FIFTH AMENDMENT TO CREDIT
AGREEMENT;
AND WAIVER AGREEMENT
THIS FIFTH AMENDMENT TO CREDIT AGREEMENT; AND
WAIVER AGREEMENT (this “ Agreement ”) dated as
of August 5, 2009 is entered into by and among MORGANS GROUP
LLC, a limited liability company formed under the laws of the State
of Delaware (the “ Borrower ”), BEACH HOTEL
ASSOCIATES LLC, a limited liability company formed under the laws
of the State of Delaware (the “ Florida Borrower
”), MORGANS HOLDINGS LLC, a limited liability company formed
under the laws of the State of Delaware (the “ NY Morgans
Borrower ”), ROYALTON LLC, a limited liability company
formed under the laws of the State of Delaware (the “ NY
Royalton Borrower ”, and together with the Borrower, the
Florida Borrower and the NY Morgans Borrower, the “
Borrowers ”), and MORGANS HOTEL GROUP CO., a
corporation formed under the laws of the State of Delaware (“
Holdings ”, and together with the Borrowers and the
Guarantors that are parties hereto, the “ Loan Parties
” and individually a “ Loan Party ”); each
of the Lenders party hereto; and WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent (the “ Agent
”).
WHEREAS , the Borrower, the Florida Borrower, Holdings,
the Lenders, the Agent and certain other parties have entered into
that certain Credit Agreement dated as of October 6, 2006, as
amended by that certain First Amendment to Credit Agreement dated
November 10, 2006, that certain Second Amendment to Credit
Agreement dated January 8, 2007, that certain Third Amendment
to Credit Agreement dated October 10, 2007 and that certain
Fourth Amendment to Credit Agreement dated January 16, 2008
(as previously amended, as hereby amended and as from time to time
further amended, modified, supplemented, restated, or amended and
restated, the “ Existing Credit Agreement ”),
pursuant to which the Lenders have made available to the Borrowers
a revolving credit facility, including a letter of credit facility
and a swing line facility;
WHEREAS , the Borrower has requested (a) that the
Agent and the Lenders amend the Existing Credit Agreement in such a
manner that, upon giving effect to such amendments, the Existing
Credit Agreement would contain the terms, covenants, conditions and
other provisions as contained in the form of credit agreement set
forth as Exhibit A to this Agreement (the “
Consolidated Form Credit Agreement ”); and
(b) that the Agent and the Lenders agree to the waivers set
forth in Section 3 hereof; and
WHEREAS , capitalized terms used in this Agreement and
not otherwise defined herein shall have the respective meanings
given thereto in the Existing Credit Agreement as amended by this
Agreement (as so amended, the “ Credit Agreement
”).
NOW, THEREFORE , for good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, the
parties hereto hereby agree as follows:
Section 1. Conditions
Precedent . As
express conditions to the consummation of this Agreement, the
following shall have occurred, all in a form and manner and in
substance satisfactory to the Agent:
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(a)
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The Agent shall have received each
of the following, in form and substance satisfactory to the
Agent:
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(i)
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counterparts of this Agreement duly
executed by the Loan Parties, the Agent and Lenders which
constitute Requisite Lenders;
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(ii)
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for each Lender, a promissory note
in the principal amount equal to such Lender’s Commitment
Percentage of the Tranche A Commitment, executed by the Borrower
and complying with the applicable requirements of
Section 2.11. of the Credit Agreement, which note, together
with the Tranche B Note in favor of such Lender shall amend and
restate the promissory note of the Borrower delivered in connection
with the Existing Credit Agreement;
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(iii)
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for each Lender, a promissory note
in the principal amount equal to such Lender’s Commitment
Percentage of the Tranche A Commitment, executed by the Florida
Borrower and complying with the applicable requirements of
Section 2.11. of the Credit Agreement, which note shall amend
and restate the promissory note of the Florida Borrower delivered
in connection with the Existing Credit Agreement;
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(iv)
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for each Lender, a promissory note
in the principal amount of such Lender’s Commitment
Percentage of the Tranche B Commitment, executed by the Tranche B
Borrowers and complying with the applicable provisions of Section
2.11. of the Credit Agreement, which note, together with the
Tranche A Borrower Note in favor of such Lender, shall amend and
restate the promissory note of the Borrower delivered in connection
with the Existing Credit Agreement;
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(v)
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the Reaffirmation of Guaranty
executed by the Loan Parties as of the Effective Date, which shall
reaffirm and restate the guaranty delivered in connection with the
Existing Credit Agreement;
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(vi)
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an opinion or opinions of counsel
to the Loan Parties, addressed to the Agent and the Lenders,
addressing such matters as the Agent may reasonably
require;
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(vii)
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the articles of incorporation,
articles of organization, certificate of limited partnership or
other comparable organizational instrument (if any) of each Loan
Party certified as of a recent date by the Secretary of State of
the state of formation of such Loan Party;
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(viii)
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a certificate of good standing or
certificate of similar meaning with respect to each Loan Party
issued as of a recent date by the Secretary of State of the state
of formation of each such Loan Party and certificates of
qualification to transact business or other comparable certificates
issued by each Secretary of State (or any state department of
taxation, as applicable) of each state in which such Loan Party is
required to be so qualified and where the failure to be so
qualified could reasonably be expected to have a Material Adverse
Effect;
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(ix)
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a certificate of incumbency signed
by the Secretary or Assistant Secretary (or other individual
performing similar functions) of each Loan Party with respect to
each of the officers of such Loan Party authorized to execute and
deliver this Agreement and the Loan Documents to which such Loan
Party is a party, and in the case of the Borrower, the officers of
the Borrower then authorized to deliver Notices of Revolving
Borrowings, Notices of Borrowings, Notices of Continuation and
Notices of Conversion and to request the issuance of Letters of
Credit;
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(x)
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copies certified by the Secretary
or Assistant Secretary (or other individual performing similar
functions) of each Loan Party of (i) the by-laws of such Loan
Party, if a corporation, the operating agreement of such Loan
Party, if a limited liability company, the partnership agreement of
such Loan Party, if a limited or general partnership, or other
comparable document in the case of any other form of legal entity
and (ii) all corporate, partnership, member or other necessary
action taken by such Loan Party to authorize the execution,
delivery and performance of this Agreement and the Loan Documents
to which it is a party that are executed in connection
herewith;
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(xi)
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a Borrowing Base Certificate
calculated as of the Fifth Amendment Effective Date;
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(xii)
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a Compliance Certificate calculated
as of June 30, 2009 (giving pro forma effect to the financing
contemplated by this Agreement and the use of the proceeds of the
Loans to be funded on the Fifth Amendment Effective Date as if the
reduction of Commitments and the repayment and restructuring of
outstanding Loans on the Fifth Amendment Effective Date pursuant to
this Agreement had occurred on June 30, 2009);
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(xiii)
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a capital budget for each Property
as required by Section 10.11.(b) of the Credit
Agreement;
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(xiv)
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the NY Mortgage duly executed by
the NY Borrowers and recorded in the applicable land records,
securing only the Obligations (including principal, interest and
Reimbursement Obligations) with respect to the Tranche B Loans and
Tranche B Letter of Credit Liabilities, together with evidence that
all applicable mortgage recording taxes, stamp taxes, intangible
taxes and other applicable taxes required for the recordation
and/or enforcement of the NY Mortgage and the Obligations secured
thereby have been paid;
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(xv)
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a standard ALTA lender’s
policy of title insurance in the amount of Tranche B Commitment,
insuring that the lien of the NY Mortgage constitutes a first lien
on the NY Properties subject only to (A) the existing
$1.4 million mortgages on the respective NY Properties (each,
an “ Existing Mortgage ”), which Existing
Mortgage and related note has previously been assigned to the
Agent, and (B) the matters of record as of the date of the
recordation of the Existing Mortgage (to the extent the Agent
previously approved such matters), together with a pending
disbursements endorsement and such other endorsements as the Agent
may require;
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(xvi)
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appraisals for the NY Properties
complying with the standards for Appraisals provided in the Credit
Agreement, setting forth Appraised Values acceptable to the Agent,
and otherwise in form and substance acceptable to the Agent, in the
Agent’s sole discretion;
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(xvii)
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an amendment to the mortgage
encumbering the Florida Property, which currently secures the
“Florida Sublimit” under the Existing Credit Agreement,
amending such mortgage to provide that it secures the Tranche A
Loans as well as the obligations of the Florida Borrower under the
Guaranty, executed by the Florida Borrower and recorded in the
applicable land records, together with evidence that all applicable
mortgage recording taxes, stamp taxes, intangible taxes and other
applicable taxes required for the recordation and/or enforcement of
such mortgage as so amended have been paid;
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(xviii)
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such other Security Documents and
amendments to Security Documents as the Agent may reasonably
request to perfect or continue the perfection of the Agent’s
security interest in all Collateral in connection with the
transactions contemplated by this Agreement.
