS) Shares Validly Issued,
and % of Class Covered by Fully Paid,
Owned Options, Non-assessable
Warrants and Free and
Clear of all
Liens
- -----------------------------------------------------------------------------------------------
SERVICO JAMESTOWN, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO NEW YORK, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO NIAGARA FALLS, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO GRAND ISLAND, INC. Common None Y
- -----------------------------------------------------------------------------------------------
FAYETTEVILLE MOTEL ENTERPRISES, INC. Common None Y
- -----------------------------------------------------------------------------------------------
APICO INNS OF GREEN TREE, INC. Common None Y
- -----------------------------------------------------------------------------------------------
APICO HILLS, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO HILTON HEAD, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO AUSTIN, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO MARKET CENTER, INC. Common None Y
- -----------------------------------------------------------------------------------------------
SERVICO HOUSTON, INC. Common None Y
- -----------------------------------------------------------------------------------------------
-3-
SCHEDULE 4.01(d)
Authorizations, Notices & Consents
1) Consent of Nomura Capital Assets Corporation of IMPAC I loan.
2) Capital Company of America L.L.C. Consent to Transaction.
SCHEDULE 4.01 (o)
Plan, Multi Employee Plans & Welfare Plans
See attached.
Lodgian Inc., Multi-Employer Health and Welfare Plans
Double Tree Club, Philadelphia
Health Plan: Local 274 Health and Welfare Trust Fund
Pension Plan: Local 274 Pension Trust Fund
Hilton Hotel, Northfield
Engineers
Health Plan: Local 547, I.U.O.E. and Participating Employers Health and Welfare
Trust Fund
Pension Plan: Central Pension Fund of the International Union of Operating
Engineers and Participating Employers
H.E.R.E.
Health Plan: Hotel Employees and Restaurant Employees International Union
Welfare Fund
Pension Plan: Hotel Employees and Restaurant Employees International Union
Pension Fund
Holiday Inn, Arden Hills
Health Plan: Minneapolis Culinary, Beverage and On-Sale Liquor Trust Fund
Pension Plan: St. Paul Bar and Restaurant Employer -- Employees Pension Fund
Holiday Inn, Anchorage
Health Plan: Hotel Employers, Restaurant Employers Health and Welfare Trust Fund
Pension Plan: Alaska Hotel and Restaurant Employees Pension Trust
Holiday Inn, Jamestown
Health Plan: Local 4 Insurance Fund
Pension Plan: None
Holiday Inn, Rolling Meadows
Health Plan: Hotel employees and Restaurant Employees International Union
Welfare Fund
Pension Plan: None
Holiday Inn Select Windsor, Ontario
Health Plan: N/A
Pension Plan: Canadian Pension Plan
Omni Albany
Health Plan: Local 471 Insurance Fund
Pension Plan: Local 471 Pension Fund
Sheraton, Concord
Health Plan: Hotel and Welfare Fund
Pension Plan: Southern Alameda Pension Fund
The Westin William Penn
Carpenters
Health Plan: Carpenters Medical Fund of Western Pennsylvania
Pension Plan: Pension Fund of Western Pennsylvania
Engineers
Health Plan: Pittsburgh Builders Owners Health and Welfare Fund
Pension Plan: Central Pension Fund of the International Union of Operating
Engineers
H.E.R.E.
Health Plan: Hotel Employees Restaurant Employees International Union Welfare
Fund
Pension Plan: Hotel Employees Restaurant Employees International Union Pension
Fund
Painters
Health Plan: Painters Insurance and Welfare Fund
Pension Plan: IBPAT Union and Industry Pension Fund
SCHEDULE 4.01(p)
Environmental Liabilities
Part I. Compliance With Environmental Laws
Incorporated by reference herein are the Environmental Reports provided to
Shearman & Sterling:
1. Courtyard by Marriott,
Ridgemont Drive,
Abilene (TX)
Environmental Assessment
dated March 21, 1995
2. Courtyard by Marriott,
Ridgemont Drive,
Abilene (TX)
Environmental Assessment
update May 6, 1996
3. Courtyard by Marriott,
Cavalier Boulevard,
Florence (KY)
Phase I Environmental Assessment
dated November 21, 1996
4. Comfort Suites,
Dry Pocket Road,
Greenville (SC)
Phase I Environmental Assessment
dated April 17, 1995
5. Super 8 Motel,
Village Lane,
Hazard (KY)
Phase I Environmental Assessment
dated February 7, 1997
6. Holiday Inn,
Kingston Court,
Marietta (GA)
Phase I Environmental Assessment
dated November 20, 1996
7. French Quarter,
Madison Avenue,
Memphis (TN)
Limited Subsurface Investigation
dated February 3, 1997
8. French Quarter,
Madison Avenue,
Memphis (TN)
Draft of
Phase I Environmental Assessment
dated November 18, 1996
9. Holiday Inn Express,
Murfreesboro Road,
Nashville (TN)
Draft of
Phase I Environmental Assessment
dated February 12, 1997
10. Courtyard by Marriott,
Lot 5 CBI Development,
Paducah (KY)
Phase I Environmental Assessment
dated October 26, 1995
11. Super 8 Motel,
U.S. 23 South,
Prestonsburg (KY)
Phase I Environmental Assessment
dated February 7, 1997
12. Comfort Inn,
North East Loop 410,
San Antonio (TX)
Draft of Phase I Environmental Assessment
dated November 20, 1996
13. Holiday Inn Airport North,
North Lindbergh Boulevard,
Bridgeton (MO)
Phase I Environmental Assessment
dated February 24, 1997
14. Holiday Inn,
Royalton Road,
Strongsville (OH)
Phase I Environmental Assessment
dated September 8, 1995
-2-
15. Holiday Inn,
N. Ocean Blvd,
Surfside Beach (SC)
Phase I Environmental Assessment
dated February 3, 1997
16. Holiday Inn -- Valdosta,
St. Augustine Road,
Valdosta (GA)
Phase I Environmental Assessment and Asbestos Survey
dated July 29, 1996
17. Fairfield Inn,
Valdosta (GA)
[See Prior]
18. Residence Inn,
1401 Shackleford Road,
Little Rock (AR)
Phase I Environmental Assessment
dated April 29, 1996
19. Residence Inn,
1401 Shackleford Road,
Little Rock (AR)
Asbestos Abatement and Disposal
dated October 23, 1996
20. Residence Inn,
1401 Shackleford Road,
Little Rock (AR)
Industrial Hygiene Air Monitoring Report,
dated November 7, 1996
21. Holiday Inn,
108 First Street,
Macon (GA),
Phase I Environmental Assessment
dated September 27, 1996.
22. Omni Hotel,
State and Lodge Streets,
Albany (NY)
Phase II Environmental Assessment
dated November 18, 1994
23. Omni Hotel,
State and Lodge Streets,
-3-
Albany (NY)
Asbestos Operations and Management Program
dated November 17, 1994
24. Ramada Inn,
12801 Northwest Freeway,
Houston (TX)
Phase I Environmental Assessment
dated January 26, 1990
25. Holiday Inn,
1955 Market Center Blvd.,
Dallas (TX)
Guidance Document for an Asbestos Operations and Maintenance Program
dated June 27, 1997
26. Holiday Inn,
1955 Market Center Blvd.,
Dallas (TX)
Architectural Engineering and Environmental Phase I Assessment
dated May 27, 1997
27. Holiday Inn,
915 Brinton Road,
Pittsburgh (PA),
1955 Market Center Blvd.,
Dallas (TX)
Guidance Document for an Asbestos Operations and Maintenance Program
dated August 27, 1997
28. Holiday Inn,
2750 Mosside Blvd.,
Monroeville (PA),
1955 Market Center Blvd.,
Dallas (TX)
Asbestos Operations and Maintenance Program
dated September 18, 1995
29. Holiday Inn,
401 Holiday Drive,
Pittsburgh (PA)
Asbestos Operations and Maintenance Manual
dated October 1, 1996
30. Holiday Inn,
1075 Stevens Creek Road,
Augusta (GA)
-4-
Asbestos Operations and Maintenance Program
dated October, 1996
31. Clarion Niagara Falls
Third Street and Old Falls Street,
Niagara Falls (NY)
Architectural, Engineering and Environmental Phase I Assessment
dated September 19, 1997
32. Holiday Inn Express,
6501 Plantation Road,
Pensacola (FL)
Phase I Environmental Assessment
dated May 10, 1996
33. Holiday Inn.
150 West 4th Street,
Jamestown (NY)
Architectural Engineering and Phase I Environmental Assessment
dated October 3, 1997.
34. Holiday Inn,
150 West 4th Street,
Jamestown (NY)
Phase II Environmental Assessment
dated September 28, 1994.
35. Holiday Inn -- Fayetteville (#15),
1944 Cedar Creek Road,
Fayetteville (NC)
Architectural, Engineering and Environmental Phase I Assessment.
36. Hilton -- Northfield (#17)
5500 Crooks Road,
Troy (MI)
Architectural, Engineering and Phase I Environmental Assessment
dated May 21, 1996.
37. Northfield Hilton Hotel,
5500 Crooks Road,
Troy (MI)
Asbestos Operations and Maintenance Plan,
dated October, 1996.
38 Holiday Inn -- St. Paul,
1201 West County Road East,
St. Paul (MN)
-5-
Guidance Document for an Asbestos Operations and Maintenance Program
dated November 14, 1996.
