Execution Copy
TERM LOAN AGREEMENT
Dated as of June 12, 2009
among
FELCOR/JPM HOSPITALITY (SPE),
L.L.C.
DJONT/JPM HOSPITALITY LEASING (SPE),
L.L.C.,
each as a Borrower,
JPMORGAN CHASE BANK,
N.A.,
as Administrative Agent
and
The Other Lenders Party Hereto
CITICORP NORTH AMERICA,
INC.,
as Syndication Agent
and
BANK OF AMERICA, N.A.
DEUTSCHE BANK TRUST COMPANY AMERICAS,
and
WACHOVIA BANK, NATIONAL ASSOCIATION,
as Documentation Agents
J.P. MORGAN SECURITIES
INC.,
as Lead Arranger and Sole Bookrunner
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ARTICLE I
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DEFINITIONS AND ACCOUNTING TERMS
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1
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1.02.
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Other Interpretive Provisions
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35
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1.03.
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Accounting Terms
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36
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1.06.
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Joint and Several Obligations
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36
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ARTICLE II
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THE COMMITMENTS AND LOANS
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37
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2.02.
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Loans, Conversions and Continuations of
Loans
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37
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2.03.
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Prepayments of Loans
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39
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2.04.
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Repayment of Loans
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40
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2.07.
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Computation of Interest and Fees
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41
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2.08.
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Evidence of Debt
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42
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2.09.
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Payments Generally; Administrative Agent’s
Clawback
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42
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2.10.
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Sharing of Payments by Lenders
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43
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2.11.
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Extension of Maturity Date
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44
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2.12.
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Collateral Property Releases
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45
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2.13.
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Release on Payment in Full
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47
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ARTICLE III
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CASH MANAGEMENT
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47
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3.01.
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Establishment of Accounts
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47
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3.02.
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Deposits into Lockbox Account
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48
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3.04.
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Eligible Accounts
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49
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3.05.
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Permitted Investments
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50
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3.06.
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Transfers from Accounts, Generally and the
Services Agreements
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50
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3.07.
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Transfer To and Disbursements from the Lockbox
Account
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51
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3.08.
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Lockbox Trigger Event Cure
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52
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3.10.
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Security Interest
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53
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3.11.
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Rights on Default
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53
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3.12.
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Financing Statement; Further
Assurances
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54
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3.13.
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Borrowers Obligations Not Affected
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54
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3.14.
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Deposit Accounts
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54
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ARTICLE IV
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TAXES, YIELD PROTECTION AND
ILLEGALITY
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55
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4.03.
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Inability to Determine Rates
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57
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TABLE OF CONTENTS
(continued)
Page
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4.04.
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Increased Costs; Reserves on Eurodollar Rate
Loans
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58
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4.05.
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Compensation for Losses
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59
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4.06.
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Mitigation Obligations; Replacement of
Lenders
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59
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4.08.
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Defaulting Lenders
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60
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ARTICLE V
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CONDITIONS PRECEDENT TO LOANS
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60
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5.01.
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Conditions to Loans
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60
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ARTICLE VI
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REPRESENTATIONS AND WARRANTIES
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66
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6.01.
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Existence, Qualification and Power
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66
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6.07.
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Full and Accurate Disclosure
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68
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6.09.
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Compliance with Legal Requirements
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68
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6.10.
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Financial Information
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68
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6.12.
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Federal Reserve Regulations; Foreign Asset
Control Regulations
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69
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6.13.
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Utilities and Public Access
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69
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6.15.
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Fee and Leasehold Ownership
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69
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6.16.
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Separate Tax Lots; Assessments
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69
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6.18.
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No Prior Assignment
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70
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6.21.
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Certificate of Occupancy; Licenses
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70
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6.23.
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Physical Condition
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70
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6.27.
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Filing and Recording Taxes
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71
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6.28.
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Franchise Agreements; Property Improvement
Plans
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72
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6.29.
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Management Agreements
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72
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6.30.
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Illegal Activity
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72
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6.31.
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No Change in Facts or Circumstances;
Disclosure
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72
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6.32.
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Investment Company Act
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72
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6.33.
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Principal Place
of Business; State of Organization; Tax Identification
Number
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73
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TABLE OF CONTENTS
(continued)
Page
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6.34.
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Single Purpose Entity
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73
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6.35.
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Business Purposes
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78
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6.37.
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Environmental Representations and
Warranties
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78
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6.38.
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Ground Lease Representations
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79
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6.39.
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Operating Lease Representations
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81
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6.41.
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Service Contracts
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82
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6.42.
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Personal Property Leasing and
Financing
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82
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6.43.
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Reciprocal Agreements
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82
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6.44.
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Survival of Representations
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82
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ARTICLE VII
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AFFIRMATIVE COVENANTS
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83
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7.01.
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Existence; Compliance with Legal
Requirements
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83
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7.02.
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Taxes and Other Charges
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84
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7.04.
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Access to Collateral Properties
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84
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7.05.
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Notice of Default
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85
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7.06.
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Cooperation in Legal Proceedings
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85
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7.07.
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Award and Insurance Benefits
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85
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7.08.
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Further Assurances
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85
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7.09.
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Mortgage and Intangible Taxes
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86
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7.10.
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Financial Reporting
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86
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7.11.
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Business and Operations
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89
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7.12.
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Costs of Enforcement
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89
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7.13.
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Estoppel Statements
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89
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7.15.
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Performance by Borrowers
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91
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7.17.
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Management Agreement
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93
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7.18.
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Environmental Covenants
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96
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7.20.
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Franchise Agreement
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97
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ARTICLE VIII
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NEGATIVE COVENANTS
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103
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8.04.
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Personal Property Leasing and
Financing
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105
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TABLE OF CONTENTS
(continued)
Page
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8.05.
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Operation and Service Agreements
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106
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8.06.
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Restricted Payments
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106
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8.07.
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Debt Service Coverage Ratio
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106
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8.10.
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No Subsidiaries
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107
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8.11.
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Burdensome Agreements
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107
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8.12.
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Change In Business
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108
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8.13.
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Debt Cancellation
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108
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8.15.
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No Joint Assessment
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108
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8.16.
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Name, Identity, Structure, or Principal Place of
Business
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108
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8.18.
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Affiliate Transactions
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109
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8.20.
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REA
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111
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ARTICLE IX
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INSURANCE;
CASUALTY; CONDEMNATION; REQUIRED REPAIRS
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111
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9.05.
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Required Repairs
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122
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ARTICLE X
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EVENTS OF DEFAULT AND REMEDIES
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122
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10.01.
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Events of Default
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122
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10.02.
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Remedies upon Event of Default
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126
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10.03.
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Application of Funds
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127
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ARTICLE XI
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ADMINISTRATIVE AGENT
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127
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11.01.
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Appointment and Authority
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127
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11.02.
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Rights as a Lender
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128
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11.03.
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Exculpatory Provisions
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128
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11.04.
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Reliance by Administrative Agent
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129
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11.05.
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Delegation of Duties
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129
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11.06.
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Resignation of Administrative Agent
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130
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11.07.
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Non-Reliance on Administrative Agent and Other
Lenders
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130
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11.08.
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No Other Duties, Etc
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130
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11.09.
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Administrative Agent May File Proofs of
Claim
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131
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11.10.
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Collateral and Guaranty Matters
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131
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TABLE OF CONTENTS
(continued)
Page
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ARTICLE XII
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MISCELLANEOUS
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132
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12.01.
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Amendments, Etc
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132
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12.02.
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Notices; Effectiveness; Electronic
Communications
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134
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12.03.
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No Waiver; Cumulative Remedies
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136
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12.04.
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Expenses; Indemnity; Damage Waiver
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136
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12.05.
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Payments Set Aside
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138
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12.06.
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Successors and Assigns
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139
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12.07.
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Treatment of Certain Information;
Confidentiality
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142
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12.08.
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Right of Setoff
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143
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12.10.
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Interest Rate Limitation
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144
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12.11.
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Counterparts; Integration;
Effectiveness
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144
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12.12.
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Survival of Representations and
Warranties
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145
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12.14.
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Replacement of Lenders
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145
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12.15.
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Governing Law; Jurisdiction; Etc
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146
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12.16.
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Waiver of Jury Trial
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147
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12.17.
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No Advisory or Fiduciary
Responsibility
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147
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12.18.
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USA PATRIOT Act Notice
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147
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12.20.
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Offsets, Counterclaims and Defenses
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148
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12.21.
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No Joint Venture or Partnership, No Third Party
Beneficiaries
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148
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12.23.
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Waiver of Marshalling of Assets
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149
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12.24.
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Conflict; Construction of Documents;
Reliance
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149
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12.25.
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Brokers and Financial Advisors
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149
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12.26.
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Time of the Essence
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150
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12.27.
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ENTIRE AGREEMENT
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150
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TABLE OF CONTENTS
(continued)
Page
SCHEDULES
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2.01
–
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Commitments and
Applicable Percentages
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3.01(a) –
Property Account Banks; List of Accounts
3.02 –
Initial Monthly Pegged Amount
6.01 –
Existence of Borrower
6.11 –
Condemnation Matters
6.15 –
Collateral Properties
6.21 –
Licenses
6.25 –
Operating Leases
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6.33
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Borrowers Principal
Place of Business, State of Organization; Tax Identification
Number
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6.37 –
Environmental Matters
6.38 -- Myrtle
Beach Golf Course Lease Exceptions
6.42 –
Service Contracts
6.43 –
Personal Property Leases and Financings
7.17 –
Certain Pre-Approved Modifications to Management
Agreements
8.03 –
Existing Liens
9.05 –
Required Repairs
12.02 –
Administrative Agent’s Office, Certain Addresses for
Notices
X – Allocated
Loan Amount
EXHIBITS
Exhibit A –
Committed Loan Notice
Exhibit B –
Form of Note
Exhibit C –
Form of Assignment and Assumption
Exhibit D –
Form of Environmental Indemnity
Exhibit E –
Form of Facility Extension Request
Exhibit F-1
– Form of Annual Responsible Officer’s
Certificate
Exhibit F-2
– Form of Quarterly Responsible Officer’s
Certificate
Exhibit F-3 –
Form of [Extension][Collateral Release] Responsible Officer’s
Certificate
Exhibit G-1
– Form of Carve-Out Guaranty
Exhibit G-2
– Form of Recourse Guaranty
Exhibit H –
Form of Accounts Notice
Exhibit I –
Survey Requirements
Exhibit J –
Operating Statement
Exhibit K –
Form of Lockbox Account Agreement
TERM LOAN AGREEMENT
This TERM LOAN AGREEMENT (“
Agreement ”) is entered into as of June 12, 2009,
among FELCOR/JPM HOSPITALITY (SPE), L.L.C., a Delaware limited
liability company (“ Owner ”) DJONT/JPM
HOSPITALITY LEASING (SPE), L.L.C., a Delaware limited liability
company (“ Operating Lessee ”) (Owner and Operating Lessee to be
referred to collectively as “ Borrowers ” and
each a “ Borrower ”), each lender from time to
time party hereto (collectively, the “ Lenders ”
and individually, a “ Lender ”), and JPMORGAN
CHASE BANK, N.A., as Administrative Agent.
PRELIMINARY
STATEMENTS:
Each Borrower is a special purpose
entity owned directly or indirectly by FelCor Lodging Limited
Partnership (“ FelCor Op ”) to make and administer various
investments in the Collateral Properties (as defined
below).
Borrowers have requested that the
Lenders provide a term loan facility to provide for
Borrowers’ working capital, Capital Expenditures, and other
lawful corporate purposes (including Restricted Payments permitted
hereunder), and the Lenders have indicated their willingness to
lend to Borrowers, on a joint and several basis, on the terms and
subject to the conditions set forth herein.
In consideration of the mutual
covenants and agreements herein contained, the parties hereto
covenant and agree as follows:
ARTICLE I
DEFINITIONS AND ACCOUNTING
TERMS
1.01.
Defined Terms . As used in this Agreement, the following
terms shall have the meanings set forth below:
“ Acceptable
Appraisal ” means a written appraisal (i) prepared
by a qualified professional independent MAI appraiser acceptable to
Administrative Agent, (ii) meeting Administrative Agent’s
customary independent appraisal requirements and otherwise
acceptable to Administrative Agent as to form, assumptions,
substance and appraisal date, (iii) prepared in compliance with
FIRREA, and (iv) prepared in connection with the making of the
Loans hereunder or in connection with the Second
Extension.
“ Account
Collateral
” means: (a) the Accounts,
and all cash, checks, drafts, certificates and instruments, if any,
from time to time deposited or held in the Accounts from time to
time; (b) any and all amounts invested in Permitted Investments;
(c) all interest, dividends, cash, instruments and other property
from time to time received, receivable or otherwise payable in
respect of, or in exchange for, any or all of the foregoing; and
(d) to the extent not covered by clauses (a) - (c) above, all
“proceeds” (as defined under the UCC) of any or all of
the foregoing.
“ Accounts ”
means the Property Account, the Concentration Account and the
Lockbox Account and any Reserve Accounts.
“ Accounts
Receivable
” has the meaning specified
in Article 1 of the Mortgage with respect to each Collateral
Property.
“ Act ” has the
meaning specified in Section 6 .
34 .
“ Administrative
Agent ” means JPMC in its capacity as
administrative agent under any of the Loan Documents, or any
successor administrative agent.
“ Administrative
Agent’s
Office ” means Administrative Agent’s
address and, as appropriate, account as set forth on
Schedule 12 .
02 , or such other address or account as Administrative
Agent may from time to time notify to Borrowers and the
Lenders.
“ Administrative
Questionnaire
” means an Administrative
Questionnaire in a form supplied by Administrative
Agent.
“ Affiliate ”
means, with respect to any Person, another Person that directly, or
indirectly through one or more intermediaries, Controls or is
Controlled by or is under common Control with the Person
specified.
“ Affiliated
Manager ” means any property manager which is an
Affiliate of either Borrower, its Principal or Guarantor, or in
which either Borrower, its Principal or Guarantor has, directly or
indirectly, any legal, beneficial or economic Equity
Interest.
“ Agent
Parties ” has the meaning specified in
Section 12 .
02 ( c ).
“ Aggregate
Commitments
” means the aggregate
Commitments of all Lenders.
“ Agreement ” has
the meaning specified in the introductory paragraph.
“ Allocated
Loan Amount ” means for a Collateral Property as of
any date of determination: (i) from the Closing Date through the
Extension Effective Date for the Second Extension, the amount for
each Collateral Property set forth in Schedule X, and (ii) from and
after the Extension Effective Date of the Second
Extension:
(a) the
ratio of (i) the Appraised Value of such Collateral Property to
(ii) the aggregate Appraised Value of all Collateral Properties,
expressed as a percentage; multiplied by
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(b)
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the principal amount of the
Outstanding Obligations.
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“ ALTA ” means
the American Land Title Association, or any successor
thereto.
“ Annual
Budget ” means an operating budget for each
Collateral Property prepared by the appropriate Manager and
approved by the applicable Borrower, including all planned Capital
Expenditures and FF&E budgeted information for each Collateral
Property, prepared by the applicable Borrower for the applicable
fiscal year or other period.
“ Applicable Margin
” means, for any day during the time periods set forth below,
with respect to any Base Rate Loans or Eurodollar Rate Loans, as
the case may be, the applicable rate per annum set forth below
under the caption “Base Rate Loans” or
“Eurodollar Rate Loans”, as the case may be:
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Applicable Time Period:
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Base Rate Loans
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Eurodollar Rate Loans
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From the Closing Date to and
excluding the Extension
Effective Date of the Second
Extension
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2.50%
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3.50%
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On and after the Extension Effective
Date of the Second Extension
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3.00%
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4.00%
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“ Applicable
Percentage
” means the percentage
(carried out to the ninth decimal place) of the Facility
represented by such Lender’s Commitment as set forth on
Schedule 2.01 .
“ Appraised
Value ” means the “as is” market
value for a Collateral Property set forth in the most recent
Acceptable Appraisal.
“ Approved
Annual Budget ” has the meaning specified in
Section 7 .
10 ( d ).
“ Approved
Fund ” means any Fund that is administered or
managed by (a) a Lender, (b) an Affiliate of a Lender or (c) an
entity or an Affiliate of an entity that administers or manages a
Lender.
“ Arranger ”
means J.P. Morgan Securities Inc., in its capacity as lead arranger
and sole bookrunner.
“ Assignee
Group ” means two or more Eligible Assignees
that are Affiliates of one another or two or more Approved Funds
managed by the same investment advisor.
“ Assignment
and Assumption ” means an assignment and assumption
entered into by a Lender and an Eligible Assignee (with the consent
of any party whose consent is required by Section
12 . 06 ( b )), and accepted by
Administrative Agent, in substantially the form of
Exhibit C or
any other form approved by Administrative Agent.
“ Assignment
of Leases and Rents ” means with respect to each Collateral
Property that certain first priority Assignment of Leases and
Rents, dated as of the date hereof, from the relevant Borrower, as
assignor to Administrative Agent, as assignee, assigning to
Administrative Agent on behalf of Lenders all of such
Borrower’s interest in and to the Leases and Rents of such
Collateral Property as security for the Obligations.