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(b)
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The Agent and Wells Fargo
Securities, LLC (“Wells Fargo Securities”) shall have
received all fees as required by the letter agreement (the “
Fee Letter ”) dated July 14, 2009 between the
Borrower and Wells Fargo Securities;
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(c)
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The Agent and its Affiliates shall
have received reimbursement from the Borrower of all reasonable
expenses of the Agent and its Affiliates, as required by this
Agreement and the Credit Agreement;
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(d)
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The Agent shall have received, for
the benefit of each Lender that has executed and delivered this
Agreement, an amendment fee equal to 0.50% of such Lender’s
Commitments, after giving effect to the reduction of the
Commitments on the effective date hereof, as contemplated by this
Agreement;
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(e)
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All fees, charges and disbursements
of counsel to the Agent (including any local counsel) incurred in
connection with the Loan Documents or the execution and delivery of
this Agreement, to the extent invoiced prior to or on the date
hereof, plus such additional amounts of such fees, charges and
disbursements as shall constitute such counsel’s reasonable
estimate of such fees, charges and disbursements incurred or to be
incurred by it through the closing of this Agreement (provided that
such estimate shall not thereafter preclude a final settling of
such fees, charges and disbursements) shall have been paid in
full;
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(f)
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The Borrower shall have made, or
caused to be made, a principal payment on the Revolving Credit
Facility in such amount as may be required so that the aggregate
principal amount of all outstanding Loans converted into Tranche A
Loans and Tranche B Loans plus the aggregate amount of all Letter
of Credit Liabilities converted into Tranche A Letter of Credit
Liabilities on the date hereof shall not exceed
$35,000,000;
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(g)
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No Default or Event of Default
shall be existing, and all representations and warranties provided
in this Agreement shall be true and correct in all material
respects;
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(h)
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All outstanding Swing Line Loans
(as defined in the Existing Credit Agreement) shall have been
indefeasibly repaid in full; and
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(i)
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The Agent shall have received such
other documents, instruments or certificates, and the Loan Parties
shall have performed such other undertakings and provided such
further assurances, as the Agent may deem necessary or desirable to
consummate the transactions contemplated by this
Agreement.
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2.
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Acknowledgment of Existing
Obligations under the Loan Documents . Each of the Loan Parties hereby
confirms, ratifies and acknowledges the enforceability of the Loan
Documents to which it is a party and its liability for all
Obligations arising under each of the Loan Documents executed by
such Loan Party (including without limitation the continuation of
such Loan Party’s payment and performance obligations
thereunder and grants of security interests or liens provided
therein, in each case upon and after the effectiveness of this
Agreement and the amendments contemplated hereby).
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3.
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Waiver of Certain Defaults under
Existing Credit Agreement .
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(a)
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To the extent that a Default or
Event of Default existed for failure to comply, as of June 30,
2009, with Section 10.11.(a) (the maximum leverage
ratio covenant) as in effect prior to this Agreement, the Lenders
party to this Agreement hereby waive such Default and Event of
Default.
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(b)
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To the extent that a Default or
Event of Default existed for failure to comply, for the period of
four fiscal quarters ended June 30, 2009, with Section
10.11.(b) (the minimum fixed charge coverage ratio covenant) as
in effect prior to this Agreement, the Lenders party to this
Agreement hereby waive such Default and Event of Default. (The
waivers set forth in clauses (a) and (b) of this
Section 3 are referred to collectively as the “
Waiver .”)
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The Waiver is granted only for the
specific instances described herein and in no manner creates a
course of dealing or otherwise impairs the future ability of the
Agent or the Lenders to declare a Default or Event of Default
under, or otherwise enforce the terms of, the Credit Agreement with
respect to any other matters or with respect to any violation of
Section 10.11. occurring at any time after the date
hereof or with respect to any fiscal period ended after
June 30, 2009.
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4.
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Amendments to Existing Credit
Agreement . Subject to the terms and
conditions set forth herein, the Existing Credit Agreement is
hereby amended so that, as amended, it shall read as set forth in,
and shall have the terms, covenants, conditions and other
provisions of, the Consolidated Form Credit Agreement, the
terms, covenants, conditions and other provisions of which
Consolidated Form Credit Agreement are hereby incorporated by
reference into this Agreement as if fully set forth herein. The
parties hereto acknowledge and agree that each amendment to the
Existing Credit Agreement reflected in the Consolidated
Form Credit Agreement is and shall be effective as if
individually specified in this Agreement (the parties further
acknowledging that amending the Existing Credit Agreement by
reference to the Consolidated Form Credit Agreement provides a
convenience to the parties to permit the amended terms to be read
in the context of the full Existing Credit Agreement), and that
this Agreement is not a novation of the Existing Credit
Agreement or of any credit facility provided thereunder or in
respect thereof. The signature pages contained in the Consolidated
Form Credit Agreement and the Schedules and Exhibits may be left
off; provided that, (i) Exhibit B ,
Exhibit C , Exhibit D ,
Exhibit E , Exhibit F-1 ,
Exhibit F-2 , Exhibit G ,
Exhibit H, Exhibit I ,
Exhibit R , Exhibit S and
Exhibit T which are attached to the Consolidated
Form Credit Agreement, shall constitute an amendment and
restatement of each such exhibit as is attached to the Existing
Credit Agreement, (ii) Schedule 1.1.(B) ,
Schedule 7.1.(b) , Schedule 7.1.(d) ,
Schedule 7.1.(f) , Schedule 7.1.(g) ,
Schedule 7.1.(h) and Schedule 7.1.(i) which
are attached to the Consolidated Form Credit Agreement, shall
be amended and restated as set forth therein as of the Fifth
Amendment Effective Date, and (iii) Schedule 2.1.,
Schedule 2.3. Schedule 7.1.(y),
Schedule 10.1.(a) , Schedule 10.2.(xiii) ,
Schedule 10.4.(n) and Schedule 10.11.(b)
which are attached to the Consolidated Form Credit Agreement,
shall be added to the Existing Credit Agreement as set forth
therein as of the Fifth Amendment Effective Date. Notwithstanding
that the cover page of the Consolidated Form Credit Agreement
is dated “as of October 6, 2006”, the changes to
the Existing Credit Agreement affected by this Agreement shall be
effective as of the satisfaction to the conditions to effectiveness
of this Agreement set forth in Section 1 hereof.
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5.
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Consent to Amendments to Certain
Operating Agreements . The Agent and the Lenders
signatory to this Agreement hereby consent to the amendment of the
Operating Agreement of each of the New York Borrowers, the Florida
Borrower, Morgans/Delano Pledgor LLC, Madison Bar Company LLC,
Royalton Pledgor LLC and 43 rd Restaurant LLC, so that after
giving effect to such amendment, each such Operating Agreement
shall be in the respective forms attached hereto as
Exhibit B-1, B-2, B-3, B-4, B-5, B-6 or B-7, as
applicable.
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6.
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Representations and
Warranties . In order to induce the Agent and
the Lenders signatory hereto to enter into this Agreement, each
Loan Party represents and warrants to the Agent and the Lenders as
follows:
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(a)
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Authorization
. Each of the
Borrowers, Holdings and each other Loan Party has the right and
power, and has taken all necessary action to authorize it, to
execute and deliver this Agreement and the other documents and
amendments to Loan Documents executed in connection herewith
(collectively with this Agreement, the “ Amendment and
Waiver Documents ”) and to perform its obligations under
the Amendment and Waiver Documents, in accordance with their
respective terms. This Agreement and the other Amendment and Waiver
Documents have been duly executed and delivered by a duly
authorized officer of each of the Loan Parties that is a party
thereto, and each of the Amendment and Waiver Documents is a legal,
valid and binding obligation of each of the Loan Parties that is a
party thereto, enforceable against each such Person in accordance
with its respective terms except as the same may be limited by
bankruptcy, insolvency, and other similar laws affecting the rights
of creditors generally and the availability of equitable remedies
for the enforcement of certain obligations (other than the payment
of principal) contained herein or therein and as may be limited by
equitable principles generally.
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(b)
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Compliance with Laws,
etc . The
execution and delivery by each of the Loan Parties of the Amendment
and Waiver Documents to which it is a party and the performance by
each such Loan Party of such Amendment and Waiver Documents, in
accordance with their respective terms, do not and will not, by the
passage of time, the giving of notice or otherwise:
(i) require any Government Approvals or violate any Applicable
Laws relating to such Loan Party; (ii) conflict with, result
in a breach of or constitute a default under such Loan
Party’s organizational documents or any indenture, agreement
or other instrument to which such Loan Party is a party or by which
it or any of its properties may be bound; or (iii) result in
or require the creation or imposition of any Lien upon or with
respect to any property now owned or hereafter acquired by such
Loan Party other than Permitted Liens.
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(c)
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Guarantors . The Persons appearing as
Guarantors on the signature pages to this Agreement constitute all
Persons who are required to be Guarantors pursuant to the terms of
the Credit Agreement and the other Loan Documents, including
without limitation all Persons who became Subsidiaries or were
otherwise required to become Guarantors after the Closing Date, and
each of such Persons has become and remains a party to a Guaranty
as a Guarantor;
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(d)
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No Default . No Default or Event of Default has
occurred and is continuing as of the date hereof nor will exist
immediately after giving effect to this Agreement.
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(e)
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Claims and Defenses
. No Loan Party has any
claims, counterclaims, rights of setoff or defenses with respect to
this Agreement or the Loan Documents, to any of its Obligations, or
to the Agent’s exercise of any right or remedy available to
it under the terms of the Loan Documents, this Agreement or
applicable law.
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(f)
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Representations and Warranties in
Loan Documents . All of the representations and
warranties of the Loan Parties set forth in the Credit Agreement
and the other Loan Documents are true and correct as of the date
hereof in all material respects with the same force and effect as
if such representations and warranties were set forth in this
Agreement in full, except to the extent that such representations
and warranties expressly relate solely to an earlier specified date
(in which case such representations and warranties are true and
correct in all material respects on and as of such earlier
date).
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7.