39. Wyndham Five Seasons Hotel,
350 1st Avenue, NE,
Cedar Rapids (IA)
Phase I Environmental Assessment (1 of 2, 2 of 2)
40. Hampton Inn--Pensacola,
7330 Plantation Road,
Pensacola (FL)
Guide Document for an Asbestos Operations and Maintenance Program,
dated September 23, 1996
41. Holiday Inn Express,
Fort Pierce (FL)
Limited Groundwater and Soil Survey,
dated April 20, 1995
42. Holiday Inn Express,
7151 Okeechobee Road,
Fort Pierce (FL)
Guidance Document For an Asbestos Operations and Maintenance Program,
dated November 13, 1996
43. Holiday Inn Express-Pensacola,
6501 Plantation Road,
Pensacola (FL)
Limited Subsurface Investigation,
dated June 5, 1995
44. Holiday Inn Express-North,
6501 Plantation Road,
Pensacola (FL)
Guidance Document For an Asbestos Operations and Maintenance Program,
dated August 27, 1996
45. Omni Hotel West Palm Beach,
Inc.,
1601 Belvedere Rd.,
West Palm Beach (FL)
Asbestos Operations and Maintenance Program,
dated November 22, 1994
46. Holiday Inn-Sheffield,
4900 Hatch Blvd.,
Sheffield (AL)
-6-
Guidance Document for an Asbestos Operations and Maintenance Program,
dated June 27, 1997
47. Holiday Inn-Sheffield,
4900 Hatch Blvd.,
Sheffield (AL)
Architectural, Engineering & Environmental Phase I Assessment,
dated May 30, 1997
48. Holiday Inn-Dothan,
3053 Ross Clark Circle, SW,
Dothan (AL)
Guidance Document for an Asbestos Operations and Maintenance Program,
dated November 7, 1996
49. Holiday Inn-Dothan,
3053 Ross Clark Circle, SW,
Dothan (AL)
Guidance Document for an Asbestos Operations and Maintenance Program,
dated November 4, 1996
50. Hampton Inn,
Dothan (AL)
Supplemental Asbestos Testing for Servico Hotels & Resorts,
dated April 24, 1996
51. Hampton Inn,
3071 Ross Clark Circle,
Dothan (AL)
Limited Subsurface Investigation,
dated June 5, 1995
52. Holiday Inn Express,
Gasden (AL)
Limited Groundwater and Soil Survey,
dated April 20, 1995
53. Holiday Inn Express-Attalla,
801 Cleveland Avenue,
Attalla (AL)
Limited Subsurface Investigation Phase II,
dated July 25, 1995
54. Holiday Inn Rolling Meadows,
3405 Algonquin Road,
Rolling Meadows (IL)
Guidance Document for an Asbestos Operations and Maintenance Program,
dated January 8,1998
-7-
55. Holiday Inn Rolling Meadows,
3405 Algonquin Road,
Rolling Meadows (IL)
Architectural, Engineering & Environmental Phase I Assessment,
dated October 17, 1997
56. Holiday Inn Express-Fort Pierce,
7151 Okeechobee Road,
Fort Pierce (FL)
Architectural, Engineering & Environmental Phase I Assessment,
dated May 10, 1996
57. Hampton Inn-Pensacola,
7330 Plantation Road,
Pensacola (FL)
Architectural, Engineering & Environmental Phase I Assessment,
dated May 8, 1996
58. Holiday Inn-Brunswick,
5252 New Jessup Highway,
Brunswick (GA)
Architectural, Engineering & Environmental Phase I Assessment,
dated May 21, 1996
59. Sheraton Hotel,
630 Clearwater Park Road,
West Palm Beach (FL)
Architectural, Engineering & Environmental Phase I Assessment,
dated October 16, 1997
60. Sheraton Hotel,
630 Clearwater Park Road,
West Palm Beach (FL)
Guidance Document for an Asbestos Operations and Maintenance Program,
dated January 8, 1998
61. Holiday Inn Winter Haven,
1150 3rd Street, SW,
Winter Haven (FL)
Guidance Document for an Asbestos Operations and Maintenance Program,
dated January 8, 1998
62. Holiday Inn Winter Haven,
1150 3rd Street, SW,
Winter Haven (FL)
Architectural, Engineering & Environmental Phase I Assessment,
dated October 17, 1997
-8-
63. Four Points Hotel Hilton Head Island,
36 South Forest Beach Drive,
Hilton Head (SC)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
64. Holiday Inn Parkway East,
915 Brinton Road,
Pittsburgh (PA)
Architectural, Engineering & Environmental Phase I Assessment
dated August 1, 1997
65. Ramada Plaza NW,
12801 NW Freeway,
Houston (TX)
Architectural, Engineering & Environmental Phase I Assessment
dated October 16, 1997
66. Quality Inn -- Metairie (#11),
2261 North Causeway Boulevard,
Metairie (LA)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
67. Town Center Silver Spring Hotel,
8727 Colesville Road,
Silver Spring (MD)
Architectural, Engineering & Environmental Phase I Assessment
dated January 6, 1998
68. Columbia Hilton,
5485 Twin Knolls Road,
Columbia (MD)
Architectural, Engineering & Environmental Phase I Assessment
dated September 10, 1997
69. Holiday Inn Silver Spring,
8777 Georgia Avenue,
Silver Spring (MD)
Architectural, Engineering & Environmental Phase I Assessment
dated October 16, 1997
70. Hilton -- Northfield (#17),
550O Crooks Road,
Troy (MI)
Architectural, Engineering & Environmental Phase I Assessment
dated August 1, 1997
-9-
71. Comfort Inn,
2715 Long Lake Road,
Roseville (MN)
Architectural, Engineering & Environmental Phase I Assessment
dated April 21, 1997
72. Holiday Inn -- St. Paul (#14),
1201 West County Road East,
St. Paul (MN)
Architectural, Engineering & Environmental Phase I Assessment
dated August 1, 1997
73. Holiday Inn Grand Island,
100 Whitehaven Road,
Grand Island (NY)
Architectural, Engineering & Environmental Phase I Assessment
dated September 19, 1997
74. Omni Hotel -- Albany (#13),
Ten Eyck Plaza,
Albany (NY)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
75. Holiday Inn Downtown Niagara Falls,
114 Buffalo Avenue,
Niagara Falls (NY)
Architectural, Engineering & Environmental Phase I Assessment
dated September 22, 1997
76. Holiday Inn -- Greentree (#20),
401 Holiday Drive,
Pittsburgh (PA)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
77. Holiday Inn -- Greentree (#20),
401 Holiday Drive,
Pittsburgh (PA)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
78. Servico Center II Project,
1601 Belvadere Road,
West Palm Beach (FL)
Subsurface Exploration and Foundation Recommendations
dated March 11, 1985
-10-
79. Holiday Inn Express-Attalla,
801 Cleveland Avenue,
Attalla (AL)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
80. Hampton Inn,
3071 Ross Clark Circle,
Dothan (AL)
Architectural, Engineering & Environmental Phase I Assessment
dated August 1, 1997
81. Holiday Inn,
7200 Plantation Road,
Pensacola (FL)
Architectural, Engineering & Environmental Phase I Assessment
dated July 31, 1997
82. Town Center Silver Spring Hotel,
8727 Colesville Road,
Silver Spring (MD)
Guidance Document for an Asbestos Operations and Maintenance Program
dated February 18, 1998
83. Holiday Inn West,
Pennridge Drive,
Bridgeton (MO)
Asbestos Operations & Maintenance Program
dated February 5, 1997
84. Holiday Inn West,
Pennridge Drive,
Bridgeton (MO)
Phase I Environmental Assessment
dated February 3, 1997
85. Marriott,
Atrium Way and Arbor Way,
Mt. Laurel (NJ),
Phase 1 Environmental Assessment
dated January 22, 1998
86. Holiday Inn - Belmont #7,
1800 Belmont Avenue,
Baltimore (MD)
Architectural, Engineering & Environmental Phase I Assessment
dated January 16, 1998
-11-
87. Holiday Inn -- Frederick (Fort Detrick) #8,
999 West Patrick Street,
Frederick (MD)
Architectural, Engineering & Environmental Phase I Assessment
dated January 16,1998
88. Holiday Inn -- Cromwell Bridge #5,
1100 Cromwell Bridge Road,
Towson (MD)
Architectural, Engineering & Environmental Phase I Assessment
dated January 16, 1998
89. Holiday Inn -- York Arsenal #11,
334 Arsenal Road,
York (PA)
Architectural, Engineering & Environmental Phase I Assessment
dated January 16, 1998
90. Holiday Inn,
363 Roberts Street,
East Hartford (CT)
Architectural, Engineering & Environmental Phase I Assessment
dated January 16, 1998
91. Holiday Inn,
30 Whalley Avenue,
New Haven (CT)
Architectural, Engineering & Environmental Phase I Assessment
dated January 16, 1997
Part II. Properties Listed on NPL or CERCLIS
None.
Part III. Environmental Investigations.
Incorporated by reference herein are the Environmental Reports provided to
Shearman & Sterling:
-12-
SCHEDULE OF DEBT
(Other than Surviving Debt)
Lender Borrower Amount Outstanding
- ------ -------- ------------------
Secore Albany Hotel, Inc. $ 275,000,000
Apico Hills, Inc
Apico Hills of Green Tree, Inc
Apico Inns of Pittsburgh, Inc.
Brunswick Motel Enterprises, Inc.
Dolhan Hospitality 3053, Inc
Dolhan Hospitality 3071, Inc
Fayetteville Motel Enterprises, Inc.
Gadsden Hospitality, Inc.
Servico Center Associates, Ltd.
Minneapolis Motel Enterprises, Inc.
NH Motel Enterprises, Inc.
Servico Austin, Inc.
Servico Cedar Rapids, Inc.
Servico Colesville, Inc.
Servico Columbia, Inc.
Servico Flagstaff, Inc.
Servico Ft. Pierce, Inc.
Servico Grand Island, Inc.
Servico Hilton Head, Inc.
Servico Houston, Inc.