“ Attributable
Indebtedness
” means, on any date, (a) in
respect of any Capitalized Lease of any Person, the capitalized
amount thereof that would appear on a balance sheet of such Person
prepared as of such date in accordance with GAAP, (b) in respect of
any Synthetic Lease
Obligation, the capitalized amount
of the remaining lease or similar payments under the relevant lease
or other applicable agreement or instrument that would appear on a
balance sheet of such Person prepared as of such date in accordance
with GAAP if such lease or other agreement or instrument were
accounted for as a Capitalized Lease and (c) all Synthetic Debt of
such Person.
“ Award ” means
any compensation paid by any Governmental Authority in connection
with a Condemnation in respect of all or any part of any Collateral
Property.
“ Bankruptcy
Code ” means the Bankruptcy Reform Act of 1978,
as heretofore and hereafter amended, and codified as 11 U.S.C.
sections 101 et seq.
“ Base
Management
Fee ” means the base management fee to be paid
under the applicable Management Agreement, which shall not include
any incentive or similar performance based fees pursuant to such
agreement.
“ Base
Rate ” means, for any day (or if such day is
not a Business Day, the immediately preceding Business Day), a rate
per annum equal to the greatest of (a) the Prime Rate in
effect on such day, (b) the Federal Funds Rate in effect on
such day plus ½ of 1% and (c) the LIBO Rate that
would otherwise be applicable to a Eurodollar Rate Loan for a one
month Interest Period on such day plus 1%, provided that, for the
avoidance of doubt, the LIBO Rate for any day shall be based on the
rate appearing on the Page LIBOR 01 of the Reuters screen (or on
any successor or substitute page of such page) at approximately
11:00 a.m. London time on such day. Any change in the Base Rate due
to a change in the Prime Rate, the Federal Funds Rate or the LIBO
Rate shall be effective from and including the effective date of
such change in the Prime Rate, the Federal Funds Rate or the LIBO
Rate, respectively.
“ Base
Rate Loan ” means a Loan that bears interest based
on the Base Rate.
“ Board ” means
the Board of Governors of the Federal Reserve System of the United
States of America.
“ Borrower ” and
“ Borrowers ” have the meanings specified in the
introductory paragraph hereto.
“ Borrower
Materials ” means information and materials made
available by Administrative Agent to Lenders which were provided by
or on behalf of Borrowers.
“ Business
Day ” shall mean any day that is not a
Saturday, Sunday or any other day on which commercial banks in New
York City are authorized or required by law to remain closed;
provided that, when
used in connection with a Eurodollar Rate Loan, the term “
Business Day ” shall also exclude any day on which
banks are not open for dealings in dollar deposits in the London
interbank market.
“ Business
Party ” has the meaning specified in
Section 6 .
34 ( x ).
“ Capital
Expenditures
” means, with respect to any
Person for any period, any expenditure in respect of the purchase
or other acquisition of any fixed or capital asset
(excluding normal replacements and
maintenance which are properly charged to current
operations).
“ Capital Expenditures
Reserve Account ”. has the meaning specified in Section
3.01(c)(iii).
“ Capitalized
Leases ” means all leases that have been or
should be, in accordance with GAAP, recorded as capitalized
leases.
“ cash ” means
coin or currency of the United States of America or immediately
available federal funds, including such funds delivered by wire
transfer.
“ Casualty ” has
the meaning specified in Section 9 .
02 .
“ Casualty
Consultant
” has the meaning specified
in Section 9 .
04 ( e ).
“ Casualty
Retainage ” has the meaning specified in
Section 9 .
04 ( f ).
“ Certification of
Non-Foreign Status ” means an affidavit, signed under
penalty of perjury by an authorized officer of each Borrower,
stating (a) that such Borrower is not a “foreign
corporation,” “foreign partnership,”
“foreign trust,” or “foreign estate,” as
those terms are defined in the Code and the regulations promulgated
thereunder, (b) such Borrower’s U.S. employer identification
number, and (c) the address of such Borrower’s principal
place of business. Such affidavit shall be consistent with the
requirements of the regulations promulgated under Section 1445 of
the Code, and shall otherwise be in form and substance acceptable
to Administrative Agent.
“ Change in Control
” means (a) the acquisition of ownership, directly or
indirectly, beneficially or of record, by any Person or group
(within the meaning of the Securities Exchange Act of 1934 and the
rules of the Securities and Exchange Commission thereunder as in
effect on the date hereof), of Equity Interests representing more
than 49.99% of the then-exercisable aggregate ordinary voting power
represented by the issued and outstanding Equity Interests of
FelCor Trust; (b) occupation of a majority of the seats (other than
vacant seats) on the board of directors of the FelCor Trust by
Persons who were neither (i) nominated by the board of directors of
FelCor Trust nor (ii) appointed by directors so nominated; or (c)
the acquisition of direct or indirect Control of FelCor Trust by
any Person or group.
“ Change
in Law ” means the occurrence, after the date of
this Agreement, of any of the following: (a) the adoption or taking
effect of any law, rule, regulation or treaty, (b) any change in
any law, rule, regulation or treaty or in the administration,
interpretation or application thereof by any Governmental Authority
or (c) the making or issuance of any request, guideline or
directive (whether or not having the force of law) by any
Governmental Authority.
“ Charlotte
Management Agreement ” means the Management Agreement dated as
of July 12, 2002, as amended and assigned, by and between Operating
Lessee, as “Owner,” and DT Management, Inc., as
“Manager,” with respect to the Charlotte
Property.
“ Charlotte
Operating Lease ” means the Operating Lease dated as of
July 12, 2002, as amended and assigned, by and between Owner and
Operating Lessee for the Charlotte Property.
“ Charlotte Property
” means the property located at 6300 Morrison Blvd.,
Charlotte, North Carolina 28211 and commonly known as Doubletree
Charlotte, North Carolina.
“ Closing
Date ” means the first date all the conditions
precedent in Section 5 .
01 are satisfied or
waived in accordance with Section 12 .
01 .
“ Code ” means
the Internal Revenue Code of 1986.
“ Collateral ”
means (a) all of the “ Collateral ,” “
Personal Property ” and “ Property ”
referred to in the Mortgages, (b) all Account Collateral, and (c)
all of the other property that is or is intended under the terms of
the Loan Documents, including the Pledge Agreements, to be subject
to Liens in favor of Administrative Agent for the benefit of the
Secured Parties.
“ Collateral
Document ” means, collectively each Mortgage, the
Operating Lease Subordination Agreements, each Pledge Agreement,
each Assignment of Leases and Rents and each Property Account
Agreement, each Concentration Account Agreement, each Lockbox
Account Agreement and all financing statements, instruments,
documents or filings necessary to establish or maintain Liens in
favor of the Secured Parties.
“ Collateral
Property ” means, each hotel project listed on
Schedule 6 .
15 together with all
“Property” defined in the Mortgages with respect to
such project.
“ Commitment ”
means, as to each Lender, its obligation to make Loans to Borrowers
pursuant to Section 2 .
01 at the Closing Date
in a maximum aggregate principal amount not to exceed the amounts
set forth opposite such Lender’s name on
Schedule 2 .
01 under the caption
“Commitment” or opposite such caption in the Assignment
and Assumption pursuant to which such Lender becomes a party
hereto, as applicable, as such amount is permanently reduced by the
amount of Loans funded by such Lender on the Closing Date. The
aggregate Commitments of the Lenders immediately prior to funding
on the Closing Date is $200,800,000.
“ Committed
Loan Notice ” means a notice of (a) the Loans
hereunder, to be made on the Closing Date, (b) a conversion of
Loans from one Type to the other, or (c) a continuation of
Eurodollar Rate Loans, pursuant to Section
2 . 02 ( a ), which, if in writing,
shall be substantially in the form of Exhibit
A .
“ Concentration
Account ” has the meaning specified in
Section 3 .
01 ( a ).
“ Concentration
Account Agreement
” has the meaning specified in
Section 3 .
01 ( a ).
“ Concentration Account
Bank ” means each bank set forth on
Schedule 3 .
01 ( a ), from time to time, maintaining a
Concentration Account, provided that such bank remains an Eligible
Institution, and any successor Eligible Institution or other
Eligible Institution selected by the applicable Borrower, subject
to Administrative Agent’s approval.
“ Condemnation ”
means a temporary or permanent taking by any Governmental Authority
as the result or in lieu or in anticipation of the exercise of the
right of condemnation or eminent domain, of all or any part of any
Collateral Property, or any interest therein or right accruing
thereto, including any right of access thereto or any change of
grade affecting such Collateral Property or any part
thereof.
“ Condemnation
Proceeds ” has the meaning specified in
Section 9 .
04(b) .
“ Constituent
Member ” has the meaning specified in
Section 12.09 .
“ Consumer Price Index
” means the Consumer Price Index for all Urban Consumers,
U.S. City Average, published by the United States Bureau of Labor
Statistics.
“ Contractual
Obligation
” means, as to any Person,
any provision of any security issued by such Person or of any
agreement, instrument or other undertaking to which such Person is
a party or by which it or any of its property is bound.
“ Control ” means
the possession, directly or indirectly, of the power to direct or
cause the direction of the management or policies of a Person,
whether through the ability to exercise voting power, by contract
or otherwise. “ Controlling ” and “
Controlled ” have meanings correlative
thereto.
“ Debt
Service ” means, for any period, the sum of (a)
all interest, premium payments, debt discount, fees, charges and
related expenses in connection with borrowed money (including
capitalized interest) or in connection with the deferred purchase
price of assets, in each case to the extent treated as interest in
accordance with GAAP, in each case, of or by Borrowers, for such
period plus (b) any
and all scheduled repayments of principal during such period in
respect of Indebtedness that becomes due and payable or that are to
become (or deemed to become) due and payable during such period
pursuant to any agreement or instrument to which a Borrower is a
party relating to (i) the borrowing of money or the obtaining of
credit, including the issuance of notes or bonds, and (ii) the
deferred purchase price of assets (other than trade payables
incurred in the ordinary course of business). Demand obligations
shall be deemed to be due and payable during any fiscal period
during which such obligations are outstanding.
“ Debt
Service
Coverage
Ratio ” means, as of the last day of any fiscal
quarter, the ratio in which:
(a) the
numerator is EBITDA for the four (4) fiscal quarters ending on such
last day less the sum of (i) Capital Expenditure reserves equal to
the greater of (x) actual Capital Expenditures for such period and
(y) four percent (4%) of Gross Income from Operations for such
period and (ii) to the extent not deducted in the calculation of
EBITDA, any bad debt expenses; and
(b) the
denominator is the aggregate amount of principal and interest
payments on the Loans calculated for such period using the
Outstanding Amount at the time of such calculation, assuming (x) a
thirty (30) year amortization schedule, and (y) an interest rate
per annum equal to (i) in every context except the Second
Extension, the greater of (A) seven percent (7.0%) and (B) the
actual interest rate on the Loans at such
time (if Loans of more than one Type
and/or of multiple Eurodollar Rates are then in effect, the
effective blended rate on the aggregate of such Loans) at the time
of such calculation (the “ Current Interest Rate
”), and (ii) solely in the context of the Second Extension,
the greatest of (A) seven percent (7.0%), (B) the rate for
seven (7) year Treasury securities plus four percent (4%), and (C)
the Current Interest Rate.
For avoidance of doubt, the
“pro forma” calculation of Debt Service Coverage Ratio
as of December 31, 2008, shall compare principal and interest
payments on the Loans calculated as of such date (as if the
Outstanding Amount as of the Closing Date were then already
advanced) to the actual EBITDA of the Collateral Properties for the
four (4) fiscal quarters ending on December 31, 2008.
“ Debtor
Relief Laws ” means the Bankruptcy Code, and all other
liquidation, conservatorship, bankruptcy, assignment for the
benefit of creditors, moratorium, rearrangement, receivership,
insolvency, reorganization, or similar debtor relief Laws of the
United States or other applicable jurisdictions from time to time
in effect and affecting the rights of creditors
generally.
“ Default ” means
any event or condition that constitutes an Event of Default or
that, with the giving of any notice, the passage of time, or both,
would be an Event of Default.
“ Default
Rate ” means an interest rate equal to (a) the
Base Rate plus the Applicable Margin, applicable to Base Rate Loans
under the Facility plus 2% per annum; and (b) for Eurodollar Rate
Loans, an interest rate equal to the interest rate (including any
Applicable Margin) otherwise applicable to such Loan plus 2% per
annum.
“ Defaulting Lender
” means any Lender, as determined by Administrative Agent,
(a) that has failed to pay over to Administrative Agent or any
other Lender any amount required to be paid by it hereunder within
three Business Days of the date when due, unless the subject of a
good faith dispute, (b) that has (or has a parent company that has)
been adjudicated as, or determined by any Governmental Authority
having regulatory authority over such Person or its assets to be,
insolvent, or (c) that has become the subject of a bankruptcy or
insolvency proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business
or custodian, appointed for it, or has taken any action in
furtherance of, or indicating its consent to, approval of or
acquiescence in any such proceeding or appointment or has a parent
company that has become the subject of a bankruptcy or insolvency
proceeding, or has had a receiver, conservator, trustee,
administrator, assignee for the benefit of creditors or similar
Person charged with reorganization or liquidation of its business
or custodian appointed for it, or has taken any action in
furtherance of, or indicating its consentto, approval of or
acquiescence in any such proceeding or appointment; provided
, however, in each case, at any time such failure is remedied or
notice retracted, such Lender shall no longer be a Defaulting
Lender; provided further that any Lender that would otherwise be a
“Defaulting Lender” under clause (b) or (c) hereof,
which is still an “Eligible Institution” hereunder, and
which responds within a commercially reasonable period of time to
any requests for consent hereunder, shall not be deemed to be a
“Defaulting Lender” hereunder.
“ Disposition ”
or “ Dispose ” means the sale, transfer,
license, lease or other disposition (including any sale and
leaseback transaction) of any property by any Person (or the
granting of any option or other right to do any of the foregoing),
including any sale, assignment, transfer or other disposal, with or
without recourse, of any notes or accounts receivable or any rights
and claims associated therewith.
“ Dollar ” and
“$” mean lawful money of the United States.
“ EBITDA ” means,
at any date of determination, an amount equal to (a) the aggregate
Net Operating Income for the most recently completed four (4)
fiscal quarters of Borrowers plus (b) the following to the extent
deducted in calculating such Net Operating Income: (i) Debt
Service; (ii) the provision for Federal, state, local and foreign
income taxes payable; (iii) depreciation and amortization expense;
and (iv) other non-recurring expenses reducing such Net Operating
Income which do not represent a cash item in such period or any
future period (in each case of or by Borrowers for such period),
including amortization of intangibles for such period, all
extraordinary nonrecurring items of expense, non-cash impairment
charges, non cash write-offs of deferred financing costs, and
costs, premiums and penalties arising by contract in connection
with the prepayment of indebtedness, minus
(c) the following to the extent
included in calculating such Net Operating Income: (i) Federal,
state, local and foreign income tax credits, and (ii) all non-cash
items increasing Net Operating Income (in each case of or by
Borrowers for such period), including any non-recurring gains;
provided that the calculation of EBITDA for the fiscal quarters
ending on or prior to June 30, 2009 shall be based on actual EBITDA
of the Collateral Properties during such fiscal quarters, and the
calculation of EBITDA from the fiscal quarters ending after June
30, 2009 shall be based on EBITDA of the Borrowers.
“ Eligible
Account ” shall mean a separate and identifiable
account from all other funds held by the holding institution that
is either (a) an account or accounts maintained with a federal or
State-chartered depository institution or trust company which
complies with the definition of Eligible Institution or (b) a
segregated trust account or accounts maintained with a federal or
State chartered depository institution or trust company acting in
its fiduciary capacity which, in the case of a State chartered
depository institution or trust company, is subject to regulations
substantially similar to 12 C.F.R.§9.10(b), having in either
case a combined capital and surplus of at least $50,000,000 and
subject to supervision or examination by federal and State
authority. An Eligible Account will not be evidenced by a
certificate of deposit, passbook or other instrument.
“ Eligible
Assignee ” means any Person that meets the
requirements to be an assignee under Section
12 . 06 ( b )( i ), (
iii ), ( v ) and ( vi ) (subject to such
consents, if any, as may be required under Section
12 . 06 ( b )( iii
)).
“ Eligible
Institution
” shall mean a depository
institution or trust company, insured by the Federal Deposit
Insurance Corporation, (a) the short term unsecured debt
obligations or commercial paper of which are rated at least A-1 by
S&P, P-1 by Moody’s and F-1 by Fitch in the case of
accounts in which funds are held for thirty (30) days or less, or
(b) the long term unsecured debt obligations of which are rated at
least A- by Fitch and S&P and A3 by Moody’s in the case
of accounts in which funds are held for more than thirty (30)
days.
“ Emergency
Repairs ” has the meaning specified in
Section 9 .
04 ( b ).
“ Environmental
Indemnity ” means that certain indemnity executed
by Guarantor and each Borrower in favor of the Secured Parties in
form attached as Exhibit D .
“ Environmental
Laws ” means any and all Federal, state, local,
and foreign statutes, laws, regulations, ordinances, rules,
judgments, orders, decrees, permits, concessions, grants,
franchises, licenses, agreements or governmental restrictions
relating to pollution and the protection of the environment or the
release of any materials into the environment, including those
related to hazardous substances or wastes, air emissions and
discharges to waste or public systems.