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Post-Closing
Covenants . The Loan Parties hereby agree that
from and after the Fifth Amendment Effective Date, they shall use
commercially reasonable efforts to deliver, or cause to be
delivered to the Agent, on or before September 4, 2009,
(a) a fully-executed subordination and attornment agreement in
substantially the same form as set forth on Exhibit C attached
hereto between Base USA, Inc. as tenant and the Florida Borrower as
landlord, (b) fully-executed subordination, non-disturbance and
attornment agreements in substantially the same form as set forth
on Exhibit D attached hereto between each of (i) SC
Collins LLC as tenant and the Florida Borrower as landlord and
(ii) SC Madison LLC as tenant and Morgans Holdings LLC as
landlord and (c) executed tenant estoppel certificates in
substantially the same form as set forth on Exhibit E attached
hereto for each of (i) Base USA, Inc. as tenant under a lease
with the Florida Borrower as landlord, (ii) SC Collins LLC as
tenant under a lease with the Florida Borrower as landlord and
(iii) SC Madison LLC as tenant under a lease with Morgans
Holdings LLC as landlord.
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8.
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Acknowledgements and
Agreements . In order to induce the Agent and
the Lenders signatory hereto to enter into this Agreement, each
Loan Party acknowledges and agrees with the Agent and the Lenders
as follows:
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(a)
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No Waiver of Defaults
. Neither the Agent nor
any Lender has waived any Defaults which may occur in the future,
or any of its rights to payment of the Loans or any Loan
Party’s performance of the Obligations as set forth in any
Loan Document, as amended by this Agreement, or otherwise with
respect to any Loan, Letter of Credit, Treasury Management Services
Agreement or Swap Agreement; and nothing herein shall be construed
as any such waiver.
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(b)
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Reliance by Agent and
Lenders .
All of the Loan Parties’ agreements, acknowledgments,
warranties and representations contained in this Agreement are
material to willingness of the Agent and each Lender signatory
hereto to enter into this Agreement.
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9.
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Full Force and Effect of Credit
Agreement . Except as hereby specifically
amended, modified or supplemented, each party hereto hereby
acknowledges and agrees that the Existing Credit Agreement and all
of the other Loan Documents are hereby confirmed and ratified in
all respects and shall remain in full force and effect according to
their respective terms.
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10.
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Counterparts
.
This Agreement may be
executed in one or more counterparts, each of which shall be deemed
an original but all of which together shall constitute one and the
same instrument. Delivery of an executed counterpart of a signature
page of this Agreement by telecopy or electronic format (including
.pdf) shall be effective as delivery of a manually executed
original counterpart of this Agreement.
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11.
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Entire Agreement
. This Agreement,
together with all other Amendment and Waiver Documents, the Fee
Letter and all the Loan Documents (collectively, the “
Relevant Documents ”), sets forth the entire
understanding and agreement of the parties hereto in relation to
the subject matter hereof and supersedes any prior negotiations and
agreements among the parties relating to such subject matter. No
promise, condition, representation or warranty, express or implied,
not set forth in the Relevant Documents shall bind any party
hereto, and no such party has relied on any such promise,
condition, representation or warranty. Each of the parties hereto
acknowledges that, except as otherwise expressly stated in the
Relevant Documents, no representations, warranties or commitments,
express or implied, have been made by any party to the other in
relation to the subject matter hereof or thereof. None of the terms
or conditions of this Agreement may be changed, modified, waived or
canceled orally or otherwise, except in writing in accordance with
Section 13.6. of the Credit Agreement.
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12.
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Governing Law
. This Agreement shall
in all respects be governed by, and construed in accordance with,
the laws of the State of New York, and shall be further subject to
the provisions of Sections 13.4. of the Credit
Agreement.
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13.
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Enforceability
. Should any one or
more of the provisions of this Agreement be determined to be
illegal or unenforceable as to one or more of the parties hereto,
all other provisions nevertheless shall remain effective and
binding on the parties hereto.
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14.
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Successors and
Assigns .
This Agreement shall be binding upon and inure to the benefit of
the Agent, each of the Lenders, and each of the Borrowers and Loan
Parties and their respective successors, legal representatives, and
assignees to the extent such assignees are permitted assignees as
provided in Section 13.5. of the Credit
Agreement.
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15.
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Expenses
. Without limiting the
provisions of Section 13.2. of the Credit Agreement,
the Company and each Borrower agree to pay all reasonable out of
pocket costs and expenses (including without limitation reasonable
legal fees and expenses) incurred before, on or after the date
hereof by the Agent and its Affiliates in connection with the
preparation, negotiation, execution, delivery and administration of
this Agreement.
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16.
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Waiver of Defenses
. As an inducement to
the Agent or any Lender to enter into this Agreement, each Loan
Party waives and affirmatively agrees not to allege, assert or
otherwise pursue any claim, defense, affirmative defense,
counterclaim, cause of action, setoff or other right that they may
have, as of the date hereof, against the Agent, any sub-agent
thereof, Wells Fargo Securities, Citigroup Global Markets, any
Lender, whether known or unknown, including but not limited to any
contest of (i) the enforceability, applicability or validity
of any provisions of the Loan Documents, or the enforcement or
validity of the terms and provisions set forth herein,
(ii) the Agent’s security interest and lien (for the
benefit of the Lenders) in all Collateral and all rents, issues,
profits, products and proceeds from the Collateral, (iii) the
existence, validity, enforceability or perfection of security
interests and liens granted to the Agent (for the benefit of the
Lenders) in the Loan Documents in any of the Collateral, whether
tangible or intangible property, or any right or other interest,
now or hereafter arising, (iv) the conduct of the Agent or any
Lender, in administering the financial arrangements between any
Borrower or any other Loan Party and any Lender or (v) any
legal fees and expenses incurred by the Agent or any Lender and
charged to any Borrower or any other Loan Party under this
Agreement or any Loan Document in connection with enforcing the
Agent’s or any Lender’s rights hereunder or under any
Loan Document.
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17.
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General Release
. As an inducement to
the Agent and the Lenders signatory hereto to enter into this
Agreement, and for other good and valuable consideration, the
receipt and sufficiency of which are hereby acknowledged, each of
the undersigned Loan Parties (collectively, the “
Releasors ”) for: (i) themselves,
(ii) any parent, affiliate or subsidiary thereof,
(iii) any partnership or joint venture of which any person or
entity comprising any of the Releasors (or any parent, affiliate or
subsidiary thereof) is a partner, (iv) any person or entity
owning the beneficial interest in the trust, any parent, affiliate
or subsidiary thereof or any partnership or joint venture of which
such person or entity (or any parent, affiliate or subsidiary
thereof), is a partner, and (v) the respective partners,
officers, directors, shareholders, heirs, legal representatives,
legatees, successors and assigns of all of the foregoing persons
and entities, hereby release and forever discharge the Agent, any
sub-agent, Wells Fargo Securities, Citigroup Global Markets, and
each Lender (whether or not signatory hereto), and each of their
respective past, present and future shareholders, successors,
assigns, officers, directors, agents, attorneys, advisors and
employees, together with the respective heirs, legal
representatives, legatees, successors, and assigns of any of the
foregoing Persons, of and from all actions, claims, demands,
damages, debts, losses, liabilities, indebtedness, causes of action
either at law or in equity and obligations of whatever kind or
nature, whether known or unknown, direct or indirect, new or
existing, by reason of any matter, cause or thing whatsoever from
the beginning of the world to the date of this Agreement, including
without limitation any such action, claim, demand, damage, debt,
loss, liability, indebtedness, cause of action or obligation
arising out of or relating to (a) any Loan Document, or
(b) any transaction contemplated by, or any action of any
Person pursuant to, in connection with or relating to any Loan
Document, including without limitation, any claims asserted or
which could have been asserted as of the date hereof by the
Releasors in connection with any Loan to or Letter of Credit for
the account of any Borrower or any of its Subsidiaries.
|
It is acknowledged that Releasors have read the
release set forth in this Section (the “ General
Release ”) and consulted counsel before executing
same; that Releasors have relied upon their own judgment and that
of their counsel in executing this General Release and have not
relied on or been induced by any representation, statement or act
by any other Person referenced to herein which is not referred to
in this instrument; that the Releasors enter into this General
Release voluntarily, with full knowledge of its significance; and
that this General Release is in all respects complete and
final.
10
If any term or provision of this General Release
or the application thereof to any Person or circumstance shall, to
any extent, be held invalid and/or unenforceable by a court of
competent jurisdiction, the remainder of this General Release, or
the application of such term of provisions to Persons or
circumstances other than those as to which it is held invalid or
unenforceable shall not be affected thereby, and each term and
provision of the General Release shall be valid and be enforced to
the fullest extent permitted by law.
[Signatures on Next Page]
11
IN WITNESS WHEREOF, the parties hereto have
caused this Fifth Amendment to Credit Agreement; and Waiver
Agreement to be executed as of the date first above
written.
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MORGANS GROUP
LLC
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By: Morgans
Hotel Group Co., its Managing Member
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By:
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/s/ Richard
Szymanski
Name: Richard
Szymanski
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Title: Chief
Financial Officer and Secretary
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BEACH HOTEL
ASSOCIATES LLC
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By: Morgans
Group LLC, its Managing Member
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By: Morgans
Hotel Group Co., its Managing Member
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By:
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/s/ Richard
Szymanski
Name: Richard
Szymanski
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Title: Chief
Financial Officer and Secretary
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ROYALTON
LLC
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By: Morgans
Group LLC, its Managing Member
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By: Morgans
Hotel Group Co., its Managing Member
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By:
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/s/ Richard
Szymanski
Name: Richard
Szymanski
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Title: Chief
Financial Officer and Secretary
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MORGANS
HOLDINGS LLC
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By: Morgans
Group LLC, its Managing Member
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By: Morgans
Hotel Group Co., its Managing Member
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By:
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/s/ Richard
Szymanski
Name: Richard
Szymanski
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Title: Chief
Financial Officer and Secretary
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MORGANS HOTEL
GROUP CO.