Servico Jamestown, Inc.
Servico Windsor, Inc.
Servico Market Center, Inc.
Servico Maryland, Inc.
Servico Metairie, Inc.
Servico New York, Inc.
Servico Niagra Falls, Inc.
Servico Northwoods, Inc.
Servico Pensacola, Inc.
Servico Pensacola 7200, Inc.
Servico Pensacola 7330, Inc.
Servico Rolling Meadows, Inc.
Servico Roseville, Inc.
Servico West Palm Beach, Inc.
Servico Winter Haven, Inc.
Sheffield Motel Enterprises, Inc.
Servico Silver Springs, Inc.
AMI Operating Partners, L.P.
Lodgian Mount Laurel, Inc.
Lodgian Richmond, L.L.C.
Bank One, Louisiana, N A Little Rock Lodging Associates I, L.P. $ 5,680,405
SCHEDULE 4.01(t)
Surviving Debt
See attached.
SCHEDULE OF SURVIVNG DEBT
Lender Borrower Amount Outstanding Maturity
- ------ -------- ------------------ --------
Capital Company of America Impac Hotels I, L.L.C. $ 132,459,000 3/11/19
Capital Company of America Impac Hotels II, L.L.C. $ 159,062,071 10/31/20
Capital Company of America Impac Hotels III, L.L.C. $ 45,895,527 10/31/21
Banc One Servico Concord, Inc. $ 62,000,000 11/30/00
AMI Operating Partners, L.P.
Island Motel Enterprises, Inc.
Penmoco, Inc.
First Union National Bank Atlanta-Boston Lodging, L.L.C. $ 3,521,542 4/1/07
CRESTS Lodgian, Inc. $ 175,000,000 6/30/10
IBM Retirement Macon Hotel Associates, L.L.C. $ 1,682,500 5/20/01
Fidelity Real Estate Macon Hotel Associates, L.L.C. $ 2,712,500 5/20/01
Hospitality Corp of Macon Macon Hotel Associates, L.L.C. $ 7,908,602 9/1/03
Nationwide Life Insurance Co. Dedham Lodging Associates I, L.P. $ 6,200,000 1/1/04
Column Financial, Inc. Servico Hotels I, Inc. $ 4,323,907 3/1/10
Column Financial, Inc. Servico Hotels II, Inc. $ 2,391,949 3/1/10
Column Financial, Inc. East Washington Associates, L.P. $ 10,097,166 7/1/10
SCHEDULE OF SURVIVNG DEBT
Lender Borrower Amount Outstanding Maturity
- ------ -------- ------------------ --------
Column Financial, Inc. Service Hotels III, Inc. $ 1,747,166 3/1/10
Lehman Brothers Service Frisco, Inc. $ 5,026,682 5/1/04
Lehman Brothers Melbourne Hospitality Associates, L.P. $ 5,467,167 7/1/04
GMAC Commercial Mortgage 1075 Hospitality, L.P. $ 3,757,802 2/1/03
Local Federal Bank Kinser Motel Enterprises, Inc. $ 3,012,959 8/5/01
Column Financial, Inc. Service Ft. Wayne, Inc. $ 5,335,886 3/1/10
Lehman Brothers Ft. Wayne Hospitality Associates II, L.P. $ 1,854,931 5/1/04
Column Financial, Inc. New Orleans Airport Motel Associates, L.P. $ 4,875,895 3/1/10
GMAC Commercial Mortgage Sioux City Hospitality, L.P. $ 5,575,177 1/17/96
GMAC Commercial Mortgage Servico Council Bluffs, Inc. $ 1,516,360 8/1/03
GMAC Commercial Mortgage Servico West Des Moines, Inc. $ 2,961,956 8/1/03
City Of Manhattan Manhattan Hospitality, L.P. $ 6,425,000 7/1/16
City of Lawrence Lawrence Hospitality, L.P. $ 6,425,000 7/1/16
GMAC Commercial Mortgage Servico Wichita, Inc. $ 4,723,485 8/1/03
GMAC Commercial Mortgage Servico Omaha Central, Inc. $ 4,752,553 8/1/03
SCHEDULE OF SURVIVNG DEBT
Lender Borrower Amount Outstanding Maturity
- ------ -------- ------------------ --------
GMAC Commercial Mortgage Servico Omaha, Inc. $ 2,369,320 8/1/03
Lehman Brothers Worcester Hospitality Associates, L.P. $ 7,515,622 11/1/03
Column Financial, Inc. Servico Hotel IV, Inc. $ 5,335,886 3/1/10
GMAC Commercial Mortgage Brecksville Hospitality, L.P. $ 2,895,907 2/1/03
Lehman Brothers Apico Inns of Pittsburgh, Inc. $ 4,949,425 11/1/03
Column Financial, Inc. Moon Airport Motel, Inc. $ 3,311,929 3/1/10
Column Financial, Inc McKnight Motel, Inc. $ 3,592,970 3/1/05
Column Financial, Inc. Wilpen, Inc. $ 17,329,371 3/1/10
Column Financial, Inc. Washington Motel Enterprises, Inc. $ 3,863,918 3/1/10
Saginaw Hotel Investors Saginaw Hospitality, L.P. $ 1,989,210 10/31/05
GMAC Commercial Mortgage Servico Lansing, Inc. $ 5,492,981 6/1/03
Column Financial, Inc. Hilton Head Motel Enterprises, Inc. $ 7,175,847 3/1/10
Crest Motel Raleigh-Downtown Enterprises, Inc. $ 2,045,135 1/10/15
Charter Financial, Inc. Servico, Inc. $ 501,577 Cap Lease
Servico Management Corp.
Lyon Credit Servico Inc. $ 2,658,238 1/1/04
SCHEDULE OF SURVIVNG DEBT
Lender Borrower Amount Outstanding Maturity
- ------ -------- ------------------ --------
Lyon Credit Servico Inc. $ 3,796,620 Cap Lease
Financial Marketing Services, Inc. Servico Management Corp $ 225,311 Cap Lease
GE Capital Fleet Services Servico Inc. $ 96,840 Cap Lease
Servico Management Corp
Telerent Leasing Corporation Brunswick Motel Enterprises $ 21,531 Cap Lease
Servico, Inc.
Telerent Leasing Corporation KDS Corporation $ 36,104 Cap Lease
Telerent Leasing Corporation KDS Corporation $ 37,750 Cap Lease
Servico, Inc.
Telerent Leasing Corporation Sheffield Motel Enterprises, Inc. $ 32,063 Cap Lease
Telerent Leasing Corporation Servico Management Corp as agent $ 50,508 Cap Lease
Telerent Leasing Corporation Servico Management Corp as agent $ 76,061 Cap Lease
Telerent Leasing Corporation Servico Management Corp as agent $ 43,869 Cap Lease
Telerent Leasing Corporation Apico Inns of Pittsburgh, Inc. $ 68,495 Cap Lease
Telerent Leasing Corporation Apico Hills, Inc. $ 4,578 Cap Lease
Telerent Leasing Corporation Servico Management Corp as agent $ 39,747 Cap Lease
SCHEDULE OF SURVIVNG DEBT
Lender Borrower Amount Outstanding Maturity
- ------ -------- ------------------ --------
Telerent Leasing Corporation Best Western Charleston $ 2,458 Cap Lease
SCHEDULE 4.01(u)
Liens of Record on Property or Assets of an Loan Party
Schedule 4.01 (U)
Liens of Record
(All Schedule B items of all Commonwealth Title Insurance
Policies listed below and liens of record listed below)
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Albany Hotel, Inc. Omni Albany Hotel 135-02-750779 None
State & Lodge Streets (Lawyers)
Ten Eyck Plaza
Albany, NY 12207
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, Limited Holiday Inn East Hartford 9841-00012
Partnership a/k/a 363 Roberts Street (Chicago)
AMI Operating Partners, L.P. East Hanford, CT 08106
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, Limited Holiday Inn New Haven 984200063
Partnership a/k/a 30 Whalley Avenue (Chicago)
AMI Operating Partners, L.P. New Haven, CT 06511
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Fredrick Holiday Inn 4106-0G
999 West Patrick Street (Chicago)
Fredrick, MD 21702
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Cromwell Bridge Holiday Inn 4106-0A
1300 Cromwell Bridge Road (Chicago)
Towson, MD 21286
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Belmont Holiday Inn 4106-0C
1800 Belmont Avenue (Chicago)
Baltimore, MD 21244
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Holiday Inn York Arsenal Road 9881-00005
334 Arsenal Road (Chicago)
York, PA
- ------------------------------------------------------------------------------------------------------------------------------------
Apico Hills, Inc. Holiday Inn Parkway East 135-02-543910 None
915 Brinton Road (Lawyers)
Pittsburgh, PA 15221
- ------------------------------------------------------------------------------------------------------------------------------------
Apico Inns of Green Tree, Inc. Holiday Inn Green Tree 135-02-543910 None
401 Holiday Drive (Lawyers)
Pittsqburgh, PA 15220
- ------------------------------------------------------------------------------------------------------------------------------------
Brunswick Motel Enterprises, Inc. Holiday Inn Brunswick 135-02-691726 Engineering & Equipment Co. ($11,685.00)
U.S. 341 at I-95 (Lawyers) Amerail Systems, Inc. ($15,634.00)
Brunswick, GA 31520
- ------------------------------------------------------------------------------------------------------------------------------------
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Dothan Hospitality 3053, Inc. Holiday Inn Dothan 135-00-839357
3053 Ross Clark Circle, SW (Lawyers) None
Dothan, AL 38301
- ------------------------------------------------------------------------------------------------------------------------------------
Dothan Hospitality 3071, Inc. Hampton Inn Dothan 135-00-839357 None
3071 Ross Clark Circle, SW (Lawyers)
Dothan, AL 38301
- ------------------------------------------------------------------------------------------------------------------------------------
Fayetteville Model Enterprises, Inc. Holiday Inn Fayetteville 82-03-148331 Amerail Systems ($282,659.00)
1844 Cedar Creek Road (Lawyers) Twin Towers, Inc. ($80,178.00)
Fayetteville, NC 28303
- ------------------------------------------------------------------------------------------------------------------------------------
Gadsen Hospitality, Inc. Holiday Inn Express Gadsen 135-00-839357 None
801 Cleveland Avenue (Lawyers)
Attalia, AL 35954
- ------------------------------------------------------------------------------------------------------------------------------------
Little Rock Lodging Associates Residence Inn by Marriott Commitment No.