“ Environmental
Liability ” means any liability, contingent or
otherwise (including any liability for damages, costs of
environmental remediation, fines, penalties or indemnities), of a
Borrower directly or indirectly resulting from or based upon (a)
violation of any Environmental Law, (b) the generation, use,
handling, transportation, storage, treatment or disposal of any
Hazardous Materials, (c) exposure to any Hazardous Materials, (d)
the release or threatened release of any Hazardous Materials into
the environment or (e) any contract, agreement or other consensual
arrangement pursuant to which liability is assumed or imposed with
respect to any of the foregoing.
“ Environmental
Lien ” has the meaning specified in
Section 7 .
18(a) .
“ Environmental
Report ” has the meaning specified in
Section 5 .
01 ( a )( xiv ).
“ Equity
Interests ” means, with respect to any Person, all
of the shares of capital stock of (or other ownership or profit
interests in) such Person, all of the warrants, options or other
rights for the purchase or acquisition from such Person of shares
of capital stock of (or other ownership or profit interests in)
such Person, all of the 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 acquisition from such Person of such shares (or such
other interests), and all of the other ownership or profit
interests in such Person (including partnership, member or trust
interests therein), whether voting or nonvoting, and whether or not
such shares, warrants, options, rights or other interests are
outstanding on any date of determination.
“ Equity Owner ”
has the meaning specified in Section 6 .
34 ( x ).
“ ERISA ” means
the Employee Retirement Income Security Act of 1974.
“ ERISA
Affiliate ” means any trade or business (whether or
not incorporated) under common control with a Borrower within the
meaning of Section 414(b) or (c) of the Code (and Sections 414(m)
and (o) of the Code for purposes of provisions relating to Section
412 of the Code).
“ Eurodollar
Rate ” means, with respect to any Eurodollar
Rate Loan for any Interest Period, an interest rate per annum
(rounded upwards, if necessary, to the next 1/100 of
1%) equal to the greater of
(a) (i) the LIBO Rate for such Interest Period multiplied by
(ii) the Statutory Reserve Rate, and (b) 2.00%.
“ Eurodollar
Rate Loan ” means a Loan that bears interest at a
rate based on the Eurodollar Rate.
“ Event
of Default ” has the meaning specified in
Section 10 .
01 .
“ Excluded
Taxes ” means, with respect to Administrative
Agent, any Lender or any other recipient of any payment to be made
by or on account of any obligation of Borrowers hereunder, (a)
taxes imposed on or measured by its overall net income (however
denominated), and franchise taxes imposed on it (in lieu of net
income taxes), by the jurisdiction (or any political subdivision
thereof) under the laws of which such recipient is organized or in
which its principal office is located or, in the case of any
Lender, in which its applicable Lending Office is located, (b) any
branch profits taxes imposed by the United States or any similar
tax imposed by any other jurisdiction in which such Borrower is
located and (c) in the case of a Foreign Lender (other than an
assignee pursuant to a request by Borrowers under
Section 12.14 ), any withholding tax that is imposed on
amounts payable to such Foreign Lender at the time such Foreign
Lender becomes a party hereto (or designates a new Lending Office)
or is attributable to such Foreign Lender’s failure or
inability (other than as a result of a Change in Law) to comply
with Section 4 .
0 1
( d ), except to the extent
that such Foreign Lender (or its assignor, if any) was entitled, at
the time of designation of a new Lending Office (or assignment), to
receive additional amounts from such Borrower with respect to such
withholding tax pursuant to Section 4 .
01 ( a ).
“ Extension Effective
Date ” has the meaning specified in Section
2.11 .
“ Facility ”
means at any time, the aggregate amount of Commitments at such time
and the aggregate principal amount of the Loans of all Lenders
outstanding at such time.
“ Facility
Extension
Request ” means a request for extension of the
Maturity Date in the form of Exhibit E .
“ Federal Funds Rate
” means, for any day, the weighted average (rounded upwards,
if necessary, to the next 1/100 of 1%) of the rates on overnight
Federal funds transactions with members of the Federal Reserve
System arranged by Federal funds brokers, as published on the next
succeeding 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 (rounded upwards, if necessary,
to the next 1/100 of 1%) of the quotations for such day for such
transactions received by Administrative Agent from three Federal
funds brokers of recognized standing selected by it.
“ Fee
Letter ” means the letter agreement; dated
February 25, 2009, among Borrowers, Administrative Agent and the
Arranger.
“ FelCor
Trust ” means FelCor Lodging Trust
Incorporated.
“ FelCor
Op ” has the meaning assigned in the
preliminary statements.
“ FF&E ”
means all furniture, furnishings, fixtures and equipment required
for the operation of the Collateral Properties, including, without
limitation, lobby furniture, carpeting, draperies, paintings,
bedspreads, television sets, office furniture and equipment such as
safes, cash registers, and accounting, duplicating and
communication equipment, telephone systems, back and front of the
house computerized systems, guest room furniture, specialized hotel
equipment such as equipment required for the operation of kitchens,
laundries, the front desk, dry cleaning facilities, bar and
cocktail lounges, restaurants, recreational facilities as they may
exist from time to time, and decorative lighting, material handling
equipment and cleaning and engineering equipment and all other
fixtures, equipment, apparatus and personal property needed for
such purposes; but excluding, (a) Collateral Property building
equipment and systems (including, but not limited to, the heating,
ventilating and air conditioning system, elevators, electrical
distribution system, life safety systems and plumbing), (b) other
fixtures attached to and forming part of the Improvements
(including, but not limited to, lighting fixtures and bars)
installed during construction of the Collateral Properties (but
replacements thereof shall be included) and (c) Operating Equipment
and Supplies.
“ FF&E
Expenditures
” means amounts expended for
the purchase, replacement and/or the installation of FF&E at a
Collateral Property or any Capital Expenditures at a Collateral
Property.
“ FIRREA ” means
the Financial Institutions Recovery, Reform and Enforcement Act of
1989, as amended from time to time.
“ Fiscal
Year ” means each twelve (12) month period
commencing on January 1 and ending on December 31, during the term
of the Loan.
“ First Extension
” means the first extension of the Stated Maturity Date
pursuant to Section 2 .
11 .
“ Fitch ” means
Fitch, Inc.
“ Flood
Insurance
Acts ” has the meaning specified in
Section 9 .
01 ( a )( vii ).
“ Flood
Insurance
Policies ” has the meaning specified in
Section 9 .
01 ( a )( vii ).
“ Foreign
Lender ” means any Lender that is organized under
the laws of a jurisdiction other than that in which Borrowers are
resident for tax purposes.. For purposes of this definition, the
United States, each state thereof and the District of Columbia
shall be deemed to constitute a single jurisdiction.
“ Franchise
Agreements
” means the, the Mandalay
Beach Franchise Agreement and the Nashville Franchise Agreement,
and “ Franchise Agreement ” means any one of the Franchise
Agreements.
“ Franchised Properties
” means collectively, (i) the Mandalay Beach Property, and
(ii) the Nashville Property.
“ Franchisor ”
means, for each Franchise Agreement, the franchisor identified in
the definition of each Franchise Agreement, or such successor
Franchisor which is identified in any replacement Franchise
Agreement.
“ Fund ” means
any Person (other than a natural person) that is (or will be)
engaged in making, purchasing, holding or otherwise investing in
commercial loans and similar extensions of credit in the ordinary
course of its activities.
“ GAAP ” means
generally accepted accounting principles in the United States set
forth in the opinions and pronouncements of the Accounting
Principles Board and the American Institute of Certified Public
Accountants and statements and pronouncements of the Financial
Accounting Standards Board or such other principles as may be
approved by a significant segment of the accounting profession in
the United States, that are applicable to the circumstances as of
the date of determination, consistently applied.
“ Governmental
Authority ” means the government of the United
States or any other nation, or of any political subdivision
thereof, whether state or local, and any agency, authority,
instrumentality, regulatory body, court, central bank or other
entity exercising executive, legislative, judicial, taxing,
regulatory or administrative powers or functions of or pertaining
to government (including any supra-national bodies such as the
European Union or the European Central Bank).
“ Gross
Income from Operations ” means, for any period, all income, room
revenues, food and beverage revenue, telephone revenue, computed in
accordance with GAAP derived from the ownership and operation of
the Collateral Properties from whatever source, including, but not
limited to, the Rents, utility charges, service fees or charges,
license fees, parking fees, rent concessions or credits, and other
required pass-throughs, but excluding sales, use and occupancy or
other taxes on receipts required to be accounted for by Borrowers
to any Governmental Authority, interest on credit accounts, refunds
and uncollectible accounts, sales of furniture, fixtures and
equipment, Insurance Proceeds (other than business interruption or
other loss of income insurance), Awards, unforfeited security
deposits, utility and other similar deposits, escalations,
forfeited security deposits. Gross income shall not be diminished
as a result of the Mortgages or the creation of any intervening
estate or interest in a Collateral Property or any part
thereof.
“ Ground
Lease Properties ” means the Collateral Properties so
identified on Schedule 6 . 15 , and “
Ground Lease Property ” means any of them.
“ Ground
Leases ” means the Myrtle Beach Golf Course
Lease, the Pittsburgh Ground Lease, the Philadelphia Affiliate
Ground Lease and the Houston Ground Lease, and “
Ground Lease ” means any one of the Ground
Leases.
“ Ground
Lessee ” means Owner, in its capacity as Ground
Lessee.
“ Ground
Lessors ” means the Myrtle Beach Golf Course
Lessor, the Pittsburgh Ground Lessor, the Philadelphia Affiliate
Ground Lessor and the Houston Ground Lessor, and “ Ground
Lessor ” means any one of the Ground Lessors.
“ Guarantee ”
means, as to any Person, (a) any obligation, contingent or
otherwise, of such Person guaranteeing or having the economic
effect of guaranteeing any Indebtedness or other obligation payable
or performable by another Person (the “ primary
obligor ”) in any manner, whether directly or
indirectly, and including any obligation of such Person, direct or
indirect, (i) to purchase or pay (or advance or supply funds for
the purchase or payment of) such Indebtedness or other obligation,
(ii) to purchase or lease property, securities or services for the
purpose of assuring the obligee in respect of such Indebtedness or
other obligation of the payment or performance of such Indebtedness
or other obligation, (iii) to maintain working capital, equity
capital or any other financial statement condition or liquidity or
level of income or cash flow of the primary obligor so as to enable
the primary obligor to pay such Indebtedness or other obligation,
or (iv) entered into for the purpose of assuring in any other
manner the obligee in respect of such Indebtedness or other
obligation of the payment or performance thereof or to protect such
obligee against loss in respect thereof (in whole or in part), or
(b) any Lien on any assets of such Person securing any Indebtedness
or other obligation of any other Person, whether or not such
Indebtedness or other obligation is assumed by such Person (or any
right, contingent or otherwise, of any holder of such Indebtedness
to obtain any such Lien). The amount of any Guarantee shall be
deemed to be an amount equal to the stated or determinable amount
of the related primary obligation, or portion thereof, in respect
of which such Guarantee is made or, if not stated or determinable,
the maximum reasonably anticipated liability in respect thereof as
determined by the guaranteeing Person in good faith. The term
“ Guarantee ” as a verb has a corresponding
meaning.
“ Guarantor ”
means FelCor Trust and each other Person that shall be required to
execute and delivery a Guaranty pursuant to this
Agreement.
“ Guaranty ”
means, collectively, each carve out guaranty and recourse guaranty
made by Guarantor in favor of Administrative Agent and Lenders,
substantially in the form of each of Exhibit
G-1 and G-2
, and any other Guarantee executed
by any other person from time to time in favor of Administrative
Agent and Lenders.
“ Hazardous
Materials ” shall mean petroleum and petroleum
products and compounds containing them, including gasoline, diesel
fuel and oil; explosives; flammable materials; radioactive
materials; polychlorinated biphenyls and compounds containing them;
toxic mold; lead and lead-based paint; asbestos or
asbestos-containing materials in any form that is or could become
friable; underground or above-ground storage tanks, whether empty
or containing any substance; any substance the presence of which on
the Collateral Property is prohibited by any federal, state or
local authority; any substance that requires special handling; and
any other material or substance now or in the future defined as a
“ hazardous substance,” “ hazardous
material,” “ hazardous waste,” “
toxic substance,” “ toxic
pollutant,” “ contaminant,” “
pollutant” or other words of similar import within the
meaning of any Environmental Law.
“ Hilton Managed
Properties ” means collectively, (i) the Charlotte
Property, (ii) the Mandalay Beach Property, (iii) the Nashville
Property, and (iv) the Myrtle Beach Property, but excluding the
Myrtle Beach Golf Course for periods during the effectiveness of
the Myrtle Beach Golf Course Management Agreement.
“ Houston Ground Lease
” means the Ground Lease dated as of July 5, 1962, as amended
and assigned, between Houston Ground Lessor and Owner.
“ Houston Ground Lessor
” means, collectively, J. Gordon Zuber, the M. M. Feld, Jr.
Trust, the Feld Family Trust, Joseph B. Zuber, Bernice Feld, Rhoda
Dreyfus, Noonie Z. Schmidt, Bert L. Zuber, Harry A. Zuber, Maurice
Robinowitz, JP Morgan Chase Bank, N.A., Trustee for Charles Lerner
TUW and Louis B. Marks, and Bonnie Zuber Bearman, and their
respective successors and assigns, and any successor
thereto.
“ Houston
Management Agreement ” means the Management Agreement dated as
of June 30, 2001, as amended and assigned, by and between Operating
Lessee, as “Owner,” and IHG, as “Manager,”
with respect to the Houston Property.
“ Houston
Operating
Lease ” means the Operating Lease dated as of
July 27, 1998, as amended and assigned, by and between Owner and
Operating Lessee for the Houston Property.
“ Houston Property
” means the property located at 6800 South Main Street,
Houston, TX 77030 and commonly known as Holiday Inn Hotel and
Suites Houston, Texas.
“ IHG ” shall
mean Intercontinental Hotels Group Resources, Inc., successor to
Bristol Management L.P.
“ IHG
Managed
Properties
” means collectively, (i) the
Santa Monica Property, (ii) the Philadelphia Property, (iii) the
Santa Barbara Property, (iv) the Pittsburgh Property and (v) the
Houston Property.
“ Improvements ”
shall have the meaning specified in the related Mortgage with
respect to each Collateral Property.
“ Incentive
Management
Fee ” means any incentive or similar
performance based fees payable to any Manager pursuant to a
Management Agreement.
“ Indebtedness ”
means, as to any Person at a particular time, without duplication,
all of the following, whether or not included as indebtedness or
liabilities in accordance with GAAP:
(a) all
obligations of such Person for borrowed money and all obligations
of such Person evidenced by bonds, debentures, notes, loan
agreements or other similar instruments;
(b) the
maximum amount of all direct or contingent obligations of such
Person arising under letters of credit (including standby and
commercial), bankers’ acceptances, bank guaranties, surety
bonds and similar instruments;
(c) net
obligations of such Person under any Swap Contract;
(d) all
obligations of such Person to pay the deferred purchase price of
property or services (other than trade accounts payable in the
ordinary course of business and not past due for more than sixty
(60) days after the date on which such trade account was
created);
(e) indebtedness
(excluding prepaid interest thereon) secured by a Lien on property
owned or being purchased by such Person (including indebtedness
arising under conditional sales or other title retention
agreements), whether or not such indebtedness shall have been
assumed by such Person or is limited in recourse;
(f) all
Attributable Indebtedness in respect of Capitalized Leases and
Synthetic Lease Obligations of such Person and all Synthetic Debt
of such Person;
(g) all
obligations of such Person to purchase, redeem, retire, defease or
otherwise make any payment in respect of any Equity Interest in
such Person or any other Person or any warrant, right or option to
acquire such Equity Interest, valued, in the case of a redeemable
preferred interest, at the greater of its voluntary or involuntary
liquidation preference plus accrued and unpaid dividends;
and
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(h)
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all Guarantees of such Person in
respect of any of the foregoing.
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For all purposes hereof, the
Indebtedness of any Person shall include the Indebtedness of any
partnership or joint venture (other than a joint venture that is
itself a corporation or limited liability company) in which such
Person is a general partner or a joint venturer, unless such
Indebtedness is expressly made non-recourse to such Person. The
amount of any net obligation under any Swap Contract on any date
shall be deemed to be the Swap Termination Value thereof as of such
date.
“ Indemnified
Taxes ” means Taxes other than Excluded
Taxes.
“ Indemnitees ”
has the meaning specified in Section 12 .
04 ( b ).
“ Independent
Director ” has the meaning specified in
Section 6 .
34 ( x ).
“ Information ”
has the meaning specified in Section 12 .
07 .
“ Insolvency
Opinion ” has the meaning specified in
Section 5 .
01 ( a )( vii ).
“ Insurance Premium
Account ” has the meaning specified in Section
3.01(c)(ii)
“ Insurance
Premiums ” has the meaning specified in
Section 9 .
01 ( b ).
“ Insurance
Proceeds ” has the meaning specified in
Section 9 .
04 ( b ).
“ Interest
Payment
Date ” means the first (1st) day of each month,
or if such day is not a Business Day, the immediately succeeding
Business Day, and the Maturity Date.