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By:
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/s/ Richard
Szymanski
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Name: Richard
Szymanski
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Title: Chief
Financial Officer and Secretary
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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THE
GUARANTORS:
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MORGANS HOTEL
GROUP CO.
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MORGANS HOTEL
GROUP MANAGEMENT LLC
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By: Morgans Group LLC, its
Managing Member
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By: Morgans Hotel
Group Co., its Managing Member
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BEACH HOTEL
ASSOCIATES LLC
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By: Morgans Group LLC, its
Managing Member
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By: Morgans Hotel
Group Co., its Managing Member
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MORGANS
HOLDINGS LLC
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By: Morgans Group LLC, its
Managing Member
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By: Morgans Hotel
Group Co., its Managing Member
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ROYALTON,
LLC
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By: Morgans Group LLC, its
Managing Member
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By: Morgans Hotel
Group Co., its Managing Member
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MORGANS/DELANO
PLEDGOR LLC
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By: Morgans Group LLC, its
Managing Member
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By: Morgans Hotel
Group Co., its Managing Member
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ROYALTON
PLEDGOR LLC
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By: Morgans Group LLC, its
Managing Member
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By: Morgans Hotel
Group Co., its Managing Member
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43rd RESTAURANT
LLC
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By: Royalton Pledgor LLC, its
Managing Member
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By: Morgans Group,
LLC, its Managing Member
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By:
Morgans Hotel Group Co., its Managing Member
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MADISON BAR
COMPANY LLC
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By: Morgans/Delano Pledgor
LLC, its Managing Member
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By: Morgans Group
LLC, its Managing Member
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By:
Morgans Hotel Group Co., its Managing Member
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By:
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/s/ Richard
Szymanski
Name: Richard
Szymanski
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Title: Chief
Financial Officer and Secretary
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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WACHOVIA BANK,
NATIONAL ASSOCIATION, as Agent and as a Lender
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By:
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/s/ Mark Cagley
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Name:
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Mark
Cagley
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Title:
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Managing
Director
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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CITICORP NORTH
AMERICA, INC.
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By:
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/s/ Daniel
Gouger
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Name:
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Daniel
Gouger
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Title:
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Vice
President
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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AAREAL CAPITAL
CORPORATION
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By:
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/s/ Dagmar
Knoper
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Name:
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Dagmar
Knoper
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Title:
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Senior Managing
Director
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By:
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/s/ Daniel de
Roo
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Name:
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Daniel de
Roo
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Title:
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Director
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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MERRILL LYNCH
CAPITAL CORPORATION
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By:
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/s/ Christopher
DiBiase
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Name:
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Christopher
DiBiase
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Title:
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Vice
President
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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ALLIED IRISH
BANKS, P.L.C.
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By:
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Name:
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Title:
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By:
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Name:
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Title:
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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KBC BANK,
NV
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By:
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/s/ Nicholas A.
Philippides
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Name:
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Nicholas A.
Philippides
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Title:
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Assistant Vice
President
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By:
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/s/ Sandra T.
Johnson
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Name:
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Sandra T.
Johnson
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Title:
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Managing
Director
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
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MIDFIRST
BANK
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By:
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/s/ Darrin
Rigler
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Name:
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Darrin
Rigler
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Title:
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Vice
President
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Morgans Group LLC
Fifth Amendment to Credit Agreement and Waiver Agreement
Signature Page
EXHIBIT A
Consolidated Form Credit
Agreement
EXHIBIT A TO FIFTH
AMENDMENT
Dated as of October 6,
2006
as Amended as of August 5,
2009
MORGANS GROUP LLC,
as Borrower,
BEACH HOTEL ASSOCIATES LLC,
as Florida Borrower,
MORGANS HOLDINGS LLC,
as NY Morgans Borrower,
ROYALTON LLC,
as NY Royalton Borrower,
MORGANS HOTEL GROUP CO.,
Holdings,
WELLS FARGO SECURITIES, LLC,
(successor in interest to Wachovia Capital Markets, LLC)
and
CITIGROUP GLOBAL MARKETS INC.,
as Joint Lead Arrangers
and
Joint Book Runners,
WACHOVIA BANK, NATIONAL
ASSOCIATION,
as Administrative Agent,
CITIGROUP GLOBAL MARKETS INC.,
as Syndication Agent,
THE FINANCIAL INSTITUTIONS INITIALLY
SIGNATORY HERETO
AND THEIR ASSIGNEES PURSUANT TO SECTION 13.5,
as Lenders
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Page
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1
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1
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Section 1.2 General; References to
Times
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25
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Section 1.3 Financial Attributes of
Non-Wholly Owned Subsidiaries
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26
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Section 1.4 Pro Forma
Calculations
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26
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Section 1.5 Co-Borrowers
Representative
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26
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Section 1.6 Joint and Several
Obligations
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27
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ARTICLE. II CREDIT FACILITY
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27
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Section 2.1 Tranche A Loans
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27
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Section 2.2 INTENTIONALLY
OMITTED
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28
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Section 2.3 Tranche B Loans
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28
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Section 2.4 Letters of Credit
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30
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Section 2.5 Rates and Payment of Interest
on Loans
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35
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Section 2.6 Number of Interest
Periods
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36
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Section 2.7 Repayment of Loans
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36
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36
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38
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39
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39
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Section 2.12 Voluntary Reductions of the
Commitment
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40
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Section 2.13 Expiration or Maturity Date of
Letters of Credit Past Termination Date
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40
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Section 2.14 Amount Limitations
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41
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ARTICLE. III PAYMENTS, FEES AND OTHER GENERAL
PROVISIONS
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41
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41
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Section 3.2 Pro Rata Treatment
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42
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Section 3.3 Pro Rata Treatment of Tranche
B
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42
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Section 3.4 Sharing of Payments,
Etc.
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43
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Section 3.5 Lockbox Account
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43
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Section 3.6 Several Obligations
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45
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-i-
TABLE OF CONTENTS
(continued)
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Page
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Section 3.7 Minimum Amounts
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45
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45
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46
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47
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Section 3.11 Agreement Regarding Interest
and Charges
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47
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Section 3.12 Statements of
Account
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47
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Section 3.13 Defaulting Lenders
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48
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50
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ARTICLE. IV COLLATERAL PROPERTIES
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51
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Section 4.1 INTENTIONALLY
OMITTED
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51
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Section 4.2 INTENTIONALLY
OMITTED
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51
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Section 4.3 Frequency of Calculations of
Borrowing Base
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52
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Section 4.4 Frequency of
Appraisals
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52
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Section 4.5 Additional Appraisals Required
under Applicable Law
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53
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ARTICLE. V YIELD PROTECTION, ETC.
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53
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Section 5.1 Additional Costs; Capital
Adequacy
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53
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Section 5.2 Suspension of LIBOR
Loans
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54
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55
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55
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Section 5.5 Treatment of Affected
Loans
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56
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Section 5.6 Change of Lending
Office
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56
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Section 5.7 Assumptions Concerning Funding
of LIBOR Loans
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56
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ARTICLE. VI CONDITIONS PRECEDENT
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57
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Section 6.1 Initial Conditions
Precedent
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57
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Section 6.2 Conditions Precedent to All
Loans and Letters of Credit
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59
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Section 6.3 Additional Conditions Precedent
to Tranche B Loans and Tranche B Letters of Credit
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60
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ARTICLE. VII REPRESENTATIONS AND
WARRANTIES
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60
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Section 7.1 Representations and
Warranties
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60
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Section 7.2 Survival of Representations and
Warranties, Etc.
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66
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-ii-
TABLE OF CONTENTS
(continued)
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Page
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ARTICLE. VIII AFFIRMATIVE COVENANTS
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66
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Section 8.1 Preservation of Existence and
Similar Matters
|
|
|
66
|
|
|
|
|
|
|
|
Section 8.2 Compliance with Applicable Law
and Material Contracts
|
|
|
66
|
|
|
|
|
|
|
|
Section 8.3 Maintenance of
Property
|
|
|
67
|
|
|
|
|
|
|
|
|
|
|
|
67
|
|
|
|
|
|
|
|
Section 8.5 Payment of Taxes and
Claims
|
|
|
67
|
|
|
|
|
|
|
|
Section 8.6 Visits and
Inspections
|
|
|
68
|
|
|
|
|
|
|
|
Section 8.7 Use of Proceeds; Letters of
Credit
|
|
|
68
|
|
|
|
|
|
|
|
Section 8.8 Environmental
Matters
|
|
|
68
|
|
|
|
|
|
|
|
Section 8.9 Books and Records
|
|
|
69
|
|
|
|
|
|
|
|
Section 8.10 Further Assurances
|
|
|
69
|
|
|
|
|
|
|
|
Section 8.11 New Subsidiaries/Guarantors;
Release of Guarantors
|
|
|
69
|
|
|
|
|
|
|
|
Section 8.12 Exchange Listing
|
|
|
70
|
|
|
|
|
|
|
|
|
|
|
|
70
|
|
|
|
|
|
|
|
Section 9.1 Quarterly Financial
Statements
|
|
|
70
|
|
|
|
|
|
|
|
Section 9.2 Year-End Statements
|
|
|
70
|
|
|
|
|
|
|
|
Section 9.3 Compliance Certificate;
Borrowing Base Certificate; Etc.