I, L.P. 1401 S. Shackleford Road 99-7166
Little Rock, AR 72211 (Chicago)
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Anaheim, Inc. 2045 South Harbor Boulevard
Anaheim, CA 92802
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Atlanta Hillsboro, LLC 18000 Block of NW Tanasbourne
Drive
Hillsboro, OR 97124
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Mount Laurel, Inc. Marriott Inn None
Atrium Way
Mount Laurel, NJ
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Ontario, Inc. 2200 Block of East Holt Boulevard
Ontario, CA 91761
- ------------------------------------------------------------------------------------------------------------------------------------
Lodgian Richmond, L.L.C. Marriott Inn None
Dominion Blvd.
Richmond, VA
- ------------------------------------------------------------------------------------------------------------------------------------
Minneapolis Motel Enterprises, Inc. Holiday Inn St. Paul 135-03-230255 None
1201 West Country Road (Lawyers)
East St. Paul, MN 55112
- ------------------------------------------------------------------------------------------------------------------------------------
NH Motel Enterprises, Inc. Northfield Hilton 135-02-075477 Amerail ($103,091.00)
5500 Crooks Road (Lawyers)
Troy, MI 48098
- ------------------------------------------------------------------------------------------------------------------------------------
-2-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Austin, Inc. Holiday Inn Austin South 535-368368 Double L. Insulation Co. Inc.
3401 South IH-35 (Commonwealth) ($13,486.88)
Austin, TX Spot Coolers, Inc. ($8,876.50)
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Cedar Rapids, Inc. Five Seasons Hotel 135-02-384649 None
350 1st Ave, NE (Lawyers)
Cedar Rapids, IA 53401
- ------------------------------------------------------------------------------------------------------------------------------------
Palm Beach Hotel Enterprises, Inc., Omni Hotel West Palm Beach 82-03-153809 A-1 Enterprises ($43,618.60)
a Florida Corporation, as the sole 1601 Belevedere Road (Lawyers) Coast to Coast Construction
general partner of Servico Centre West Palm Beach FL 33406 ($171,688.17)
Associates, Ltd.
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Colesville, Inc. Town Center MC981789AA None
8727 Colesville Road (Commonwealth)
Silver Springs, MD 20910
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Columbia, Inc. Columbia Hilton MC981787AA
5485 Twin Knolls Road (Commonwealth)
Columbia, MD 21045
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Ft. Pierce, Inc. Holiday Inn Express Ft. Pierce 82-03-153809 Maintenance Warehouse/America Corp
7151 Okeechobee Road (Lawyers) ($451.39)
Fort Pierce, FL 34945
- ------------------------------------------------------------------------------------------------------------------------------------
CONTINUED ON NEXT PAGE
-3-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Grand Island, Inc. Holiday Inn Grand Island 135-03-001311 Brian McKee d/b/a AMF Contracting
100 Whitehaven Road (Lawyers) (HRB) ($8,820.00))
Grand Island, NY _________
Modern Disposal Services, Inc. (HRB)
($6,966.04)
Centimark Corporation (HRB)
($265,634.00)
P. R. Contracting Services (HRB)
($13,075.00)
Buffalo Plastering, Inc. (HRB)
($6,000.00)
Commercial Interior Supply (HRB)
($5,024.91)
Twin City Glass Corp. (HRB)
($10,427.80)
Sadlo Lumber Wood Products, Inc.
(HRB) ($3,185.73)
Matthew Jaworski d/b/a Olympic Homes
(HRB) ($17,710.13)
Forest Materials, Inc. (HRB)
($13,059.10)
Italian Marble and Granite (HRB)
($3,404.00)
Anderson Electric Supply, Inc. (HRB)
($4,530.85)
R. B. U'ren Equipment, Inc. (HRB)
($13,004.96)
Schindler Elevator Corp. d/b/a Millar
Elevator Service Co. (HRB)
($42,009.00)
Sherwin-Williams Co. (HRB)
($16,963.93)
Ackerman Mechanical Service, Inc.
(HRB) ($_____________)
Dan Pedlow d/b/a DP Wallcovering
(HRB) ($477.00)
Hospitality Restoration and Builders
(HRB) ($1,906,562.00)
Jim Gardner & Sons, Inc. (HRB)
($12,500.00)
Hospitality Restoration and Builders,
Inc. ($45,000.00)
- ------------------------------------------------------------------------------------------------------------------------------------
-4-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Hilton Head, Inc. Four Points Hotel Hilton Head 507-007286 None
35 South Forest Beach Drive (Commonwealth)
Hilton Head, SC ___________
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Houston, Inc. Ramada Plaza Houston 535-368368 Hospitality Restoration and Builders,
12801 N.W. Freeway US 290 (Commonwealth) Inc. ($45,000.00)
Houston, TX
- ------------------------------------------------------------------------------------------------------------------------------------
Service Jamestown, Inc. Holiday Inn Jamestown 135-02-999324 Rowan's Taylor Rental, Inc. (HRB)
150 West 4th Street (Lawyers) ($5,903.96)
Jamestown, NY 14701
Hospitality & Builders, Inc. (HRB)
($1,137,006.00)
Sherwin Williams Co. (HRB)
($2,485.08)
Imperial Door Controls, Inc. (HRB)
($8,414.00)
Schindler Elevator Corp. d/b/a Miller
Elevator (HRB) Service Co. (HRB)
($20,733.00)
Allied Fire Protection Services, Inc.
($10,070.25)
Hospitality Restoration and Builders,
Inc. ($45,000.00)
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Market Center, Inc. Holiday Inn Market Center Dallas 535-368368 None
1955 Market Center Blvd. (Commonwealth)
Dallas, TX
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Maryland, Inc. Holiday Inn Washington, D.C. MC981788AA 8757 Georgia Ave., LLC ($__________)
8777 Georgia Avenue (Commonwealth)
Silver Spring, MD 20920
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Metairie, Inc. Quality Hotel Metairie 135-00-950863 None
2261 North Causeway Blvd. (Lawyers)
Metairie, LA 70001
- ------------------------------------------------------------------------------------------------------------------------------------
-5-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico New York, Inc. Clarion Niagara Falls 135-03-001313 Hilti, Inc. (HRB) ($2,415.85)
Third & Old Falls Streets, (Lawyers)
P.O. Box 845 Modem Disposal Services, Inc. (HRB)
Niagara Falls, NY 14303 ($11,576.12)
Matthew Jawarski d/b/a Olympic Homes
(HRB) ($65,257.57)
Forest Materials, Inc. (HRB)
($5,427.35)
Sadlo Lumber & Wood Products, Inc.
(HRB) ($21,484.71)
Great Northern Assoc. (HRB)
($5,974.88)
Twin City Glass Corp. (HRB)
($35,546.64)
William H. Prentice, Inc. (HRB)
($26,946.17)
Italian Marble & Granite, Inc. (HRB)
($4,414.50)
Despirt Mosaic & Marble Co., Inc.
(HRB) ($17,192.34)
Schindler Elevator Corp. d/b/a Millar
Elevator Service (HRB) ($34,496.00)
RB U'ren Equipment, Inc. (HRB)
($401.25)
Anderson Electric Supply, Inc. (HRB)
($1,274.35)
Sherwin-Williams Co. (HRB)
($15,670.75)
Imperial Door Controls, Inc. (HRB)
($2,916.84)
Atlantic Poles, Inc. (HRB)
($6,352.32)
Commercial Interior Supply (HRB)
($2,118.87)
Ackerman Mechanical Service, Inc.
(HRB) ($33,292.76)
Hospitality & Restoration Builders,
Inc. (HRB) ($2,053,059.00)
Hospitality & Restoration Builders,
Inc. (HRB) ($1,641,038.00)
Hospitality Restoration and Builders,
Inc. ($45,000.00)
- ------------------------------------------------------------------------------------------------------------------------------------
-6-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Niagara Falls, Inc. Holiday Inn Niagara Falls 135-03-001312 Jim Gardner & Sons, Inc. (HRB)
114 Buffalo Avenue (Lawyers) ($12,500.00)
Niagara Falls, NY 14303
Hilti, Inc. (HRB) ($__________)
Modern Disposal Services, Inc. (HRB)
($11,576.12)
Brian McKee d/b/a AMF Contracting
(HRB) ($21,380.00)
Matthew Jaworski d/b/a Olympic Homes
(HRB) ($61,266.80)
Forest Materials, Inc. (HRB)
($3,149.43)
DeSpirit Mosaic & Marble Co., Inc.
(HRB) ($5,375.00)
Amerail Systems, Inc. (HRB)
($31,132.000)
Albany Ladder Co., Inc. (HRB)
($24,179.48)
Sadlo Lumber Wood Products, Inc.
(HRB) ($7,356.70)
Construction Systems of W. New York,
Inc. d/b/a Advanced Building Systems
(HRB) $7,200.20)
Thermal Foams, Inc. (HRB)
($20,028.53)
Ackerman Mechanical Services, Inc.