“
Interest Period ” means with respect to any Eurodollar
Rate Loan, the period commencing on the date of such Loan and
ending on the numerically corresponding day in the calendar month
that is one, two, three or six months thereafter, as Borrowers
may elect; provided , that (i) if any Interest Period would
end on a day other than a Business Day, such Interest Period shall
be extended to the next succeeding Business Day unless, in the case
of a Eurodollar Rate Loan only, such next succeeding Business Day
would fall in the next calendar month, in which case such Interest
Period shall end on the next preceding Business Day, (ii) any
Interest Period pertaining to a Eurodollar Rate Loan that commences
on the last Business Day of a calendar month (or on a day for which
there is no numerically corresponding day in the last calendar
month of such Interest Period) shall end on the last Business Day
of the last calendar month of such Interest Period and (iii) no
Interest Period shall extend beyond the Maturity Date. For purposes
hereof, the date of a Loan initially shall be the date on which
such Loan is made and thereafter shall be the effective date of the
most recent conversion or continuation of such Loan.
“ Investment ”
means, as to any Person, any direct or indirect acquisition or
investment by such Person, whether by means of (a) the purchase or
other acquisition of Equity Interests of another Person, (b) a
loan, advance or capital contribution to, Guarantee or assumption
of debt of, or purchase or other acquisition of any other debt or
interest in, another Person, or (c) the purchase or other
acquisition (in one transaction or a series of transactions) of
assets of another Person that constitute a business unit or all or
a substantial part of the business of, such Person.
“ JPMC ” means
JPMorgan Chase Bank, N.A. and its successors.
“ Laws ” means,
collectively, all international, foreign, Federal, state and local
statutes, treaties, rules, guidelines, regulations, ordinances,
codes and administrative or judicial precedents or authorities,
including the interpretation or administration thereof by any
Governmental Authority charged with the enforcement, interpretation
or administration thereof, and all applicable administrative
orders, directed duties, requests, licenses, authorizations and
permits of, and agreements with, any Governmental Authority, in
each case whether or not having the force of law.
“ Leases ” has
the meaning specified in Article I of the Mortgage with respect to
each Collateral Property, but excluding the Operating Lease and
Ground Leases with respect to such Collateral Property.
“ Legal
Requirements
” means, with respect to each
Collateral Property, Laws affecting any Borrower or any Manager
(and for which any such party is liable under a Ground Lease) with
respect to any Collateral Property or any part thereof, or the
ownership, zoning, construction, use, alteration, occupancy or
operation thereof, or any part thereof, whether now or hereafter
enacted and in force, and all material permits, licenses and
authorizations and regulations relating thereto, and all material
covenants, REA’s, agreements, restrictions and encumbrances
contained in any instruments, either of record or known to any
Borrower, at any time in force affecting such Collateral Property
or any part thereof, including, without limitation, any which may
(a) require repairs, modifications or alterations in or to such
Collateral Property or any part thereof, or (b) in any way limit
the use and enjoyment thereof.
“ Lender ” has
the meaning specified in the introductory paragraph.
“ Lending
Office ” means, as to any Lender, the office or
offices of such Lender described as such in such Lender’s
Administrative Questionnaire, or such other office or offices as a
Lender may from time to time notify Borrowers and Administrative
Agent.
“ LIBO Rate ”
means, with respect to any Eurodollar Rate Loan for any Interest
Period, the rate appearing on Page LIBOR 01 of the Reuters screen
(or on any successor or substitute page of such page) providing
rate quotations comparable to those currently provided on such page
of such page, as determined by Administrative Agent from time to
time for purposes of providing quotations of interest rates
applicable to dollar deposits in the London interbank market) at
approximately 11:00 a.m., London time, two (2) Business Days prior
to the commencement of such Interest Period, as the rate for dollar
deposits with a maturity comparable to such Interest Period. In the
event that such rate is not available at such time for any reason,
then the “ LIBO Rate ” with respect to such
Eurodollar Rate Loan for such Interest Period shall be the rate at
which dollar deposits of $5,000,000 and for a maturity comparable
to such Interest Period are offered by the principal London office
of Administrative Agent in immediately available funds in the
London interbank market at approximately 11:00 a.m., London
time, two (2) Business Days prior to the commencement of such
Interest Period.
“ Licenses ” has
the meaning specified in Section 6 .
21 .
“ Lien ” means
any mortgage, pledge, hypothecation, assignment, deposit
arrangement, lien (statutory or other), encumbrance, charge, deed
of trust or other security interest, or preferential arrangement in
the nature of a security interest of any kind or nature whatsoever
(including any conditional sale or other title retention agreement,
any easement, right of way or other encumbrance on title to real
property, and any financing lease having substantially the same
economic effect as any of the foregoing).
“ LLC
Agreement ” has the meaning specified in
Section 6 .
34 .
“ Loan ” means an
extension of credit by a Lender to Borrowers under Article
II .
“ Loan
Documents ” means, collectively, this Agreement,
the Notes, each Guaranty, the Collateral Documents, the
Environmental Indemnity and all other documents executed and/or
delivered in connection with the Facility.
“ Loan
Parties ” means, collectively, each Borrower and
the Guarantor(s), and “ Loan Party ” means any one of the Loan
Parties.
“ Loan
to Value Ratio ” means, as of any date of determination
the ratio of (a) the sum of the Outstanding Amount under this
Facility to (b) the aggregate Appraised Value of all Collateral
Properties.
“ Lockbox
Account ” has the meaning specified in
Section 3 .
01 ( b ).
“ Lockbox Account
Agreement ” has the meaning specified in
Section 3 .
01 ( b ).
“ Lockbox
Bank ” means JPMC.
“ Lockbox Period ” means
either a Lockbox Period(SPE) or a Lockbox Period(Up), as
applicable; provided that if a Lockbox Period(SPE) and a Lockbox
Period(Up) shall coexist, the Lockbox Period shall continue until a
Lockbox Trigger Event Cure has occurred for both Lockbox Trigger
Events.
“ Lockbox
Period (SPE)
” means the period commencing
upon the occurrence of a Lockbox Trigger Event (SPE)and ending upon
the occurrence of a Lockbox Trigger Event Cure (SPE).
“ Lockbox
Period (Up)
” means the period commencing
upon the occurrence of a Lockbox Trigger Event (Up) and ending upon
the occurrence of a Lockbox Trigger Event Cure (Up).
“ Lockbox Trigger Event ”
means either a Lockbox Trigger Event (SPE) or a Lockbox Trigger
Event (Up), as applicable.
“ Lockbox Trigger Event (SPE)
” means the occurrence of one or more of the following: (a)
an Event of Default; or (b) the Debt Service Coverage Ratio as of
the last day of any fiscal quarter is less than 1.25 to
1.0.
“ Lockbox Trigger Event (Up)
” means, solely to the extent the same does not constitute an
Event of Default hereunder, the occurrence of any of the
following events with respect to FelCor Op and/or FelCor Trust:
(A) filing by such Person of a petition under Section 301 of
the Bankruptcy Code or otherwise voluntary commencement by such
Person of any proceeding or filing by such Person of any
petition seeking liquidation, reorganization or other relief under
any similar Federal, state or foreign bankruptcy, insolvency,
receivership or similar law now or hereafter in effect,
(B) any involuntary proceeding seeking liquidation,
reorganization or other relief in respect to such Person or its
debts, or of a substantial part of its assets, under any Federal,
state or foreign bankruptcy, insolvency, receivership or similar
law now or hereafter in effect, (C) application by such Person
for or consent to the appointment of a receiver, trustee,
custodian, sequestrator, conservator or similar official for such
Person or for a substantial part of its assets, (D) filing by
such Person of an answer admitting the material allegations of a
petition filed against it in any such proceeding, (E) making
of a general assignment for the benefit of creditors by such Person
or (F) taking of any action for the purpose of effecting any
of the foregoing by such Person.
“ Lockbox Trigger Event Cure
” means either a Lockbox Trigger Event Cure (SPE) or a
Lockbox Trigger Event Cure (Up), as applicable.
“ Lockbox
Trigger
Event Cure (SPE) ” means with respect to a Lockbox Trigger
Event (SPE) arising under (i) clause (a) of the definition thereof,
the cure of such Event of Default, and (ii) clause (b) of the
definition thereof, the Borrowers shall have maintained a Debt
Service Coverage Ratio greater than 1.25 to 1.00 as of the last day
of two (2) consecutive fiscal quarters and no Event of Default
shall have occurred and be continuing.
“ Lockbox
Trigger
Event Cure (Up) ” means with respect to a Lockbox Trigger
Event (Up), the earlier of: (i) the entry of an order of the
applicable bankruptcy court approving the Services Agreements (or
similar agreements reasonably acceptable to Administrative Agent)
such that it is a legal, valid and binding obligation enforceable
against such Person in accordance with its terms, or (ii) dismissal
of such filing without prejudice.
“ Major
Lease ” means: (a) any Operating Lease, (b) any
lease which together with all other leases to the same tenant and
to all Affiliates of such tenant, (i) provides for ten percent
(10%) or more of the total gross income for such Collateral
Property, (ii) covers five percent (5%) or more of the total space
at such Collateral Property, in the aggregate and (iii) provides
for a lease term of more than five (5) years including options to
renew; and (c) any instrument guaranteeing or providing credit
support for any Major Lease.
“ Management
Agreements
” means, the Charlotte
Management Agreement, the Houston Management Agreement, the
Mandalay Beach Management Agreement, the Myrtle Beach Management
Agreement, the Nashville Management Agreement, the Myrtle Beach
Golf Course Management Agreement, the Philadelphia Management
Agreement, the Pittsburgh Management Agreement, the Santa Barbara
Management Agreement and the Santa Monica Management Agreement or,
if the context requires, any Replacement Management Agreement
executed in accordance with the terms and provisions of this
Agreement and “ Management Agreement ” means any of the Management
Agreements.
“ Management
Fee ” means, collectively, the Base Management
Fees and any Incentive Management Fees payable to Manager pursuant
to its applicable Management Agreement.
“ Manager ”
means, for each Collateral Property, the property manager
identified in the definition of each Management Agreement, or, if
the context requires, any other Qualified Manager who is managing
any Collateral Property in accordance with the terms and provisions
of this Agreement.
“ Manager
Account ” means such account as any Manager may
from time to time designate by written notice to Administrative
Agent and the bank maintaining the Concentration
Account.
“
Manager’s Consent and Subordination of Management Agreement ” means, for each Collateral Property, a
consent of Manager and subordination in form and substance
satisfactory to Administrative Agent.
“ Mandalay Beach
Franchise
Agreement ” means the Embassy Suites License
Agreement dated December 13, 1996, as amended and assigned, by and
between Operating Lessee, as licensee, and HLT Existing Franchise
Holding L.L.C., as licensor, with respect to the Mandalay Beach
Property.
“ Mandalay Beach
Management Agreement ” means the Management Agreement dated as
of May 8, 2006, as amended and assigned, by and between Operating
Lessee, as “Owner,” and Embassy Suites Management LLC,
as “Manager,” with respect to the Mandalay Beach
Property.
“ Mandalay Beach
Operating Lease ” means the Operating Lease dated as of
May 8, 1996, as amended and assigned, by and between Owner and
Operating Lessee for the Mandalay Beach Property.
“ Mandalay Beach
Property ” means the property located at 2101 Mandalay
Beach Road, Oxnard, CA 93035 and commonly known as Embassy Suites
Mandalay Beach, California.
“ Material
Adverse
Effect ” means (a) a material adverse change in,
or a material adverse effect upon, the operations, business,
properties, liabilities (actual or contingent), or condition
(financial or otherwise) of Borrowers, taken as a whole, or the
condition of or ownership by Borrowers of the Collateral
Properties, taken as a whole (which shall not include any such
change or effect that affects the hotel or hospitality industries
generally); (b) a material impairment of the rights and remedies of
Administrative Agent or any Lender under any Loan Document, or of
the ability of any Loan Party to perform its obligations under any
Loan Document to which it is a party; or (c) a material adverse
effect upon the legality, validity, binding effect or
enforceability against any Loan Party of any Loan Document to which
it is a party.
“ Material
Property
Event ” means, with respect to any Collateral
Property, the occurrence of any event or circumstance that could
reasonably be expected to result in a (a) material adverse effect
with respect to the financial condition or the operations of such
Collateral Property, (b) material adverse effect on the Appraised
Value of such Collateral Property (which shall not include any such
change in Appraised Value due to a general decline in the relevant
market for such real property) or (c) material adverse effect on
the title of such Collateral Property.
“ Material
Title Defects ” means, with respect to any Collateral
Property, defects, Liens (other than Liens for local real estate
taxes and similar local governmental charges and Permitted Liens),
and other encumbrances in the nature of easements, servitudes,
restrictions, and rights-of-way that would customarily be deemed
unacceptable title exceptions for a prudent lender ( i.e., a
prudent lender would reasonably determine that such exceptions,
individually or in the aggregate, materially impair the title,
ownership, use value or operations of the Collateral Property in
question) or which could reasonably be expected to result in a
Material Property Event).
“ Maturity
Date ” means the earliest of (a) the Stated
Maturity Date, and (b) the date upon which Administrative Agent
declares the Obligations due and payable after the occurrence of an
Event of Default.
“ Maximum
Rate ” has the meaning specified in
Section 12 .
10 .
“ Member ” has
the meaning specified in Section 6 .
34 .
“ Monthly Capital
Expenditures Reserve Deposit ” shall mean the greater of
(i) one twelfth (1/12) of the amount for FF&E Expenditures
set forth in the Annual Approved Budget for such fiscal year; and
(ii) the quotient obtained by dividing (A) the aggregate Gross
Income from Operations for the Properties still subject to the Lien
of a Security Instrument for the preceding calendar year (as
reflected in Borrower’s annual operating statements as
approved and
accepted by Administrative Agent)
multiplied by four percent (4%) by (B) twelve (12). The Monthly
Capital Expenditures Reserve Deposit shall be adjusted
annually.
“ Monthly
Debt Service Payment Amount ” means the amount of interest due and
payable on each Payment Date, pursuant to this
Agreement.
“ Monthly Insurance Premium
Deposit ” means one-twelfth of the Insurance Premiums
that Administrative Agent determines based on the Approved Annual
Budget from time to time will be payable for the renewal of the
coverage afforded by the Policies upon the expiration thereof in
order to accumulate with Administrative Agent sufficient funds to
pay all such Insurance Premiums as and when due, together with such
additional amount as may be specified by Administrative Agent in
any given month to meet the Insurance Premiums due and payable that
month.
“ Monthly
Pegged Amount ” means the aggregate of (a) an aggregate
amount, which amount shall be determined no later than April 1st of
each Fiscal Year, equal to one hundred ten percent (110%) of
one-twelfth (1/12) of the annual Operating Expenses for each of the
Collateral Properties required to be paid during the then current
Fiscal Year by the applicable Manager, on behalf of a Borrower, in
accordance with the Approved Annual Budget; provided ,
however , that such annual Operating Expenses shall not
include Taxes, Insurance Premiums, Incentive Management Fees, sales
and use taxes that are due and owing on Gross Income from
Operations and revenues collected on behalf of unaffiliated
operators of the restaurants located at the Collateral Properties
in the ordinary course of business, plus (b) actual amounts collected by any Manager or
Borrower in the immediately preceding monthly period for: (i) sales
and use taxes on Gross Income from Operations and (ii) revenues
collected on behalf of unaffiliated operators of restaurants
located at the Collateral Properties in the ordinary course of
business. The Monthly Pegged Amount shall be adjusted based upon
the release of Collateral Properties in accordance with the terms
hereof. As of the date hereof, the amount comprising clause (a) of
this definition of Monthly Pegged Amount for each Collateral
Property is set forth on Schedule 3 .
02 hereof. If for any
reason, a new amount comprising clause (a) of this definition of
Monthly Pegged Amount is not established by April 1st of each year,
the current amount comprising clause (a) of this definition of
Monthly Pegged Amount shall be in effect until such time as the new
amount comprising clause (a) of this definition of Monthly Pegged
Amount is established. “ Monthly Tax Deposit ”
means one-twelfth of the Taxes that Administrative Agent determines
based on the Approved Annual Budget from time to time will be
payable in order to accumulate with Administrative Agent sufficient
funds to pay all such Taxes as and when due, together with such
additional amount as may be specified by Administrative Agent in
any given month to meet the Taxes due and payable that
month.
“ Moody’s ”
means Moody’s Investors Service, Inc.
“ Mortgage ”
means, with respect to each Collateral Property, that certain first
priority (fee and/or Leasehold) Mortgage (or Deed of Trust),
Assignment of Leases and Rents, Security Agreement and Fixture
Filing executed and delivered by a Borrower (and where applicable,
Philadelphia Affiliate Ground Lessor)with respect to any Collateral
Property in favor of Administrative Agent for the benefit of the
Secured Parties as security for the Obligations and encumbering
such Collateral Property.
“ MSA ” means
metropolitan statistical area.
“ Myrtle Beach Golf
Course ” means the Arcadian Shores Golf Club, located in
Myrtle Beach, South Carolina.
“ Myrtle Beach Golf
Course Lease ” means the Ground Lease dated as of March
1, 1972, as amended and assigned, by and between Myrtle Beach Golf
Course Lessor and Owner for the Myrtle Beach Golf
Course.