|
|
|
71
|
|
|
|
|
|
|
|
Section 9.4 Other Information
|
|
|
71
|
|
|
|
|
|
|
|
Section 9.5 Electronic Delivery of Certain
Information
|
|
|
73
|
|
|
|
|
|
|
|
ARTICLE. X NEGATIVE COVENANTS
|
|
|
74
|
|
|
|
|
|
|
|
Section 10.1 Indebtedness; Certain Equity
Securities
|
|
|
74
|
|
|
|
|
|
|
|
|
|
|
|
77
|
|
|
|
|
|
|
|
Section 10.3 Fundamental Changes
|
|
|
79
|
|
|
|
|
|
|
|
Section 10.4 Investments, Loans, Advances,
Guarantees and Acquisitions
|
|
|
79
|
|
|
|
|
|
|
|
|
|
|
|
81
|
|
|
|
|
|
|
|
Section 10.6 Swap Agreements
|
|
|
83
|
|
|
|
|
|
|
|
Section 10.7 Restricted Payments
|
|
|
83
|
|
|
|
|
|
|
|
Section 10.8 Transactions with
Affiliates
|
|
|
84
|
|
|
|
|
|
|
|
Section 10.9 Restrictive
Agreements
|
|
|
84
|
|
-iii-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
Section 10.10 Amendment of Material
Documents
|
|
|
85
|
|
|
|
|
|
|
|
Section 10.11 Financial
Covenants
|
|
|
85
|
|
|
|
|
|
|
|
Section 10.12 Changes in Fiscal
Periods
|
|
|
85
|
|
|
|
|
|
|
|
Section 10.13 ERISA Exemptions
|
|
|
86
|
|
|
|
|
|
|
|
Section 10.14 Availability of
Exceptions
|
|
|
86
|
|
|
|
|
|
|
|
|
|
|
|
86
|
|
|
|
|
|
|
|
Section 11.1 Events of Default
|
|
|
86
|
|
|
|
|
|
|
|
Section 11.2 Remedies Upon Event of
Default
|
|
|
89
|
|
|
|
|
|
|
|
Section 11.3 Remedies Upon
Default
|
|
|
90
|
|
|
|
|
|
|
|
Section 11.4 Allocation of
Proceeds
|
|
|
90
|
|
|
|
|
|
|
|
Section 11.5 Collateral Account
|
|
|
91
|
|
|
|
|
|
|
|
Section 11.6 Performance by
Agent
|
|
|
92
|
|
|
|
|
|
|
|
Section 11.7 Rights Cumulative
|
|
|
92
|
|
|
|
|
|
|
|
Section 11.8 Remedies in Respect of Real
Estate Security Documents
|
|
|
92
|
|
|
|
|
|
|
|
|
|
|
|
93
|
|
|
|
|
|
|
|
Section 12.1 Authorization and
Action
|
|
|
93
|
|
|
|
|
|
|
|
Section 12.2 Agent’s Reliance,
Etc.
|
|
|
93
|
|
|
|
|
|
|
|
Section 12.3 Notice of Defaults
|
|
|
94
|
|
|
|
|
|
|
|
Section 12.4 Wachovia as Lender
|
|
|
94
|
|
|
|
|
|
|
|
Section 12.5 Approvals of
Lenders
|
|
|
95
|
|
|
|
|
|
|
|
Section 12.6 Collateral Matters
|
|
|
95
|
|
|
|
|
|
|
|
Section 12.7 Lender Credit Decision,
Etc.
|
|
|
97
|
|
|
|
|
|
|
|
Section 12.8 Indemnification of
Agent
|
|
|
97
|
|
|
|
|
|
|
|
Section 12.9 Successor Agent
|
|
|
98
|
|
|
|
|
|
|
|
Section 12.10 Titled Agents
|
|
|
99
|
|
-iv-
TABLE OF CONTENTS
(continued)
|
|
|
|
|
|
|
|
|
Page
|
|
|
|
|
|
|
|
ARTICLE. XIII MISCELLANEOUS
|
|
|
99
|
|
|
|
|
|
|
|
|
|
|
|
99
|
|
|
|
|
|
|
|
|
|
|
|
100
|
|
|
|
|
|
|
|
|
|
|
|
101
|
|
|
|
|
|
|
|
Section 13.4 Litigation; Jurisdiction;
Other Matters; Waivers
|
|
|
101
|
|
|
|
|
|
|
|
Section 13.5 Successors and
Assigns
|
|
|
102
|
|
|
|
|
|
|
|
|
|
|
|
105
|
|
|
|
|
|
|
|
Section 13.7 Nonliability of Agent and
Lenders
|
|
|
106
|
|
|
|
|
|
|
|
Section 13.8 Confidentiality
|
|
|
107
|
|
|
|
|
|
|
|
Section 13.9 Indemnification
|
|
|
107
|
|
|
|
|
|
|
|
Section 13.10 Termination;
Survival
|
|
|
110
|
|
|
|
|
|
|
|
Section 13.11 Severability of
Provisions
|
|
|
110
|
|
|
|
|
|
|
|
Section 13.12 GOVERNING LAW
|
|
|
110
|
|
|
|
|
|
|
|
Section 13.13 Patriot Act
|
|
|
110
|
|
|
|
|
|
|
|
Section 13.14 Counterparts
|
|
|
110
|
|
|
|
|
|
|
|
Section 13.15 Obligations with Respect to
Loan Parties
|
|
|
111
|
|
|
|
|
|
|
|
Section 13.16 Limitation of
Liability
|
|
|
111
|
|
|
|
|
|
|
|
Section 13.17 Entire Agreement
|
|
|
111
|
|
|
|
|
|
|
|
Section 13.18 Construction
|
|
|
111
|
|
-v-
|
|
|
|
|
ANNEX
1
|
|
Additional
Provisions Applicable to NY Properties
|
|
|
|
|
|
SCHEDULE
1.1(A)
|
|
Formation and
Structuring Transactions
|
|
SCHEDULE
1.1(B)
|
|
|
|
SCHEDULE
2.1
|
|
Tranche A Loan
Commitments and Applicable Percentages
|
|
SCHEDULE
2.3
|
|
Tranche B Loan
Commitments and Applicable Percentages
|
|
SCHEDULE
4.1
|
|
Initial
Collateral Properties
|
|
SCHEDULE
7.1(b)
|
|
|
|
SCHEDULE
7.1(d)
|
|
|
|
SCHEDULE
7.1(f)
|
|
Title to
Properties; Liens
|
|
SCHEDULE
7.1(g)
|
|
Indebtedness as
of Fifth Amendment Effective Date
|
|
SCHEDULE
7.1(h)
|
|
|
|
SCHEDULE
7.1(i)
|
|
|
|
SCHEDULE
7.1(y)
|
|
Secured
Existing Swap Agreements
|
|
SCHEDULE
10.1(a)
|
|
Indebtedness as
of Effective Date
|
|
SCHEDULE
10.2(xiii)
|
|
|
|
SCHEDULE
10.4
|
|
|
|
SCHEDULE
10.4(n)
|
|
Certain
Permitted Investments
|
|
SCHEDULE
10.9
|
|
|
|
|
|
|
|
EXHIBIT
A
|
|
Form of
Assignment and Assumption
|
|
EXHIBIT
B
|
|
Form of Notice
of Tranche A Borrowing
|
|
EXHIBIT
C
|
|
Form of Notice
of Continuation
|
|
EXHIBIT
D
|
|
Form of Notice
of Conversion
|
|
EXHIBIT
E
|
|
Form of Notice
of Tranche B Borrowing
|
|
EXHIBIT
F-1
|
|
Form of Tranche
A Borrower Note
|
|
EXHIBIT
F-2
|
|
Form of Tranche
A Florida Borrower Note
|
|
EXHIBIT
G
|
|
|
|
EXHIBIT
H
|
|
Form of Opinion
of Counsel
|
|
EXHIBIT
I
|
|
Form of
Compliance Certificate
|
|
EXHIBIT
J
|
|
|
|
EXHIBIT
K
|
|
|
|
EXHIBIT
L
|
|
Form of
Assignment of Leases and Rents
|
|
EXHIBIT
M
|
|
Form of
Environmental Indemnity Agreement
|
|
EXHIBIT
N
|
|
Form of
Assignment of Contracts, Documents and Rights
|
|
EXHIBIT
O
|
|
Form of
Property Management Contract Assignment
|
|
EXHIBIT
P
|
|
|
|
EXHIBIT
Q
|
|
Form of
Security Agreement
|
|
EXHIBIT
R
|
|
Form of
Borrowing Base Certificate
|
|
EXHIBIT
S
|
|
Form of Account
Control Agreement
|
|
EXHIBIT
T
|
|
Form of
Endorsement to Title Insurance
|
-vi-
THIS CREDIT AGREEMENT (this
“Agreement”) dated as of October 6, 2006 by and
among MORGANS GROUP LLC, a limited liability company formed under
the laws of the State of Delaware (the “Borrower”),
BEACH HOTEL ASSOCIATES LLC, a limited liability company formed
under the laws of the State of Delaware (the “Florida
Borrower”), MORGANS HOLDINGS LLC, a limited liability company
formed under the laws of the State of Delaware (the “NY
Morgans Borrower”), ROYALTON LLC, a limited liability company
formed under the laws of the State of Delaware (the “NY
Royalton Borrower”), MORGANS HOTEL GROUP CO., a corporation
formed under the laws of the State of Delaware
(“Holdings”), WACHOVIA CAPITAL MARKETS, LLC and
CITIGROUP GLOBAL MARKETS INC., as Joint Lead Arrangers and Joint
Book Runners (the “Arrangers”), WACHOVIA BANK, NATIONAL
ASSOCIATION, as Agent, CITIGROUP GLOBAL MARKETS INC., as
Syndication Agent (the “Syndication Agent”), and each
of the financial institutions initially a signatory hereto together
with their assignees pursuant to Section 13.5.(b).