(HRB) ($17,534.48)
Hospitality Restoration & Builders,
Inc. (HRB) ($2,022,060.66)
Twin City Glass Corp. (HRB)
(10,427.80)
Schindler Elevator Corp. d/b/a Millar
Elevator Service Co. (HRB)
($23,634.55)
Beau Enterprises, Inc. (HRB)
($10,650.00)
R. B. U'ren Equipment, Inc. (HRB)
($40,768.38)
Sherwin-Williams Co. (HRB)
($12,321.45)
Michael Hooper (HRB) ($5,964.00)
Hospitality Restoration & Builders,
Inc. ($45,000.00)
- ------------------------------------------------------------------------------------------------------------------------------------
-7-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Northwoods, Inc. Best Western Charleston 507-007286 None
International Airport (Commonwealth)
7401 Northwoods Blvd.
North Charleston, SC 29418
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola 7200, Inc. Holiday Inn University Mall 82-03-153809
Pensacola (Lawyers)
7200 Plantation Road
Pensacola, FL 32504
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola 7330, Inc. Hampton Inn Pensacola 82-03-153809 None
7330 Plantation Road (Lawyers)
Pensacola,, FL 32504
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola, Inc. Holiday Inn Express Pensacola 82-03-153809 None
6501 Plantation Road (Lawyers)
Pensacola, FL 32505
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Rolling Meadows, Inc. Holiday Inn Rolling Meadows 135-02-919286 HRB ($970,903.00)
3405 Algonquin Road (Lawyers)
Rolling Meadows, IL 60008 J.E.C. Inc. d/b/a Johnson Electric
Co. (HRB) ($18,244.98)
North Park Plumbing, Inc. (HRB)
($13,504.30)
HRB ($1,731.22)
Hospitality Restoration and Builders,
Inc. ($45,000.00)
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Roseville, Inc. Comfort Inn Roseville 135-03-230256
2715 Long Lake Road (Lawyers) None
Roseville, MN 55113
- ------------------------------------------------------------------------------------------------------------------------------------
Servico West Palm Beach, Inc. Sheraton West Palm Beach 82-03-153809 A-1 Enterprises ($__________)
630 Clearwater Park Road (Lawyers)
West Palm Beach, FL 33406 Laser Lighting ($1,719.28)
Acoustical Associates ($10,564.80)
Sherwin Williams ($12,332.68)
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Windsor, Inc. Holiday Inn Select Windsor Twin Towers, Inc. ($111,533.00)
1855 Huron Church Road
Windsor, Ontario Canada Twin Towers, Inc. ($________)
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Winter Haven, Inc. Holiday Inn Winter Haven 82-03-153809 Maintenance Warehouse/America Corp.
1150 3rd Street, SW (Lawyers) ($3,250.81)
Winter Haven, FL 33880
- ------------------------------------------------------------------------------------------------------------------------------------
-8-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
Sheffield Motel Enterprises, Inc. Holiday Inn Sheffield 137-00-012852 None
4900 Hatch Blvd. (Lawyers)
Sheffield, AL 35660
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC DoubleTree Club Louisville
9700 Bluegrass Parkway
Louisville, KY 40299
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC DoubleTree Club Philadelphia
9461 Roosevelt Blvd.
Philadelphia, PA 19114
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Fairfield Inn Valdosta
1311 St. Augustine Road
Valdosta, GA 31601
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC French Quarter Inn Memphis
2144 Madison Avenue
Memphis, TN 38104
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn South Birmingham
1548 Montgomery Highway
Birmingham, AL 35216
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn Marietta
2265 Kingston Court
Marietta, GA 30067
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn Select DFW
4441 Highway 114 at Esters
Dallas, TX 75063
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn Select Strongville
15471 Royalton Drive
Cleveland, OH 44136
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn St. Louis North
4545 N. Lindbergh Blvd.
St. Louis, MO 63044
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn St. Louis West
3551 Pennridge Drive
Bridgeton, MO 63044
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn Valdosta
1309 St. Augustine Road
Valdosta, GA 31601
- ------------------------------------------------------------------------------------------------------------------------------------
-9-
- ------------------------------------------------------------------------------------------------------------------------------------
Lawyers/Commonwealth/
Property Name and Chicago Title
Owner of Record Street Address Insurance Policy No. Liens of Record
--------------- -------------- -------------------- ---------------
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Super 8 Hazard
125 Village Lane
Hazard, KY 41701
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Super 8 Prestonburg
550 South U.S. 23
Prestonburg, KY 41653
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn Express Nashville
981 Murfreesboro Road
Nashville, TN 37217
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Courtyard by Marriott
4350 Ridgemont Drive
Abilene, TX 79606
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Courtyard by Marriott
1001 McClain Road
Bentonville, AR 72712
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Courtyard by Marriott (Buckhead)
3332 Peachtree Road, N.E.
Atlanta, GA 30326
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Courtyard by Marriott
46 Cavalier Blvd.
Florence, KY 41042
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Comfort Suites
2681 Dry Pocket Road
Greer, SC 29650
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Holiday Inn SunSpree
1601 N. Ocean Blvd.
Surfside Beach, SC 29575
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Courtyard by Marriott
3835 Technology Drive
Paducah, KY 42001
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels 1, LLC Comfort Inn
2635 N.E. Loop #410
San Antonio, TX 78217
- ------------------------------------------------------------------------------------------------------------------------------------
-10-
SCHEDULE 4.01(v)
Real Property
See attached.
Schedule 4.01 (V)
List of all Real Property
- --------------------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------------------
Albany Hotel, Inc. Omni Albany Hotel FL 135-02-750779 $ 26,100,000
State & Lodge Streets (Lawyers)
Ten Eyck Plaza
Albany, NY 12207
Albany County
- --------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, Holiday Inn East Hartford DE 9841-00012 $ 4,900,000
Limited Partnership a/k/a 363 Roberts Street (Chicago)
AMI Operating Partners, L.P. East Hartford, CT 08106
Hartford County
- --------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, Holiday Inn New Haven DE 984200063 $ 5,200,000
Limited Partnership a/k/a/ 30 Whalley Avenue (Chicago)
AMI Operating Partners, L.P. New Haven, CT 06511
New Haven County
- --------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Fredrick Holiday Inn DE 4106-0G $ 3,800,000
999 West Patrick Street (Chicago)
Fredrick, MD 21702
Fredrick County
- --------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Cromwell Bridge Holiday Inn DE 4106-0A $ 7,300,000
1300 Cromwell Bridge Road (Chicago)
Towson, MD 21286
Baltimore County
- --------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Belmont Holiday Inn DE 4106-0C $ 3,300,000
1800 Belmont Avenue (Chicago)
Baltimore, MD 21244
Baltimore County
- --------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, L.P. Holiday Inn York Arsenal Road DE 9881-00005 $ 2,400,000
334 Arsenal Road (Chicago)
York, PA
York County
- --------------------------------------------------------------------------------------------------------------------------------
Apico Hills, Inc. Holiday Inn Parkway East PA 135-02-543910 $ 7,800,000
915 Brinton Road (Lawyers)
Pittsburgh, PA 15221
Alleghany County
- --------------------------------------------------------------------------------------------------------------------------------
- --------------------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------------------
Apico Inns of Green Tree, Inc. Holiday Inn Green Tree PA 135-02-543910 $ 15,100,000
401 Holiday Drive (Lawyers)
Pittsburgh, PA 15220
Alleghany County
- --------------------------------------------------------------------------------------------------------------------------------
Brunswick Motel Enterprises, Inc. Holiday Inn Brunswick GA 135-02-691726 $ 5,200,000
U.S. 341 at I-95 (Lawyers)
Brunswick, GA 31520
Glynn County
- --------------------------------------------------------------------------------------------------------------------------------
Dothan Hospitality 3053, Inc. Holiday Inn Dothan AL 135-00-839357 $ 5,700,000
3053 Ross Clark Circle, SW (Lawyers)
Dothan, AL 38301
Houston County
- --------------------------------------------------------------------------------------------------------------------------------
Dothan Hospitality 3071, Inc. Hampton Inn Dothan AL 135-00-839357 $ 3,100,000
3071 Ross Clark Circle, SW (Lawyers)
Dothan, AL 38301
Houston County
- --------------------------------------------------------------------------------------------------------------------------------
Fayetteville Motel Enterprises, Inc. Holiday Inn Fayetteville NC 82-03-148331 $ 6,300,000
1844 Cedar Creek Road (Lawyers)
Fayetteville, NC 28303
Cumberland County
- --------------------------------------------------------------------------------------------------------------------------------
Gadsen Hospitality, Inc. Holiday Inn Express Gadsen AL 135-00-839357 $ 5,800,000
801 Cleveland Avenue (Lawyers)
Attalia, AL 35954
Etowah County
- --------------------------------------------------------------------------------------------------------------------------------
Little Rock Lodging Associates Residence Inn by Marriott GA Commitment $ 8,900,000
I, L.P. 1401 S. Shackleford Road 99-7166
Little Rock, AR 72211 (Chicago)
Pulaski County
- --------------------------------------------------------------------------------------------------------------------------------
Lodgian Amaheim, Inc. 2045 South Harbor Boulevard CA
Anaheim, CA 92802
_____________ County
- --------------------------------------------------------------------------------------------------------------------------------
Lodgian Atlanta Hillsboro, LLC 18000 Block of NW Tanasbourne
Drive GA
Hillsboro, OR 97124
_____________ County
- --------------------------------------------------------------------------------------------------------------------------------
-2-
- --------------------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------------------
Lodgian Mount Laurel, Inc. Marriott Inn NJ
Atrium Way
Mount Laurel, NJ
____________ County
- --------------------------------------------------------------------------------------------------------------------------------
Lodgian Ontario, Inc. 2200 Block of East Holt Boulevard CA
Ontario, CA 91761
____________ County
- --------------------------------------------------------------------------------------------------------------------------------
Lodgian Richmond, L.L.C. Marriott Inn GA
Dominion Blvd.