“ Myrtle Beach Golf
Course Lessor ” means Burroughs & Chapin Company,
Inc., and any successor thereto.
“ Myrtle Beach Golf
Course Management Agreement ”means the Golf Facility Management
Agreement dated as of May 12, 2009, by and between Operating
Lessee, as owner, and, Myrtle Beach Golf Course Manager, as
manager, with respect to the Myrtle Beach Golf Course.
“ Myrtle Beach
Management Agreement ” means the Management Agreement dated as
of July 19, 2002, as amended and assigned, by and between Operating
Lessee, as “Owner,” and Hilton Hotels Corporation, as
“Manager,” with respect to the Myrtle Beach Property,
but excluding the Myrtle Beach Golf Course for periods during the
effectiveness of the Myrtle Beach Golf Course Management
Agreement.
“ Myrtle
Beach Golf Course Manager ” means Burroughs & Chapin Golf
Management Company, LLC, and any successor thereto.
“ Myrtle Beach
Operating Lease ” means the Operating Lease dated as of
July 19, 2002, as amended and assigned, by and between Owner and
Operating Lessee for the Myrtle Beach Property.
“ Myrtle Beach Property
” means the property located at 10000 Beach Club Dr., Myrtle
Beach, South Carolina 29572 and commonly known as Hilton Myrtle
Beach, South Carolina, including the Myrtle Beach Golf
Course.
“ Nashville
Franchise
Agreement ” means the Embassy Suites License
Agreement dated July 28, 1994, as amended and assigned, by and
between Operating Lessee, as licensee, and HLT Existing Franchise
Holding L.L.C., as licensor, with respect to the Nashville
Property.
“ Nashville
Management Agreement ” means the Management Agreement dated as
of July 28, 2004, as amended and assigned, by and between Operating
Lessee, as “Owner,” and Embassy Suites Management, LLC,
as “Manager,” with respect to the Nashville
Property.
“ Nashville Operating
Lease ” means the Operating Lease dated as of July 28,
1994, as amended and assigned, by and between Owner and Operating
Lessee for the Nashville Property.
“ Nashville Property
” means the property located at 10 Century Blvd., Nashville,
Tennessee 37214 and commonly known as Embassy Suites Nashville,
Tennessee.
“ Net Operating Income
” means the amount obtained by subtracting Operating Expenses
from Gross Income from Operations.
“ Net
Proceeds ” has the meaning specified in
Section 9 .
04 ( b ).
“ Net
Proceeds
Deficiency
” has the meaning specified in
Section 9 .
04 ( h ).
“ Net Release Proceeds
” means (a) in connection with any sale of any of the
Collateral Property the proceeds thereof received by the applicable
Borrower in the form of cash, net of attorneys’ fees,
accountants’ fees, investment banking fees, proceeds of
rental and business interruption insurance, and other customary
fees and expenses actually incurred in connection therewith, not to
exceed six percent (6%) of the total proceeds and net of taxes paid
or reasonably estimated to be payable as a result thereof (after
taking into account any available tax credits or deductions and any
tax sharing arrangements); provided that such 6% cap shall exclude amounts payable
as termination fees under any applicable Management Agreements and
(b) in connection with any refinancing of any of the Collateral
Properties, the cash proceeds received by the applicable Borrower
from such refinancing, net of attorneys’ fees, investment
banking fees, accountants’ fees, underwriting discounts, and
commissions and other customary fees and expenses actually incurred
in connection therewith, not to exceed three percent (3%) of the
total proceeds.
“ Note ” means a
promissory note made by a Borrower in favor of a Lender evidencing
Loans made by such Lender substantially in the form of
Exhibit B .
“ O&M
Program ” means, with respect to each applicable
Collateral Property, the asbestos operations and maintenance
program required for such Collateral Property under
Section 7 .
24 , which program shall be developed by Borrowers and
approved by Administrative Agent, as the same may be amended,
replaced, supplemented or otherwise modified from time to time with
the consent of Administrative Agent, which shall not be
unreasonably withheld.
“ Obligations ”
means all advances to, and debts, liabilities, obligations,
covenants and duties of, any Loan Party arising under any Loan
Document or otherwise with respect to any Loan, whether direct or
indirect (including those acquired by assumption), absolute or
contingent, due or to become due, now existing or hereafter arising
and including interest and fees that accrue after the commencement
by or against any Loan Party or any Subsidiary thereof of any
proceeding under any Debtor Relief Laws naming such Person as the
debtor in such proceeding, regardless of whether such interest and
fees are allowed claims in such proceeding.
“ Officer’s
Certificate ” means the certificate of a Responsible
Officer of the applicable Borrower, which shall be in form and
substance reasonably satisfactory to Administrative Agent, and in
the case of Sections 2.11, 2.12, 5 .
01 ( a) ( ix ) and 7.10 ( b )
and ( c ), shall be in the form of Exhibits F-1, F-2 or
F-3, as applicable .
“ Operating
Equipment
and Supplies ” means all chinaware, glassware, linens,
silverware, tools, kitchen utensils, uniforms, engineering and
housekeeping tools and utensils, food and beverage items, fuel,
soap, mechanical stores, cleaning supplies and materials, matches,
stationary, paper supplies, laundry supplies, food service
preparation utensils, housekeeping
supplies, accounting supplies and
other immediately consumable items used in the operation of a
Collateral Property.
“ Operating
Expenses ” means the total of all expenditures,
computed in accordance with GAAP, of whatever kind relating to the
operation, maintenance and management of the Collateral Properties
that are incurred on a regular monthly or other periodic basis,
including without limitation, utilities, ordinary repairs and
maintenance, insurance premiums, license fees, property taxes and
assessments, advertising expenses, Management Fees, franchise fees,
payroll and related taxes, computer processing charges, operational
equipment or other lease payments permitted hereunder, and other
similar costs, but excluding depreciation, Debt Service and Capital
Expenditures.
“ Operating
Lease Subordination Agreements ” means subordination agreements in form
and substance satisfactory to Administrative Agent relating to each
Operating Lease.
“ Operating
Leases ” means the Charlotte Operating Lease, the
Houston Operating Lease, the Mandalay Beach Operating Lease, the
Myrtle Beach Operating Lease, the Nashville Operating Lease, the
Philadelphia Operating Lease, the Pittsburgh Operating Lease, the
Santa Barbara Operating Lease and the Santa Monica Operating Lease,
and “ Operating Lease ” means any one of the Operating
Leases.
“ Operating
Lessee ” has the meaning specified in the
introductory paragraph.
“ Organizational
Documents ” means, (a) with respect to any
corporation, the certificate or articles of incorporation and the
bylaws (or equivalent or comparable constitutive documents with
respect to any non-U.S. jurisdiction); (b) with respect to any
limited liability company, the certificate or articles of formation
or organization and operating agreement; and (c) with respect
to any partnership, joint venture, trust or other form of business
entity, the partnership, joint venture or other applicable
agreement of formation or organization and any agreement,
instrument, filing or notice with respect thereto filed in
connection with its formation or organization with the applicable
Governmental Authority in the jurisdiction of its formation or
organization and, if applicable, any certificate or articles of
formation or organization of such entity.
“ Other
Charges ” means all personal property taxes,
ground rents, maintenance charges, impositions other than Taxes and
any other charges, including, without limitation, vault charges and
license fees for the use of vaults, chutes and similar areas
adjoining any Collateral Property, now or hereafter levied or
assessed or imposed against such Collateral Property or any part
thereof.
“ Other
Taxes ” means all present or future stamp or
documentary taxes or any other excise or property taxes, charges or
similar levies arising from any payment made hereunder or under any
other Loan Document or from the execution, delivery or enforcement
of, or otherwise with respect to, this Agreement or any other Loan
Document.
“ Outstanding
Amount ” means the aggregate outstanding
principal amount of Loans after giving effect to any borrowings and
prepayments or repayments as the case may be, occurring on such
date.
“ Overhead Sharing
Agreement ” means that certain Overhead Sharing Agreement
dated as of June 1, 2009, by and among Borrowers, FelCor Op and the
certain other parties thereto.
“ Owner ” has the
meaning specified in the introductory paragraph.
“ Participant ”
has the meaning specified in Section 12 .
06 ( d ).
“ Patriot
Act ” has the meaning specified in
Section 12.18 .
“ Payment
Date ” means the sixth (6th) day of each
calendar month.
“ Permitted Investments
” means:
(a) direct obligations of, or
obligations the principal of and interest on which are
unconditionally guaranteed by, the United States of America (or by
any agency thereof to the extent such obligations are backed by the
full faith and credit of the United States of America), in each
case maturing within one year from the date of acquisition
thereof;
(b) investments in commercial
paper maturing within 270 days from the date of acquisition thereof
and having, at such date of acquisition, the highest credit rating
obtainable from S&P or from Moody's;
(c) investments in
certificates of deposit, banker's acceptances and time deposits
maturing within 180 days from the date of acquisition thereof
issued or guaranteed by or placed with, and money market deposit
accounts issued or offered by, any domestic office of any
commercial bank organized under the laws of the United States of
America or any State thereof which has a combined capital and
surplus and undivided profits of not less than
$500,000,000;
(d) fully collateralized
repurchase agreements with a term of not more than 30 days for
securities described in clause (a) above and entered into with
a financial institution satisfying the criteria described in
clause (c) above; and
(e) money market funds that
(i) comply with the criteria set forth in Securities and Exchange
Commission Rule 2a-7 under the Investment Company Act of 1940, (ii)
are rated AAA by S&P and Aaa by Moody’s and (iii) have
portfolio assets of at least $5,000,000,000. “
Permitted Lien ” has the meaning specified in
Section 8 .
03 .
“ Permitted
Personal
Property
Lien ” has the meaning specified in
Section 8 .
04 .
“ Person ” means
any natural person, corporation, limited liability company, trust,
joint venture, association, company, partnership, Governmental
Authority or other entity.
“ Personal
Property ” has the meaning specified in Article I
of the Mortgage with respect to each Collateral
Property.
“ Philadelphia Affiliate
Ground Lease ” means the Ground Lease, dated as of the
date hereof, between the Philadelphia Affiliate Ground Lessor and
Owner.
“ Philadelphia Affiliate
Ground Lessor ” means FelCor Pennsylvania Company,
L.L.C., a Delaware limited liability company, and any successor
thereto as permitted pursuant to this Agreement.
“ Philadelphia
Management
Agreement ” means the Management Agreement dated as
of June 30, 2001, as amended and assigned, by and between Operating
Lessee, as “Owner,” and IHG, as “Manager,”
with respect to the Philadelphia Property.
“ Philadelphia
Operating
Lease ” means the Operating Lease dated as of
July 29, 1998, as amended and assigned, by and between Owner and
Operating Lessee for the Philadelphia Property.
“ Philadelphia
Property ” means the property located at 400 Arch
Street, Philadelphia, PA 19106 and commonly known as Holiday Inn
Philadelphia, Pennsylvania.
“ Physical
Conditions
Report ” means, with respect to each Collateral
Property, a structural engineering report prepared by a company
satisfactory to Administrative Agent regarding the physical
condition of such Collateral Property, satisfactory in form and
substance to Administrative Agent in its reasonable discretion,
which report shall, among other things, (a) confirm that such
Collateral Property and its use complies, in all material respects,
with all applicable Legal Requirements (including, without
limitation, zoning, subdivision and building laws) and (b) include
a copy of a final certificate of occupancy with respect to all
Improvements on such Collateral Property.
“ Pittsburgh Ground
Lease ” means the Ground Lease dated as of January 29,
1988 as amended and assigned, between Pittsburgh Ground Lessor and
Owner.
“ Pittsburgh Ground
Lessor ” means Masonic Fund Society for the County of
Allegheny, and any successor thereto.
“ Pittsburgh
Management
Agreement ” means the Management Agreement dated as
of June 30, 2001, as amended by First Amendment to Management
Agreement dated as of July 1, 2001 as further amended and assigned,
by and between Operating Lessee, as “Owner,” and IHG,
as “Manager,” with respect to the Pittsburgh
Property.
“ Pittsburgh
Operating
Lease ” means the Lease Agreement dated as of
October 27, 1998, as amended and assigned, by and between Owner and
Operating Lessee for the Pittsburgh Property.
“ Pittsburgh Property
” means the property located at 100 Lytton Avenue,
Pittsburgh, Pennsylvania and commonly known as Holiday Inn
Pittsburgh at University Center.
“ Plan ” means
any “employee benefit plan” (as such term is defined in
Section 3(3) of ERISA) established by a Borrower or, with respect
to any such plan that is subject to Section 412 of the Code or
Title IV of ERISA, any ERISA Affiliate.
“ Plan
Assets ” has the meaning set forth in 29 C.F.R.
section 25 10.3-101, as modified by Section 3(42) of
ERISA.
“ Platform ”
means IntraLinks or another similar electronic system.
“ Pledge Agreement
” means with respect to each Borrower’s Principal, that
certain Pledge Agreement executed and delivered by such Principal
with respect to its equity interest in the applicable Borrower, in
favor of Administrative Agent for the benefit of the Secured
Parties.
“ Policy ” has
the meaning specified in Section 9 .
01 ( b ).
“ Prime Rate ”
means the rate of interest per annum publicly announced from time
to time by JPMorgan Chase Bank, N.A. as its prime rate in effect at
its office located at 270 Park Avenue, New York, New York; each
change in the Prime Rate shall be effective from and including the
date such change is publicly announced as being
effective.
“ Principal ”
means, with respect to any limited liability company, its sole
member; and with respect to any limited partnership, its general
partner.
“ Property
Account ” has the meaning specified in
Section 3 .
01 ( a ).
“ Property
Account
Agreement
” has the meaning specified in
Section 3 .
01 ( a ).
“ Property
Account
Bank ” means for each Collateral Property, each
property account bank set forth on Schedule
3 . 01 ( a ), from time to time,
provided that such bank remains an Eligible Institution, and any
successor Eligible Institution or other Eligible Institution
selected by the applicable Borrower, subject to Administrative
Agent’s approval.
“ Property
Condition Report
” means an engineering and
structural report for the applicable Collateral Property prepared
by a consultant acceptable to Administrative Agent.
“ Qualified
Insurer ” has the meaning specified in
Section 9 .
01 ( b ).
“ Qualified
Manager ” means any Manager or another reputable
and experienced professional management organization (a) which
manages, together with its Affiliates, one hundred fifty (150)
properties of a type, quality and size similar to the Collateral
Properties, totaling in the aggregate no less than 30,000 guest
rooms and (b) prior to whose employment as manager of a Collateral
Property shall have been approved by Administrative Agent, which
approval shall not be unreasonably withheld, delayed or
conditioned. For purposes of this Agreement, Aimbridge Hospitality
and Davidson Hotel Company are deemed to be Qualified
Managers.
“ Rating
Agencies ” means each of S&P, Moody’s,
and Fitch, and any other nationally-recognized statistical rating
agency which has been approved by Administrative Agent.
“ REAs ” means
each construction, operation, and reciprocal easement agreements or
similar agreements (including any separate agreements or other
agreements between a Loan
Party and one or more other parties
to any REA with respect to such REA) affecting any Collateral
Property or portion thereof, and “ REA ” means
any one of the REAs.
“ Register ” has
the meaning specified in Section 12 .
06 ( c ).
“ Related
Parties ” means, with respect to any Person, such
Person’s Affiliates and the partners, members, directors,
officers, employees, agents and advisors of such Person and of such
Person’s Affiliates.
“ Release ” of
any Hazardous Materials means any release, deposit, discharge,
emission, leaking, spilling, seeping, migrating, injecting,
pumping, pouring, emptying, escaping, dumping, disposing or other
movement of Hazardous Materials.
“ Release
Premium ” means for a Collateral Property as of
any date of determination, an amount equal to one hundred fifteen
percent (115%) of the Allocated Loan Amount for such Collateral
Property.
“ Release
Price ” means an amount equal to the greater
of:
(a) 100%
of Net Release Proceeds from the sale or refinancing of such
Collateral Property; and
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(b)
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such Collateral Property’s
Release Premium;
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provided that
so long as no Default or Event of
Default has occurred and is continuing, if the amount of Net
Release Proceeds from the sale or refinancing of such Collateral
Property exceeds the Release Premium for such Collateral Property,
then the Release Price shall be equal to the sum of the Release
Premium for such Collateral Property plus 50% of the difference
between such Net Release Proceeds (up to a maximum amount equal to
125% of the Allocated Loan Amount) and such Release Premium, and
the Borrowers shall be entitled to retain the amount of such Net
Release Proceeds in excess of such Release Price.
“ Renewal
Lease ” has the meaning specified in
Section 7 .
16 ( a ).
“ Rents ” has the
meaning specified in Article I of the Mortgage with respect to each
Collateral Property.