WHEREAS, on October 6, 2006, the Agent and
the Lenders made available to the Borrower and the Florida Borrower
a revolving credit facility in the amount of up to $225,000,000,
which amount was subsequently reduced to $220,000,000 in 2009 (the
“Revolving Credit Facility”), and
WHEREAS, Borrowers, the Agent and the Lenders,
desire among other things (a) to divide part of the Revolving
Credit Facility into two credit facilities consisting of (i) a
credit facility (the “Tranche B”) in an amount equal to
$90 million (the “NY Secured Amount”), which shall
be secured by a mortgage on the NY Properties (the “NY
Mortgage”) and the other existing Collateral, and (ii) a
credit facility (the “Tranche A”) in an amount equal to
$35 million, secured by a mortgage on the Florida Property and
the other existing Collateral, excluding the NY Properties, and
(b) to reduce on a permanent basis the Commitments to
$125,000,000, in each case on the terms and conditions contained
herein.
NOW, THEREFORE, for good and valuable
consideration, the receipt and sufficiency of which are hereby
acknowledged by the parties hereto, the parties hereto agree as
follows:
Section 1.1 Definitions
.
In addition to terms defined elsewhere herein,
the following terms shall have the following meanings for the
purposes of this Agreement:
“ Accession Agreement ” means
an Accession Agreement substantially in the form of Annex I to the
Guaranty.
“ Additional Costs ” has the
meaning given that term in Section 5.1.
“ Additional Mortgage Indebtedness
” means Indebtedness incurred after the Effective Date to
finance any real property or interest therein and/or the
improvements thereto, or to finance the acquisition of any real
property or interest therein by the Borrower or any Subsidiary and,
in either case, secured by a mortgage on such property or a pledge
of the Equity Interests of the entity that directly or indirectly
owns or acquires such property or interest, provided that such
entity is not a Loan Party.
“ Adjusted LIBOR ” means,
with respect to each Interest Period for any LIBOR Loan, the rate
obtained by dividing (a) LIBOR for such Interest Period by
(b) a percentage equal to 1 minus the stated maximum rate
(stated as a decimal) of all reserves, if any, required to be
maintained with respect to Eurocurrency funding (currently referred
to as “Eurocurrency liabilities”) as specified in
Regulation D of the Board of Governors of the Federal Reserve
System (or against any other category of liabilities which includes
deposits by reference to which the interest rate on LIBOR Loans is
determined or any applicable category of extensions of credit or
other assets which includes loans by an office of any Lender
outside of the United States of America to residents of the United
States of America). Any change in such maximum rate shall result in
a change in Adjusted LIBOR on the date on which such change in such
maximum rate becomes effective.
“ Affiliate ” means, with
respect to a specified 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;
provided , however , that for purposes of Section
10.8., the term “Affiliate” shall also include any
Person that directly, or indirectly through one or more
intermediaries, owns 5% or more of any class of Equity Interests of
the Person specified or that is an officer or director of the
Person specified.
“ Agent ” means Wachovia, as
contractual representative for the Lenders under the terms of this
Agreement, and any of its successors.
“ Agreement Date ” means
October 6, 2006.
“ Applicable Law ” means all
applicable provisions of constitutions, statutes, laws, rules,
regulations and orders of all governmental bodies and all orders
and decrees of all courts, tribunals and arbitrators.
“ Applicable Margin ” means
3.75% per annum for LIBOR Loans and 2.75% per annum for Base Rate
Loans.
“ Appraisal ” means, in
respect of any Property, an appraisal prepared by an M.A.I.
designated member of the Appraisal Institute commissioned by and
addressed to the Agent (acceptable to the Agent as to form,
substance and appraisal date), prepared by a professional appraiser
acceptable to the Agent, having at least the minimum qualifications
required under Applicable Law governing the Agent and the Lenders,
including FIRREA, and determining the “as is” market
value of such Property as between a willing buyer and a willing
seller.
“ Appraised Value ” means,
with respect to any Property, the “as is” market value
of such Property as reflected in the then most recent Appraisal of
such Property as the same may have been reasonably adjusted by the
Agent based upon its internal review of such Appraisal which is
based on criteria and factors then generally used and considered by
the Agent in determining the value of similar properties, which
review shall be conducted prior to acceptance of such Appraisal by
the Agent.
- 2 -
“ 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.
“ Arrangers ” means each of
Wachovia Capital Markets, LLC and Citigroup Global Markets Inc.,
together with their respective successors and permitted
assigns.
“ Assignee ” has the meaning
given that term in Section 13.5.(b).
“ 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 13.5.), and accepted by the Agent,
substantially in the form of Exhibit A or any other form
approved by the Agent.
“ Assignment of Contracts, Documents
and Rights ” means an Assignment of Interest in
Contracts, Documents and Rights executed by a Loan Party in favor
of the Agent for the benefit of the Lenders, substantially in the
form of Exhibit N or otherwise in form and substance
satisfactory to the Agent.
“ Assignment of Leases and Rents
” means an Assignment of Leases and Rents executed by a Loan
Party in favor of the Agent for the benefit of the Lenders,
substantially in the form of Exhibit L or otherwise in form
and substance satisfactory to the Agent.
“ Base Rate ” means the per
annum rate of interest equal to the greatest of (a) the Prime
Rate, (b) the Federal Funds Rate plus one-half of one percent
(0.5%) and (c) one-month LIBOR, which shall be determined on a
daily basis, plus one percent (1.00%). Any change in the Base Rate
resulting from a change in the Prime Rate, the Federal Funds Rate
or the one-month LIBOR shall become effective as of 12:01 a.m.
on the Business Day on which each such change occurs. The Base Rate
is a reference rate used by the Lender acting as the Agent in
determining interest rates on certain loans and is not intended to
be the lowest rate of interest charged by the Lender acting as the
Agent or any other Lender on any extension of credit to any debtor.
One-month LIBOR, for purposes of determining the Base Rate, shall
never be less than one percent (1.00%) per annum.
“ Base Rate Loan ” means a
Loan bearing interest at a rate based on the Base Rate.
“ Benefit Arrangement ” means
at any time an employee benefit plan within the meaning of Section
3(3) of ERISA which is not a Plan or a Multiemployer Plan and which
is maintained or otherwise contributed to by any member of the
ERISA Group.
“ Borrower ” has the meaning
set forth in the introductory paragraph hereof when used in the
phrase “the Borrower” and shall include the
Borrower’s successors and permitted assigns.
“ Borrowers ” means the
Borrower, the Florida Borrower, the NY Morgans Borrower and the NY
Royalton Borrower, collectively, and “a Borrower”,
“such Borrower” or “any Borrower” means any
of the foregoing.
- 3 -
“ Borrowing Base ” means the
aggregate amount of the Borrowing Base Values of all Collateral
Properties. Notwithstanding the foregoing, a Collateral Property
shall be excluded from calculations of the Borrowing Base if
(x) at any time such Property shall cease to be an Eligible
Property, (y) the Agent shall cease to hold a valid and
perfected first priority Lien in such Collateral Property (except
for prior Liens expressly permitted hereunder), or (z) there
shall have occurred and be continuing an event of default under the
Security Deed or any other Security Document relating to such
Collateral Property.
“ Borrowing Base Certificate
” means a report certified by the chief financial officer of
the Borrower, setting forth the calculations required to establish
the Borrowing Base for all Collateral Properties as of a specified
date, substantially in the form of Exhibit R or otherwise in
form and detail satisfactory to the Agent.
“ Borrowing Base Value ”
means (a) with respect to a NY Property, an amount equal to
the lesser of (i) 60.0% of the Appraised Value of such
Collateral Property and (ii) the Implied Debt Service Coverage
Value of such Collateral Property (but, in the case of a NY
Property, no less than 35.0% of the Appraised Value of such NY
Property), and (b) with respect to the Florida Property, an
amount equal to the lesser of (i) 60.0% of the Appraised Value
of such Collateral Property and (ii) the Implied Debt Service
Coverage Value of such Collateral Property.”
“ Business Day ” means
(a) any day other than a Saturday, Sunday or other day on
which banks in Charlotte, North Carolina or New York, New York are
authorized or required to close and (b) with reference to a
LIBOR Loan, any such day that is also a day on which dealings in
Dollar deposits are carried out in the London interbank
market.
“ Capital Lease Obligations ”
of any Person means the obligations of such Person to pay rent or
other amounts under any lease of (or other arrangement conveying
the right to use) real or personal property, or a combination
thereof, which obligations are required to be classified and
accounted for as capital leases on a balance sheet of such Person
under GAAP, and the amount of such obligations shall be the
capitalized amount thereof determined in accordance with
GAAP.
“ Capital Reserves ” means,
for any period and with respect to a Property, an amount equal to
(a) 4.0% of the gross revenue of such Property for such
period, times (b) a fraction, the numerator of which is
the number of days in such period and the denominator of which is
365.