Richmond, VA
____________ County
- --------------------------------------------------------------------------------------------------------------------------------
Minneapolis Motel Enterprises, Inc. Holiday Inn St. Paul MN 135-03-230255 $ 7,700,000
1201 West County Road (Lawyers)
East St. Paul, MN 55112
Ramsey County
- --------------------------------------------------------------------------------------------------------------------------------
NH Motel Enterprises, Inc. Northfield Hilton MI 135-02-075477 $ 19,400,000
5500 Crooks Road (Lawyers)
Troy, MI 48098
Oakland County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Austin, Inc. Holiday Inn Austin South TX 535-368368 $ 13,700,000
3401 South IH-35 (Commonwealth)
Austin, TX 78741
Travis County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Cedar Rapids, Inc. Five Seasons Hotel IA 135-02-384649 $ 11,800,000
350 1st Ave. NE (Lawyers)
Cedar Rapids, IA 53401
Linn County
- --------------------------------------------------------------------------------------------------------------------------------
Palm Beach Hotel Enterprises, Inc., a Omni Hotel West Palm Beach FL 82-03-153809 N/A
Florida Corporation, as the sole general 1601 Belevedere Road (Lawyers)
partner of Servico Centre Associates, West Palm Beach, FL 33406
Ltd. Palm Beach County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Colesville, Inc. Town Center MD MC981789AA $ 10,400,000
8727 Colesville Road (Commonwealth)
Silver Springs, MD 20910
Montgomery County
- --------------------------------------------------------------------------------------------------------------------------------
-3-
- --------------------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------------------
Servico Columbia, Inc. Columbia Hilton MD MC981787AA $ 14,600,000
5485 Twin Knolls Road (Commonwealth)
Columbia, MD 21045
Howard County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Ft. Pierce, Inc. Holiday Inn Express Ft. Pierce DE 82-03-153809 $ 3,400,000
7151 Okeechobee Road (Lawyers)
Fort Pierce, FL 34945
St. Lucie County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Grand Island, Inc. Holiday Inn Grand Island NY 135-03-001311 $ 8,800,000
100 Whitehaven Road (Lawyers)
Grand Island, NY
Erie County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Hilton Head, Inc. Four Points Hotel Hilton Head SC 507-007286 $ 6,800,000
35 South Forest Beach Drive (Commonwealth)
Hilton Head, SC
Beaufort County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Houston, Inc. Ramada Plaza Houston TX 535-368368 $ 15,200,000
12801 N.W. Freeway US 290 (Commonwealth)
Houston, TX
Harris County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Jamestown, Inc. Holiday Inn Jamestown NY 135-02-999324 $ 5,100,000
150 West 4th Street (Lawyers)
Jamestown, NY 14701
Chautaugua County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Market Center, Inc. Holiday Inn Market Cotter Dallas TX 535-368368 $ 10,700,000
1955 Market Center Blvd. (Commonwealth)
Dallas, TX 75207
Dallas County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Maryland, Inc. Holiday Inn Washington, DC. MD MC981788AA
8777 Georgia Avenue (Commonwealth)
Silver Spring, MD 20920
Montgomery County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Metairie, Inc. Quality Hotel Metairie LA 135-00-950863 $ 8,900,000
2261 North Causeway Blvd. (Lawyers)
Metairie, LA 70001
Jefferson Parish
- --------------------------------------------------------------------------------------------------------------------------------
-4-
- --------------------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------------------
Servico New York, Inc. Clarion Niagara Falls NY 135-03-001313 $ 16,100,000
Third & Old Falls Streets, (Lawyers)
P.O. Box 845
Niagara Falls, NY 14303
Niagara County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Niagara Falls, Inc. Holiday Inn Niagara Falls NY 135-03-001312 $ 5,900,000
114 Buffalo Avenue (Lawyers)
Niagara Falls, NY 14303
Niagara County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Northwoods, Inc. Best Western Charleston FL 507-007286 $ 8,000,000
International Airport (Commonwealth)
7401 Northwoods Blvd.
North Charleston, SC 29418
Charleston County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola 7200, Inc. Holiday Inn University Mall DE 82-03-153809 $ 9,600,000
Pensacola (Lawyers)
7200 Plantation Road
Pensacola, FL 32504
Escambia County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola 7330, Inc. Hampton Inn Pensacola DE 82-03-153809 $ 9,400,000
7330 Plantation Road (Lawyers)
Pensacola, FL 32504
Escambia County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Pensacola, Inc. Holiday Inn Express Pensacola DE 82-03-153809 $ 9,500,000
6501 Plantation Road (Lawyers)
Pensacola, FL 32505
Escambia County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Rolling Meadows, Inc. Holiday Inn Rolling Meadows IL 135-02-919286 $ 23,600,000
3405 Algonquin Road (Lawyers)
Rolling Meadows, IL 60008
Cook County
- --------------------------------------------------------------------------------------------------------------------------------
Servico Roseville, Inc. Comfort Inn Roseville MN 135-03-230256 $ 5,100,000
2715 Long Lake Road (Lawyers)
Roseville, MN 55113
Ramsey County
- --------------------------------------------------------------------------------------------------------------------------------
-5-
- --------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------
Servico West Palm Beach, Inc. Sheraton West Palm Beach FL 82-03-15809 $15,700,000
630 Clearwater Park Road (Lawyers)
West Palm Beach, FL 33406
Palm Beach County
- --------------------------------------------------------------------------------------------------------------------
Service Windsor, Inc. Holiday Inn Select Windsor FL
1855 Huron Church Road
Windsor, Ontario Canada
- --------------------------------------------------------------------------------------------------------------------
Servico Winter Haven, Inc. Holiday Inn Winter Haven FL 82-03-15809 $6,900,000
1150 3rd Street, SW (Lawyers)
Winter Haven, FL 33880
Polk County
- --------------------------------------------------------------------------------------------------------------------
Sheffield Motel Enterprises, Holiday Inn Sheffield AL 137-00-012852 $6,700,000
Inc. 4900 Hatch Blvd. (Lawyers)
Sheffield, AL 35660
Colbert County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Double Tree Club Louisville GA $16,900,000
9700 Bluegrass Parkway
Louisville, KY 40299
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Double Tree Club Philadelphia GA $10,700,000
9461 Roosevelt Blvd.
Philadelphia, PA 19114
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Fairfield Inn Valdosta GA
1311 St. Augustine Road
Valdosta, GA 31601
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC French Quarter Inn Memphis GA $7,600,000
2144 Madison Avenue
Memphis, TN 38104
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn South Birmingham GA $8,000,000
1548 Montgomery Highway
Birmingham, AL 35216
__________ County
- --------------------------------------------------------------------------------------------------------------------
-6-
- --------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn Marietta GA $13,500,000
2265 Kingston Court
Marietta, GA 30067
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn Select DFW GA N/A
4441 Highway 114 at Esters
Dallas, TX 75063
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn Select Strongville GA $21,000,000
15471 Royalton Drive
Cleveland, OH 44136
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn St. Louis North GA $16,500,000
4545 N. Lindbergh Blvd.
St. Louis, MO 63044
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn St. Louis West GA $10,100,000
3551 Pennridge Drive
Bridgeton, MO 63044
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn Valdosta GA $11,400,000
1309 St. Augustine Road
Valdosta, GA 31601
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Super 8 Hazard GA $2,800,000
125 Village Lane
Hazard, KY 41701
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Super 8 Prestonburg GA $3,800,000
550 South U.S. 23
Prestonburg, KY 41653
__________ County
- --------------------------------------------------------------------------------------------------------------------
-7-
- --------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn Express Nashville GA $7,700,000
981 Murfreesboro Road
Nashville, TN 37217
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott - GA $4,500,000
Abilene
4350 Ridgemont Drive
Abilene, TX 79606
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott GA $6,000,000
1001 McClain Road
Bentonville, AR 72712
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott GA $17,600,000
(Buckhead)
3332 Peachtree Road, N.E.
Atlanta, GA 30326
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott - GA $3,800,000
Florence
46 Cavalier Blvd.
Florence, KY 41402
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Comfort Suites GA
2681 Dry Pocket Road
Greer, SC 29650
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn SunSpree GA
1601 N. Ocean Blvd.
Surfside Beach, SC 29575
__________ County
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott - GA $8,500,000
Paducah
3835 Technology Drive
Paducah, KY 42001
__________ County
- --------------------------------------------------------------------------------------------------------------------
-8-
- --------------------------------------------------------------------------------------------------------------------
State of Lawyers/Commonwealth/
Property Name and Inc. of Chicago Title
Owner of Record Street Address Owner Insurance Policy No. Appraisal Value
--------------- -------------- ----- -------------------- ---------------
- --------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Comfort Inn GA $6,700,000
2635 N.E. Loop #410
San Antonio, TX 78217
__________ County
- --------------------------------------------------------------------------------------------------------------------
-9-
SCHEDULE 4.01(w)
Leases of Real Property
See attached.
Schedule 4.01 (W)
Ground Lease Spreadsheet
- ------------------------------------------------------------------------------------------------------------------------------------
Property Name and
Owner of Record Street Address Ground Leases Amendments
--------------- -------------- ------------- ----------
- ------------------------------------------------------------------------------------------------------------------------------------
Albany Hotel, Inc. Omni Albany Hotel o Restatement of Agreement of
State & Lodge Streets Lease dated December 20,
Ten Eyck Plaza 1979 recorded in Liber
Albany, NY 12207 2216, page 1 (Hotel Lease).
o Restatement of Agreement of
Lease dated December 20,
1979 recorded in Liber 2216
page 135 (Garage Lease).