“ Replacement
Franchise
Agreement ” means, with respect to any Franchised
Property, (a) either (i) a franchise agreement with the applicable
Franchisor substantially in the same form and substance as the
initial Franchise Agreement for such Franchised Property, or (ii) a
franchise agreement with the applicable Franchisor, which franchise
agreement shall be acceptable to Administrative Agent in form and
substance, and (b) a franchisor estoppel and recognition agreement
or other “comfort letter” substantially in the form
delivered to Administrative Agent on the date hereof (or such other
form acceptable to Administrative Agent), executed and delivered to
Administrative Agent by Operating Lessee and the applicable
Franchisor at Borrowers’ expense; provided, however, with
respect to any expiring or replacement Franchise Agreement,
Borrowers shall notify Administrative Agent, but shall not be
required to obtain Administrative Agent’s consent in the
event that the Franchise Agreement in
effect on the date hereof is
extended on the same or more favorable terms to Operating Lessee as
prior to the expiration thereof, provided further that if such
Franchise Agreement is modified, extended supplemented or replaced
a franchisor estoppel and recognition or other “comfort
letter” shall be provided as described in (b)
above.
“ Replacement
Management
Agreement ” means, collectively, (a) either (i) a
management agreement with a Qualified Manager substantially in the
same form and substance as the initial Management Agreement for
such Collateral Property, or (ii) a management agreement with a
Qualified Manager, which management agreement shall be acceptable
to Administrative Agent in form and substance, (b) if requested by
Administrative Agent, a conditional assignment of management
agreement in such form acceptable to Administrative Agent executed
and delivered to Administrative Agent by Operating Lessee and such
Qualified Manager at Borrowers’ expense; provided, however,
with respect to any expiring or replacement Management Agreement,
Borrowers shall notify Administrative Agent but shall not be
required to obtain Administrative Agent’s consent in the
event that the Management Agreement in effect on the date hereof is
extended on the same or more favorable terms to Operating Lessee as
prior to the expiration thereof.
“ Required
Lenders ” means, as of any date of determination,
Lenders holding more than fifty and one hundredth percent (50.01%)
of the sum of the total Outstanding Amount; provided
that the portion of the Outstanding
Amount held or deemed held by, any Defaulting Lender shall be
excluded for purposes of making a determination of Required
Lenders.
“ Required
Repairs ” has the meaning specified in
Section 9 .
05 .
“ Reserve Accounts
” has the meaning specified in Section 3.01(c).
“ Responsible
Officer ” means the president or any vice
president of a Loan Party. Any document delivered hereunder that is
signed by a Responsible Officer of a Loan Party shall be
conclusively presumed to have been authorized by all necessary
organizational action on the part of such Loan Party and such
Responsible Officer shall be conclusively presumed to have acted on
behalf of such Loan Party.
“ Restoration ”
means the repair and restoration of a Collateral Property after a
Casualty or Condemnation as nearly as possible to the condition the
Collateral Property was in immediately prior to such Casualty or
Condemnation, with such alterations as may be approved by
Administrative Agent, and in accordance with applicable Laws and
the requirements of any applicable Management Agreement, Franchise
Agreement and Operating Lease.
“ Restricted
Party ” means any Borrower, any Principal of a
Borrower or any Affiliated Manager or any shareholder, partner or
member or any direct or indirect legal or beneficial owner of, any
Borrower, any Principal of a Borrower or any Affiliated Manager;
provided, however, that for purposes of Section
8 . 03 only in no event shall (a) FelCor Trust or
FelCor Op be deemed a Restricted Party, nor (b) any direct or
indirect beneficial owner of the entities listed in (a) be deemed a
Restricted Party solely because of its direct or indirect
beneficial ownership of such entities.
“ Restricted
Payment ” means any dividend or other
distribution (whether in cash, securities or other property) with
respect to any capital stock or other Equity Interest of any Person
or any of its Subsidiaries, or any payment (whether in cash,
securities or other property), including any sinking fund or
similar deposit, on account of the purchase, redemption,
retirement, defeasance, acquisition, cancellation or termination of
any such capital stock or other Equity Interest, or on account of
any return of capital to any Person’s stockholders, partners
or members (or the equivalent of any thereof), or any option,
warrant or other right to acquire any such dividend or other
distribution or payment.
“ S&P ” means
Standard & Poor’s Ratings Services, a division of
McGraw-Hill, Inc.
“ Santa Barbara
Management
Agreement ” means the Management Agreement dated as
of June 30, 2001, as amended by First Amendment to Management
Agreement dated as of July 1, 2001 as further amended and assigned,
by and between Operating Lessee, as “Owner,” and IHG,
as “Manager,” with respect to the Santa Barbara
Property.
“ Santa Barbara
Operating
Lease ” means the Lease Agreement dated as of
July 27, 1998, as amended and assigned, by and between Owner and
Operating Lessee for the Santa Barbara Property.
“ Santa Barbara
Property ” means the property located at 5650 Calle Real,
Goleta, California 93117 and commonly known as Holiday Inn Santa
Barbara/Goleta.
“ Santa Monica
Management
Agreement ” means the Management Agreement dated as
of March 11, 2004, as amended and assigned, by and between
Operating Lessee, as “Owner,” and IHG, as
“Manager,” with respect to the Santa Monica
Property.
“ Santa Monica
Operating
Lease ” means the Operating Lease dated as of
March 1, 2004, as amended and assigned, by and between Owner and
Operating Lessee for the Santa Monica Property.
“ Santa Monica Property
” means the property located at 120 Colorado Avenue, Santa
Monica, California 90401 and commonly known as Holiday Inn Santa
Monica, California.
“ Second Extension
” means the second extension of the Stated Maturity Date
pursuant to Section 2 .
11 .
“ Secured
Parties ” means, collectively, Administrative
Agent, Lenders, each co-agent or sub-agent appointed by
Administrative Agent from time to time pursuant to
Section 11 .
05 , and the other Persons the Obligations owing to which
are or are purported to be secured by the Collateral under the
terms of the Collateral Documents.
“ Security
Deposit ” has the meaning specified in
Section 7 .
16 .
“ Services
Agreements
” means, collectively, (i)
the Services Agreement dated as of the date hereof by and between
FelCor Trust and Owner and (ii) the Services Agreement
dated
as of the date hereof by and between
FelCor Trust and Operating Lessee; each relating to cash management
and other services to be provided by FelCor Trust of behalf of each
Borrower.
“ Special
Member ” has the meaning specified in
Section 6 .
34 .
“ Stated
Maturity
Date ” means, August 15, 2011, or such later
date as may be extended pursuant to Section
2 . 11 .
“ Statutory Reserve
Rate ” means a fraction (expressed as a decimal), the
numerator of which is the number one and the denominator of which
is the number one minus the aggregate of the maximum reserve
percentages (including any marginal, special, emergency or
supplemental reserves) expressed as a decimal established by the
Board to which Administrative Agent is subject, with respect to the
Eurodollar Rate, for eurocurrency funding (currently referred to as
“Eurocurrency Liabilities” in Regulation D of the
Board). Such reserve percentages shall include those imposed
pursuant to such Regulation D. Any portion of the Loan
consisting of a Eurodollar Rate Loan shall be deemed to constitute
eurocurrency funding and to be subject to such reserve requirements
without benefit of or credit for proration, exemptions or offsets
that may be available from time to time to any Lender under such
Regulation D or any comparable regulation. The Statutory
Reserve Rate shall be adjusted automatically on and as of the
effective date of any change in any reserve percentage.
“ Subsidiary ” of
a Person means a corporation, partnership, joint venture, limited
liability company or other business entity of which a majority of
the shares of securities or other interests having ordinary voting
power for the election of directors or other governing body (other
than securities or interests having such power only by reason of
the happening of a contingency) are at the time beneficially owned,
or the management of which is otherwise controlled, directly, or
indirectly through one or more intermediaries, or both, by such
Person. Unless otherwise specified, all references herein to a
“ Subsidiary ” or to “ Subsidiaries
” shall refer to a Subsidiary or Subsidiaries of
Borrowers.
“ Super-Majority
Lenders ” means, as of any date of determination,
Lenders holding more than sixty-six and two-thirds percent
(66-2/3%) of the sum of the total Outstanding Amount;
provided that the
portion of the Outstanding Amount held or deemed held by, any
Defaulting Lender shall be excluded for purposes of making a
determination of Super-Majority Lenders.
“ Survey ” has
the meaning specified in Section 5 .
01 ( a )( xi ).
“ Swap
Contract ” means (a) any and all rate swap
transactions, basis swaps, credit derivative transactions, forward
rate transactions, commodity swaps, commodity options, forward
commodity contracts, equity or equity index swaps or options, bond
or bond price or bond index swaps or options or forward bond or
forward bond price or forward bond index transactions, interest
rate options, forward foreign exchange transactions, cap
transactions, floor transactions, collar transactions, currency
swap transactions, cross-currency rate swap transactions, currency
options, spot contracts, or any other similar transactions or any
combination of any of the foregoing (including any options to enter
into any of the foregoing), whether or not any such transaction is
governed by or subject to any master agreement, and (b)
any and all transactions of any
kind, and the related confirmations, which are subject to the terms
and conditions of, or governed by, any form of master agreement
published by the International Swaps and Derivatives Association,
Inc., any International Foreign Exchange Master Agreement, or any
other master agreement, including any such obligations or
liabilities under any master agreement.
“ Swap
Termination
Value ” means, in respect of any one or more
Swap Contracts, after taking into account the effect of any legally
enforceable netting agreement relating to such Swap Contracts, (a)
for any date on or after the date such Swap Contracts have been
closed out and termination value(s) determined in accordance
therewith, such termination value(s), and (b) for any date prior to
the date referenced in clause (a), the amount(s) determined as the
mark-to-market value(s) for such Swap Contracts, as determined
based upon one or more mid-market or other readily available
quotations provided by any recognized dealer in such Swap Contracts
(which may include a Lender or any Affiliate of a
Lender).
“ Synthetic
Debt ” means, with respect to any Person as of
any date of determination thereof, all obligations of such Person
in respect of transactions entered into by such Person that are
intended to function primarily as a borrowing of funds (including
any minority interest transactions that function primarily as a
borrowing) but are not otherwise included in the definition of
“ Indebtedness ” or as a liability on the
consolidated balance sheet of such Person and its Subsidiaries in
accordance with GAAP.
“ Synthetic
Lease Obligation ” means the monetary obligation of a
Person under (a) a so-called synthetic, off-balance sheet or tax
retention lease, or (b) an agreement for the use or possession of
property (including sale and leaseback transactions), in each case,
creating obligations that do not appear on the balance sheet of
such Person but which, upon the application of any Debtor Relief
Laws to such Person, would be characterized as the indebtedness of
such Person (without regard to accounting treatment).
“ Tax Account ”
has the meaning specified in Section 3.01(c)(i).
“ Taxes ” means
all present or future taxes, levies, imposts, duties, deductions,
withholdings, assessments, fees or other charges imposed by any
Governmental Authority, including any interest, additions to tax or
penalties applicable thereto.
“ Terrorism
Exclusion ” has the meaning specified in
Section 9 .
01 ( a )( x ).
“ Terrorism
Insurance ” has the meaning specified in
Section 9 .
01 ( a )( x ).
“ Terrorism
Insurance
Cap ” has the meaning specified in
Section 9 .
01 ( a )( x ).
“ Terrorism
Insurance
Required
Amount ” has the meaning specified in
Section 9 .
01 ( a )( x ).
“ Title
Company ” means such title insurance companies
acceptable to Administrative Agent.
“ Title
Insurance
Commitments
” means the commitments to
issue the Title Policies, issued by the Title Company for each
Collateral Property, along with copies of all instruments creating
or evidencing exceptions or encumbrances to title.
“ Title
Policies ” means an ALTA or equivalent form of
Mortgagee Title Policy from the Title Company and insuring the
priority and sufficiency of the Mortgages as first Liens upon the
applicable Collateral Properties, (a) in an aggregate amount
acceptable to Administrative Agent, (b) showing all easements or
other matters affecting the Collateral Properties, all subject only
to such exceptions or qualifications as are reasonably acceptable
to Administrative Agent, (c) insuring the priority of Secured
Party’s Liens granted by the Mortgages against all possible
contractors’, suppliers, and mechanics’ lien claims
that heretofore or hereafter arise, as well as survey matters which
could result in a Material Title Defect, and (d) to the extent
available, containing any customary endorsements or assurances that
Administrative Agent acting on behalf of the Secured Parties may
request for protection of its interests including, but not limited
to (i) zoning endorsements, (ii) variable rate endorsements, (iii)
usury endorsements, (iv) comprehensive endorsements, (v) access
endorsements, insuring that there will be at least one location at
each Collateral Property with unlimited vehicular ingress and
egress to an adjacent street, and (vii) other customary
endorsements requested by Administrative Agent and its
counsel.
“ Transaction ”
means the formation of the Borrowers by FelCor OP, and the
contribution to Owner of the various Collateral Properties, and to
Operating Lessee of the various Operating Leases, Management
Agreements and Franchise Agreements, each pursuant to those certain
Contribution Agreements between, among others, FelCor OP and each
Borrower, dated as of the Closing Date, and the other actions of
the Borrowers incidental thereto, all of which occur or shall be
effective on or before the Closing Date.
“ Transfer ”
means, with respect to any property, rights, or interests, any
sale, deed, conveyance, lease, mortgage, grant, bargain,
encumbrance, pledge, assignment, grant of options with respect to,
installment sales contracts for, or other transfer or disposition,
in whole or in part, with respect to any legal or beneficial
interest therein, directly or indirectly, voluntarily or
involuntarily, by operation of law or otherwise, and whether or not
for consideration or of record. With respect to Restricted Parties,
the term “Transfer” shall include the following: (a) if
a Restricted Party is a corporation, any merger, consolidation or
sale or pledge of such corporation’s stock or the creation or
issuance of new stock; (b) if a Restricted Party is a limited or
general partnership or joint venture, any merger or consolidation
or the change, removal, resignation or addition of a general
partner or the sale or pledge of the partnership interest of any
general partner or any profits or proceeds relating to such
partnership interest, or the sale or pledge of limited partnership
interests or any profits or proceeds relating to such limited
partnership interests or the creation or issuance of new limited
partnership interests; (c) if a Restricted Party is a limited
liability company, any merger or consolidation or the change,
removal, resignation or addition of a managing member or non-member
manager (or if no managing member, any member) or the sale or
pledge of the membership interest of a managing member (or if no
managing member, any member) or any profits or proceeds relating to
such membership interest, or the sale or pledge of non-managing
membership interests or the creation or issuance of new
non-managing membership interests; and (d) if a Restricted Party is
a trust or
nominee trust, any merger,
consolidation or the sale or pledge of the legal or beneficial
interest in a Restricted Party or the creation or issuance of new
legal or beneficial interests.
“ Type ” means,
with respect to a Loan, its character as a Base Rate Loan or a
Eurodollar Rate Loan.
“ UCC ” means the
Uniform Commercial Code as in effect in the State of New York;
provided that, if
perfection or the effect of perfection or non-perfection or the
priority of any security interest in any Collateral is governed by
the Uniform Commercial Code as in effect in a jurisdiction other
than the State of New York, “ UCC ” means the
Uniform Commercial Code as in effect from time to time in such
other jurisdiction for purposes of the provisions hereof relating
to such perfection, effect of perfection or non-perfection or
priority.
“ Unaudited
Financial
Statements
” means, if available, the
pro-forma unaudited balance sheets of each Borrower and its
Subsidiaries for the Fiscal Year ended December 31, 2008, and the
related statements of income or operations for such period of each
Borrower, or if not available, the pro-forma unaudited balance
sheets of each Borrower as of the Closing Date.
“ United
States ” and “U.S.” mean the United
States of America.
1.02.
Other Interpretive Provisions . With reference to this
Agreement and each other Loan Document, unless otherwise specified
herein or in such other Loan Document:
(a) The
definitions of terms herein shall apply equally to the singular and
plural forms of the terms defined. Whenever the context may
require, any pronoun shall include the corresponding masculine,
feminine and neuter forms. The words “ include
,” “ includes ” and “
including ” shall be deemed to be followed by the
phrase “ without limitation .” The word “ will ”
shall be construed to have the same meaning and effect as the word
“ shall .” Unless the context requires
otherwise, (i) any definition of or reference to any agreement,
instrument or other document (including any Organizational
Document) shall be construed as referring to such agreement,
instrument or other document as from time to time amended,
supplemented or otherwise modified (subject to any restrictions on
such amendments, supplements or modifications set forth herein or
in any other Loan Document), (ii) any reference herein to any
Person shall be construed to include such Person’s successors
and assigns, (iii) the words “ herein ,” “
hereof ” and “ hereunder ,” and
words of similar import when used in any Loan Document, shall be
construed to refer to such Loan Document in its entirety and not to
any particular provision thereof, (iv) all references in a Loan
Document to Articles, Sections, Preliminary Statements, Exhibits
and Schedules shall be construed to refer to Articles and Sections
of, and Preliminary Statements, Exhibits and Schedules to, the Loan
Document in which such references appear, (v) any reference to any
law shall include all statutory and regulatory provisions
consolidating, amending, replacing or interpreting such law and any
reference to any law or regulation shall, unless otherwise
specified, refer to such law or regulation as amended, modified or
supplemented from time to time, and (vi) the words “
asset ” and “ property ” shall be
construed to have the same meaning and effect and to refer to any
and all tangible and intangible assets and properties, including
cash, securities, accounts and contract rights.
(i) In
the computation of periods of time from a specified date to a later
specified date, the word “ from ” means “
from and
including;
” the words “to”
and “until” each mean “ to
but excluding; ” and the word “ through
” means “ to and including .”
(ii) Section
headings herein and in the other Loan Documents are included for
convenience of reference only and shall not affect the
interpretation of this Agreement or any other Loan
Document.