“ Change in Control ” means
(a)(i) the cessation of Holdings being the sole managing member of
the Borrower or (ii) the gaining by any member of the Borrower
(other than Holdings) of the right to exercise control or
management power over the business and affairs of the Borrower,
except as otherwise expressly permitted in the LLC Agreement and as
required by Applicable Law, (b)(i) 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,
as amended, and the rules of the SEC thereunder), of Equity
Interests representing more than 40% of either the aggregate
ordinary voting power or the aggregate equity value represented by
the issued and outstanding Equity Interests in Holdings, and
(ii) the ownership, directly or indirectly, beneficially or of
record, by the Permitted Investors of Equity Interests in Holdings
representing in the aggregate a lesser percentage of either the
aggregate ordinary voting power or the aggregate equity value
represented by the issued and outstanding Equity Interests in
Holdings than such Person or group, (c) the occupation of a
majority of the seats (other than vacant seats) on the board of
directors of Holdings by individuals who were neither
(i) nominated by the board of directors of Holdings or the
Permitted Investors nor (ii) appointed by directors so
nominated or (d) the acquisition of direct or indirect Control
of Holdings by any Person or group other than the Permitted
Investors.
- 4 -
“ Co-Borrowers ” means the
Florida Borrower, the NY Morgans Borrower and the NY Royalton
Borrower, collectively, and “Co-Borrower” means any of
the foregoing.
“ Collateral ” means any real
or personal property directly or indirectly securing any of the
Obligations or any other obligation of a Person under or in respect
of any Loan Document to which it is a party, and includes, without
limitation, all “Collateral” under and as defined in
any Security Deed, all “Contract Documents” as defined
in any Assignment of Contracts, Documents and Rights, any
“Management Agreement” as defined in any Property
Management Contract Assignment, all “Leases and Rents”
as defined in any Assignment of Leases and Rents, all
“Collateral” as defined in the Pledge Agreement, all
“Collateral” as defined in the Security Agreement, and
all other property subject to a Lien created by a Security
Document.
“ Collateral Account ” means
a special non-interest bearing deposit account or securities
account maintained by, or on behalf of, the Agent and under its
sole dominion and control.
“ Collateral Properties ”
means the NY Properties and the Florida Property, collectively, and
“Collateral Property” means any of the
foregoing.
“ Commitment ” means a
Tranche A Commitment or a Tranche B Commitment, as the context may
require. The aggregate Commitments means, collectively, the
aggregate Tranche A Commitments and Tranche B
Commitments.
“ Commitment Percentage ”
means, as to each Lender with respect to Tranche A, Tranche B or
both, as the context may require, the ratio, expressed as a
percentage, of (a) the amount of such Lender’s
Commitment to (b) the aggregate amount of the Commitments of
all Lenders; provided, however, that if at the time of
determination the Commitments have terminated or been reduced to
zero, the “Commitment Percentage” of each Lender shall
be the Commitment Percentage of such Lender in effect immediately
prior to such termination or reduction.
“ Compliance Certificate ”
has the meaning given that term in Section 9.3.(a).
“ Communications ” has the
meaning given that term in Section 9.5.(d).
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“ Consolidated EBITDA ”
means, for any period, Consolidated Net Income for such period plus
without duplication and to the extent deducted in determining such
Consolidated Net Income, the sum of (i) consolidated interest
expense for such period, (ii) consolidated income tax expense
for such period, (iii) all amounts attributable to
depreciation and amortization for such period (excluding
amortization expense attributable to a prepaid cash item that was
paid in a prior period and excluding depreciation expense of
minority interests in consolidated joint ventures), (iv) other
non-operating expense or loss, including restructuring, development
and disposal costs and impairment losses (or, if applicable, minus
non-operating income or gain) (in each case as defined in the
Combined Statement of Operations and Comprehensive Loss of
Holdings) for such period, (v) non-cash expenses resulting
from the grant of stock options or other equity-related incentives
to any director, officer or employee of Holdings, the Borrower or
any Subsidiary pursuant to a written plan or agreement approved by
the board of directors of Holdings, (vi) non-cash exchange,
translation or performance losses relating to any foreign currency
hedging transactions or currency fluctuations and (vii) all
amounts attributable to equity in income/loss of Unconsolidated
Affiliates; provided that Consolidated EBITDA for the four fiscal
quarter periods ended September 30, 2006 and December 31,
2006 shall be determined on a pro forma basis giving effect to the
Formation and Structuring Transactions as if they occurred on the
first day of each such four consecutive fiscal quarter period
(including cost savings to the extent such cost savings would be
permitted to be reflected in pro forma financial information
complying with the requirements of GAAP and Article XI of
Regulation S-X under the Securities Act, as interpreted by the
Staff of the SEC, and as certified by a Financial
Officer).
“ Consolidated Net Income ”
means, for any period, the net income or loss of Holdings, the
Borrower and the Subsidiaries for such period determined on a
consolidated basis in accordance with GAAP provided that
there shall be excluded (a) the income of any Subsidiary to
the extent that the declaration or payment of dividends or other
distributions by such Subsidiary of that income is not at the time
permitted by Applicable Law or any agreement or instrument
applicable to such Subsidiary, except to the extent of the amount
of cash dividends or other cash distributions actually paid to the
Borrower or any Subsidiary during such period to the extent such
dividends or distribution are attributable to the operating income
of such Subsidiary, (b) the income of any Unconsolidated
Affiliate, except to the extent of the amount of cash dividends or
other cash distributions actually paid to the Borrower or any
Subsidiary during such period to the extent such dividends or
distribution are attributable to the operating income of such
Unconsolidated Affiliate, and (c) the income of the Excluded
Subsidiary.
“ Consulting Agreement ”
means the consulting agreement, dated as of June 24, 2005, by
and between Morgans Hotel Group LLC and Ian Schrager.
“ Continue ”, “
Continuation ” and “ Continued ”
each refers to the continuation of a LIBOR Loan from one Interest
Period to another Interest Period pursuant to
Section 2.9.
“ Control ” means the
possession, directly or indirectly, of the power to direct or cause
the direction of the management or policies, or the dismissal or
appointment of the management, of a Person, whether through the
ability to exercise voting power, by contract or otherwise.
“Controlling” and “Controlled” have
meanings correlative thereto.
“ Convert ”, “
Conversion ” and “ Converted ” each
refers to the conversion of a Loan of one Type into a Loan of
another Type pursuant to Section 2.10.
“ Convertible Notes ” means
Holdings’ Convertible Senior Subordinated Unsecured Notes due
October 2014 issued by Holdings during the month of October,
2007.
- 6 -
“ Credit Event ” means any of
the following: (a) the making (or deemed making) of any Loan,
(b) the Continuation of a LIBOR Loan, (c) the Conversion of a
Base Rate Loan into a LIBOR Loan, and (d) the issuance of a Letter
of Credit.
“ Default ” means any of the
events specified in Section 11.1., whether or not there has
been satisfied any requirement for the giving of notice, the lapse
of time, or both.
“ Defaulting Lender ” has the
meaning given that term in Section 3.13.
“ Defaulting Subsidiary ” has
the meaning given that term in Section 11.1.
“ Disqualified Equity Interests
” means Equity Interests that (a) mature or are
mandatorily redeemable or subject to mandatory repurchase or
redemption or repurchase at the option of the holders thereof, in
each case in whole or in part and whether upon the occurrence of
any event, pursuant to a sinking fund obligation on a fixed date or
otherwise, prior to the date that is 180 days after the Termination
Date (other than (i) upon payment in full of the Obligations
and termination of the Commitments or (ii) upon a
“change in control”; provided that any payment
required pursuant to this clause (ii) is contractually
subordinated in right of payment to the Obligations on terms
reasonably satisfactory to the Agent and such requirement is
applicable only in circumstances that are market on the date of
issuance of such Equity Interests), (b) except in the case of
the Trust Preferred Securities, require the maintenance or
achievement of any financial performance standards other than as a
condition to the taking of specific actions, or provide remedies to
holders thereof (other than voting and management rights and
increases in pay-in-kind dividends) or (c) are convertible or
exchangeable, automatically or at the option of any holder thereof,
into any Indebtedness (other than Indebtedness permitted under
Section 10.1.), Equity Interests or other assets other than
Qualified Equity Interests or Trust Preferred Securities otherwise
permitted hereunder.
“ Dollars ” or “
$ ” means the lawful currency of the United States of
America.
“ Effective Date ” means the
later of: (a) the Agreement Date; and (b) the date on
which all of the conditions precedent set forth in
Section 6.1. shall have been fulfilled or waived in writing by
the Requisite Lenders.
“ Eligible Assignee ” means
(a) a Lender, (b) an affiliate of a Lender, (c) an
Approved Fund, and (d) any other Person (other than a natural
person) approved by (i) the Agent and (ii) unless a
Default or Event of Default shall exist, the Borrower (each such
approval not to be unreasonably withheld or delayed); provided that
notwithstanding the foregoing, “Eligible Assignee”
shall not include the Borrower or any of the Borrower’s
Affiliates or Subsidiaries.
“ Eligible Property ” means a
Property which satisfies all of the following requirements: (a)
such Property is a full service lodging Property; (b) all
material occupancy and operating permits and licenses relating to
the use, occupancy, operation, maintenance, enjoyment or ownership
of such Property have been obtained with respect to such Property;
(c) at the time the Borrower is requesting that such Property
be included as a Collateral Property, such Property is open for
business to the public and has been continuously operating for the
immediately preceding twelve month period; (d) such Property
is either managed by (i) the Borrower, any of its Subsidiaries
or any Affiliate or (ii) a nationally recognized third-party
property management company approved by the Agent and Requisite
Lenders; (e) at the time the Borrower is requesting that such
Property be included as a Collateral Property, such Property is
free of title defects that materially affect the marketability of
such Property (excluding Liens securing any Indebtedness to be
repaid by the time such Property is included as a Collateral
Property); (f) the Property is owned in fee simple, or, with
the consent of the Agent, leased under a Ground Lease;
(g) such Property is free of all structural defects,
environmental conditions or other adverse matters except for
defects, deficiencies, conditions or other matters individually or
collectively which are not material to the profitable operation of
such Property.