- ------------------------------------------------------------------------------------------------------------------------------------
AMI Operating Partners, Limited Holiday Inn East Hartford o Agreement of Lease dated Amendatory Agreement dated
Partnership a/k/a 363 Roberts Street March 11, 1970 recorded in September 27, 1971.
AMI Operating Partners, L.P. East Hartford, CT 08106 Vol. 626, page 107. Second Amendatory Agreement
o Agreement dated May 4, 1973 dated July 5, 1972.
recorded in Vol. 511, page Third Amendatory Agreement
238. dated March 15, 1973.
o Agreement dated September Fourth Amendatory Agreement
10, 1974 as amended by dated May 4, 1973.
Letter Agreement dated Fifth Amendatory Agreement
April 18, 1979. dated September 11, 1978.
Amendment to Agreement of
Lease dated May 3, 1985
recorded in Vol. 911, page 96.
Amendment to Lease dated
December 20, 1986 recorded in
Vol. 1019, page 59.
Amendment to Lease and
Indemnification Agreement
dated December 23, 1986
recorded in Vol. 1019, page 69.
- ------------------------------------------------------------------------------------------------------------------------------------
CONTINUED ON NEXT PAGE
- ------------------------------------------------------------------------------------------------------------------------------------
Property Name and
Owner of Record Street Address Ground Leases Amendments
--------------- -------------- ------------- ----------
- ------------------------------------------------------------------------------------------------------------------------------------
Service Cedar Rapids Five Seasons Hotel o Lease of Air Rights dated o Agreement to correct legal
350 1st Ave. NE October 14, 1976 recorded description dated January
Cedar Rapids, IA 53401 in Vol. 1733, page 1 and in 4, 1978 recorded in Book
Book 3494, page 631. 3494, page 655.
Assignment of Lease of Air
Rights dated September 7,
1977 recorded in Vol. 1733,
page 26.
Assignment of Assignment of
Air Rights dated February
13, 1979 recorded in Vol.
1772, page 3.
Proposed Amendment to Air
Rights Lease dated June 28,
1995.
Assignment and Assumption
of Lease of Air Rights
dated _______ recorded in
Liber 2877, page 344.
o Lease dated May 23, 1979 o Amendment to Lease dated
recorded in Book 3494, page January 3, 1984 recorded in
657 (Pedestrian Passage Book 3494, page 677.
Lease). Amendment to Lease dated
May 22, 1985 recorded in
Book 3494, page 676.
Assignment and Assumption
of Lease dated ______
recorded in Liber _____,
page ____.
o Ballroom Rental Agreement o Proposed Amendment to
dated October 26, 1977 Ballroom Rental Agreement
recorded in Vol. 1733, page dated October 26, 1977
32. recorded in Book 3494, page
680.
Memorandum of Understanding
dated June 30, 1995.
o Parking Space Agreement o Assignment and Assumption
dated May 12, 1977 recorded of Leases dated April 23,
in Book 3494, page 682. 1997 recorded in Book 3494,
page 684.
o Skyway Agreement dated
April 11, 1979.
- ------------------------------------------------------------------------------------------------------------------------------------
Servico Colesville, Inc. Town Center Agreement of Lease dated June First Amendment to Agreement
8727 Colesville Road 15, 1962. dated February 23, 1967.
Silver Springs, MD 20910 Second Amendment to Lease
dated February 18, 1998.
- ------------------------------------------------------------------------------------------------------------------------------------
Sheffield Motel Enterprises, Holiday Inn Sheffield Lease dated February 6, 1981 Amendment of Lease dated
Inc. 4900 Hatch Blvd. recorded in Book 391, page 79. January 24, 1995.
Sheffield, AL 35660 Second Amendment of Lease
dated June 16, 1997.
- ------------------------------------------------------------------------------------------------------------------------------------
-2-
- ------------------------------------------------------------------------------------------------------------------------------------
Property Name and
Owner of Record Street Address Ground Leases Amendments
--------------- -------------- ------------- ----------
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Holiday Inn St. Louis North Lease dated January 1, 1994.
4545 N. Lindbergh Blvd.
St. Louis, MO 63044
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott - Lease Agreement dated April
Abilene 18, 1996.
4350 Ridgemont Drive
Abilene, TX 79606
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Courtyard by Marriott - Lease Agreement dated January
Paducah 27, 1997.
3835 Technology Drive
Paducah, KY 42001
- ------------------------------------------------------------------------------------------------------------------------------------
IMPAC Hotels I, LLC Comfort Inn Lease Agreement dated February
2635 N.E. Loop #410 18, 1993.
San Antonio, TX 78217
- ------------------------------------------------------------------------------------------------------------------------------------
-3-
SCHEDULE 4.01(x)
Investments
- -------------------------------------------------------------------------
Location Ownership %
- -------------------------------------------------------------------------
Crowne Plaza Saginaw 51
- -------------------------------------------------------------------------
Crowne Plaza Worcester 51
- -------------------------------------------------------------------------
Holiday Inn Sioux City 51
- -------------------------------------------------------------------------
Holiday Inn Ft. Wayne 51
- -------------------------------------------------------------------------
Holiday Inn McKnight Road (*) 50
- -------------------------------------------------------------------------
Holiday Inn Melbourne 50
- -------------------------------------------------------------------------
Omni West Palm Beach 50
- -------------------------------------------------------------------------
Radisson New Orleans 50
- -------------------------------------------------------------------------
Crowne Plaza Macon 60
- -------------------------------------------------------------------------
Holiday Inn Augusta 51
- -------------------------------------------------------------------------
Holiday Inn Richfield 51
- -------------------------------------------------------------------------
Holiday Inn Columbus 30
- -------------------------------------------------------------------------
- -------------------------------------------------------------------------
(*) we have effective 100% ownership in this hotel
- -------------------------------------------------------------------------
SCHEDULE 4.01(y)
Patents, Trademarks, Tradenames, Servicemarks and Copyrights
See attached.
Page 1 of 1
[LOGO] US PATENT & TRADEMARK OFFICE
TRADEMARK TEXT AND IMAGE DATABASE
---- ---- ----- ------- ------ ------ ---------- -----------
Help Home Marks Boolean Manual Number Index Copy [ILLEGIBLE]
---- ---- ----- ------- ------ ------ ---------- -----------
[GRAPHIC]
(1 of 1)
- --------------------------------------------------------------------------------
------------------
Check Status
------------------
Word Mark LODGIAN
Owner Name (APPLICANT) Impac Hotel Group, L.L.C.
Owner Address Two Live Oak Center 3445 Peachtree Road, Suite 700
Atlanta GEORGIA
30326 LIMITED LIABILITY COMPANY GEORGIA
Owner Name (LAST LISTED OWNER) Impac Hotel Group, L.L.C.
Owner Address Two Live Oak Center 3445 Peachtree Road, Suite 700
Atlanta GEORGIA
30326 LIMITED LIABILITY COMPANY GEORGIA
Attorney of Record EDMUND B (PETER) BURKE
Serial Number 75-455508
Filing Date 03/24/1998
Section 1(B) SECTION 1(B)
indicator
Mark Drawing (1) TYPED DRAWING
Code
Register PRINCIPAL
Published for 02/09/1999
Opposition
Type of Mark SERVICE MARK
---------------------------
International Class 042
Goods and Services HOTELS
---------------------------
- --------------------------------------------------------------------------------
[GRAPHIC]
(1 of 1)
http://[ILLEGIBLE]
Page 01 of 01
U.S. Patent and Trademark Office (PTO)
NOTICE OF ALLOWANCE
(NOTE: If any data on this notice is incorrect, please submit a written request
for correction of the NOA to: Assistant Commissioner for Trademarks, Box ITU,
2900 Crystal Drive, Arlington, VA 22202-3513. Please include the serial number
of your application on ALL correspondence with the PTO. 15 U.S.C. 1063(b)(2))
ISSUE DATE OF NOA: May 4, 1999
EDMUND B (PETER) BURKE
POWELL GOLDSTEIN FRAZER & MURPHY LLP
191 PEACHTREE ST
ATLANTA GA 30303
- --------------------------------------------------------------------------------
** IMPORTANT INFORMATION: 6 MONTH DEADLINE **
To avoid ABANDONMENT of this application, either a "Statement of Use"
(a.k.a. "Allegation of Use") or a "Request for Extension of Time to File a
Statement of Use" (a.k.a. "Extension Request") and the appropriate fee(s) must
be received in the PTO within six months of the issue date of this Notice Of
Allowance (NOA). Failure to do so will result in the ABANDONMENT of this
application.
Please note that both the "Statement of Use" and "Extension Request" have
many legal requirements, including fees. These requirements are explained in the
PTO booklet "Basic Facts about Trademarks", which can be obtained upon request
at (703) 308-9000. In addition, there are printed forms contained in this
booklet (for "Statements of Use" and "Extension Requests") for your use.
- --------------------------------------------------------------------------------
The following information should be reviewed for accuracy:
SERIAL NUMBER: 75/455508
MARK: LODGIAN
OWNER: Impac Hotel Group, L.L.C.