1.03.
Accounting Terms . (a) Generally . All accounting
terms not specifically or completely defined herein shall be
construed in conformity with, and all financial data (including
financial ratios and other financial calculations) required to be
submitted pursuant to this Agreement shall be prepared in
conformity with, GAAP applied on a consistent basis, as in effect
from time to time, applied in a manner consistent with that used in
preparing the Unaudited Financial Statements, except
as otherwise specifically prescribed
herein.
(b)
Changes in GAAP .
If at any time any change in GAAP occurring after the Closing Date
would affect the Borrowers in their computation of any financial
ratio or requirement set forth in any Loan Document, and either
Borrowers or the Required Lenders shall so request, Administrative
Agent, the Lenders and Borrowers shall negotiate in good faith to
amend such ratio or requirement to preserve the original intent
thereof in light of such change in GAAP (subject to the approval of
the Required Lenders); provided that, until so amended, (i) such ratio or
requirement shall continue to be computed in accordance with GAAP
prior to such change therein and (ii) Borrowers shall provide to
Administrative Agent and the Lenders financial statements and other
documents required under this Agreement or as reasonably requested
hereunder setting forth a reconciliation between calculations of
such ratio or requirement made before and after giving effect to
such change in GAAP.
1.04.
Rounding . Any financial ratios required to be maintained by
Borrowers pursuant to this Agreement shall be calculated by
dividing the appropriate component by the other component, carrying
the result to one place more than the number of places by which
such ratio is expressed herein and rounding the result up or down
to the nearest number (with a rounding-up if there is no nearest
number).
1.05.
Times of Day . Unless otherwise specified, all references
herein to times of day shall be references to Eastern time
(daylight or standard, as applicable).
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1.06.
|
Joint and Several
Obligations .
|
(a) All
representations contained herein shall be deemed individually made
by each Borrower, and each of the covenants, agreements, and
obligations set forth herein shall be deemed to be the joint and
separate covenants, agreements, and obligations of each Borrower.
Any notice, request, consent, report, or other information or
agreement delivered by any Borrower shall be deemed to be ratified
by, consented to, and also delivered by the other Borrower. Each
Borrower recognizes and agrees that each covenant and agreement of
a “Borrower” and “Borrowers” in this
Agreement and in any
other Loan Document shall create a
joint and several obligation of such entities, which may be
enforced against such entities jointly, or against each entity
separately.
(b) Each
Borrower hereby irrevocably and unconditionally agrees: (i) that it
is jointly and severally liable to Administrative Agent and Lenders
for the full and prompt payment of the Obligations and the
performance by each Borrower of its obligations hereunder in
accordance with the terms hereof; (ii) to fully and promptly
perform all of its obligations hereunder with respect to the
Obligations; and (iii) as a primary obligation to indemnify
Administrative Agent and Lenders on demand for and against any loss
(including losses due to Administrative Agent’s or any
Lender’s negligence but excluding losses determined by a
court of competent jurisdiction by a final and nonappealable
judgment to have resulted from the gross negligence or willful
misconduct of Administrative Agent or any Lender) actually incurred
by such Administrative Agent or any Lender as a result of any of
the obligations of any one or more of Borrowers being or becoming
void, voidable, unenforceable, or ineffective for any reason
whatsoever, whether or not known to Administrative Agent, any
Lender, or any other Person.
(c) Each
Borrower waives as to the other Borrower: (i) the amendment,
extension, renewal, compromise, discharge, acceleration or
otherwise changing the time for payment of, or any other terms with
respect to, the Obligations or any part thereof or any substitution
of Collateral (to the extent the foregoing has occurred in
accordance with any applicable requirements of
Section 12 .
01 ); (ii) any defense arising by reason of any disability
or other defense of the other Borrower or the cessation from any
cause whatsoever (including any act or omission of the other
Borrower or Principal of either Borrower) of the liability of the
other Borrower; (iii) any right to require Administrative Agent or
any Lender to proceed against or exhaust any security for the
Obligations, or pursue any other remedy in Administrative Agent or
any Lender’s power whatsoever; and (iv) to the fullest extent
permitted by law, any and all other defenses or benefits that may
be derived from or afforded by applicable law limiting the
liability of or exonerating guarantors or sureties.
ARTICLE II
THE COMMITMENTS AND LOANS
2.01. The
Loans . Subject to the terms and conditions set forth herein,
each Lender severally agrees to make a single Loan to Borrowers on
the Closing Date in an amount equal to such Lender’s
Applicable Percentage of the total amount of Two Hundred Million
Eight Hundred Thousand Dollars ($200,800,000), which in any event,
shall not exceed such Lender’s Commitment. Amounts borrowed
under this Section 2 .
01 and repaid or
prepaid may not be reborrowed. Loans may be Base Rate Loans or
Eurodollar Rate Loans, as further provided herein.
2.02.
Loans , Conversions and Continuations of Loans . (a)
The making of Loans on the Closing Date, each conversion of Loans
from one Type to the other, and each continuation of Eurodollar
Rate Loans shall be made upon Borrowers’ irrevocable notice
to Administrative Agent, which may be given by telephone. Each such
notice must be received by Administrative Agent not later than
12:00 noon (i) three (3) Business Days prior to the requested date
of the
making of Loans of, conversion to or
continuation of Eurodollar Rate Loans or of any conversion of
Eurodollar Rate Loans to Base Rate Loans, and (ii) on the requested
date of any Base Rate Loans. Each telephonic notice by Borrowers
pursuant to this Section 2 .
02 ( a ) must be confirmed promptly by delivery to
Administrative Agent of a written Committed Loan Notice,
appropriately completed and signed by a Responsible Officer of
Borrowers. The Loans that are Eurodollar Rate Loans and any
conversion to or continuation of Eurodollar Rate Loans shall be in
a principal amount of $5,000,000 or a whole multiple of $1,000,000
in excess thereof. The Loans that are Base Rate Loans and each
conversion to Base Rate Loans shall be in a principal amount of
$500,000 or a whole multiple of $100,000 in excess thereof. Each
Committed Loan Notice (whether telephonic or written) shall specify
(i) whether Borrowers are requesting the making of Loans on the
Closing Date, a conversion of Loans from one Type to the other, or
a continuation of Eurodollar Rate Loans, (ii) the requested date of
the Loans, conversion or continuation, as the case may be (which
shall be a Business Day), (iii) the principal amount of Loans to be
borrowed, converted or continued, (iv) the Type of Loans to be
borrowed or to which existing Loans are to be converted, and (v) if
applicable, the duration of the Interest Period with respect
thereto. If Borrowers fail to specify a Type of Loan in a Committed
Loan Notice or if Borrowers fail to give a timely notice requesting
a conversion or continuation, then the applicable Loans shall be
made as, or converted to, Eurodollar Rate Loans having an Interest
Period of one (1) month unless a Default shall exist, and then, in
such event, the applicable Loans shall be made as, or converted to,
Base Rate Loans until such Default shall be cured or otherwise
cease to exist. Any such automatic conversion to Eurodollar Rate
Loans shall be effective as of the last day of the Interest Period
then in effect with respect to the applicable Eurodollar Rate
Loans. If Borrowers request the making of Loans or conversion to,
or continuation of Eurodollar Rate Loans in any such Committed Loan
Notice, but fail to specify an Interest Period, it will be deemed
to have specified an Interest Period of one month.
(b) Following
receipt of a Committed Loan Notice, Administrative Agent shall
promptly notify each Lender of the amount of its Applicable
Percentage of Loans, and if no timely notice of a conversion or
continuation is provided by Borrowers, Administrative Agent shall
notify each Lender of the details of any automatic conversion to
Base Rate Loans described in Section 2 .
02 ( a ). In the case of the Loans, each Lender shall
make the amount of its Loan available to Administrative Agent in
immediately available funds at Administrative Agent’s Office
not later than 12:00 noon on the Closing Date. Upon satisfaction of
the applicable conditions set forth in Section
5 . 01 , Administrative Agent shall make
all funds so received available to Borrowers in like funds as
received by Administrative Agent either by (i) crediting the
account of Borrowers on the books of JPMC with the amount of such
funds or (ii) by wire transfer of such funds, in accordance with
instructions provided to (and reasonably acceptable to)
Administrative Agent by Borrowers.
(c) Except
as otherwise provided herein, a Eurodollar Rate Loan may be
continued or converted only on the last day of an Interest Period
for such Eurodollar Rate Loan. During the existence of a Default,
no Loans may be requested as, converted to or continued as
Eurodollar Rate Loans without the consent of the Required
Lenders.
(d) Administrative
Agent shall promptly notify Borrowers and Lenders of the interest
rate applicable to any Interest Period for Eurodollar Rate Loans
upon
determination of such interest rate.
At any time that Base Rate Loans are outstanding, Administrative
Agent shall notify Borrowers and Lenders of any change in the Prime
Rate used in determining the Base Rate promptly following the
public announcement of such change.
(e) After
giving effect to the Loans, made on the Closing Date, all
conversions of Loans from one Type to the other, and all
continuations of Loans as the same Type, there shall not be more
than five (5) Interest Periods in effect in respect of the
Facility.
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2.03.
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Prepayments of Loans
.
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(a)
Optional Prepayments
. Subject
to the last sentence of this Section 2 .
03 ( a ) Borrowers may, upon notice to Administrative
Agent, at any time or from time to time voluntarily prepay Loans in
whole or in part without premium or penalty; provided
that (a) such notice must be
received by Administrative Agent not later than 11:00 a.m. three
(3) Business Days prior to any date of prepayment of Eurodollar
Rate Loans and on the date of prepayment of Base Rate Loans; (b)
any prepayment of Eurodollar Rate Loans shall be in a principal
amount of $5,000,000 or a whole multiple of $1,000,000 in excess
thereof; and (c) any prepayment of Base Rate Loans shall be in a
principal amount of $500,000 or a whole multiple of $100,000 in
excess thereof or, in each case, if less, the entire principal
amount thereof then outstanding. Each such notice shall specify the
date and amount of such prepayment and the Type(s) of Loans to be
prepaid and, if Eurodollar Rate Loans are to be prepaid, the
Interest Period(s) of such Loans. Administrative Agent will
promptly notify each Lender of its receipt of each such notice, and
of the amount of such Lender’s ratable portion of such
prepayment (based on such Lender’s Applicable Percentage in
respect of the Facility). If such notice is given by Borrowers,
Borrowers shall make such prepayment and the payment amount
specified in such notice shall be due and payable on the date
specified therein. Any prepayment of a Loan shall be accompanied by
all accrued interest on the amount prepaid, together, in the case
of Eurodollar Rate Loans, with any additional amounts required
pursuant to Section 4 .
05 .
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(b)
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Mandatory Prepayments
.
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(i)
Net Proceeds . Upon receipt of any Net Proceeds, Borrowers
shall prepay the outstanding principal balance of the Loans in an
amount equal to one hundred percent (100%) of such Net Proceeds;
provided, that such prepayment shall not be required if and to the
extent Administrative Agent and the Lenders are obligated to make
such Net Proceeds available to Borrowers for Restoration in
accordance with Section 9 .
04 .
(ii)
Release of Collateral . Simultaneously with any release of
Collateral in accordance with Section 2 .
12 , Borrowers shall prepay the outstanding principal
balance of the Loans in an amount equal to the Release Price as set
forth in such Section 2 .
12 .
(iii)
Termination of Myrtle Beach Golf Course Management Agreement
. Upon receipt of any termination payments under the Myrtle Beach
Golf Course Management Agreement, Borrowers shall prepay the
outstanding principal balance of the Loans in an amount equal to
one hundred percent (100%) of such termination payments.
(c)
Application of Prepayments to Installments. Each prepayment
of the outstanding Loans pursuant to this Section
2 . 03 shall be applied to the principal repayment
installments thereof, in reverse order of maturity, and each such
prepayment shall be paid to Lenders in accordance with their
respective Applicable Percentages in respect of the
Facility.
2.04.
Repayment of Loans . Borrower promise to pay to
Administrative Agent for the account of the Lenders the principal
amount of the Loans set forth below, in consecutive quarterly
payments, such payments to be due and payable on the last Business
Day of each calendar quarter ending within any period set forth
below. Each payment shall be equal to the amount set forth in the
table below opposite such period, commencing on September 30, 2009,
with a final payment on the Maturity Date in an amount equal to the
aggregate unpaid balance of the Loans, together with all other
outstanding Obligations (other than contingent indemnification
Obligations).
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Calendar Quarters
Ending:
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Amount of Term Loan Due and
Payable
|
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September 30, 2009
|
$375,000
|
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December 31, 2009
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$375,000
|
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March 31, 2010
|
$375,000
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June 30, 2010
|
$375,000
|
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September 30, 2010
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$500,000
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December 31, 2010
|
$500,000
|
|
March 31, 2011
|
$500,000
|
|
June 30, 2011
|
$500,000
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September 30, 2011*
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$750,000
|
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December 31, 2011*
|
$750,000
|
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March 31, 2012*
|
$750,000
|
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June 30, 2012*
|
$750,000
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*Due only if the Stated Maturity
Date is extended pursuant to Section 2.11; if the Stated Maturity
Date is not so extended, then the outstanding principal amount of
the Loans shall be due and payable on the Maturity Date.
2.05.
Interest . (a) Each Eurodollar Rate Loan shall bear interest
on the outstanding principal amount thereof for each Interest
Period at a rate per annum equal to the Eurodollar Rate for such
Interest Period plus the Applicable Margin; and each Base Rate Loan
shall bear interest on the outstanding principal amount thereof
from the applicable borrowing date at a rate per annum equal to the
Base Rate plus the Applicable Margin.
(b) (i) If
any amount of principal of any Loan is not paid when due (without
regard to any applicable grace periods), whether at stated
maturity, by acceleration or otherwise, such amount shall
thereafter bear interest at a fluctuating interest rate per annum
at all times equal to the Default Rate to the fullest extent
permitted by applicable Laws.
(ii) If
any amount (other than principal of any Loan) payable by Borrowers
under any Loan Document is not paid when due (without regard to any
applicable grace periods), whether at stated maturity, by
acceleration or otherwise, then upon the request of the Required
Lenders (or automatically upon the entry or deemed entry of an
order for relief with respect to any Borrower under any Debtor
Relief Laws) such amount shall thereafter bear interest at a
fluctuating interest rate per annum at all times equal to the
Default Rate to the fullest extent permitted by applicable
Laws.
(iii) Upon
the request of the Required Lenders, while any Event of Default
exists, Borrowers shall pay interest on the principal amount of all
outstanding Obligations hereunder at a fluctuating interest rate
per annum at all times equal to the Default Rate to the fullest
extent permitted by applicable Laws.
(iv) Accrued
and unpaid interest on past due amounts (including interest on past
due interest) shall be due and payable upon demand.
(c) Interest
on each Loan shall be due and payable in arrears on each Interest
Payment Date applicable thereto and at such other times as may be
specified herein. Interest hereunder shall be due and payable in
accordance with the terms hereof before and after judgment, and
before and after the commencement of any proceeding under any
Debtor Relief Law.
(a) Borrowers
shall pay to Arranger and Administrative Agent for their own
respective accounts fees in the amounts and at the times specified
in the Fee Letter. Such fees shall be fully earned when paid and
shall not be refundable for any reason whatsoever.
(b) Borrowers
agree to pay to (i) Administrative Agent for the account of each
Lender the closing fee in the amount of 0.75% of the amount of the
Commitment of such Lender as of the Closing Date, which fee shall
be due and payable on the Closing Date, and (ii) to Administrative
Agent and the Lenders such other fees as shall have been separately
agreed upon in writing in the amounts and at the times so
specified. All such fees shall be fully earned when paid and shall
not be refundable for any reason whatsoever.
2.07.
Computation of Interest and Fees . All computations of
interest for Base Rate Loans when the Base Rate is determined by
the Prime Rate shall be made on the basis of a year of 365 or 366
days, as the case may be, and actual days elapsed. All other
computations of fees and interest shall be made on the basis of a
360-day year and actual days elapsed (which results in more fees or
interest, as applicable, being paid than if computed on the basis
of a 365-day year). Interest shall accru on each Loan for the
day on which the Loan is
made, and shall not accrue on a
Loan, or any portion thereof, for the day on which the Loan or such
portion is paid, provided that any Loan that is repaid on the same day on
which it is made shall, subject to Section
2 . 09 bear interest for one day. Each determination by
Administrative Agent of an interest rate or fee hereunder shall be
conclusive and binding for all purposes, absent manifest
error.
2.08.
Evidence of Debt . The Loans made by each Lender shall be
evidenced by one or more accounts or records maintained by such
Lender and by Administrative Agent in the ordinary course of
business. The accounts or records maintained by Administrative
Agent and each Lender shall be conclusive absent manifest error of
the amount of the Loans made by Lenders to Borrowers and the
interest and payments thereon. Any failure to so record or any
error in doing so shall not, however, limit or otherwise affect the
obligation of Borrowers hereunder to pay any amount owing with
respect to the Obligations. In the event of any conflict between
the accounts and records maintained by any Lender and the accounts
and records of Administrative Agent in respect of such matters, the
accounts and records of Administrative Agent shall control in the
absence of manifest error. Upon the request of any Lender made
through Administrative Agent, Borrowers shall execute and deliver
to such Lender (through Administrative Agent) a Note, which shall
evidence such Lender’s Loans in addition to such accounts or
records. Each Lender may attach schedules to its Note and endorse
thereon the date, Type (if applicable), amount and maturity of its
Loans and payments with respect thereto.