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“ Environmental Indemnity Agreement
” means an Environmental Indemnity Agreement executed by a
Loan Party in favor of the Agent and the Lenders and substantially
in the form of Exhibit M.
“ Environmental Laws ” means
any Applicable Law relating to environmental protection or the
manufacture, storage, remediation, disposal or clean-up of
Hazardous Materials including, without limitation, the following:
Clean Air Act, 42 U.S.C. § 7401 et seq.; Federal Water
Pollution Control Act, 33 U.S.C. § 1251 et seq.; Solid Waste
Disposal Act, as amended by the Resource Conservation and Recovery
Act, 42 U.S.C. § 6901 et seq.; Comprehensive Environmental
Response, Compensation and Liability Act, 42 U.S.C. § 9601 et
seq.; National Environmental Policy Act, 42 U.S.C. § 4321 et
seq.; regulations of the Environmental Protection Agency and any
applicable rule of common law and any judicial interpretation
thereof relating primarily to the environment or Hazardous
Materials.
“ Equity Interests ” means
shares of capital stock, partnership interests, membership
interests in a limited liability company, beneficial interests in a
trust or other equity ownership interests in a Person.
“ Equity Issuance ” means any
issuance by a Person of any Equity Interest in such Person and
shall in any event include the issuance of any Equity Interest upon
the conversion or exchange of any security constituting
Indebtedness that is convertible or exchangeable, or is being
converted or exchanged, for Equity Interests.
“ ERISA ” means the Employee
Retirement Income Security Act of 1974, as in effect from time to
time.
“ ERISA Group ” means the
Borrower, any Subsidiary and all members of a controlled group of
corporations and all trades or businesses (whether or not
incorporated) under common control which, together with the
Borrower or any Subsidiary, are treated as a single employer under
Section 414 of the Internal Revenue Code.
“ Event of Default ” means
any of the events specified in Section 11.1., provided that
any requirement for notice or lapse of time or any other condition
has been satisfied.
“ Excluded Subsidiary ” means
(a) Clift Holdings LLC (“ Clift ”),
a Delaware limited liability company and (b) solely for
purposes of compliance with the financial covenant in Section
10.11.(a) of this Agreement, for the period ended June 30,
2009 and the period ending September 30, 2009, Mondrian Scottsdale
Mezz Holding Company LLC and MHG Scottsdale Holdings
LLC.
- 8 -
“ Exempt Subsidiary ” means
any Subsidiary (a) holding title to or beneficially owning
assets in which Liens have been or are intended to be granted as
security for Indebtedness of such Subsidiary, or that is a
beneficial owner of a Subsidiary holding title to or beneficially
owning such assets (but having no material assets other than such
beneficial ownership interests) and (b) which (i) is, or is
expected to be, prohibited from Guaranteeing the Indebtedness of
any other Person pursuant to any document, instrument or agreement
evidencing such Indebtedness or (ii) is prohibited from
Guaranteeing the Indebtedness of any other Person pursuant to a
provision of such Subsidiary’s organizational documents which
provision was included in such Subsidiary’s organizational
documents as a condition or anticipated condition to the extension
of such Indebtedness.
“ Existing Credit Agreement ”
means that certain Credit Agreement dated as of October 6,
2006 by and among the Borrower, the Florida Borrower, Holdings, the
lenders party thereto, the Agent, and the other parties thereto as
amended and in effect immediately prior to the Fifth Amendment
Effective Date.
“ Federal Funds Rate ” means,
for any day, the rate per annum (rounded upward to the nearest
1/100th of 1%) equal to the weighted average of the rates on
overnight Federal funds transactions with members of the Federal
Reserve System arranged by Federal funds brokers on such day, as
published by the Federal Reserve Bank of New York on the Business
Day next succeeding such day, provided that (a) if such day is
not a Business Day, the Federal Funds Rate for such day shall be
such rate on such transactions on the next preceding Business Day,
and (b) if no such rate is so published on such next
succeeding Business Day, the Federal Funds Rate for such day shall
be the average rate quoted to the Agent by federal funds dealers
selected by the Agent on such day on such transaction as determined
by the Agent.
“ Fees ” means the fees and
commissions provided for or referred to in Section 3.8. and
any other fees payable by the Borrower hereunder or under any other
Loan Document.
“ Fifth Amendment ” means
that certain Fifth Amendment to Credit Agreement and Certain
Ancillary Documents dated as of August 5, 2009, by and among
the Borrower, the Florida Borrower, the NY Morgans Borrower, the NY
Royalton Borrower, Holdings, the Lenders signatory thereto and the
Agent.
“ Fifth Amendment Effective Date
” means August 5, 2009.
“ Financial Officer ” means
the chief financial officer, principal accounting officer,
treasurer or controller of Holdings and for purposes of
Section 9.4.(e), shall include the chief executive officer of
Holdings.
“ FIRREA ” means the
Financial Institution Recovery, Reform and Enforcement Act of 1989,
as amended.
- 9 -
“ Fixed Charges ” means, for
any period, the sum of (a) total interest expense of Holdings,
the Borrower and its Subsidiaries, including capitalized interest
not funded under a construction loan interest reserve account, in
each case determined on a consolidated basis (but excluding the
Excluded Subsidiary and interest expense allocable to the minority
interest share of Indebtedness of any Subsidiary) in accordance
with GAAP for such period, (b) all regularly scheduled
principal payments made with respect to Indebtedness of Holdings,
the Borrower and its Subsidiaries (other than the Excluded
Subsidiary and such principal payments to the extent allocable to
the minority interest share of Indebtedness of any Subsidiary)
during such period, other than any balloon, bullet or similar
principal payment which repays such Indebtedness in full, and
(c) all Preferred Dividends paid during such period; provided
that Fixed Charges shall not include (1) any noncash
amortization of deferred financing costs or (2) noncash
interest and dividends. Fixed Charges for the four consecutive
fiscal quarter periods ended September 30, 2006 and
December 31, 2006 shall be determined on a pro forma basis
giving effect to the Formation and Structuring Transactions as if
they occurred on the first day of each such four consecutive fiscal
quarter period (including cost savings to the extent such cost
savings would be permitted to be reflected in pro forma financial
information complying with the requirements of GAAP and
Article XI of Regulation S-X under the Securities Act, as
interpreted by the Staff of the SEC, and as certified by a
Financial Officer).
“ Florida Borrower ” has the
meaning set forth in the introductory paragraph hereof and shall
include the Florida Borrower’s successors and permitted
assigns.
“ Florida Property ” means
the Delano Hotel located in Miami Beach, Florida.
“ Foreign Lender ” means any
Lender that is organized under the laws of a jurisdiction other
than that in which the Borrower is resident for tax purposes. For
purposes of this definition, the United States of America, each
State thereof and the District of Columbia shall be deemed to
constitute a single jurisdiction.
“ Foreign Subsidiary ” means
a Subsidiary that is not incorporated or organized under the laws
of any state of the United States or the District of
Columbia.
“ Formation and Structuring
Transactions ” means the formation and structuring
transactions described on Schedule 1.1.(A).
“ Full Payment ” has the
meaning given that term in Section 12.6.(e).
“ 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
activities.
“ GAAP ” means generally
accepted accounting principles set forth in the opinions and
pronouncements of the Accounting Principles Board of the American
Institute of Certified Public Accountants and statements and
pronouncements of the Financial Accounting Standards Board or in
such other statements by such other entity as may be approved by a
significant segment of the accounting profession, which are
applicable to the circumstances as of the date of
determination.
“ Governmental Approvals ”
means all authorizations, consents, approvals, licenses and
exemptions of, registrations and filings with, and reports to, all
Governmental Authorities.
- 10 -
“ Governmental Authority ”
means any national, state or local government (whether domestic or
foreign), any political subdivision thereof or any other
governmental, quasi-governmental, judicial, public or statutory
instrumentality, authority, body, agency, bureau, commission,
board, department or other entity (including, without limitation,
the Federal Deposit Insurance Corporation, the Comptroller of the
Currency or the Federal Reserve Board, any central bank or any
comparable authority) or any arbitrator with authority to bind a
party at law.
“ Ground Lease ” means a
ground lease containing the following terms and conditions:
(a) a remaining term (exclusive of any unexercised extension
options) of 40 years or more from the Agreement Date;
(b) the right of the lessee to mortgage and encumber its
interest in the leased property without the consent of the lessor;
(c) the obligation of the lessor to give the holder of any
mortgage Lien on such leased property written notice of any
defaults on the part of the lessee and agreement of such lessor
that such lease will not be terminated until such holder has had a
reasonable opportunity to cure or complete foreclosures, and fails
to do so; (d) reasonable transferability of the lessee’s
interest under such lease, including ability to sublease; and (e)
such other rights customarily required by mortgagees making a loan
secured by the interest of the holder of the leasehold estate
demised pursuant to a ground lease.
“ Guarantee ” of or by any
Person (the “ guarantor ”) means any obligation,
contingent or otherwise, of the guarantor guaranteeing or having
the economic effect of guaranteeing any Indebtedness or other
obligation of any other Person (the “ primary obligor
”) in any manner, whether directly or indirectly, and
including any obligat |