Two Live Oak Center
3445 Peachtree Road, Suite 700
Atlanta, GEORGIA 30326
GOODS/SERVICES BY INTERNATIONAL CLASS
042-HOTELS
ALL OF THE GOODS/SERVICES IN EACH CLASS ARE LISTED
- --------------------------------------------------------------------------------
ADDITIONAL INFORMATION MAY BE PRESENT IN THE PTO RECORDS
SCHEDULE 4.01(z)
Material Contracts
1. Comfort Franchise Agreement between Choice Hotels/Servico Roseville-MN,
10/17/97
2. Franchise Agreement and related documents between ITT Sheraton Corp. and
Servico Properties, Hilton Head, SC, October 31, 1996
3. Franchise Agreement and related documents for Ramada Plaza (Servico
Properties) Houston, TX (1998)
4. Franchise Agreement and related documents for Holiday Inn, Jamestown, NY
dated November 7, 1997
5. Franchise Agreement and related documents for Quality Hotels and
Conference Center, between Choice Hotels and KDS Corporation, Metarie, LA,
dated June 22, 1994
6. Franchise Agreement and related documents for Four Points Hotel, between
ITT Sheraton Corp. and Servico Niagara Falls, Inc., Niagara Falls, NY
7. Franchise Agreement and related documents for Hampton Inn, between Promus
Hotels and Servico Pensacola 7330, Inc., Pensacola, FL, dated August 16,
1995
8. Franchise Agreement and related documents for Holiday Inn University Mall,
Pensacola, FL, between Holiday Inns Franchising, Inc., and Servico
Pensacola 7200, Inc., dated August 14, 1995
9. Franchise Agreement and related documents for Holiday Inn (Greentree),
Pittsburgh, PA, between Holiday Inns Franchising, Inc. and APICO Inns of
Greentree, Inc., dated September 24, 1991
10. Franchise Agreement and related documents for Holiday Inn (Parkway East),
Pittsburgh, PA, between Holiday Inns Franchising, Inc. and APICO Hills,
Inc., dated December 4,1991
11. Franchise Agreement and related documents for Omni Hotel, Albany, NY,
between Omni Hotels Franchising Corp. and Albany Hotel, Inc., dated
October 29, 1992
12. Franchise Agreement and related documents for Crowne Plaza Five Seasons,
Cedar Rapids, IA; Servico Properties
13. Holiday Inns Franchising Agreement between Holiday Inn/Minneapolis Motel,
6/21/94
14. Holiday Inns Franchising Agreement between Holiday Inn/Fayetteville Motel,
12/4/91
15. Holiday Inns Franchising Agreement between Holiday Inn/Apico Hills,
12/4/91
16. Holiday Inns Franchising Agreement between Holiday Inn/Apico Inns of
Greentree, 9/24/91
17. Holiday Inns Franchising Agreement between Crowne Plaza/Servico Houston,
3/27/98
18. Holiday Inn Franchising Agreement between Holiday Inn/Select Hotel/Servico
Windsor, 9/24/97
19. Holiday Inn Franchising Agreement between Holiday Inn/Servico Pensacola
8/14/95
20. Holiday Inns Franchising Agreement between Holiday Inn/Servico Ft. Pierce,
8/14/95
21. Holiday Inns Franchising Agreement between Holiday Inn/Servico Winter
Haven, 11/17/97
22. Holiday Inns Franchising Agreement between Holiday Inn/Brunswick Motel,
9/24/92
23. Holiday Inns Franchising Agreement between Holiday Inn/Servico Rolling
Meadows, 11/20/97
24. Holiday Inns Franchising Agreement between Holiday Inn/Servico Cedar
Rapids, 6/6/97
25. Holiday inns Franchising Agreement between Holiday Inn/Servico Maryland,
11/17/97
26. Holiday Inns Franchising Agreement between Holiday Inn Express/Servico
Pensacola, 8/14/95
27. Holiday Inns Franchising Agreement between Holiday Inn/Dothan Hospitality,
8/14/95
28. Holiday Inns Franchising Agreement between Holiday Inn/Sheffield Motel
Enterprises, 9/24/91
29. Holiday Inns Franchising Agreement between Holiday Inn/Servico Pensacola
7200, 8/14/95
30. Holiday Inns Franchising Agreement between Holiday Inn/Servico Market
Center, 6/14/97
31. Holiday Inns Franchising Agreement between Crowne Plaza/Servico, 5/1/7/95
32. Holiday Inns Franchising Agreement between Holiday Inn/Apico Inns of
Greentree, 4/18/90
33. Holiday Inns Franchising Agreement between Holiday Inn Express/Gaden
Hospitality, 8/14/95
34. Holiday Inns Franchising Agreement between Holiday Inn Express/Servico
Pensacola (6501 Pensacola Blvd.) 8/14/95
35. Holiday Inn Franchising Agreement between Holiday Inn/Brunswick Motel
Enterprises, Inc., dated September 24, 1991
36. Holiday Inn Franchising Agreement Between Holiday Inn/Gadsden Hospitality,
Inc., dated August 14, 1995
-2-
37. Holiday Inn Franchising Agreement between Holiday Inn/Servico Grand
Island, Inc., for Holiday Inn, Grand Island, NY, dated January 16, 1998
38. Sheraton W. Palm Beach Agreement between ITT Sheraton/Servico W. Palm
Beach, 11/20/97
39. Hampton Inn Agreement between Promus Hotels/Servico Pensacola 7330,
8/16/95
40. That certain Franchise Agreement, dated January 15, 1996 between Marriott
International, Inc. and Bentonville Lodging Associates I, Limited
Partnership ("Franchisee"), as amended by that certain Assignment and
Assumption Agreement, dated March 3, 1997 between Franchisee and Impac
Hotels I, L.L.C.
41. That certain Franchise Agreement, dated September 18, 1995 between
Marriott International, Inc. and Buckhead Lodging Associates I, Limited
Partnership ("Franchisee"), as amended by that certain Assignment and
Assumption Agreement, dated March 3, 1997 between Franchisee and Impac
Hotels I, L.L.C.
42. That certain Franchise Agreement dated November 1, 1996, between Marriott
International, Inc. and South Georgia Lodging Associates I, Limited
Partnership ("Franchisee"),as amended by that certain Assignment and
Assumption Agreement, dated March 3, 1997, between Franchisee and Impac
Hotels I, L.L.C.
43. That certain Franchise Agreement, dated September 22, 1995 between
Marriott International, Inc. and Florence Lodging Associates I, Ltd.
("Franchisee"), as amended by that certain Assignment and Assumption
Agreement, dated March 3,1997 between Franchisee and Impac Hotels I,
L.L.C.
44. That certain Franchise Agreement, dated August 4, 1989, between Super 8
Motels, Inc. ("Franchisor") and Hazard Lodging Associates, Inc.
("Franchisee"), as amended by that certain Assignment and Assumption
Agreement, dated March 3, 1997, between Franchisor, Franchisee and Impac
Hotels I, L.L.C.
45. That certain Franchise Agreement, dated October 10, 1995 between Marriott
International, Inc. and Paducah Lodging Associates I, Limited Partnership
("Franchisee"), as amended by that certain Assignment and Assumption
Agreement, dated March 3, 1997 between Franchise and Impac Hotels I,
L.L.C.
46. That certain Franchise Agreement, dated March 27, 1989 between Super 8
Motels, Inc. ("Franchisor") and P-Burg Lodging Associates, Inc.
("Franchisee"), as amended by that certain Assignment and Assumption
Agreement dated March 3, 1997, between Franchisor, Franchisee and Impac
Hotels, I, L.L.C.
47. That certain Franchise Agreement and Addendum dated February 16, 1995,
between Choice Hotels International, Inc. and Greenville Lodging
Associates I, Ltd., as amended by that certain Assumption Agreement, dated
March 3, between Impac Hotels I, L.L.C. and Choice Hotels Franchising,
Inc.
-3-
48. That certain Franchise Agreement, dated January 16,1993, between Choice
Hotels International, Inc. and Southern Texas Lodging Associates, I, Ltd.,
Southern Texas Lodging Associates, Inc. and Robert Cole, Robert Flanders,
Charles Cole and Albert Jevremovic, Individually, as amended by that
certain Assumption Agreement, dated February 4, 1997, between Impac Hotels
I, L.L.C. and Choice Hotels Franchising, Inc.
49. Franchise agreement and related documents for Holiday Inn, between Holiday
Hospitality Franchising, Inc. and AMI Operating Partners, L.P., New Haven,
CT, dated May 28, 1998
50. Holiday Inns Franchising Agreement btwn Holiday Inn/AMI, 5/28/98
51. Holiday Inns Franchising Agreement btwn Holiday Inn/AMI(Fred.), 5/28/98
52. Holiday Inns Franchising Agreement btwn Holiday Inn/AMI (Balt., Cromwell
Bridge Road), 5/28/98
53. Holiday Inns Franchising Agreement btwn Holiday Inn/Servico MD, 11/17/97
54. Holiday Inns Franchising Agreement btwn Holiday Inn/AMI (Balt., Belmont
Ave), 5/28/98
55. Holiday Inns Franchising Agreement btwn Holiday Inn/AMI (New Haven),
5/28/98
56. Holiday Inns Franchising Agreement btwn Holiday Inn/AMI (E. Hartford),
5/28/98
57. Holiday Inns Franchising Agreement btwn Holiday Inn/Servico Market Center,
6/14/97
58. Holiday Inns Franchising Agreement between Holiday Inns/Servico, 1/17/96
59. Holiday Inn Franchising Agreement between Holiday Inn/AMI Operating
Partners, dated May 28, 1998
60. Holiday Inn Franchising Agreement between Holiday Inn/AMI Operating
Partners, L.P., for Holiday Inn (East), dated May 28, 1998
61. Omni Hotels Franchising Agreement btwn Omni Hotels/Service Centre
Associates, 1/7/92
62. Four Points Hotel Niagara Falls Agreement btwn ITT Sheraton/Servico
Niagara Falls 5/20/98
63. Marriott International Inc. Amendment to Franchise Agreement with Impac
Hotels I., Florence, KY, 12/23/98
64. Marriott International Inc. Amendment to Franchise Agreement with Impac
Hotels III, Richmond, VA 12/23/98
-4-