2.09.
Payments Generally; Administrative Agent’s Clawback .
(a) General . All payments to be made by Borrowers shall be
made without condition or deduction for any counterclaim, defense,
recoupment or setoff. Except as otherwise expressly provided
herein, all payments by Borrowers hereunder shall be made to
Administrative Agent, for the account of the respective Lenders to
which such payment is owed, at Administrative Agent’s Office
in Dollars and in immediately available funds not later than 3:00
p.m. on the date specified herein. Administrative Agent will
promptly distribute to each Lender its Applicable Percentage in
respect of the Facility (or other applicable share as provided
herein) of such payment in like funds as received by wire transfer
to such Lender’s Lending Office. All payments received by
Administrative Agent after 3:00 p.m. shall be deemed received on
the next succeeding Business Day and any applicable interest or fee
shall continue to accrue. If any payment to be made by Borrowers
shall come due on a day other than a Business Day, payment shall be
made on the next following Business Day, and such extension of time
shall be reflected on computing interest or fees, as the case may
be.
(b)
Presumption by Administrative Agent . Unless Administrative Agent shall have
received notice from Borrowers prior to the time at which any
payment is due to Administrative Agent for the account of the
Lenders hereunder that Borrowers will not make such payment,
Administrative Agent may assume that Borrowers have made such
payment on such date in accordance herewith and may, in reliance
upon such assumption, distribute to the Lenders the amount due. In
such event, if Borrowers have not in fact made such payment, then
each of the Lenders severally agree to repay to Administrative
Agent forthwith on demand the amount so distributed to such Lender,
in immediately available funds with interest thereon, for each day
from and including the date such
amount is distributed to it to but
excluding the date of payment to Administrative Agent, at the
greater of the Federal Funds Rate and a rate reasonably determined
by Administrative Agent in accordance with banking industry rules
on interbank compensation.
(c)
Obligations of Lenders Several . The obligations of the Lenders hereunder to
make Loans and to make payments pursuant to Section
12 . 04 ( c ) are several and not
joint. The failure of any Lender to make any Loan, to make any
payment under Section 12 .
04 ( c ) on any date required hereunder shall not
relieve any other Lender of its corresponding obligation to do so
on such date, and no Lender shall be responsible for the failure of
any other Lender to so make its Loan or to make its payment under
Section 12 .
04 ( c ).
(d)
Funding Source . Nothing herein shall be deemed to obligate any
Lender to obtain the funds for any Loan in any particular place or
manner or to constitute a representation by any Lender that it has
obtained or will obtain the funds for any Loan in any particular
place or manner.
(e)
Insufficient Funds . If at any time insufficient funds are received
by and available to Administrative Agent to pay fully all amounts
of principal, interest and fees then due hereunder, such funds
shall be applied (i) first, toward payment of interest and fees
then due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of interest and fees then due to such
parties, and (ii) second , toward payment of principal then
due hereunder, ratably among the parties entitled thereto in
accordance with the amounts of principal then due to such
parties.
2.10.
Sharing of Payments by Lenders . If any Lender shall, by
exercising any right of setoff or counterclaim or otherwise, obtain
payment in respect of (a) Obligations in respect of the Facility
due and payable to such Lender hereunder and under the other Loan
Documents 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 at such time to (ii) the aggregate amount of
the Obligations in respect of the Facility due and payable to all
Lenders hereunder and under the other Loan Documents at such time)
of payments on account of the Obligations in respect of the
Facility due and payable to all Lenders hereunder and under the
other Loan Documents at such time obtained by all the Lenders at
such time or (b) Obligations in respect of the Facility owing (but
not due and payable) to such Lender hereunder and under the other
Loan Documents at such time in excess of its ratable share
(according to the proportion of (i) the amount of such Obligations
owing (but not due and payable) to such Lender at such time to (ii)
the aggregate amount of the Obligations in respect of the Facility
owing (but not due and payable) to all Lenders hereunder and under
the other Loan Parties at such time) of payment on account of the
Obligations in respect of the Facility owing (but not due and
payable) to all Lenders hereunder and under the other Loan
Documents at such time obtained by all of the Lenders at such time
then the Lender receiving such greater proportion shall (a) notify
Administrative Agent of such fact, and (b) purchase (for cash at
face value) participations in the Loans of the other Lenders, or
make such other adjustments as shall be equitable, so that the
benefit of all such payments shall be shared by Lenders ratably in
accordance with the aggregate amount of Obligations then
due
and payable to the Lenders or owing
(but not due and payable) to the Lenders, as the case may be,
provided that:
(i) if
any such participations or subparticipations are purchased and all
or any portion of the payment giving rise thereto is recovered,
such participations or subparticipations shall be rescinded and the
purchase price restored to the extent of such recovery, without
interest; and
(ii) the
provisions of this Section shall not be construed to apply to (A)
any payment made by Borrowers pursuant to and in accordance with
the express terms of this Agreement or (B) any payment obtained by
a Lender as consideration for the assignment of or sale of a
participation in any of its Loans to any assignee or participant,
other than to Borrowers or any Borrowers’ Affiliates or
Subsidiaries (as to which the provisions of this Section shall
apply).
Each Borrower consents to the
foregoing and agrees, to the extent it may effectively do so under
applicable law, that any Lender acquiring a participation pursuant
to the foregoing arrangements may exercise against any such
Borrower’s rights of setoff and counterclaim with respect to
such participation as fully as if such Lender were a direct
creditor of such Borrower in the amount of such
participation.
2.11.
Extension of Maturity Date . So long as no Default or Event
of Default has occurred and is continuing on the Stated Maturity
Date that would otherwise have occurred without giving effect to
such request (such date, the “Extension Effective
Date”), Borrowers may on up to two (2) occasions extend the
Stated Maturity Date to a date that is not later than one (1) year
after the applicable original (or extended) Stated Maturity Date,
upon:
(a) delivery
of a Facility Extension Request to Administrative Agent and the
Lenders at least thirty (30) days (or forty-five (45) days in the
case of the Second Extension), but no more than ninety (90) days,
prior to then applicable Stated Maturity Date;
(b) delivery
to Administrative Agent and the Lenders of an Officer’s
Certificate, dated as of the Extension Effective Date, certifying
that (a) all representations and warranties of Borrowers set forth
in this Agreement shall be true and correct in all material
respects as of the date on which Borrowers delivered the Facility
Extension Request to Administrative Agent and on the Extension
Effective Date, except to the extent such representations and
warranties were made as of a specified date, in which case such
representation and warranty shall have been true and correct as of
such specified date; and (b) no Default or Event of Default has
occurred and is continuing on the Extension Effective Date or after
giving effect to any extension of the Stated Maturity Date on such
date;
(c) the
Debt Service Coverage Ratio, calculated on a pro-forma basis as of
the Extension Effective Date, shall equal or exceed: (x) in the
case of the First Extension, 1.25 to 1.0; and (y) in the case of
the Second Extension, 1.5 to 1.0, in each case as
evidenced by an Officer’s
Certificate delivered by Borrowers to Administrative Agent and the
Lenders with supporting calculations, dated as of the Extension
Effective Date;
(d) for
the exercise of the Second Extension only, the Loan to Value Ratio
for the Collateral Properties shall be no more than 55% based on
updated Acceptable Appraisals obtained no more than ninety (90)
days prior to the proposed Extension Effective Date (and after
giving effect to any voluntary prepayments of the Loans that may be
necessary to cause the Loan to Value Ratio to be equal to or less
than 55%);
(e) payment
to Administrative Agent for the benefit of Lenders of a facility
extension fee equal to one half of one percent (0.50%) of the then
Outstanding Amount as of the applicable Extension Effective
Date;
(f) payment
by Borrowers of all other reasonable fees and expenses to
Administrative Agent and the Lenders to the extent then due as of
the applicable Extension Effective Date; and
(g) execution
(and if required by local law, recordation) of any extension
agreement in form as required by Administrative Agent with respect
to each Collateral Property and endorsements and other assurances
as Administrative Agent may reasonably require to conform the Title
Policies (including “datedown” endorsements) and
amendment to any Mortgages of the remaining Collateral Properties
to reflect any change in respective Appraised Values of the
Collateral Properties (together with payment by Borrowers of any
fees or expenses, including any additional mortgage tax, in
connection therewith).
Each extension shall be evidenced by
delivery of written confirmation of the same by Administrative
Agent to Borrowers. In no event shall the Maturity Date occur later
than August 15, 2013. During the extended term of the Loans,
all terms and conditions of the Loan Documents (other than the
original Stated Maturity Date) shall continue to apply, except that
(x) Borrowers shall have no further right to extend the term
of the Loans after the Second Extension and (y) the Applicable
Margin after the Second Extension shall be increased as provided in
the definition of Applicable Margin.
2.12.
Collateral Property Releases . Borrowers may obtain the
release of a Collateral Property from the Lien of the Mortgage
thereon (and related Collateral Documents) and the release of
Borrowers’ obligations under the Loan Documents with respect
to such Collateral Property (other than those expressly stated to
survive), but only upon the satisfaction of each of the following
conditions:
(a) Such
release is in connection with a sale or refinancing of such
Collateral Property and Administrative Agent shall have received
evidence that such Collateral Property shall be conveyed to a
Person other than a Borrower or an Affiliate of any Borrower (in
the case of a sale);
(b) No
Event of Default has occurred and is continuing, and no Default or
Event of Default would exist after giving effect to the release of
such Collateral Property;
(c) Borrowers
shall provide Administrative Agent and the Lenders with at least
thirty (30) days but no more than forty-five (45) days prior
written notice of its request to obtain a release of the Collateral
Property;
(d) After
giving effect to such release, the Loan to Value Ratio for the
remaining Collateral Properties shall be no greater than the Loan
to Value Ratio in effect immediately prior to such release (as
determined based on (i) the Outstanding Amount of the Facility
after such release and prepayment of Loans, and (ii) the Appraised
Value of all remaining Collateral Properties);
(e) After
giving effect to such release, the remaining Collateral Properties
shall be sufficient to result in a pro-forma Debt Service Coverage
Ratio of not less than the Debt Service Coverage Ratio in effect
immediately prior to such release (as determined based on (i) the
Outstanding Amount of the Facility after such release and
prepayment of Loans, and (ii) the Net Operating Income of the
remaining Collateral Properties);
(f) Simultaneously
with such release, Administrative Agent shall have received a wire
transfer of immediately available federal funds in an amount equal
to the Release Price for the applicable Collateral Property,
together with (i) all accrued and unpaid interest on the amount of
principal being prepaid through and including the date of such
prepayment, (ii) any amounts required to be paid pursuant to
Section 4 .
05 , if any, and (iii) all other sums due under this
Agreement, the Notes or the other Loan Documents in connection with
such release;
(g) Borrowers
shall submit to Administrative Agent, not less than five (5) days
prior to the date of such release, (i) a release of Lien (and
related Loan Documents) for such Collateral Property for execution
by Administrative Agent in a form appropriate for recordation in
the state in which such Collateral Property is located and shall
contain standard provisions, if any, protecting the rights of
Administrative Agent and Lenders, (ii) all other documentation
Administrative Agent reasonably requires to be delivered by
Borrowers in connection with such release, (iii) an Officer’s
Certificate certifying that (A) such documentation is in compliance
with all applicable Legal Requirements, (B) the release will not
impair or otherwise adversely affect the Liens, security interests
and other rights of Administrative Agent and Lenders under the Loan
Documents not being released (or as to the parties to the Loan
Documents and Collateral Properties subject to the Loan Documents
not being released), (C) the release is in compliance with clauses
(d) and (e) above, together with computations in reasonable detail
evidencing such compliance, and (D) no Event of Default has
occurred and is continuing, and no Default or Event of Default
would exist after giving effect to the release of such Collateral
Property.
(h) Based
on the Allocated Loan Amounts of the remaining Collateral
Properties, Administrative Agent may obtain at Borrowers’
expense such additional endorsements to its title policies to
reflect such revised valuations, as Administrative Agent may
reasonably require;
(i) after
giving effect to the proposed partial release, the outstanding
principal balance of the Loans shall exceed $25,000,000;
(j) Administrative
Agent shall have received payment of all of its reasonable out of
pocket costs and expenses, including due diligence review costs and
reasonable counsel fees and disbursements incurred in connection
with the release of such Collateral Property from the Lien of the
applicable Mortgage and the review and approval of the documents
and information required to be delivered in connection
therewith;
(k) Administrative
Agent shall have received a true, correct and complete copy of the
purchase agreement or refinancing loan agreement, as applicable;
and
(l) the
release will not violate the terms of this Agreement or any other
Loan Document.
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2.13.
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Release on Payment in
Full .
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Administrative Agent shall, upon the
written request and at the expense of Borrowers, upon payment in
full of all Obligations, release the Lien of the Mortgages and any
other Loan Document on each Collateral Property not theretofore
released.
ARTICLE III
CASH MANAGEMENT
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3.01.
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Establishment of
Accounts .
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(a) Owner
or Operating Lessee, as applicable, shall, as soon as practicable,
and in any event within sixty (60) days after the Closing Date, (i)
establish one or more accounts (individually and collectively, the
“ Property Account ”) with one or more Property Account
Banks, into which the applicable Borrower shall, and shall direct
each Manager to deposit all Gross Income from Operations (together
with any other revenue received by Borrowers), unless such funds
are directly deposited in a Concentration Account, (ii) establish
one or more accounts (individually and collectively, the “
Concentration Account ”) with a Concentration Account Bank into
which all funds on deposit in the applicable Property Account shall
be swept on a daily basis, and into which any funds not previously
deposited into the applicable Property Account shall be deposited
directly, and (iii) execute agreements with each Property Account
Bank or Concentration Account Bank and Administrative Agent for the
benefit of the Secured Parties, providing that such Property
Account Bank or Concentration Account Bank will comply with
instructions originated by Administrative Agent directing
disposition of the funds in the Property Account or Concentration
Account, as applicable, without further consent by Borrowers, such
agreements to be in form and substance satisfactory to
Administrative Agent (each, a “ Property Account
Agreement ” or “ Concentration Account
Agreement ”, as applicable). Within sixty (60) days after
the Closing Date, Borrowers shall deliver to Administrative Agent
and the Lenders, a Schedule 3.01(a), which lists each Account by
account number and institution, and which shall otherwise be in
form and substance satisfactory to Administrative Agent.
(b) As
soon as practicable, and in any event within sixty (60) days after
the Closing Date, Administrative Agent, Borrowers and the Lockbox
Bank shall complete and execute all paperwork to establish an
account with the Lockbox Bank (the “ Lockbox
Account ”), which agreement: (i) shall be in form
and substance satisfactory to Administrative Agent, (ii) shall
provide that the Lockbox Bank will comply with instructions
originated by Administrative Agent for the benefit of the Secured
Parties directing disposition of the funds in the Lockbox Account
without further consent by Borrowers (the “ Lockbox
Account Agreement ”), and (iii) shall be effective
immediately upon the occurrence of a Lockbox Trigger Event, without
further actions on the part of Borrowers. During any Lockbox
Period, all sums on deposit in the Concentration Accounts shall be
swept on a daily basis into the Lockbox Account in accordance with
Section 3 .
02 and
Section 3 .
06 .
(c) In
addition, Administrative Agent shall cause the Lockbox Bank to
establish the following Accounts (which may be book entry
sub-accounts, collectively, the “ Reserve Accounts
”) into which during any Lockbox Period amounts in the
Lockbox Account shall be deposited or allocated in accordance with
Section 3.07(a):
(i) An
account with Lockbox Bank into which the Monthly Tax Deposit, if
any, shall be deposited (the “ Tax Account
”);
(ii) An
account with Lockbox Bank into which the Monthly Insurance Premium
Deposit, if any, shall be deposited (the “ Insurance
Premium Account ”); and
(iii) An
account with Lockbox Bank into which the Monthly Capital
Expenditures Reserve Deposit, if any, shall be deposited (the
“ Capital Expenditures Reserve Account
”).
(d)
Each Borrower and Manager shall
(and Operating Lessee shall direct the applicable Manager to)
deposit all Accounts Receivable for each Collateral Property, any
other Gross Income from Operations and any other revenue relating
to the Collateral Properties received or collected by such Borrower
or Manager (on behalf of a Borrower) into the applicable Property
Account or the Concentration Account. For so long as any
Obligations are outstanding, neither Borrower nor any other Person
shall maintain any other accounts (other than property level petty
cash or similar type accounts at each Collateral Property with a
total aggregate balance of less than $100,000 for all Collateral
Properties) other than the Accounts, into which revenues from the
ownership and operation of the Collateral Properties are deposited.
No Borrower nor any other Person shall (A) open any other such
account with respect to the deposit of income in connection with
the Collateral Properties or (B) direct any existing or future
third party payors to make payments in any manner other than as set
forth in this Section 3.01(c) and Section 3.02(a) , without
the prior written consent of Administrative Agent.
3.02.
Deposits into Lockbox Account . The Borrowers hereby
warrant, covenant and agree that during any Lockbox
Period:
